Bondi Beach Astra Retirement Village Pty Ltd v Minchin

The applicable legal principles

1. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) the Appeal Panel at [22] set out the following principles in relation to an extension of time in which to bring an appeal: "[22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
2. In Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 the Appeal Panel at [24] said that there is no reason to suggest that considerations similar to those identified in Jackson at [22] other than the factor at [22(2)] do not apply with respect to the Tribunal's consideration of extending time.

The submissions of the parties

1. In the 29 November 2021 submissions the first respondent drew attention to the history of the proceedings, and to ss 38(5) and 41 of the NCAT Act, and submitted that the circumstances compel an exercise of the power in her favour. There would be little delay caused, and the procedure would ensure procedural fairness to her, all of which is in accordance with the dictates of s 36 of the NCAT Act.
2. In the 7 December 2021 submissions the applicant submitted that the Tribunal should decline to grant an extension of time to the first respondent to file the 29 November 2021 submissions and decline to grant leave to the first respondent to rely on these submissions because the claims made in them are misconceived and it would be futile to grant leave to the first respondent to rely upon them.

Consideration

1. Having regard to the principles in in Jackson at [22] other than the factor at [22(2)] I am satisfied that the first respondent should have an extension of time pursuant to s 41 of the NCAT Act to provide, and leave to rely on, the 29 November 2021 submissions for the following reasons: 1. they raise the threshold issue of whether the applicant has standing to claim the relief sought against the first respondent; 2. the refusal to extend time to file, and grant leave to rely on, the 29 November 2021 submissions will work an injustice upon the first respondent in that substantial arguments about the standing of the applicant to claim the relief sought against her will not be adequately considered; 3. the length of the delay of the first respondent is short; 4. the first respondent's explanation as to why her evidence was provided out of time applies equally to the 29 November 2021 submissions; 5. the first respondent has a fairly arguable case that the applicant does not have standing to claim the relief sought in the proceedings; 6. the applicant has not made any submission that it will suffer any prejudice by reason of the application being granted; 7. this application differs from the application for an adjournment of the proceedings made by the first respondent during the hearing which I dismissed. If the application for an adjournment of the proceedings had been granted there would have been a delay of several weeks before a further hearing date could have been fixed. In contrast, the granting of this application has not caused any substantial delay in the completion of my decision; 8. the application of the guiding principle to the application as required by ss 36(1) and (2)(a), together the requirement take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings under s 38(5)(c), of the NCAT Act compels the granting of the application in the circumstances of the case.

Whether the Tribunal has jurisdiction to determine the proceedings

Introduction

1. Before considering this issue it is appropriate to set out the applicable statutory provisions.

NCAT Act

1. Part 3 (ss 28-34) of the NCAT Act contains provisions dealing with the jurisdiction of the Tribunal. Section 28 deals with the jurisdiction of the Tribunal generally, and relevantly provides: 28 Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction - (a) the general jurisdiction of the Tribunal, …
2. Section 29 deals with the general jurisdiction of the Tribunal, and relevantly provides: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. …
3. Schedule 4 contains provisions dealing with the Consumer and Commercial Division of the Tribunal (the CC Division). Clause 3 deals with the functions allocated to the CC Division, and relevantly provides: 3 Functions allocated to Division (1) The functions of the Tribunal in relation to the following legislation are allocated to the Division - … Retirement Villages Act 1999 …

RV Act

1. Part 8 Division 2 (ss 122-125) contains provisions dealing with dispute resolution. Section 122 deals with disputes between the operator and a resident, and relevantly provides: 122 Disputes between operator and resident (1) If … the operator of a retirement village claims that a dispute … has arisen between … the operator and one or more residents, the … operator may apply to the Tribunal for (and the Tribunal may make) an order in respect of the dispute. …
2. Part 8 Division 3 (ss 126-128) contains provisions dealing with the Tribunal. Section 128 specifies the orders that the Tribunal may make, and relevantly provides: 128 Order of Tribunal (1) The Tribunal may, on application by a resident (or residents) or an operator under this Act, make one or more of the following orders - … (c) an order that - (i) restrains any action in breach of any village contract or village rule, or (ii) requires the performance of any village contract or village rule, (d) an order directing the resident (or residents) or operator to perform such work or take such other steps as the order specifies to remedy a breach of a village contract or village rule, …

Consideration

1. The source of the jurisdiction of the Tribunal to determine the proceedings are ss 122(1) and 128(1) of the RV Act which are picked by ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act. Pursuant to Sch 4 cl 3(1) of the NCAT Act this jurisdiction is allocated to the CC Division.
2. I am satisfied that, in circumstances where the applicant is claiming that is a retirement village and it is the operator of the Astra which within the meaning of the RV Act and is seeking to enforce the Astra village rules and the May occupancy agreement against the first respondent, the Tribunal has jurisdiction to determine the proceedings.

Whether the applicant has standing to claim the relief sought against the first respondent

Introduction

1. The determination of this issue raises the questions of whether the Astra is a retirement village, the applicant is an operator of that retirement village, and the first respondent is a resident of that retirement village within the meaning of these expressions in the RV Act.
2. Before considering this issue it is convenient to set out the applicable statutory provisions and legal principles, and summarise the evidence and the submissions of the parties.

NCAT Act

1. Section 38 deals with the procedure of the Tribunal generally, and relevantly provides: 38 Procedure of Tribunal generally … (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. …

1989 RV Act

1. Part 1 (ss 1-6) of the Retirement Villages Act 1989 (NSW) (1989 RV Act) contained provisions dealing with preliminary matters. Section 3 contained definitions and relevantly provided: Definitions 3. (1) In this Act - "administering authority", in relation to a retirement village, means the person by or on whose behalf the retirement village is administered and includes a person (other than a resident) who owns land within the village; … "resident", in relation to a retirement village, means a person who occupies residential premises in a retirement village under a residence contract, and includes a person who occupies such premises and who is or was the spouse or de facto partner (within the meaning of the De Facto Relationships Act 1984) of such a person; … "retirement village" means a complex containing residential premises (whether or not including hostel units) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons in pursuance of - (a) a residential tenancy agreement or any other lease or licence; or (b) a right conferred by shares; or (c) the ownership of residential premises subject to a right or option of repurchase or conditions restricting the subsequent disposal of the premises; or (d) any other scheme or arrangement prescribed for the purposes of this definition, and for the right to occupy which those persons are or will be required to pay or donate money; …

RV Act

1. The 1989 RV Act was repealed the RV Act, which as to particular provisions commenced on 7 January 2002 and 31 March 2000, and as to the remaining provisions commenced on 1 July 2000.
2. Part 1 (ss 1-10) contains provisions dealing with preliminary matters. Section 4 contains definitions and relevantly provides: 4 Definitions (1) In this Act - … former occupant of a retirement village means a resident, or a former resident, of the village - (a) who has permanently vacated any residential premises in the village, and (b) whose residence contract has been terminated (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the residential premises concerned), and (c) who continues to have rights or liabilities under a village contract relating to the village, and includes, except in Part 10AA, the executor or administrator of the estate of such a person. … 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. … 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. 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. … residence contract means a contract that gives rise to a residence right. 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. 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. … 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. … retired person means a person who has reached the age of 55 years or has retired from full-time employment. service contract means a contract under which a resident of a retirement village is provided with general services or optional services in the village. … village contract means - (a) a residence contract, or (b) a service contract, or … village rules means the rules made and in force from time to time under Division 1 of Part 6.
3. Section 5 contains a definition of retirement village, and relevantly provides: 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 …
4. Part 5 Division 1 (ss 24-44) contains general provisions dealing with village contracts. Section 24A deals with the recording of retirement village land on the Register, and relevantly provides: 24A Retirement village land to be recorded on Register (1) The operator of a retirement village must, in accordance with this section, notify the Registrar General in writing that the land comprising the retirement village (or land that is part of the retirement village) is used as a retirement village. … (7) Operator to notify Registrar-General of certain changes The operator of a retirement village must notify the Registrar-General if any of the information contained in a notice lodged under subsection (1) ceases to be accurate by submitting a new notice under that subsection. …
5. Part 6 Division 1 (ss 45-56) contains provisions dealing with retirement village rules. Section 50 deals with the making of village rules for existing villages, and provides: 50 Village rules for existing villages If a retirement village that is in existence on the commencement of this section does not, on that commencement, have any village rules, rules may be made for the village in the same way as village rules may be amended under section 51.
6. Section 51 deals with the amendment of village rules, and relevantly provides: 51 Amendment of village rules … (3) A proposed amendment is not to be made unless the residents of the village, by a special resolution, consent to the amendment. … (4) If consent is given, the amendment takes effect 7 days after the date on which the special resolution concerned is notified to the operator … … (7) For the purposes of this section, an amendment to the village rules includes the following - (a) a variation of a village rule, (b) the addition of a new rule to the village rules, (c) the omission of a village rule that is in force.
7. Part 13 (ss 197-208) contains provisions dealing with miscellaneous matters. Section 207 deals with savings, transitional and other provisions, and provides that Sch 4 has effect.
8. Schedule 4 contains savings, transitional and other provisions. Part 2 (cll 2-13) contains provisions consequent on the enactment of the RV Act. Clause 2 contains definitions, and relevantly provides: 2 Definitions In this Part - … existing contract means - (a) a residence contract under the former Act, or (b) any other contract, agreement, scheme or arrangement by which a person obtained, before the commencement of the former Act, the right to occupy residential premises in a complex that was, at the time the right was obtained, a retirement village within the meaning of this Act (even if it ceased to be such a retirement village before the commencement of this Act or the former Act). former Act means the Retirement Villages Act 1989.
9. Clause 3 deals with continuation of contracts, and provides: 3 Continuation of contracts (1) An existing contract in respect of a retirement village within the meaning of this Act that is in force on the commencement of this clause is taken to be a residence contract. (2) Any other contract, agreement, scheme or arrangement in force on the commencement of this clause under which, under the former Act, the administering authority of a retirement village provides services to a resident of the village is taken to be a service contract. (3) A contract that, by operation of this clause, is taken to be a village contract continues in force until it is terminated in accordance with this Act.

RV Regulation

1. Part 1 (cll 1-9) of the Retirement Villages Regulation 2017 (NSW) (RV Regulation) contains preliminary provisions. Regulation 6 contains a definition of operator, and relevantly provides: 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 - … (b) the owners corporation of a retirement village that is subject to a strata scheme, or … 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.
2. Regulation 7 contains a definition of optional services, and provides: 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).
3. Regulation 8 contains a definition of resident, and relevantly provides: 8 Definition of "resident" (1) For the purposes of paragraph (c) of the definition of resident in section 4(1) of the Act, the person is prescribed if the person - (a) was the spouse or de facto partner of a resident of a retirement village immediately before the resident died or otherwise permanently vacated the premises, and (b) occupied residential premises in the retirement village with that resident, and (c) continues to occupy the premises. …

Judgment in rem

1. A judgment may be conclusive upon "world at large" as affecting status (a decision in rem) or be limited in its binding effect to those who were parties to the proceedings in which the order was made (a decision in personam). In Burden v Ainsworth (2004) 59 NSWLR 506; [2004] NSWCA 3 (Burden) the Court of Appeal considered whether an order of the Licensing Court operated as a judgment in rem. The leading judgment was delivered by Ipp JA (Sheller JA at [1] and Giles JA at [2] agreeing). Ipp JA relevantly: 1. noted the following proposition of the respondent at [14(b)]: "(b) A judgment in rem is conclusive against all the world: Washington H Soul, Pattinson & Co Ltd v Ogilvy (at 148; 90). As was stated in the following passage from (T W Chitty, A T Denning, C P Harvey, eds) Smith's Leading Cases, 13th ed (1929) London, Sweet & Maxwell, vol 2, at 666, 667 which was cited with approval in Hill v Clifford [1907] 2 Ch 236 at 244 (which was affirmed on appeal Clifford v Timms [1908] AC 12) and in Washington H Soul, Pattinson & Co Ltd v Ogilvy (at 148; 90): "A judgment in rem … [is] an adjudication pronounced (as indeed its name denotes) upon the status of some particular subject matter by a tribunal having competent authority for that purpose. Such an adjudication, being a most solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, concludes all persons from saying that the status of the thing adjudicated upon was not such as declared by the adjudication."" 1. considered the meaning of "status" in the context of a judgment in rem at [25]: "[25] According to Spencer Bower, Turner and Handley, Res Judicata, 3rd ed at 234, the status of a person or thing is "the jural relation of the person, or thing, to the world generally". The authorities amply support this definition. …"

The applicant's documents

1. The relevant evidence in the applicant's documents is described below.
2. The May occupancy agreement in which the applicant is defined as the "Service Company" and Mr May is defined as the "Occupant" and the "Proprietor" relevantly provides: "In this Agreement any expression appearing herein shall have the meaning specified in the Schedule hereto unless the context otherwise requires:- WHEREAS: A. The Astra is the residence of persons of 55 years of age and over. B. The Proprietor is registered or entitled to be registered as the proprietor of the unit. C. The Service Company has been granted exclusive use and possession of the Communal Areas pursuant to by-law 32. D. The parties hereto desire to enter into an agreement for the welfare, regulation and conduct of all unit owners at the Astra and the Occupant and the Proprietor have requested that the Owners' Corporation manage and administer the Astra, the Communal Areas and the common property to ensure that the Residents of the Village enjoy such reasonable privacy and quiet possession and enjoyment as is consistent with the physical characteristics of a retirement village designed for the residence of persons 55 years of age and over. NOW IT IS HEREBY AGREED AND DECLARED as follows:- 1. (a) The Service Company shall ensure that the Owners' Corporation employs a manager and/or staff (herein called "the manager") 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. (b) The Service Company will ensure that the Communal Areas and all common property are maintained and kept in good repair and condition and will employ such staff or contractors as may be necessary to effect such purpose at the expense of the Owners' Corporation. 2. The Occupant and the Proprietor hereby covenant and agree:- (a) To pay to the Owners' Corporation or any Managing Agent appointed from time to time as agent of the Owners' Corporation all levies made against the Occupant or the Proprietor and/or the Unit by the Owners' Corporation. (b) To duly and punctually pay:- (i) all rates, taxes, charges and outgoings which are rated, taxed, charges, assessed or payable to any Public Municipal Government or Semi-Government body authority or department on or in respect of the Unit or the Occupant in respect thereof including but not limiting the generality of the foregoing all municipal rates, Water rates and State Land Tax, and (ii) all charges for gas, electricity, telephone, excess water and all other utilities and services used in or assessed or charged on or in respect of the Unit; (iii) and in default of such payment the Service Company may pay the same and it shall be lawful for the Service Company to recover on demand from the Occupant the amount so paid; (iv) to pay the service companies' costs of preparation and execution of this agreement and all stamp and other duties payable as a result of entering into this agreement. (c) Not to use or permit to be used the Unit or any part thereof for any purpose other than residential occupation. (d) - Not to do or suffer to be done on, in or upon any unit, the Communal Areas or the common property or any part thereof by themselves or any permitted resident in the Unit or visitors of the Occupant anything which shall be a nuisance annoyance or disturbance to the residents of the Astra. (e) Not to lease, sub-lease or part with or share the possession of the Unit PROVIDED THAT this shall not prevent leasing the Unit to persons over the age of 55 years of age who have been approved as Occupants by the Manager and who have entered into an Occupancy Agreement with the Service Company and paid the Service Company's reasonable costs in respect thereof. (f) To observe and procure that any occupier or other permitted resident of the Unit or visitors thereto observes such rules and regulations as are determined hereto or in effect from time to time by the Service Company. (g) To acknowledge the right of the Owners' Corporation to grant by way of By-Law under the Strata Schemes Management Act exclusive use and possession of the Communal Areas and car parking spaces to the Service Company as the proprietor of a lot in the Strata Scheme together with the right of the Service Company to grant licences to Occupants of the Village in respect of such areas and spaces and the Occupant will not challenge the validity of any such By-Law or licence. And the Occupant and the Proprietor acknowledges that these obligations shall enure for the benefit of all the Residents of the Village jointly and each Resident of the Village severally. … SCHEDULE "The Service Company" - means and includes the said Bondi Astra Retirement Village Pty Limited its successors in title transferees and assigns. "The Occupant" - means and includes NORMAN ALFRED MAY of 43/34 Campbell Parade, Bondi Beach NSW 2026 and his executors, administrators and successors in title and permitted assigns. "The Proprietor" - means and includes NORMAN ALFRED MAY of 43/34 Campbell Parade, Bondi Beach NSW 2026 and his 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. "The Unit" - means Lot 43 in Strata Plan 22422. "The Astra" - means the residential areas in Strata Plan 22422 and Strata Plan 32039 relating to the Astra complex known as the Bondi Beach Astra situate at 34 Campbell Parade, Bondi the common property comprised in Strata Plan 22422 and the communal facilities. "Communal Area" - means those parts of the common property in the Astra exclusive use and possession of which has been granted to the Service Company comprising the community facilities."
3. In 1 August 2019 Minchin affidavit the first respondent gave the following evidence: 1. she was the partner of Mr May (at [1]); 2. Mr May lived in lot 43 until about 2014 (at [3]); 3. from about 2000 she began visiting Mr May and staying overnight with him in lot 43. From about 2008 to 2011, she lived in lot 43 on a substantially full-time basis with Mr May (at [4]); 4. in 2011 she moved to Mr May's house in Katoomba, where she lived until 2014. She continued to visit Mr May frequently at the Astra during those years (at [5]); 5. in 2014 Mr May and herself moved to a semi-rural property in Kurrajong Hills. Mr May remained living there with her until his death in 2016 (at [7]); 6. between 2014 and 2016, Mr May and herself would occasionally come to Sydney and stay overnight in lot 43 (at [8]).
4. On 7 September 2021, the applicant sent a letter by email to the first respondent (the 7 September 2021 letter) which relevantly provides: "It has come to our attention that there is a young man called Mr Kan residing in Unit 43 which is owned by the Estate of the Late Norman May, of which you are executrix. As you are well aware, Unit 43 falls within the Bondi Beach Astra Retirement Village and as such, occupants and proprietors are bound by the Retirement Village Act NSW 1999 and its subsequent amendments ("Act") and regulations. Section 24 of the Act does not permit a person to occupy a residential premises in the village before entering into either a residence contract, a service contract with the Operator. Alternatively, The Estate may let the unit under a residential tenancy agreement ("RTA") after receiving consent from the Operator under section 174 of the Act. • We have not entered into a residence or service contract with Mr Kan. • We have not consented to a RTA. Should Mr Kan wish to enter into a residence contract or service contract with us, please provide the basis under which that contract is to be entered into. … As operator, we are bound by the same Act as you, and as such, to ensure the village is compliant with the Act we request that Mr Kan vacates the unit immediately. Please confirm that Mr Kan has vacated the unit before midday on Friday 10 September 2021. If we do not receive confirmation of his departure by that time, we will be forced to apply to the NSW Civil and Administrative Tribunal to seek orders to remove Mr Kan. We will seek reimbursement of any legal costs or administrative fees incurred in such an application from you."
5. The Second Schedule of Folio Identifier 43/22422 printed on 22 October 2021 includes "Restriction(s) on the use of land" created by SP22422 and "The Land in the strata scheme is used as a Retirement Village under the Retirement Village Act 1999 known as Bondi Beach Astra Retirement Village" created by dealing AF480980.

The oral evidence of Mr Jackson

1. Mr Jackson gave evidence that the contents of the applicant's documents were true and correct to the best of his knowledge and belief.

The first respondent's documents

1. The first respondent's documents included many documents grouped under the headings "Respondents", "Strata scheme", Common property", "Invalid common property right by-laws", "Owners corporation", "Strata managing agent", "Building manager", "Original owner" and "Applicant". The relevant evidence in these documents is described below.
2. On 11 February 1985, SP22422 was registered and comprised 64 lots. The strata plan specified that it was intended pursuant to s 7(3) of the Strata Titles Act 1973 (NSW) and s 88B of the Conveyancing Act 1919 (NSW) to create the following restriction as to user burdening lots 1 to 61: "(1) No person other than a person aged 55 years or over shall occupy any lot herein provided that: (a) a person not being aged 55 years or over may reside with the occupier of a lot being a person aged 55 years or over in any lot herein; (b) this restriction shall not apply to the occupation of lot 4 in the event that such lot is used as the residence of a manager of the Bondi Beach Astra Retirement Village."
3. On 3 June 1987, strata plan 32039 which consolidated SP22422 was registered and has comprised 59 lots.
4. On 3 August 1987, additional by-laws 30 to 33 of SP22422 were registered. By-law 32 provided: "BY LAW 32. 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 is granted to the Service Company 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."
5. The disclosure statement attached to the 5 March 1999 sale contract recorded that contributions were levied by the owners corporation and the services that were provided for those fees. There is no record of any services being provided by the applicant.
6. On 21 February 2002, an amendment of by-law 32 and additional by-laws 34 were registered. The amended by-law 32 provided: "By-Law 32: 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, and the old kitchen and old games room on the first floor is granted to the Service Company 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 owners and occupiers of the residential lots to permit them to use such areas."
7. On 9 June 2010, two requests of the applicant pursuant to s 24A of the RV Act were registered: 1. one in respect of lots 3 to 10, 13 to 20, 23 to 26, and the common property with the dealing number AF480967S; 2. one in respect of lots 27 to 30, 33 to 40, and 43 to 50 with the dealing number AF480980B (Request AF480980).
8. On 28 November 2014, the removal of by-laws 32 and 34 from the by-laws of SP22422 was registered.
9. The report of the owners corporation for SP22422 as at 30 September 2020 recorded that the levies for lot 43 had been paid and that there were no arrears.
10. In the 23 November 2021 Minchin affidavit the first respondent gives the following evidence: 1. Mr May or herself has paid all costs and expenses in connection with lot 43 (at [10]); 2. prior to his death, Mr May never received any service from the applicant. Further, she has never received any service from the applicant (at [11]); 3. there are no residential premises located on lot 43 to which Request AF480980 relates that are the subject of a "village contract" within the meaning of the RV Act (at [45]); 4. there are no amounts outstanding that are payable under a "village contract" within the meaning of the RV Act relating to residential premises located on lot 43 to which Request AF480980 relates (at [46]).
11. In the 18 November 2021 Kan statement the second respondent gives evidence that he has not received any service from the applicant whatsoever (at [12]).

The oral evidence the second respondent

1. In his oral evidence the second respondent said he was born on 19 May 1977 and is 44 years of age. He said that he worked in the city around 20 hours per week. He conceded that he had not signed an occupancy agreement.

The submissions of the parties

1. In the 29 November 2021 submissions the first respondent makes the following submissions: 1. the applicant lacks standing to seek the relief claimed in the proceedings on the following principal grounds: 1. there are no residential premises located on lot 43 to which Request AF480980 relates that are the subject of a "village contract" within the meaning of the RV Act (ground 1); 2. there are no amounts outstanding that are payable under a "village contract" within the meaning of the RV Act relating to residential premises located on lot 43 to which Request AF480980 relates (ground 2); 3. lot 43 is not used as a "retirement village" within the meaning of the RV Act (ground 3); 1. as to ground 1: 1. she refers to s 207 and Sch 4 cll 2 and 3 of the RV Act; 2. she refers to Gora SC at [65] where Bryson AJ made the following finding with respect to by-law 32 of SP22422: "[65] In my opinion By-law 32 has never had any effect, and has never operated to give any exclusive rights to the plaintiff, to diminish any rights of proprietors with respect to common property, or to make the rights of proprietors dependent on any arrangement they have made with BBA." 1. she refers to Gora CA at [122] where Campbell JA (Giles JA at [1] and Whealy JA at [370] agreeing) noted that the finding of Bryson AJ in Gora SC at [65] had not been disputed in the appeal; 2. she refers to both the judgment and the declaration that by-law 32 of SP22422 was invalid and of no effect in 2014 Noon SC; 3. the May occupancy agreement is not a "residence contract" within the meaning of the 1989 Act as by-law 32 has never had any effect, has never operated to give any exclusive rights to the applicant, to diminish any rights of the respondents with respect to common property in SP22422, or to make the rights of the respondents dependent on any arrangement with the applicant; 4. the May occupancy agreement is not an "existing contract" within the meaning of Sch 4 cl 2 to the RV Act; 5. the May occupancy agreement cannot be taken to be a "service contract" within the meaning of the RV Act as the applicant expressly did not provide services under it, which is supported by the unchallenged evidence of the respondents; 6. Meagher JA in Assem at [32] held that the class of contracts described as "Post-2000 Occupancy Agreement" "are not residence contracts" for the reasons set out at [33] to [39]. The relevant provisions of the May occupancy agreement (recitals B, C and D and cl 3) are materially identical to relevant provisions of the Post-2000 Occupancy Agreement considered by Meagher JA. There is no equivalent in the May occupancy agreement to cll 2 and 8 of the Post-2000 Occupancy Agreement. In any event, the commencement date on which Mr May purportedly obtained the right to occupy at least the "Communal Area" under by-law 32 of SP22422 (declared invalid and of no effect ab initio on 9 October 2014 in 2014 Noon SC) is preceded by Mr May being registered or entitled to be registered as the proprietor of lot 43; 1. as to ground 2: 1. her evidence that there are no amounts outstanding that are payable under a "village contract" within the meaning of the RV Act relating to residential premises located on lot 43 to which Request AF480980 relates is unchallenged; 2. her evidence that prior to his death Mr May never received any service from the applicant, and she has never received any service from the applicant, is unchallenged; 3. the evidence of the second respondent that he has not received any service from the applicant whatsoever is unchallenged; 1. as to ground 3: 1. the 7 September 2021 letter, particularly the third paragraph, amounts to a concession that lot 43 is not used as part of the retirement village operated by the applicant; 2. her evidence to the effect that the applicant has never entered into any relevant contract with the respondents or otherwise, in relation to lot 43 is unchallenged. It follows that no "village contract" within the meaning of the RV Act has ever existed between the owners or occupiers of lot 43 and the applicant. Although lot 43 is located in the same building as the retirement village, in practical terms it is no more part of the village than the adjoining lot 69 used for residential purposes and the three lots used for commercial purposes. In the absence of any contractual relationship between the owners or occupiers of lot 43 and the applicant, it would be artificial to regard lot 43 as being used as, or as part of, the village; 3. to the extent that the recording of Request AF480980 on the title to lot 43 suggests that lot 43 is used as a retirement village under the RV Act, it does not reflect the true position.
2. In the 7 December 2021 submissions the applicant makes the following submissions: 1. it refers to s 122(1) of the RV Act and submits it has standing to bring these proceedings if it is (a) the "operator" of (b) a "retirement village" and (c) the first respondent is a "resident". Meagher JA in Assem at [213] made a declaration that the Astra is a "retirement village" under the RV Act and that it is an "operator" of the Astra; 2. the first respondent, as the executor of Mr May's estate, falls within the definition of a "resident" of the Astra. That is because in s 4 of the RV Act a "resident" is defined to include a "former occupant" of a retirement village and a "former occupant" is defined to include the executor of a former resident of a retirement village. Mr May was registered proprietor of and a resident of lot 43 in the Astra until his death. It is accepted that the first respondent is the executor of Mr May's estate; 3. as to the finding in Assem that the Astra is a "retirement village" within the meaning of the RV Act: 1. it refers to the definition of "retirement village" in s 5 of the RV Act; 2. as found by Meagher JA at [87] a retirement village may include residential premises occupied by retired persons who have not entered into village contracts with an operator; 3. as found by Meagher JA at [88] the definition of "retirement village" in s 5 of the RV Act requires a comparison of the number of residences occupied (or intended to occupied) by retired persons who have entered into village contracts with the village operator against the total number of residences and an evaluation that the former is the most dominant or prevailing class of occupants; 4. as found by Meagher JA at [95] 60% (33/55) of the premises were occupied by the relevant class of persons and that was sufficient to justify a conclusion that the premises are "predominantly" occupied by such persons. That conclusion was fortified when it was considered that at least a further five of the vacant lots were intended to be occupied by the relevant class of persons, meaning that overall about 69% of the premises were occupied or intended to be occupied by the relevant class of persons; 1. as to the finding in Assem that the applicant is an "operator" of the Astra within the meaning of the RV Act: 1. it refers to the definition of "operator" in s 4(1) of the RV Act; 2. as found by Meagher JA at [99]-[100] a person may satisfy the definition of "operator" in any one of three ways: 1. first, a person who "manages or controls the retirement village" is an operator. Meagher JA held at [116]-[131] that it satisfied that description; 2. secondly, a person who "owns land in the village" is an operator. Meagher JA held at [115] that it owned 16 lots in the Astra and therefore satisfied that description; 3. thirdly, a person may be prescribed as an "operator" by the regulations. The RV Regulation provides that a person is an operator if that person is engaged under an agreement with the owners corporation and has entered into individual village contracts with residents of the village. Meagher JA held at [97] and [132]-(134] that it also satisfied that definition; 1. Meagher JA held at [138] that it was an operator within the meaning of s 4(1) of the RV Act because it met each of the three independent criteria; 1. as to ground 1 in the 29 November 2021 submissions: 1. its standing does not depend upon whether lot 43 is the subject of a "village contract"; 2. in any event, lot 43 is the subject of a "village contract". That is because the 5 March 1999 sale contract is a village contract. Under s 4(1) of the RV Act: 1. a village contract is defined to include a "residence contract"; 2. a residence contract is defined to mean a contract that gives rise to a "residence right"; 3. a residence right means a right to occupy residential premises in a retirement village, including a right arising from a contract under which the person purchased the residential premises; 1. in Assem at [31] Meagher JA accepted that the contracts described as "Agreement for Sale of Land (1996 edition)" were residence contracts and therefore village contracts. The same conclusion should be reached here; 1. as to ground 2 in the 29 November 2021 submissions, whether or not this submission is correct, it has no bearing on whether it has standing to bring these proceedings; 2. as to ground 3 in the 29 November 2021 submissions, this ground appears to be a restatement of ground 1. Further, the first respondent mischaracterises the 7 September letter.
3. In the 8 December 2021 Minchin submissions the first respondent makes the following submissions: 1. she relies on the judgment of the majority of the Court of Appeal in Noon CA where Giles JA at [66] (Macfarlan JA at [126] agreeing) made the following finding in regard to lot 42: "[66] ... Mr and Mrs Noon (and later Mr Noon alone) had the right to occupy the unit by virtue of their proprietorship. Their proprietorship came about by offering a price, acceptance of the offer, entry into the sale contract and completion of the sale contract. Upon completion the sale contract, as a source of their right to occupy the unit, was spent. It does not seem to me that ii was, within the definition of a residence contract, a contract "by which [Mr and Mrs Noon] obtain[ed] the right to occupy" the unit. They obtained the right by virtue of their proprietorship." 1. she relies on the judgment in the appeal in 2014 Noon SC where Darke J at [83] made the following finding in regard to lot 42: "[83] In my view, to the extent that the recording on the title to the Property suggests that the Property is used as a retirement village under the Retirement Villages Act 1999, it does not reflect the true position. The Court will make a declaration to the effect that the Property is not used as a retirement village under the Retirement Villages Act 1999, known as Bondi Beach Astra Retirement Village."

Consideration

1. The determination of the issue of whether the applicant has standing to claim the relief sought in the proceedings depends on whether the criteria of s 122(1) of the RV Act have been satisfied. This raises the questions of whether the Astra is a retirement village, and if so whether the applicant is the operator of the Astra, and the first respondent is a resident of the Astra.
2. There are threshold questions of whether the order in Assem at [213(1)] is binding on the Tribunal, and whether the Tribunal can rely on the findings in Assem.

Whether the order in Assem at [213(1)] is binding on the Tribunal

1. In Assem Meagher JA considered the questions of whether the Astra is a retirement village, and the applicant is an operator of the Astra, within the RV Act. He at [213] relevantly made the following order: "[213] The following orders should be made: (1) Declare that the strata title property at 34 Campbell Parade, Bondi Beach, including lot 61 of SP 22422 as "residential premises", is a "retirement village" under the Retirement Villages Act 1999 (NSW), and that the plaintiff is an "operator" of that village."
2. The submissions of the applicant assumed that the order in Assem at [213(1)] is binding on the Tribunal. While the legal basis of this assumption was not identified, it would seem to be implicit in the applicant's submissions that this order is a judgment in rem.
3. Having regard to the principles in Burden at [14] and [25], I am not satisfied that the judgment of Assem Meagher JA at [213(1)] that the Astra is a retirement village, and the applicant is an operator of the Astra, within the RV Act is a judgment in rem and as such is conclusive against all the world. This order determined the status of the Astra and the applicant as at 16 December 2020, but not at any other time.

Whether the Tribunal can rely on the findings in Assem

1. As the written submissions of the parties were directed to the issue of the standing of the applicant to claim the relief against the first respondent, I consider that I am entitled pursuant to s 38(2) of the NCAT Act to rely on the applicable findings in Assem which set out the position in relation to the Astra as at the date of the judgment on 16 December 2020. In circumstances where Mr Jackson gave oral evidence that the contents of the applicant's documents which included the judgment in Assem were true and correct to the best of his knowledge and belief, and there were no relevant concessions made by Mr Jackson in cross-examination, I am satisfied that there is sufficient evidence that there has been no material change in the circumstances relevant to the determination of the standing of the applicant since 16 December 2020.

Whether the Astra is a retirement village

1. In Assem Meagher JA considered the question of whether the Astra is a retirement village at [27] to [95], and relevantly: 1. referred to the definition of "retirement village" in s 5, and the definitions of "resident", "retired person", and "village contract" in s 4(1), of the RV Act (at [27]-[28]); 2. although there are 56 residential lots in the Astra, accepted that one lot, belonging to a Mr Noon, does not form part of any retirement village and is to be disregarded. 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 five 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 (at [29]); 3. on the question of whether the plaintiff has "residence contracts" with 23 residents, occupying 20 lots, 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 CA at [66] as to the meaning of "residence contract" under the 1989 RV Act is not applicable to the RV Act, which makes express reference to contracts for sale. He referred to Gora CA at [361]-[363] where Campbell JA said (Whealy JA at [370] agreeing)(at [31]): "[361] In Noon v Bondi Beach Astra Retirement Village Pty Ltd this Court held, concerning a different unit in the Astra in relation to which no Occupancy Agreement or Buyback Deed separate to the contract for sale existed, that the occupants of the unit in question were not "residents" within the meaning of the 1989 Act. That was because they: "... had the right to occupy the unit by virtue of their proprietorship. Their proprietorship came about by offering a price, acceptance of the offer, entry into the sale contract and completion of the sale contract. Upon completion the sale contract, as a source of their right to occupy the unit, was spent. It does not seem to me that it was, within the definition of a residence contract, a contract 'by which [Mr and Mrs Noon] obtain[ed] the right to occupy' the unit. They obtained the right by virtue of their proprietorship." (per Giles JA, Macfarlan JA agreeing, at [66]) [362] The task the Court was performing in Noon was deciding whether a husband and wife who had purchased a unit in the Astra were a "resident" within the meaning of the legislation as it then stood, namely the 1989 Act and the New South Wales Retirement Village Industry Code of Practice. Those definitions were: " resident ' in relation to a retirement village, means a person who occupies residential premises in a retirement village under a residence contract, and includes a person who occupies such premises and who is or was the spouse or de facto partner [in the Code but not Act, (within the meaning of the De Facto Relationships Act 1984 )] of such a person." (Act, s 3(1); Code, cl 2) "' residence contract ' means a contract, agreement, scheme or arrangement by which a person obtains the right to occupy residential premises in a retirement village, and may take the form of a lease or licence." (Act, s 3(1); Code, cl 2) [363] It should not be assumed without argument (that we have not had) that this aspect of the decision in Noon leads to the conclusion that the registered proprietor of a strata title unit in the Astra was not a "resident" within the meaning of the 1999 Act, particularly in light of the definition of "residence right" in the 1999 Act. In any event, the Occupancy Agreement, under which BBA agreed to provide services, may have been a "service contract" within the meaning of the 1999 Act." 1. the "Post-2000 Occupancy Agreement" which purports to confer a right of occupancy pursuant to cl 8 are not residence contracts (at [32]-[29]); 2. on the question of whether the plaintiff has "service contracts", it is conceded that three classes of contract answer this description: 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 15 lots are party to Deeds for Provision of Services, and five residents of four lots are party to Retirement Village Contracts (at [40]); 3. referred to the definitions of "general services", "optional services", and "service contract" in s 4(1) of the RV Act and the definition of "optional services" in r 7 of the RV Regulation (at [41]-[42]); 4. stated that 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 (at [44]); 5. recorded his findings as to the services which the plaintiff currently provides to the residents of the Astra (at [45]): "[45] … Those services include: controlling access to the areas of common property and residential lots during business hours; managing the furniture and equipment on the common property; organising social activities for the residents; communicating notices to residents from the Owners Corporation, the residents committee, individual residents and BBARV; coordinating improvements to the common areas and to individual units, including the installation of an emergency call system; managing and monitoring the operation of that call system; coordinating maintenance services for both the common areas and individual units; conducting fire drills and safety inspections; managing the library and gym; supervising the use and condition of the car park; maintaining the garden in the common property area; managing the council clean-up; providing a meal service to the residents; and collecting mail and signing for parcels received by residents." 1. as to the Deeds for Provision of Services, which had a definition of "Communal Areas" which was identical to by-law 32, they are contracts "under which" the services specified therein are provided to the applicable lots owners (at [46]-[58]). There was no amount currently being paid for these services (at [56]-[57]). As to the argument of the defendants that a consequence of the declaration of the invalidity of by-law 32 in 2014 Noon SC is that it is no longer possible to identify by reference to the definition of Communal Areas what part or parts of the common property answer that description in this Deed, he made the following finding (at [55]): "[55] … The definition of Communal Areas describes the areas to which the various services relate by reference to those which were, lawfully or otherwise, the subject of by-law 32. Relevantly, those areas comprise "the swimming pool area, passageways and corridors on all floors, the courtyard areas, and the residents' facilities and lounges on the ground floor". Where the defined term appears, it is used only to describe the physical area in relation to which a relevant activity is to be conducted, arranged or undertaken. None of those descriptions depends for its efficacy on the validity of by-law 32 or BBARV in fact having "exclusive use" of the relevant area." 1. as to the Retirement Village Contracts, notwithstanding the differences in their language, each of the Retirement Village Contracts is a contract "under which" the resident is provided with general services (at [59]-[68]); 2. 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. By-law 30 confers rights on the plaintiff in respect of 21 car parking spaces. By-law 30 is valid, the car parking contracts are contracts under which residents obtain a "right to use" a parking space, and accordingly are within para (c) of the definition of village contract (at [69]-[85]); 3. he referred to the definition of "residential premises" in s 4(1) of the RV Act, and discussed the establishment of whether the premises are "predominantly or exclusively" occupied by the relevant class of residents, or are "intended to be predominantly or exclusively occupied" by such persons (at [86]-[91]). He expressed the following conclusion as to the relationship between a retirement village and the residential premises within it (at [87]): "[87] 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)." 1. he reached the conclusion that residential premises in the Astra are predominantly occupied by the relevant class of persons (at [92]-[95]): "[92] 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. [93] 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). [94] 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. [95] 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."
2. Having regard to the findings of Meagher JA in Assem at [27] to [95], I am satisfied that the Astra is a complex containing residential premises that are predominantly occupied by retired persons who have entered into village contracts with the applicant within s 5(1)(a) of the RV Act. Accordingly, question of whether the Astra is a retirement village within s 5(1)(a) of the RV Act depends on whether the applicant is an operator of the Astra.

Whether the applicant is an operator of the Astra

1. In Assem Meagher JA considered the question of the applicant is an operator of the Astra at [96] to [138], and relevantly: 1. referred to the definition of "operator" in s 4(1) of the RV Act and in r 6 of the RV Regulation (at [96]-[97]); 2. noted that there is a factual dispute as to whether the plaintiff "manages or controls" the retirement village the definition of "operator" in s 4(1) of the RV Act, and whether the plaintiff is "engaged under an agreement" with the owners corporation within para (b) of the definition of "operator" in s 4(1) of the RV Act when read with r 6 of the RV Regulation. However, he also noted that the plaintiff owns 16 strata title lots in the Astra, which is sufficient to make the plaintiff an "operator" (at [98]); 3. concluded that, as it is not necessary for an operator to manage or control the retirement village, the question then is whether the plaintiff comes within para (a) or (b) of the definition of operator in s 4(1) of the RV Act (at [99]-[106]); 4. concluded that the plaintiff is an operator because it is a person owning "land" in the Astra because it is the registered proprietor of strata title lots that are "residential premises" making up the Astra (at [107]-[115]); 5. concluded that the plaintiff manages or controls the Astra (at [116]-[131]). He noted that the RV Act does not define what it is to "manage or control" a retirement village, and 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 (at [116]-[118]). He then set out the nature and scope of the functions that an operator may exercise under the RV Act (at [119]-[124]). He noted that it is not controversial that from 1987, and following the commencement of the 1989 RV Act, the plaintiff held itself out and acted as the manager or administrator of a "retirement village" designed for the residence of persons 55 years of age and over. In exercising that function it has occupied and used part of the common property as the place from which it undertakes that activity and provides services to residents. That state of affairs is acknowledged and assumed by various resolutions of the owners corporation (at [125]). The plaintiff has entered into contracts - almost all of which are village contracts - with the owners or residents of almost every residential lot in the Astra, and provides services under service contracts to the residents of a majority of those lots (at [126]-[129]). The plaintiff has also engaged in activities which the RV Act recognises as constituting general management of a retirement village (at [130]): "[130] … Those activities … include taking steps to ensure that the village is reasonably secure by providing a full time manager and front office staff during business hours, and regulating access to the village; overseeing the installation of an emergency call system; preparing an emergency plan and conducting safety inspections and evacuation drills of the village; making recommendations to the Owners Corporation as to how safety in the village could be improved; providing services to village residents, in most cases under their service contracts, and organising regular social events for them; providing annual budgets to the residents; and holding, although only in the last two years, annual management meetings." 1. concluded that the plaintiff is engaged under an agreement with the owners corporation and has entered into individual village contracts with "the residents" of the village within para (b) of the definition of "operator" in s 4(1) of the RV Act when read with r 6 of the RV Regulation (at [132]-[137]). As to the agreement with the owners corporation he held (at [137]): "[137] By its conduct since 2012 in permitting BBARV to occupy the office and part of the common property to provide concierge and other services to residents, as well as some services to it with respect to its management and maintenance of common property, in return for an annual amount paid by monthly instalments, the Owners Corporation agreed with the plaintiff for its provision of such services for reward. In the absence of agreement as to the duration of that arrangement, it is terminable on reasonable notice, the period of notice depending on circumstances at the time of termination …" 1. concluded that the plaintiff is an operator of a retirement village within the definition in s 4(1) of the RV Act as the person who manages or controls the retirement village, and because it separately satisfies paras (a) and (b) of that definition (at [138]).
2. Having regard to the findings of Meagher JA in Assem at [27] to [95], I am satisfied that the applicant is an operator of the Astra which is a retirement village within s 5(1)(a) of the RV Act.

Whether the first respondent is a resident of the Astra

1. In Assem Meagher JA considered the question of the application of s 171 of the RV Act to a prospective sale of lot 61 by the defendants at [139] to [164], and relevantly: 1. referred to the definition of "former occupant" in s 4(1) of the RV Act (at [160]); 2. the reference in para (c) of the definition of "former occupant" in s 4(1) of the RV Act to a former resident "who continues to have rights or liabilities under a village contract" does not extend to the defendants as executors of the estate of their father. The relevant village contract was the "Agreement for the Sale of Land - 1988 Edition" under which the defendants' parents agreed, on 30 May 1997, to purchase the property. That agreement was a residence contract, because Mr and Mrs Assem's right to occupy the property was "a right arising from" that agreement (at [161]); 3. the defendants' parents' rights to occupy lot 61 arose from the agreement for sale in the broad sense in which "arising from" is used in the definition of residence right. But they cannot be said to have continued to have rights or liabilities "under" that agreement which now vest in their estates (at [162]).
2. In Assem Meagher JA considered the question of the contractual dispute about the Post-2000 Occupancy Agreement at [165] to [206], and relevantly: 1. referred to the definitions of "The Occupant" and "The Proprietor" in the Post-2000 Occupancy Agreement (at [165]); 2. observed that an executor, in his or her capacity as such, is bound by the contracts of the deceased, which, subject to provision to the contrary, continue against the estate. Indeed, it is possible for a person expressly to contract during their lifetime that their executors will do a certain act. And an injunction may issue against an executor to protect rights held under a contract with the deceased (at [168]); 3. said that the defendants' submission that cl 13(d) of the Post-2000 Occupancy Agreement must fail because the plaintiff did not promise to provide services under the Agreement neglects cl 3(b), which relates to "all common property" (regardless of whether the owners corporation also has that obligation under strata scheme legislation). More significantly, it ignores the possibility of a general benefit to the effective operation of the retirement village, which does not depend on the particular benefits provided to the defendants' parents by the plaintiff under the Agreement (at [201]).
3. Having regard to the definitions of "resident" in s 4(1) of the RV Act and r 8(1) of the RV Regulation, and "resident right" and "retired person" in s 4(1) of the RV Act, the first respondent can only be a resident of the Astra within s 122(1) of the RV Act if she is a former occupant of the Astra within para (d) of the definitions of "resident".
4. If the definition of "former occupant" in s 4(1) of the RV Act is applicable to Mr May, then the first respondent by reason of being the executor of his estate is a former occupant of lot 43.
5. Having regard to the evidence of the first respondent In 1 August 2019 Minchin affidavit I am satisfied that Mr May is a former resident of lot 43 who has vacated those premises within the meaning of para (a) of the definition of "former occupant" in s 4(1) of the RV Act. The vacation occurred at the latest on 11 September 2016 when he died.
6. By reason of being the owner of lot 43 in SP22422 within the Astra and having a residence right within para (a) of the definition of that expression in s 4(1) of the RV Act Mr May was a registered interest holder within the meaning of s 7(1)(a)(ii) of the RV Act. The reasons of Meagher JA in Assem at [161] where he held that the "Agreement for the Sale of Land - 1988 Edition" under which the defendants' parents agreed, on 30 May 1997, to purchase the property was a residence contract, because Mr and Mrs Assem's right to occupy the property was "a right arising from" that agreement are directly applicable. In this case Mr May was in the same position by virtue of the 5 March 1999 sale contract. Accordingly, para (b) of the definition of "former occupant" in s 4(1) of the RV Act does not apply.
7. I am satisfied that para (c) of the definition of "former occupant" in s 4(1) of the RV Act does not apply to the first respondent in her capacity as the executor of Mr May's estate for the reasons stated by Meagher JA in Assem at [161]-[162].
8. It follows that I am satisfied that the first respondent is a resident of the Astra within para (d) of the definition of resident in s 4(1) of the RV Act because she is included within the definition of "former occupant" in that subsection by reason of her status as the executor of Mr May's estate to whom that definition is relevantly applicable.

The submissions of the first respondent

1. I do not accept the submissions of the first respondent that there are no residential premises located on lot 43 to which Request AF480980 relates that are the subject of a "village contract" within the meaning of the RV Act for the following reasons: 1. for the reasons stated at [116] above, the 5 March 1999 sale contract is a residence contract; 2. the May occupancy agreement is a service contract that has continued to be in force pursuant to s 207 when read with the definition of "the former Act" cl 2 and cl 3(2) and (3) of Sch 4 of the RV Act having regard to the definitions of "administering authority", "resident" and "retirement village" in the 1989 RV Act by reason that: 1. Meagher JA in Assem at [16] noted that it does not appear to have been controversial that the Astra was a "retirement village" within the meaning of the 1989 RV Act; 2. Meagher JA in Assem at [125] noted that it is not controversial that from 1987, and following the commencement of the 1989 RV Act, the plaintiff held itself out and acted as the manager or administrator of a "retirement village" designed for the residence of persons 55 years of age and over; 3. the applicant has provided services to Mr May and the first respondent in her capacity as his partner and then his executor. I am satisfied in view of the findings of Meagher JA in Assem at [45], [130], [137] and [201] and the evidence of Mr Jackson that the applicant has provided and continues to provide services to the residents of the Astra. I do not accept the general denial of the respondents that they have received no services as their evidence does not show how they have not received the benefit of any of the services described by Meagher JA in Assem. Further, cl 3(b) of the Post-2000 Occupancy Agreement referred to by Meagher JA in Assem at [201] is identical to cl 1(b) of the May occupancy agreement; 4. it is irrelevant that the May occupancy agreement does not include any provision whereby Mr May and the first respondent in her capacity as his executor is not liable to the applicant for the provision of those services. As found by Meagher JA in Assem at [62] the annual amount paid to the applicant by the owners corporation for management services is paid by it out of revenue generated by strata levies, and that no separate amount is payable by residents by way of recurrent charges; 1. even if the May occupancy agreement is not a service contract, it has no bearing on whether the first respondent is a resident of the Astra.
2. While I accept the submissions of the first respondent that there are no amounts outstanding that are payable under a "village contract" within the meaning of the RV Act relating to residential premises located on lot 43 to which Request AF480980 relates, for the same reasons as held by Meagher JA in Assem at [62]-[68] this is not determinative of whether Mr May was, and the first respondent in her capacity as his executor has been, provided with services under a service contract.
3. I do not accept the submissions of the first respondent that lot 43 is not used as a "retirement village" within the meaning of the RV Act for the following reasons: 1. there is no concession by the applicant in the 7 September 2021 letter that that lot 43 is not used as part of the retirement village operated by it; 2. unlike the position in 2014 Noon SC where there no occupancy agreement or buyback deed separate to the contract for sale as had been previously recognised in Gora CA at [361], there was the May occupancy agreement has continued in force and constitutes a "service contract" within s 4(1) of the RV Act. I do not accept the evidence and submissions of the first respondent that that the applicant has never entered into any relevant contract with the respondents or otherwise, in relation to lot 43; 3. Request AF480980 reflects the true position in stating that lot 43 is used as a retirement village. Lot 69 and the finding in 2014 Noon SC at [83], and the three commercial lots, are readily distinguishable from lot 43. As found by Meagher JA in Assem at [87], "provided the complex satisfies s 5(1), the residential premises within it are part of that retirement village unless excluded by s 5(3)".

Conclusion

1. Accordingly, as the Astra is a retirement village within s 5(1)(a) of the RV Act, the applicant is an operator of the Astra and the first respondent is a resident of the Astra within s 4(1) of the RV Act, I am satisfied that the applicant has standing to claim the relief sought against the first respondent.

Whether the first respondent breached the RV Act and/or the May occupancy agreement

Introduction

1. The determination of this issue involves the question of whether the first respondent breached the RV Act and/or the May occupancy agreement by permitting the second respondent to occupy lot 43.
2. Before considering this issue it is appropriate to set out the applicable provisions of the RV Act, and to summarise the evidence and the submissions of the parties.

The applicable provisions of the RV Act

1. Section 4(1) relevantly includes the following definition: 4 Definitions (1) In this Act - … village rules means the rules made and in force from time to time under Division 1 of Part 6. …
2. Part 6 Division 1 (ss 45-56) contains provisions dealing with retirement village rules. Section 50 deals with the making of village rules for existing villages, and provides: 50 Village rules for existing villages If a retirement village that is in existence on the commencement of this section does not, on that commencement, have any village rules, rules may be made for the village in the same way as village rules may be amended under section 51.
3. Section 51 deals with the amendment of village rules, and relevantly provides: 51 Amendment of village rules … (3) A proposed amendment is not to be made unless the residents of the village, by a special resolution, consent to the amendment. … (4) If consent is given, the amendment takes effect 7 days after the date on which the special resolution concerned is notified to the operator … … (7) For the purposes of this section, an amendment to the village rules includes the following - (a) a variation of a village rule, (b) the addition of a new rule to the village rules, (c) the omission of a village rule that is in force.
4. Section 55 deals with compliance with village rules, and relevantly provides: 55 Compliance with village rules (1) The operator and residents of a retirement village must comply with the village rules as in force from time to time. …
5. Section 56 deals with compliance with village rules by persons other than the operator and residents, and relevantly provides: 56 Compliance with village rules by persons other than operator and residents (1) It is a term of every village contract that the resident or former occupant who is a party to the contract will use his or her best endeavours to ensure compliance with the village rules by - (a) a tenant or subtenant, under Division 5 of Part 10, of the resident or former occupant, and (b) any other person who is lawfully on the resident's or former occupant's residential premises (other than a person who has a right of entry to the premises without the resident's or former occupant's consent), and (c) any other person who is in the retirement village at the resident's or former occupant's invitation. …

The evidence of the applicant

1. The Astra village rules relevantly provide: "These rules have been established so as to maintain a peaceful, harmonious, comfortable, and enjoyable village environment for all residents, visitors and guests. 1 VISITORS AND GUESTS … If you want to have a guest stay in your absence on a temporary basis i.e. longer than two weeks, you must get management's consent in advance. … 6 UNDER AGE RESIDENTS The development application as approved by Waverley Council and as recorded on the strata title plan provides a 'restriction of the use of land' which burdens lots 1-61 and provides that 'no person other than a person aged 55 years or over shall occupy any lot herein'. Therefore, no person under the age of 55 will be allowed to occupy or rent a unit in the Bondi Astra Retirement Village. 7 OCCUPANCY AGREEMENT All residents will be required to sign an Occupancy Agreement before taking up residence in the Astra. …"

The evidence of the respondents

1. In his oral evidence the second respondent said he was born on 19 May 1977 and is 44 years of age. He conceded that he had not signed an occupancy agreement.

The submissions of the parties

1. Mr Jackson submitted that the first respondent had breached rules 1, 6 and 7 of the Astra village rules, and referred to ss 55 and 56 of the RV Act.
2. The respondents made no submissions on this issue.

Consideration

1. In Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 (Darley) the Court of Appeal considered the principles surrounding the presumption of regularity. McColl JA at [115] (Macfarlan JA at [123] and Whealy JA at [124] agreeing) relevantly noted the following proposition: "[115] The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act": …
2. Notwithstanding that pursuant to s 38(2) of the NCAT Act the rules of evidence do not apply to these proceedings, I am satisfied that it is appropriate to apply the presumption of regularity to the affairs of the applicant. In the absence of any challenge by the respondents, I am satisfied that, having regard to the principles in Darley at [115], the Astra village rules were validly made pursuant to s 50 of the RV Act or validly amended pursuant to s 51 of the RV Act, and are in force. It follows that the Astra village rules are village rules within the meaning of that expression in s 4(1) of the RV Act.
3. I am satisfied that the first respondent breached s 55 of the RV Act by not complying with rules 1 and 6 of the Astra village rules in permitting the second respondent to occupy lot 43 since 28 August 2021.
4. I am satisfied that the first respondent breached cll 2(e) and (f) of the May occupancy agreement in permitting the second respondent to occupy lot 43 since 28 August 2021 when he was under the age of 55 and contrary to rule 6 of the Astra village rules. Pursuant to the definitions of "The Occupant" and "The Proprietor" the obligations in cll 2(e) and (f) of the May occupancy agreement bind the first respondent in her capacity as the executor of Mr May's estate.
5. I am satisfied that pursuant to s 56 of the RV Act that it is a term of the May occupancy agreement that the first respondent will use her best endeavours to ensure compliance with the Astra village rules by the second respondent. There is a substantial overlap between this term and cll 2(e) and (f) of the May occupancy agreement. For the same reasons that the first respondent breached cll 2(e) and (f) of the May occupancy agreement, I am satisfied that she breached this term of the May occupancy agreement.

Whether the applicant is entitled to relief against the first respondent

Introduction

1. The determination of this issue involves the question of whether the applicant is entitled to relief against the first respondent by reason of the breaches by her of s 55 of the RV Act and the May occupancy agreement.

The submissions of the parties

1. Mr Jackson submitted that the applicant is entitled to relief under s 128(1)(c)(i) of the RV Act against the first respondent.
2. The respondents made no submissions on this issue.

Consideration

1. The applicant has sought relief under s 128(1)(c)(i) of the RV Act. Given the nature of the relief sought it is clear that this is a mistaken reference and the applicant should have referred to one or both of s 128(1)(c)(ii) and (d) of the RV Act.
2. I am satisfied that the applicant is entitled to relief under s 128(1)(c)(ii) and (d) of the RV Act against the first respondent. Given the restriction on the use of the Astra specified in rule 6 of the Astra village rules and cll 2(e) and (f) of the May occupancy agreement, and the term of the May occupancy agreement incorporated pursuant to s 56 of the RV Act, the occupancy of lot 43 by the second respondent cannot be regularised. In these circumstances, there is no reason not to exercise the discretion under s 128(1)(c)(ii) and (d) of the RV Act to grant relief against the first respondent. It is appropriate that the second respondent have four weeks to vacate lot 43.

Orders

1. I make the following order: 1. the first respondent is to take such steps as are necessary to terminate the occupation of the second respondent of lot 43 of SP22422 to operate from the date not being later than four weeks after the making of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 10 February 2022