Bondi Beach Astra Retirement Village Pty Ltd v Assem

Catchwords

[2014] NSWCA 174 Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174[2013] NSWCA 393 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1[2013] HCA 3 Australian Education Union v Dept of Education and Children's Services (2012) 248 CLR 1[2012] HCA 3 Bird v Perpetual Executors and Trustees Association of Australia Ltd (1946) 73 CLR 140[2011] NSWCA 396 Brown v Heffer (1967) 116 CLR 344[1967] HCA 40 Brown v West (1990) 169 CLR 195[1990] HCA 7 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1970) 124 CLR 73[1971] HCA 9 Caboche v Ramsay [1993] FCA 611(1993) 119 ALR 215 Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 1 NSWLR 439 Eastman v DPP (ACT) (2003) 214 CLR 318[2003] HCA 28 Farkas v R [2014] NSWCCA 141 Hall v Busst (1960) 104 CLR 206[1960] HCA 84 Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc (2004) 88 SASR 334[2004] SASC 128 Johns v Australian Securities Commission (1993) 178 CLR 408[1993] HCA 56 Meehan v Jones (1982) 149 CLR 571[1982] HCA 52 Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327

Judgment (25 paragraphs)

[1]

Introduction

MEAGHER JA: These proceedings concern the Bondi Beach Astra (the Astra), a strata title property overlooking Bondi Beach. All of its occupants are elderly. Most are retired. The first and second defendants, Yasser and Mohammed Assem, are the executors of the estate of their father, Isamil Assem, a former owner and occupant of unit 61 of the Astra (lot 61 in strata plan 22422). In their capacity as executors they are the registered proprietors of lot 61, which they now seek to sell. The third defendant (The Owners - Strata Plan 22422) has filed a submitting appearance and taken no part in the proceedings. For ease of reference, the first and second defendants are hereafter referred to as the defendants.
The plaintiff, Bondi Beach Astra Retirement Village Pty Ltd (BBARV), contends that the Astra, including lot 61, is a "retirement village" under the Retirement Villages Act 1999 (NSW) (RVA), and that BBARV is its "operator". Accordingly, the plaintiff contends, a sale by the defendants will be subject to s 171 of the RVA, subs (2) of which makes any contract for sale of residential premises in a retirement village "conditional" on the purchaser entering into a "service contract" with the plaintiff. The defendants dispute all of these propositions. The question whether the purchaser's performance of that 'imposed' condition of the contract for sale is precedent to the vendor's entitlement to performance of the contract, and can be waived, does not arise.
The plaintiff also relies on cl 13 of an agreement with the defendants' parents (the Agreement), dated 16 February 2005 and described as a "Post-2000 Occupancy Agreement", which it submits requires that the defendants include in any agreement for the transfer or sale of lot 61 a condition similar to that imposed by s 171(2). The defendants claim that cl 13 is void for uncertainty or, in the alternative, is an impermissible restraint on the free alienation of land.
Both the plaintiff and, by their amended cross-claim, the defendants, seek declarations consistent with their positions. The plaintiff also seeks orders that the defendants: (a) give it notice of any proposed sale, as required by s 171(1); (b) include the condition said to be required by cl 13 in any contract for sale; (c) be restrained from completing any sale of lot 61 until the purchaser has entered into a service contract with BBARV; and (d) notify the plaintiff as soon as practicable after any contract for sale is entered into.
A "retirement village" is a "complex" made up of residential premises "predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex" (RVA, s 5(1)). An "operator" is "the person who manages or controls the retirement village", and includes a person "who owns land in the village" or who is within the class of persons prescribed by the regulations for the purposes of the definition (RVA, s 4(1)). That is, the questions whether the Astra is a retirement village and whether BBARV is an operator of the village are technically interdependent. However, it remains possible to address the issues raised by the two definitions separately.
These reasons proceed as follows. First, they address whether the Astra's residential lots are or are intended to be predominantly or exclusively occupied by retired persons who have entered into "village contracts" with BBARV. Over the years the plaintiff has entered into a number of different classes of contracts with occupants of the Astra which it contends answer the definition of village contract. A number of classes remain disputed.
The second issue is whether BBARV is an operator. The plaintiff submits that as a factual matter it "manages or controls" the retirement village, and also that it is a person within the class of persons prescribed by the regulations. It is strictly not necessary to address either of these questions, because it is sufficient, for BBARV to satisfy that description, that it owns land in the retirement village. However, because the plaintiff's primary case is that it manages or controls a retirement village, and as that being the position has been fully contested, each of these questions is addressed below.
The final issues under the RVA relate to s 171. They are whether it applies to a prospective sale by the defendants and, if it does, whether the plaintiff has standing to enforce it. The case in contract, which is logically separate, is dealt with last.
Before considering the first of these questions, I propose to make findings, in relatively general terms, as to the history of the Astra as a purported retirement village and BBARV's control and management of that village, including by the entry into contracts for the provision of services to residents, from an office forming part of the strata scheme's common property.

[2]

Origins of the Astra and BBARV's occupation and operation of its business using part of the common property

Originally, the Astra was a licensed hotel. In 1985, it was subdivided by a strata plan (SP 22422) into 61 residential and 3 commercial lots. In August 1987, 10 of those residential lots were consolidated into 5 lots (SP 32039). The conditions of Waverley Municipal Council's approval of the alterations to convert the existing building to "residential accommodation for the housing of aged persons" included that the applicant, C G Maloney Pty Ltd (C G Maloney), agree to a restriction as to user providing that "no unit be used other than as a residence for persons aged 55 years or over or for people who are disabled persons". That condition was satisfied by the creation of a restriction as to user pursuant to s 88E of the Conveyancing Act 1919 (NSW). That restriction was expressed to be for the benefit of the local council.
As a consequence of the consolidation effected by SP 32039, there are 56 residential lots and 3 commercial lots. The numbers of the residential lots correspond with their "unit" numbers except in respect of lots 65, 66, 67, 68 and 69 which are, respectively, the consolidation of earlier lots 1 and 2, 11 and 12, 21 and 22, 31 and 32, and 41 and 42, and retained the unit numbers 2, 12, 22, 32 and 42 respectively. The commercial lots are lots 62, 63 and 64.
At the first annual general meeting (AGM) of the proprietors of SP 22422 on 12 December 1986, a series of by-laws, including by-law 32, were passed by unanimous resolution. By-law 32 provided: Exclusive use of those parts of the Common Property comprising the swimming pool area, passageways and corridors on all floors, the courtyard areas, and the residents' facilities and lounges on the ground floor will be granted to the Service Company [BBARV] subject to the Service Company properly maintaining and keeping in good repair those areas and that in accordance with the Occupancy Agreement the Service Company will sub-licence all proprietors and occupiers of the residential lots to permit them to use such areas.
By-law 30, also passed at that AGM, provided that the proprietor for the time being of lot 52 should have the exclusive use and enjoyment of 21 car spaces in the basement of the Astra.
Thereafter C G Maloney, as owner and developer of the proposed retirement village, went about selling the lots in SP 22422. At the same time BBARV, and not C G Maloney, agreed to give licences of car spaces to some of the registered proprietors of lots purchased from C G Maloney: see Bondi Beach Astra Retirement Village Pty Ltd v Gora [2010] NSWSC 81 (Gora (SC)) at [6]. It is not clear from the evidence whether thereafter C G Maloney granted licenses to those purchasers. BBARV was not a party to the contracts for sale, which also required that the purchasers enter into two deeds with BBARV on completion of the purchase. The first was an Occupancy Deed describing BBARV as the Service Company and reciting that "as far as legally possible" it had been granted "exclusive use and possession of the Communal Areas". By cl 1(a) of that Deed, BBARV agreed to employ a manager and staff: ... to manage and administer the Communal Areas and common property of the Astra to attend to the comfort and all reasonable and proper requests and demands of the occupants thereof and to ensure that the occupants enjoy such reasonable privacy and quiet possession and enjoyment of their unit and the Communal Areas as is consistent with the physical characteristics of a retirement village designed for the residence of persons of 55 years of age and over.

[3]

Whether the Astra is predominantly or exclusively occupied by retired persons who have entered into village contracts with BBARV

A "retirement village" is defined by s 5 as follows: 5 Meaning of "retirement village" (1) For the purposes of this Act, a retirement village is a complex containing residential premises that are - (a) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex, or (b) prescribed by the regulations for the purposes of this definition. (2) It does not matter that some residential premises in the complex may be occupied by employees of the operator or under residential tenancy agreements containing a term to the effect that this Act does not apply to the premises the subject of the agreement (instead of being occupied under residence contracts), or that those premises do not form part of the retirement village. (3) However, a retirement village does not include any of the following - ... (g) any accommodation provided in a complex for employees of the complex who are not residents of the retirement village, (h) any residential premises the subject of a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010 to which the operator of a retirement village is a party and that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, (i) any other place or part of a place excluded from this definition by the regulations.
The other definitions of relevance are set out in s 4: 4 Definitions (1) In this Act - ... resident of a retirement village means a retired person who has a residence right in respect of residential premises in the village and includes the following persons (each of whom is taken also to have a residence right in respect of the residential premises concerned) - (a) the spouse of the retired person, if the spouse occupies the residential premises with the retired person, (b) if the retired person is in a de facto relationship - the other party to that relationship, if the other party occupies the residential premises with the retired person, (c) any person or class of persons prescribed by the regulations for the purpose of this definition, (d) in Parts 6, 7 and 8 and Division 5 of Part 10 - a former occupant of the retirement village. ... retired person means a person who has reached the age of 55 years or has retired from full-time employment. ... village contract means - (a) a residence contract, or (b) a service contract, or (c) a contract under which a resident of a retirement village obtains the right to use a garage or parking space, or a storage room, in the village, or (d) any other contract of a kind prescribed by the regulations for the purpose of this definition. Note - A residence contract, a service contract and any other village contract may be contained in a single document.

[4]

The plaintiff's case as to the number of residential premises occupied by residents who are parties to village contracts

Although there are 56 residential lots in the Astra, it is accepted that one lot, belonging to a Mr Noon, does not form part of any retirement village and is to be disregarded. What follows records the position as disclosed in the evidence, which addresses the position as at late May 2020. Of the remaining 55 residential lots, 16 are owned by the plaintiff. Of those 16 lots, 11 are occupied and 5 remain vacant. The Astra residential complex has 51 occupants, of which 47 are said to be "residents". Of those residents, 44, occupying 41 lots, are said to be parties to "village contracts" with the plaintiff. All of those occupants are aged over 55 and most have also retired from full-time employment.
The defendants do not contest the number of "residents" or the number or form of the contracts those residents have entered into with the plaintiff. Those matters are either the subject of uncontested evidence or were admitted in response to notices to admit facts served by the plaintiff. Further, over the course of the hearing, the defendants conceded that a number of classes of contracts were either residence or service contracts. Only a small number of classes of contracts remain disputed. It is necessary next to deal with whether contracts in those classes are "village contracts".

[5]

Residence contracts

The plaintiff contends that it has "residence contracts" with 23 residents, occupying 20 lots. It is accepted that the contracts described as "Agreements for Sale of Land (1988 edition)", "Agreement for Sale of Land (1996 edition)", "Pre-2017 Registered Lease" (first and second forms) and "Post-2017 Registered Lease" are residence contracts. In relation to the agreements for sale of land, that concession reflects an acceptance that the reasoning in Noon v BBARV at [66] (Giles JA, Macfarlan JA agreeing) as to the meaning of "residence contract" under the 1989 Act is not applicable to the RVA, which makes express reference to contracts for sale: see Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665 at 746; [2011] NSWCA 396 (Gora) at [361]-[363] (Campbell JA).
The remaining issue between the parties is whether the "Post-2000 Occupancy Agreement" is a residence contract. The 16 February 2005 agreement between the plaintiff and Mr and Mrs Assem is representative of this class of contracts, though it is not itself relied upon. Nine residents occupying seven lots have materially identical agreements with the plaintiff. As I will explain, these agreements are not residence contracts.
A "residence contract" is a contract that gives rise to a "residence right", which is in turn defined to mean: residence right of a person means the person's right to occupy residential premises in a retirement village, being a right arising from a contract - (a) under which the person purchased the residential premises, or (b) under which the person purchased shares entitling the person to occupy the residential premises, or (c) in the form of a lease, licence, arrangement or agreement of any kind, other than a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010 - (i) that is entered into under Division 5 of Part 10, or (ii) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, or (d) in the form of any other contract of a kind prescribed by the regulations, or any other right of a kind prescribed by the regulations.
The plaintiff contends that the Post-2000 Occupancy Agreements are within para (c) as conferring a right to occupy the relevant lots, being a right arising from "a contract... in the form of [an] agreement of any kind other than a residential tenancy agreement". It is not suggested that the Retirement Villages Regulation 2017 (NSW) (RV Reg) otherwise addresses this definition. The "right to occupy the Unit and to use the communal areas and or the common property" is said to be conferred by cl 8 of the agreements.

[6]

Service contracts

Five classes of contract are said to answer this description. Three, which in any event are accepted to be residence contracts, are also conceded to be service contracts: the first and second forms of the "Pre-2017 Registered Lease" and the "Post-2017 Registered Lease". The two classes of contract that remain in dispute are the "Deed for Provision of Services" and the "Retirement Village Contract". Sixteen residents of fifteen lots are party to Deeds for Provision of Services, and five residents of four lots are party to Retirement Village Contracts. The Retirement Village Contracts are not all in precisely the same terms, but, as will be seen, the differences do not justify different conclusions as to whether they are "village contracts".
A service contract is a contract "under which" a resident "is provided with general services or optional services". Those latter expressions are defined: general services means services provided, or made available, by or on behalf of the operator, to all residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition. Note - Examples of general services are management and administration services and gardening and general maintenance. ... optional services means optional services made available, by or on behalf of the operator, to individual residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition. Note - Examples of optional services are the provision of meals, laundry services and the cleaning of the residents' residential premises.
RV Reg, r 7 prescribes "optional services" as follows: 7 Definition of "optional services" For the purposes of the definition of optional services in section 4 (1) of the Act, the following services are prescribed - (a) the provision of meals, (b) laundry services, (c) home cleaning, (d) domestic services (for example, hairdressing, shopping assistance or pharmaceutical services).
The explanatory notes below the definitions of general and optional services, to which regard may be had in construing them (Farkas v R [2014] NSWCCA 141 at [30] (Basten JA)), show that "services" takes its natural and ordinary meaning.
Although the defendants did lead evidence that, "at least until relatively recently", the services provided by the plaintiff have been minimal, it is not contested that the plaintiff has continued to provide some services to the residents of the Astra. What is disputed is whether any services, "whatever their extent or longevity", are provided "under" any agreements between residents and the plaintiff.

[7]

Schedule 2 contains a description of the services to be provided by BBARV as operator. 21 services are described. A number of them refer to the subject matter of the service as the Communal Areas. Examples are paras 1, 5 and 11: 1 Manage and administer the Communal Areas and attend to reasonable and proper requests and demands of the Occupants with a view to ensuring that Occupants enjoy quiet possession and enjoyment of their Unit and the Communal Areas as is consistent with the physical characteristics of a Retirement Village designed for the residence of persons of fifty-five (55) years of age or over. ... 5 Regularly inspect the Communal Areas [including equipment, plant and machinery forming part of the Communal Areas (if any)] and report to the Resident's Committee in respect of the condition of the Communal Areas. ... 11 Arrange for the supply and erection of such signs and notices on Communal Areas as may be necessary for the proper and efficient control, management, use and enjoyment of Communal Areas.
Examples of other services that do not use this description are provided in paras 18, 19 and 20: 18 Provide an On-Site manager. 19 Maintain and manage a Village Emergency Call System. 20 Organise and provide a secure retirement village in accordance with the obligations placed upon the Operator by Section 58 of the Act.
The defendants contend that to the extent the plaintiff provides services to residents of the Astra who are parties to a deed in these terms, the services are not provided "under" that deed. It is not controversial that the description of services as provided "under" an agreement directs attention to the source of the obligation to provide those services and whether the relevant agreement governs or controls the existence of that obligation: see the discussion in Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82 at [137]-[140] (Meagher JA, Gleeson JA agreeing). In support of the defendants' contention it is first said, as has already been noted, that many of the "services" which are the subject of the promise in cl 8.1 cannot be ascertained because of uncertainty as to the content of the references to Communal Areas. Secondly, it is said that there are no "charges" currently collected within the Schedule 1 description for item 9, and alternatively, that no recurrent charges of the kind referred to could have been collected in the face of the prohibition in reg 26(i)(i). It follows that BBARV has no obligation to provide the services described in Schedule 2.

[8]

Car parking contracts

Ten residents of seven lots are parties to contracts described as "Car Parking Licences", under which the plaintiff purports to grant them the right to use a parking space in the Astra car park. The defendants submit that those contracts are ineffective to grant rights to any residents because the by-law granting the plaintiff the exclusive right to use the relevant parking spaces (purportedly granted in turn to those residents) is invalid.
The relevant by-law, by-law 30, provides as follows: That the Proprietor for the time being of lot 52 in the Strata Plan shall have exclusive use and enjoyment of the car spaces marked 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 18, 19, 20, 23, 24, 25, 26, 27 and 28 inclusive in the basement of the building known as "the Bondi Astra". The grant of exclusive use of such car spaces herein contained is subject to that residential Section of the Strata Scheme to use such car spaces upon the terms and conditions set out in the Agreement between the Body Corporate and that proprietor in force from time to time.
BBARV became the proprietor of lot 52 on 25 May 2009, before the relevant agreements were made. (The plaintiff ultimately disclaimed reliance on other car parking contracts, made before it became proprietor of lot 52, to which it was a party but under which the licensor was a different entity.) If by-law 30 is valid, the car parking contracts are contracts under which residents obtain a "right to use" a parking space, and accordingly village contracts. For the reasons which follow, it is, and they are.
The defendants rely on Noon v The Owners, in which Darke J held invalid by-laws 32 (set out in [12] above) and 34. His Honour held that by-law 32 was not authorised by s 58(2) of the Strata Titles Act 1973 (NSW) (the 1973 Act), under which the by-law was purportedly made, because s 58(2) did not confer power to grant exclusive use and enjoyment of any part of the common property to a person who was not a lot owner in the strata scheme. Further, by-law 32 could not have been supported by s 58(7), which expressly permitted the conferral of exclusive use of all or part of the common property on the registered proprietor of a lot, because "the Service Company" was not such a person at the time the by-law was made: Noon v The Owners at [40].
The defendants suggest that Darke J held that s 58(7) was also unavailable for the further reason that the by-law was expressed to be made pursuant to s 58(2), emphasising [55] of his Honour's reasons: By-law 32, in its terms, confers exclusive use of part of the common property upon the Service Company (assumed to be Astra), albeit subject to conditions, one of which envisages the Service Company granting sub-licenses to the owners of the residential lots. The by-law was not made pursuant to s 58(7), and was not authorised by s 58(2). Accordingly, by-law 32 was not validly made. (emphasis added)

[9]

Predominantly or exclusively occupied (or intended to be so occupied)

The definition of "retirement village" is set out in [27] above. The term "residential premises" is defined as: residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence.
A retirement village is a "complex containing residential premises". The term "complex" is not defined, but s 5(2) makes clear that the "complex" is not limited to the particular residential premises occupied, or intended to be occupied, by retired persons who have entered into village contracts with an operator. It follows that, provided the complex satisfies s 5(1), the residential premises within it are part of that retirement village unless excluded by s 5(3).
Section 5(1) is less straightforward than it seems. The use of "are", rather than "is", shows that it is the premises contained in the complex, and not the complex itself, that must satisfy subs (1)(a). That paragraph is directed to the actual or intended occupation of the set of residential premises making up the complex at the time the "retirement village" question is being determined. At that time, depending on the extent to which those premises are actually occupied, it may be possible by reference to the identity or identities of the occupants to be satisfied that, considered as a whole, the premises are "predominantly or exclusively" occupied by the relevant class of residents. In the case of "predominantly" occupied, that conclusion depends on a comparison of the number of residences occupied by that class of persons with the total number of residences and an evaluation that the former is the most dominant or prevailing class or group of occupants. As to the meaning of "predominant" in this context see The Salvation Army (New South Wales) Property Trust v Chief Commissioner of State Revenue (2018) 96 NSWLR 119; [2018] NSWSC 128 at [89], [148] (Ward CJ in Eq); and Nairn v Metro-Central Joint Development Assessment Panel (2018) 53 WAR 20; [2018] WASCA 18 at [90] (Buss P, Murphy and Beech JJA).
Where the number of residences occupied by the relevant class of persons is not sufficient to justify a conclusion that, looked at as a whole at the relevant time, the residences are "predominantly" occupied by such persons, the set of premises may nevertheless satisfy the alternative test, namely that they are "intended to be predominantly or exclusively occupied" by such persons. That description may be satisfied notwithstanding that some of the premises are occupied. The actual occupation of those premises will, at least ordinarily, reflect their intended use. In other words, the alternative means of satisfying the definition of "retirement village" is available not only where none of the relevant premises are occupied but also where the progress to full occupation has commenced but not concluded. On this alternative test, the relevant intention is that which, viewed objectively, is likely to prevail by reason of ownership or other means of affecting the use to which the relevant premises may be put. Those means include the operation or application of statutory and contractual provisions. It follows that that intention may not coincide with the subjective intentions of persons who own the premises, if those persons are not in a position to control their use.

[10]

Residential premises in Astra predominantly occupied by relevant class of persons

To summarise the position with respect to the disputed classes of contract: the Post-2000 Occupancy Agreements are not residence contracts, the Deeds for Provision of Services and the Retirement Village Contracts are service contracts, and the Car Parking Licences come within para (c) of the definition of village contract. The plaintiff has largely, but not entirely, succeeded in its contentions on this question.
As some residents are party to contracts in more than one class, the fact that the Post-2000 Occupancy Agreements are not residence contracts does not mean that all of the residents who have entered into such agreements are not parties to village contracts. Taking account of any overlap, the overall position as at late May 2020 is as follows. Of the 51 occupants of the Astra, 36 are residents who have entered into village contracts with BBARV. Those 36 residents occupy 33 of the 44 occupied residential lots (11 lots are vacant).
The 11 remaining occupied lots are made up of: 6 lots occupied by residents who have entered into Post-2000 Occupancy Agreements; 2 lots occupied by the sibling or partner of a deceased resident; 2 lots leased or sub-leased under a residential tenancy agreement that is not with an operator (cf s 5(3)); and 1 lot occupied by a resident who has an agreement with the plaintiff which is not relied on as a village contract. Of the 11 vacant lots, 5 are owned and offered for lease by the plaintiff.
This analysis shows that 33 of the 55 residential lots (representing 60% of the residential premises) are occupied by the relevant class of persons. That fact is sufficient to justify a conclusion that the premises are "predominantly" occupied by such persons. Furthermore, when regard is also had to the 5 vacant lots offered for lease by the plaintiff, and attention directed to the current "intended" position, it may readily be concluded that looked at overall the premises are intended to be "predominantly" occupied by such persons.

[11]

BBARV is an operator

In s 4(1), "operator" is defined as follows: operator of a retirement village means the person who manages or controls the retirement village, and includes - (a) a person (other than a resident or other person referred to in subsection (2)) who owns land in the village, and (b) any other person or class of persons prescribed by the regulations for the purposes of this definition, but does not include - (c) the relevant association of a community land scheme or the owners corporation of a strata scheme, or (d) the managing agent of such a scheme, or (e) any person or class of persons excluded from this definition by the regulations.
RV Reg, r 6 provides that: 6 Definition of "operator" For the purposes of paragraph (b) of the definition of operator in section 4 (1) of the Act, a person who is engaged under an agreement with - (a) the relevant community association, neighbourhood association or precinct association of a retirement village that is subject to a community land scheme, or (b) the owners corporation of a retirement village that is subject to a strata scheme, or (c) the company that is the owner of a retirement village that is subject to a company title scheme, and who enters into individual village contracts with the residents of the village (or arranges for another person to enter into those contracts) is prescribed.
There is a factual dispute as to whether the plaintiff "manages or controls" the retirement village. In relation to para (b) of the definition, there is also a dispute as to whether the plaintiff is "engaged under an agreement" with the owners corporation. What is not in dispute is that the plaintiff owns 16 strata title lots in the Astra, which, for the reasons that follow, is sufficient to make the plaintiff an "operator".

[12]

Not necessary for an operator to manage or control the retirement village

The plaintiff submits that definitions of the form "means X, and includes Y and Z" are typically to be construed as deeming provisions, so that Y and Z will come within the definition whether or not they are X. Whether that is correct as a general proposition can be put to one side. In the present case, the result would be that a person may be an operator merely because they own land in a retirement village and are not a resident or a person referred to in s 4(2), whether or not they manage or control the village. A similar result would follow for para (b), although the description of an operator as managing or controlling might inform the scope of the regulation-making power.
The definition of operator uses the definite article, as do the vast majority of the provisions in the RVA which refer to an operator, but the RVA expressly contemplates that there may be more than one operator: s 4(5). That is consistent with, but provides little independent support for, the view that a person who falls within para (a) or (b) need not manage or control the retirement village to be an operator. There are, however, several provisions of the RVA which put the matter beyond argument.
First, s 40(1) enables village contracts with former operators to be enforced against any person presently an operator. Section 40(2) provides: (2) However, proceedings do not lie against the owner of land in a retirement village (not being a person involved in the management or control of the village) for the enforcement of rights under subsection (1) unless - (a) the owner is a party to the contract, or (b) the owner is a close associate of an operator involved in the management or control of the village, and an operator other than the owner has failed to satisfy a judgment given for the enforcement of those rights.
That is, a person who owns land in a retirement village, but is not involved in the management or control of the village, may be an "operator for the time being of the village" within s 40(1). As the explanatory note to the Retirement Villages Bill 1999 explains: Clause 40 provides that a contract between the operator of a retirement village and a resident of the village is enforceable against any operator for the time being of the village, except an operator who is merely a landowner in the village.

[13]

Whether BBARV is an operator because it is a person owning "land"

Para (a) raises the question whether BBARV owns "land in the village" because it is the registered proprietor of strata title lots that are "residential premises" making up the village. That question arises because the definition of "residential premises" appears to draw a distinction between land and "premises", which may be on or include land. Further, ss 6 and 7 refer to the "registered proprietor of land" and "the owner of a lot in a strata scheme", as possibly distinct. Despite those considerations, however, the better view is that a strata title lot comprising residential premises is "land" under the RVA.
First, although the RVA distinguishes between "residential premises" and "land", it does not make the latter exclusive of the former. The exclusion of "a resident" in para (a) of the definition of "operator" acknowledges that a resident may be a person who "owns land in the village". Further, a resident landowner will only hold a "residence right" if land can be described as "residential premises". The distinction drawn between land and residential premises simply acknowledges that, depending on how the property holdings of a retirement village are structured, there may not be a precise correspondence between individual residential premises and particular plots of land. That will be so where, for instance, residents acquire only a licence to occupy part of the village. See RVA, s 4, definition of "residence right"; P Butt, Land Law (Lawbook Co, 2006, 5th ed) 854.
Secondly, it is consistent with the broader statutory context, and with s 21(1) of the Interpretation Act 1987 (NSW), for a strata title lot to be treated as "land". The provisions of the RVA do not disclose any narrower intention.
At common law it has been possible since at least the time of Coke to subdivide land horizontally, so that (for instance) the upper storey of a building can be conveyed separately from the rest of the building and the soil on which it stands: Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1970) 124 CLR 73 at 91 (Windeyer J, Barwick CJ agreeing); [1971] HCA 9. Whether an interest above the surface of the earth, separate from the soil, answers the description of "land" depends on the context in which that word is used: see Re Lehrer and the Real Property Act 1900-1956 (1960) 61 SR (NSW) 365 at 369-371 (Jacobs J).

[14]

Whether BBARV manages or controls the retirement village, or is a person within para (b) of the definition of operator

Management or control of the retirement village: it is convenient to deal first with the question whether BBARV manages or controls the "retirement village" known as the Bondi Beach Astra Retirement Village. As the plaintiff points out, the RVA does not in terms define what it is to "manage or control" a retirement village. However, there are in that Act provisions which indicate what is involved in the management or control of such a complex of residential premises.
It is also correct, as the defendants observe, that with respect to a retirement village which is the subject of a strata scheme the subject matter of an operator's management or control must take account of the functions and obligations of the Owners Corporation under SSMA 2015. Under that Act, the Owners Corporation has the "principal" responsibility for the management of the strata scheme and, "for the benefit of the owners of lots" in that scheme, the "management and control of the use of the common property" as well as the responsibility for "maintaining and repairing" that common property (s 9). The Owners Corporation also has the duty to maintain and repair common property and personal property vested in it (s 106(1)).
The RVA anticipates that the functions of an Owners Corporation, presumably with respect to the use of common property in a strata scheme retirement village, may overlap with the activities of the operator of that village: the definition of "operator" is expressed not to include the Owners Corporation of a strata scheme or the managing agent of such a scheme.
It should first be observed, as has already been noted, that the RVA contemplates there may be more than one operator and that one or more of them may exercise the functions of an operator under the Act (s 4(5)). What follows concerns the functions that an operator may exercise under the RVA or RV Reg.
The nature and scope of some of those functions, and their subject matter, is indicated by the objects of the RVA, which include facilitating the disclosure of information to prospective village residents, requiring contracts between residents and operators to contain full details of the rights and obligations of the parties, and facilitating resident input, where desired, into the management of retirement villages (s 3).

[15]

Conclusion as to operator

BBARV is an operator of a retirement village within s 4(1) as the person who manages or controls the retirement village, and because it separately satisfies paras (a) and (b) of that definition.

[16]

The application of s 171 to a prospective sale by the Assems

In full, s 171 provides: 171 Purchaser and operator to enter contract (1) If a vendor for the sale of residential premises in a retirement village is not the operator of the village, the vendor must give the operator of the village sufficient notice of the proposed sale to enable the operator to provide the purchaser with a disclosure statement (and the information required under section 19) at least 14 days before the contract is entered into. (2) Such a contract is taken to include a provision to the effect that the contract is conditional on the purchaser's entering into a service contract with the operator of the village on or before completion of the purchase. (3) As soon as practicable after the contract for the sale of the premises is entered into, the vendor must notify the operator in writing of that fact. (4) If the operator decides not to enter into a service contract with the purchaser, the operator must, not later than 14 days after being notified under subsection (3) - (a) advise the vendor of that decision and of the reasons for it, and (b) apply to the Tribunal for an order declaring that the operator is not obliged to enter into the service contract.
The provision forms part of Part 10, Div 5 of the RVA. That division is concerned with "Sale or letting of premises by certain residents" and, by s 166, "applies only to a resident of a retirement village who is a registered interest holder in respect of his or her residential premises". When the issue was raised during closing submissions, senior counsel for the plaintiff accepted that s 171 would only apply to a sale by the defendants if they were "residents" of the retirement village (there being no doubt that they were registered interest holders within s 7). Subsequently, the plaintiff requested leave to file a note contending that s 171 applied whether or not the defendants were residents. That leave was granted. It is necessary to deal with that issue first.

[17]

A "vendor" need not be a "resident"

There is a conflict between the apparently clear words of s 166 and those of s 171, which in terms applies to "a vendor for the sale of residential premises in a retirement village". The submission of the plaintiff is that s 166 does not limit the persons to whom the division applies but rather restricts the meaning of "resident" where it appears in that division. That may be one reason for the use of the indefinite article rather than the plural. Accordingly, when used in the division, "resident" does not refer to residents who are not registered interest holders, because they only have a licence, reside with a spouse or partner who has a residence right, or are deemed by the operation of s 4(2) to have a residence right. In relation to such residents, the application of provisions such as 168(1) - which provides that a resident may set the sale price of his or her premises - would involve obvious difficulties.
Plainly, s 166 does not limit the application of Part 10, Div 5 to residents who are registered interest holders in the sense that its provisions have no force in respect of other persons. Those provisions also apply to operators, and to the tenants or subtenants of residents who enter into leases or subleases in accordance with the division (ss 176 and 178). Thus, the real question is whether, in light of s 166 and the other provisions of the division, "a vendor for the sale of residential premises" is to be understood as shorthand for "a resident proposing to sell his or her residential premises". On that view, s 166 identifies the persons whose selling or leasing is regulated by Part 10, Div 5.
It is helpful to begin by reviewing the other provisions in the division.
Section 167 sets a time limit for the exercise by an operator of any option to purchase premises which have been permanently vacated or, if never occupied, are to be sold by a resident. The remainder of the division deals, in a roughly parallel fashion, with the sale and lease of residential premises.
Section 168 permits a resident to appoint a selling agent, who need not be the operator, and sets out certain obligations of a selling agent who is or is chosen by the operator. If an operator is not appointed selling agent, s 169(1), which makes no reference to a sale by a resident but can only be understood by reference to s 168, prohibits them from interfering with the sale of the premises. Section 170 provides that a resident who sells his or her premises is to share the costs of sale with the operator in the same proportion as they are to share the capital gains on sale (s 170).

[18]

Section 171 will apply to a sale by the defendants

The defendants are not, and are not contended to be, within the primary definition of resident. That is because even if they are retired persons for the purposes of the RVA, which they will be if they are over 55 years of age, they do not have a residence right. Although they have a right to occupy the premises by reason of their proprietorship, that right does not arise from the contract under which they purchased the premises: there is no such contract. Nor are the defendants within paras (a)-(c) of the definition. There is a question whether they come within para (d), an extension of the definition which applies only in respect of Parts 6, 7 and 8 and Div 5 of Part 10, as "former occupants" of the village.
The defendants are, however, persons who own land in the village. They are neither residents (subject to para (d) of the definition, considered below) nor persons referred to in s 4(2). It would seem to follow that they are operators. (The plaintiff contended, correctly, that it was sufficient that it owned land in the village. Why this was not also true of the defendants was not explained.)
Section 171 does not apply to "the operator" of the retirement village. Section 171(1) requires a vendor who is not the operator to give the operator notice of the proposed sale, so that the operator can provide a disclosure statement at least 14 days before "the contract" is entered into. Section 171(2) is directed only to "such a contract", being a contract with a vendor who is not an operator. That position is confirmed by ss 172 and 173, which enable NCAT to order "the operator" to enter a service contract, satisfying the condition imposed by s 171(2).
The definition of "operator" admits of the possibility, as is the case here, that a person who does not exercise any of the functions of an operator, and accordingly does not in any respect manage or control the retirement village, may nevertheless be an operator. That possibility is also recognised by s 4(5). However, if the references to "the operator" in s 171 are construed as extending to a 'landowner only' operator, s 171(2) will not apply and performance of the contract will not be conditional on the purchaser entering into a service contract with the (or a) managing or controlling operator. On completion of such a contract the purchaser would acquire a "residence right" and, provided he or she was over 55 or retired, also be a "resident". On the landowner only operator ceasing to be an operator - which would occur on completion, if the premises the subject of the sale are the only land in the village that operator owns - that residence right would be enforceable against the managing or controlling operator or operators. Those operators could not rely on s 24(1) as prohibiting them from permitting the purchaser to occupy the residential premises, because the purchaser would have entered into a residence contract with someone who was an operator at that time.

[19]

The plaintiff has standing to enforce s 171

The plaintiff, who seeks orders framed as mandatory injunctions requiring the defendants to comply with RVA, s 171, contends that it has standing to enforce the requirements of that provision against the defendants in respect of any prospective sale. It is said that the plaintiff either has, as a necessary implication from s 171 and the other relevant provisions of the RVA, a private right to enforce by injunction the requirements of the Act or, alternatively, a sufficient special interest in the enforcement of the obligation for "a court of equity [to] lend its aid to the enforcement of the statute": King v Goussetis (1986) 5 NSWLR 89 at 93 (McHugh JA). These arguments do not appear to be contested by the defendants, who made no written or oral submission to the contrary.
The question whether a statute confers a private right to sue on a particular person or class of persons is not a straightforward one, depending as it does on "what inference really arises, on a balance of considerations, [including], generally, the whole range of circumstances relevant upon a question of statutory interpretation": Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 (Kitto J); [1967] HCA 31; see also Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 66-68 (Brennan J); [1981] HCA 50. Here it is not necessary to decide the point. The plaintiff seeks only declaratory and injunctive relief and, as will be seen, I do not propose to grant the latter at this stage. It suffices to observe that the plaintiff, as an operator of the retirement village, is subject to various civil penalty provisions, compliance with which will only be realistically possible in the event that the defendants comply with the requirements of s 171 (see eg ss 19(2), 24(1), 27). It must follow that the plaintiff has a sufficient special interest for it to have standing to seek the relevant relief.

[20]

The construction of cl 13(d)

The parties to the Agreement are identified as "the Service Company", BBARV, and Mr and Mrs Assem, described as both "Occupant" and "Proprietor". Below those definitions it is noted that expressions are to have the meaning given in the schedule to the Agreement "unless the context otherwise requires". The schedule relevantly provides: "The Occupant" - means and includes Isamil Asem and Madiha both of 61/34 Campbell Parade jointly and severally and his/her or their executors, administrators and successors in title and permitted assigns "The Proprietor" - means and includes 61/34 Campbell Parade jointly and severally and his/her or their executors, administrators and successors in title being the registered Proprietor who is registered or entitled to be registered as the Proprietor of the Unit or any Mortgagee who has granted a Mortgage to the Proprietor.
Clause 13 of the Agreement, entitled "Transfer or Succession in Title", provides: 13. The Occupant and the Proprietor covenant and agree that:- (a) To ensure that the Service Company has sufficient control over the Occupants and the Proprietors and the village, that the Service Company may place a caveat on the title to the unit, (b) the Occupant and Proprietor Shall not require nor demand the Service Company to provide a withdrawal of that caveat unless the Occupant and the Proprietor have given not less than twenty-one (21) days' notice to the Service Company of their intention to sell, lease or dispose of the Unit and at least fourteen (14) days prior to the completion of any sale or transfer of title or commencement of any lease or licence or as the case shall be, the purchaser or successor in title or lessee or licensee has entered into an Agreement in the form required by the Service Company; and (c) The Occupant and the Proprietor further covenant and agree that the Service Company may rely on this clause in applying to the Supreme Court of NSW for an Order continuing the operation of any caveat placed upon the title unless the provisions of this clause have been complied with; (d) the Occupant and the Proprietor hereby covenant and agree that in respect of any sale of the unit or transfer of title that all Agreements for sale or transfer either written or oral shall require a clause to be included that the sale or transfer is conditional upon the purchaser or transferee or successor in title entering into an Agreement with the Service Company in the form required by the Service Company.

[21]

Clause 13(d) is not void for uncertainty

The plaintiff submits that there is nothing uncertain about how the defendants are to comply with cl 13(d): they will insert, into any contract for sale or transfer, a provision to the effect that "this contract is conditional upon the purchaser entering into an agreement with BBARV in whatever form BBARV requires." Would inserting such a condition into a future contract for sale make that contract uncertain? The plaintiff's position is that the question is irrelevant to whether cl 13(d) is void for uncertainty.
That is correct, so far as it goes, but it remains necessary to consider the question. If the insertion of the condition that cl 13(d) apparently requires would render uncertain or void the contract for sale, the potential validity of which cl 13(d) presumes, the requirement for the inclusion of such a provision would make no sense. It would at least arguably be inappropriate to declare that the defendants are required to insert that condition into any future contract for sale, much less order that they do so, if doing so would make that contract void.
Clause 13(d) is to be understood by reference to the RVA, to which the Agreement expressed itself to be subject (cl 1): The sale of the Unit and this Agreement are subject to the Retirement Villages Act 1999 and the Retirement Villages Regulation 2000, which impose obligations upon the Occupant and the Proprietor and the Service Company.
RVA, s 171(2) provides (and provided when the Agreement was executed) that a contract for sale is deemed to contain a term making "the contract" conditional on entry by the purchaser into a "service contract" on or before completion of the sale. It is immediately apparent that cl 13(d) differs from s 171(2) at least in not requiring that the contract to be entered into be a service contract under the RVA.
Clause 13(b) suggests that cl 13(d) should, like s 171(2), be understood as requiring that any contract for sale be made conditional on entry by the purchaser into a contract with BBARV before completion of the sale. Accordingly, cl 13(d) is better understood as requiring the insertion of a condition precedent to performance rather than to contract. Notwithstanding that senior counsel for the plaintiff opted for the latter when the question was raised in argument, this view is consistent with both the language of cl 13 and the proposition that conditions are typically to be understood as subsequent rather than precedent to contract. The distinction, typically somewhat academic, may be relevant to this case for two reasons. First, a condition precedent to contract cannot be waived, because there is no contract until it is satisfied, whereas a condition precedent to performance may in some cases be waived by the party for whose benefit it was inserted: see J D Heydon, Heydon on Contract (2019, Lawbook Co) at [3.510]ff. Secondly, where a condition is a condition precedent to the formation of the contract, there can be no obligation on either of the parties, sourced in the contract, to bring about its satisfaction: see Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 541-542 (Mason J); [1982] HCA 29.

[22]

Clause 13(d) is not void as an impermissible restraint on the alienation of land

The common law's antipathy to restraints on the alienation of property has a long pedigree. In relation to conditional grants, the initial justification for the doctrine was repugnance to the grant, "a principle of the early law that feoffors could not create interests in property unknown to the law and could not, therefore, remove from an interest known to the law one of its 'essential' attributes": Reuthlinger v MacDonald [1976] 1 NSWLR 88 at 96 (Needham J). The doctrine has also been "attributed to an indirect effect of Quia Emptores" or to "public policy", the explanation generally preferred by modern authorities: Hall v Busst (1960) 104 CLR 206 at 217 (Dixon CJ); [1960] HCA 84. It is now said to apply "to all species of property", not merely interests in fee simple: Caboche v Ramsay [1993] FCA 611; (1993) 119 ALR 215 at 226 (Gummow J, Ryan J agreeing).
Only in 1960 was it decided that the prohibition also applies to restraints based in contract, and separate from the transfer of the property restrained: Hall v Busst at 218 (Dixon CJ) and 235-236 (Menzies J). That conclusion, although technically the dicta of a minority of the High Court, is now well established: Reuthlinger at 100; Gora at 713-714; [217], [218] (Campbell JA, Giles and Whealy JJA agreeing). In its application to contractual restraints, the justification for the doctrine can only be the desirability, as a matter of public policy, of the free alienability of land (or other property): see Gora at 669 [3] (Giles JA).
There is disagreement about the degree of contractual restraint necessary for invalidity. In Reuthlinger, Needham J declined to invalidate a restraint that was "limited to the joint lives of the parties", observing (at 101): It seems to me that the question which Dixon C.J. answered in the affirmative was: "whether a bond or covenant or contract purporting to impose a total contractual restraint upon alienation is void." Fullagar J. and Menzies J. each specifically agreed with his conclusion and his reasons. It is that principle which, in my view, should be applied to the present case. Each of the majority construed the agreement as imposing a restriction on alienation for ever without the consent of the other party. I do not think Hall v. Busst can be used to invalidate any less contractual restriction. His Honour's conclusion was approved on appeal in Reuthlinger v MacDonald (NSWCA, Street CJ, Glass and Samuels JJA, 20 October 1976, unreported).

[23]

Valid collateral purpose

As Besanko J observed in Nitschke, "there are many restrictions on the full alienability of private property which are upheld by the courts", and "there is an important countervailing public policy consideration... that parties who freely negotiate an agreement should be bound by the terms of the agreement" (at [121]). The common law doctrine is kept within appropriate bounds by the "valid collateral purpose" exception, which derives from C Sweet, 'Restraints on Alienation I' (1917) 33 LQR 236 and was accepted by the Court of Appeal in Reuthlinger and in Gora.
The explanations of the nature of the exception given by Campbell JA (Whealy JA agreeing) and Giles JA in Gora differ slightly in some respects. Campbell JA expressed the view that a restraint imposed for a valid collateral purpose is permissible simpliciter, whereas Giles JA suggested at [4] that a court should assess whether the "public interest is better served by permitting the restraint" having regard not only to the position between the parties but also to "the social utility of permitting restraints of that nature". The difference is not ultimately material because, in Campbell JA's view, where a restraint serves both legitimate and illegitimate purposes, and the part which serves the latter cannot be severed, the court is to make an assessment of whether the restraint is on balance contrary to public policy (at [328]).
The Agreement states (see cl 1 at [177] above) that the property is part of a retirement village subject to the RVA. There is no question that there is a legitimate public interest in ensuring the provision of housing for the aged through the operation of a retirement village: see Gora. Nor, more specifically, can it be doubted whether that purpose is furthered by restrictions on the persons able to purchase or lease residential property in a retirement village. The ability of an operator to manage and control a retirement village, and to maintain its character for the benefit of residents, may depend on its control over the persons who come to own property or reside in the village, and on the obligations those persons assume, for the benefit of the operator and other residents, when they do so. RVA, Part 10, Div 5 exists for that reason.
It is convenient to begin by comparing cl 13(d) to the restraints in issue in Gora, which were also "not absolutely total, but very close to total": [321] ... The occupancy agreement bound not only Mr and Mrs Evans, but also their successors in title. Clause 2(g) of the occupancy agreement contains a prohibition on disposing of any estate or interest whatever in the unit without the consent of BBA. As a matter of construction, BBA can withhold its consent, even unreasonably, except in relation to a proposed mortgage on terms that protect all its rights under the occupancy agreement. [322] The practical effect of obtaining a mortgage on those terms would be that the amount that could be raised on mortgage would be, at best, a percentage of the price that would be receivable by the mortgagee on exercise of the option. There is a further exception, permitting leasing, sub-leasing or parting with or sharing possession of the unit within the very narrow limits established by the proviso to cl 2(f). The prohibition on disposing of any estate or interest without consent is not absolutely total, but very close to total. [323] The circumstances in which the option is exercisable, set out in cl 7 of the occupancy agreement, effectively prevent disposal of any interest in the unit without the option becoming exercisable. Furthermore, even if (as has happened) the option was not effectively exercised on the death of Mr Evans, the restraints still bind his executors and other successors in title. ... The price at which the option is exercisable (broadly, $107,000, minus BBA's legal fees, and the cost of refurbishment of the unit) was always bound to be less than the market value of the unrestrained fee simple, particularly when Mr and Mrs Evans purchased for less than the value of the unrestrained fee simple. The expert evidence concerning value of the unit in 2008 bears that out. [324] While the buyback deed does not include an express clause prohibiting transfer, there would be an implied term that no transfer would occur that would have the effect of frustrating the option granted in the buyback deed. The relevant provisions of the option in the buyback deed are the same as those of the occupancy agreement. The buyback deed has a provision not contained in the occupancy agreement, permitting the proprietor to dispose of the unit to a qualified occupant who is prepared to undertake the same restrictions on transfer as applied to Mr and Mrs Evans. Permitting a transfer to occur on terms that no sensible purchaser would agree to, or would agree to only at a severely discounted price, is in substance the same as prohibiting transfer. (emphasis added)

[24]

Conclusion and orders

By way of summary, all but one of the classes of contract which the plaintiff contended were village contracts come within one or more of paras (a) to (c) of the definition of village contract. It follows that the residential premises making up the Astra are predominantly occupied, or intended to be occupied, by retired persons who have entered into village contracts with BBARV.
The Astra is a retirement village and the plaintiff is an operator of that village as a person who owns land within the retirement village and is neither a resident nor a person described in s 4(2). Further, the plaintiff satisfies the primary definition of operator as a person who "manages or controls" the retirement village, and comes within para (b) of the definition by reason of its engagement by the Owners Corporation to provide concierge services to residents of the Astra, as is reflected in the continuing annual payment of a "concierge fee".
RVA, s 171 applies to the sale of residential premises by any "vendor" (who need not be a "resident") who is not an operator involved in the management or control of the village. Accordingly, it will apply to a sale by the defendants. The plaintiff is entitled to enforce the requirements of s 171 in respect of a prospective sale.
Finally, cl 13(d) of the Agreement between the plaintiff and the defendants' parents will also apply to such a sale. The clause is not void for uncertainty and, even if it would otherwise be void as an impermissible restraint on the free alienation of land, is not void on that basis because the clause serves a valid collateral purpose.
The plaintiff is entitled to declarations consistent with those conclusions. The plaintiff does not expressly seek a declaration that it is an operator of the Astra, but, as has been explained, the plaintiff being an operator is a necessary step in reasoning to the conclusion that the Astra is a retirement village. It is appropriate to make a declaration to that effect so as to resolve conclusively any controversy about the operation of the Astra. Those declarations should be made as at the date of this judgment. Notwithstanding that the evidence before the Court spoke as to the position at the end of May 2020, my conclusions do not turn on circumstances or facts which could have changed materially between then and now.

[25]

Amendments 16 December 2020 - [130] - Removed superfluous "or engaging" 16 December 2020 - [130] - Inserted "and" in the place of a comma in the second sentence 09 March 2021 - Corrected typographical error in "Judgment" (prior to [1]). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2021

ydney Valve & Fittings Pty Ltd (1988) 1 NSWLR 439 Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28 Farkas v R [2014] NSWCCA 141 Hall v Busst (1960) 104 CLR 206; [1960] HCA 84 Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82 John Nitschke Nominees Pty Ltd v Hahndorf Golf Club Inc (2004) 88 SASR 334; [2004] SASC 128 Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52 Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327; (2008) 14 BPR 26,339 Nairn v Metro-Central Joint Development Assessment Panel (2018) 53 WAR 20; [2018] WASCA 18 Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 Noon v The Owners - Strata Plan No. 22422 [2014] NSWSC 1260 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; [1981] HCA 50 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; [1982] HCA 29 Re Lehrer and the Real Property Act 1900-1956 (1960) 61 SR (NSW) 365 Reuthlinger v MacDonald [1976] 1 NSWLR 88 Reuthlinger v MacDonald (NSWCA, Street CJ, Glass and Samuels JJA, 20 October 1976, unreported) Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31 Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 The Salvation Army (New South Wales) Property Trust v Chief Commissioner of State Revenue (2018) 96 NSWLR 119; [2018] NSWSC 128 Thorby v Goldberg (1964) 112 CLR 597; [1964] HCA 1 Texts Cited: P Butt, Land Law (Lawbook Co, 2006, 5th ed) J D Heydon, Heydon on Contract (2019, Lawbook Co) C Sweet, 'Restraints on Alienation I' (1917) 33 LQR 236 Category: Principal judgment Parties: Bondi Beach Astra Retirement Village Pty Ltd (Plaintiff) Yasser Assem (First Defendant) Mohammed Assem (Second Defendant) The Owners - Strata Plan 22422 (Third Defendant) Representation: Counsel: S Balafoutis SC and E Doyle-Markwick (Plaintiff) P W Gray SC and D M Flaherty (First and Second Defendants)

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