I accept the submission of the [defendant] that the Occupancy Agreement constitutes a 'village contract' and that although the right of occupancy ceases upon the death of the occupant under the agreement, there is a continuing obligation for the payment of fees and levies under clause 2 of the Occupancy Agreement, an obligation which has continues [sic] to be met by Mrs Hohman which means there are continuing obligations under the 'village contract'."
42 However, subject to what is referred to below at par [49], the Tribunal does not seem to have decided the questions that it posed for itself by reference to s 128 at all. This is because the Tribunal would appear to have formed the view that the plaintiff's options "lapsed" by reason of the operation of s 167, so that a determination that any clause in either agreement was void or was to be set aside became otiose.
43 The plaintiff submitted that s 167 was not directed to the option in the Buy Back Deed because that option only arose in the event that the deceased or her estate decided to dispose of the unit and gave the requisite notice. This need not have any connection with vacation of the unit or death of the occupier and is in effect a right of first refusal that need never arise. The plaintiff submitted that the Act was not intended to require someone in its position to give notice of an intention to exercise an option in such circumstances.
44 The Tribunal proceeded upon the basis that s 167 applied to the Buy Back Deed. This seems to follow from the terms of the first issue for determination. The plaintiff's challenge would therefore appear to be directed to the Tribunal having taken that approach, upon the basis that even though s 167 refers to options generally, the section could not have been intended to operate, and in practical terms could not operate, without taking into account the time when the options might be exercised, or to the events that may give rise to the right to exercise them. In the case of the plaintiff's option contained in the Buy Back Deed, that was the giving of notice of intention to sell, transfer or otherwise dispose of the unit.
45 The relevant conclusion that the Tribunal arrived at was that the deceased moved out of the unit in 2002 and by reference to the answer to the second issue it found that this occurred no later than 31 December 2002. This is significant because the deceased did not on the evidence trigger the operation of the Buy Back Deed at any time prior to that date by giving notice of an intention to sell, transfer or otherwise dispose of her unit. In the events that occurred, therefore, the Buy Back Deed had nothing to do with what occurred prior to 31 December 2002.
46 The finding that the deceased was an owner of the unit who moved out of the premises in a way that satisfied the definition of "permanently vacated" in s 8(d) of the Act is a question of fact that was clearly open to the Tribunal. It is not a question of law and as such not something that can now be contradicted or otherwise challenged by the plaintiff in these proceedings. Moreover, that factual finding would appear to me to stand or fall unconnected to whether or not the ultimate issue was correctly decided by reference to the operation of s 167.
47 It is in these circumstances that the plaintiff then challenged the Tribunal's finding that, as a matter of law, s 167 could apply to an option that had not become capable of being exercised according to its terms. In other words, as I apprehend the submission, s 167 could not operate in a way that required the plaintiff to exercise an option within 28 days of the events referred to in that section if the particular option in question could not have been exercised at that time. Section 167 could not on this argument have any application to the option in the Buy Back Deed.
48 Although the issue is to some extent moot, having regard to the view I have formed with respect to the operation of s 167 upon the option contained in the Occupancy Deed, it seems to me that the terms of s 167 are wide enough to be, and are, engaged as a matter of fact in the present case. This is discussed in more detail below, but the literal terms of the section are met and the section appears to operate without qualification. This is emphasised by the terms of s 167(3). The plaintiff held an option contained in the Buy Back Deed and even if it had not otherwise arisen for exercise by the plaintiff when the deceased permanently vacated the unit, the plaintiff was required to comply with the terms of s 167(1) and it did not do so. The option therefore lapsed.
49 It may be that the reference by the Tribunal to s 128 was directed to the apparent or possible conflict between the operation of s 167 in early 2003 and its operation upon the option in the Buy Back Deed, which had not by then arisen for exercise and which could not then have been exercised according to its terms. That would on one view explain the reference in the orders made by the Tribunal to setting aside the specified clauses in each agreement. It would not explain the reference to the finding that the clauses were void. It is unnecessary to resolve that question.
50 The plaintiff has not in my opinion established that the Tribunal made the error described in the third ground of appeal. The fourth ground of appeal challenges a finding of fact.
Ground 5
51 As already mentioned, the plaintiff was the operator of a retirement village that literally within the words used in s 167 held options to purchase the deceased's unit from her. The option under the Buy Back Deed did not arise for consideration until on or after 4 May 2006 as earlier discussed. The option under the Occupancy Deed could not have arisen until the happening of one of the events in cl 7. Upon the facts in the present case, the only events that could have triggered the plaintiff's obligation to give notice of exercise of its option under the Occupancy Deed would have been the death of the deceased (7(a)(i)) or her having become a permanent occupant of a nursing home (7(g)). Neither of these events had occurred within 28 days of the deceased permanently vacating the unit as found by the Tribunal or until some considerable time thereafter.
52 The terms of s 167 required the plaintiff to decide whether or not to exercise that option and to give notice to the deceased of that decision no later than 28 days after the deceased had vacated the premises. On the Tribunal's finding, that should have occurred no later than 28 days following 31 December 2002. That did not happen and the Tribunal concluded in accordance with s 167(2) that the option lapsed.
53 The burden of the plaintiff's complaint about that conclusion is encapsulated within the terms of the fifth ground of appeal. That is to say, the plaintiff appears to argue that it makes no sense to apply the literal terms of s 167 to the facts of this case because even though the plaintiff had an option under the Occupancy Deed to purchase the deceased's unit as anticipated by the section, it had not come into effect because she had neither died nor become a patient of a nursing home on a permanent basis. The terms of the option in the Occupancy Deed do not speak about the deceased permanently vacating the premises in the way that s 167 does. According to this argument, the section does not apply to the plaintiff's option in the first place, and the events of 2004 and following, such as the notification of the death of the deceased and the grant of probate on 4 May 2006, become the relevant events, rather than the events in the 28 days following 31 December 2002, in the second place.
54 The plaintiff's written submissions included the following:
"The evident purpose of s 167 is to give comfort to the resident that the [plaintiff] will not delay its decision about whether or not to exercise an option for a long time after cessation of occupation, and hence gives the resident some certainty that when she no longer wishes to reside in the village she will know quickly whether she needs to start the sale process or whether the [plaintiff] will be exercising the option. That is sensible in the case of an option that arises upon the resident vacating, like the Occupancy Agreement which conditions the option on the cessation of the right to reside (see clauses 7 and 8). The words of the section include 'no later than 28 days after the resident permanently vacates'."
55 The facts as found by the Tribunal, however, included that the deceased permanently vacated the unit. Those are also the words that trigger the operation of the section. The deceased was not required by the express terms of s 167 to give notice of that fact. Additionally, the implication is that she did not need to do so inasmuch as the section specifically refers to the giving of notice in limited circumstances that do not presently apply. It is not as if the section did not contemplate the giving of notice to the plaintiff in some circumstances. It clearly did not require the giving of notice to the plaintiff in the present circumstances. The Tribunal was correct in my opinion to observe that the "section does not make any reference to the state of knowledge of the village operator of such an event" - that is, when the deceased may have permanently vacated the unit.
56 The plaintiff submitted that the words "decide" and "decision" in s 167(1) contemplated the receipt by the plaintiff of knowledge or information upon or with the benefit of which the relevant decision might be made, even if there was no requirement for the deceased specifically to provide it by notice. In this case that would not be until the permanent vacation of the unit by the deceased came to the attention of the plaintiff in some way. For the reasons dealt with in the preceding paragraph I disagree with that submission. The section does not say so and it does not follow as a matter of necessary implication. I consider that the paragraph of the Tribunal's decision cited above containing the following extract, and that extract in particular, contains the proper emphasis:
"The effect of s 167 is to fix a time by which notice must be given which runs from one of the events specified in the section, in this case when the resident permanently vacates the premises. The section does not make any reference to the state of knowledge of the village operator of such an event."
57 The plaintiff's fifth ground of appeal ignores the fact that the Tribunal decided that the plaintiff lost its right to exercise the option contained in the Occupancy Deed in early 2003, or within 28 days of the deceased having permanently vacated the unit. The events of later years to which the plaintiff seeks to draw attention are beside the point. It is also in my opinion irrelevant that s 167 may operate to require the plaintiff to exercise its option in circumstances other than, or even at some time much earlier than, those that condition the operation of the right to exercise the option in the Occupancy Deed. By virtue of s 167(3), the section has effect "despite any term of the option". For whatever reason, the section obliges the holder of an option of the type in fact held by the plaintiff to exercise it within 28 days of the deceased permanently vacating the unit. Indeed, counsel for the plaintiff conceded, properly in my view, that s 167(1) on its face quite literally applied to any option held by the plaintiff to purchase the unit from the deceased contained in any agreement. There is no issue that as a question of fact the plaintiff did not exercise an option within 28 days of 31 December 2002. I am not satisfied that the Tribunal made an error of law in holding that s 167 operated in this way.
58 This is in my view sufficient to dispose of the fifth ground of appeal.
Ground 6
59 The sixth ground of appeal fails for related reasons. The so-called estoppel is based on separate conversations between Mr Jaeger and Ms Hohman and Mr Bray and Ms Hohman in 2004 to the effect that the deceased was contemplating moving back into the unit and that Ms Hohman had promised the deceased that she could do so. If any reliance were able to be placed on representations or statements such as these, the relevant period to which attention would need to be drawn would in fact be the period prior to the time when the Tribunal found that the options had lapsed. That was in early 2003. Nothing that the deceased or her representative may have done the following year could found an estoppel of the kind upon which the plaintiff appears to rely. The Tribunal also referred to the absence of any evidence that the plaintiff altered or changed its position to its detriment in reliance on these statements. That absence in unsurprising in the events that occurred.
60 This is in my view sufficient to dispose of the sixth ground of appeal.
Conclusion
61 I am not satisfied that the Tribunal made any of the errors of law contended for by the plaintiff.
62 It follows that the plaintiff's amended summons should be dismissed. I will hear the parties on the question of costs if thought necessary.