Bovaird v Milstern Retirement Services Pty Ltd & Anor.

Introduction

1. Lindfield Manor Retirement Village is a residential retirement village located at 1-7 Bent Street, Lindfield, NSW. The premises are owned by Milstern Retirement Living Pty Ltd ('Milstern Retirement'), but operated by Milstern Retirement Services Pty Ltd ('Milstern') - the first defendant. The plaintiff is the executor of the estate of a former resident of a unit in the village. The second defendant is the executor of the estate of another resident of that same unit in the village.
2. The plaintiff and Milstern have been in dispute since 2015 over the payment of recurring charges relating to unit 41. The essential issue that divides them is when the liability to pay for the recurrent charges in connection with the unit ended. Put very simply, the plaintiff argues that the trigger for their cessation was in 2005; on the other hand, Milstern argues - consistent with what was found below - that the trigger was in 2014, which was when Mrs Frost, the last person who had a residence right to that unit, passed away.
3. The NSW Civil and Administrative Tribunal, Appeal Panel (the 'Appeal Panel') upheld Milstern's argument, holding that the plaintiff was liable to pay Milstern $79,001.25 for recurring charges. The plaintiff, by the proceedings in this Court, contests this: whilst he accepts there is some liability for recurring expenses, he argues that it is only for $5,052.02 and not the amount determined by the Appeal Panel. The amount in issue, based upon the principal contention that the plaintiff seeks to agitate on this appeal is, thus, $73,949.23. For the remaining grounds, it would be but a fraction of this.
4. The plaintiff relies upon a Further Amended Summons Seeking Leave to Appeal filed in Court, without objection, on 30 November 2022.

Background

1. The background facts that follow are drawn from the judgment of the Appeal Panel. They are largely uncontroversial, although in respect of one issue the plaintiff argues there should have been a further finding of fact favourable to him - essentially that Mrs Frost announced her intention to Milstern in September 2005 never to "move in". I will separately deal with this contested issue in the narration of the facts.
2. Monica Bovaird and Maxwell Frost were siblings, and Margaret Frost was, at some stage, married to Maxwell Frost - from who he later became estranged, although they (apparently) remained on cordial terms. (Where necessary, they will collectively be called 'the residents').
3. On 26 July 2002 Monica Bovaird, Maxwell Frost and Margaret Frost entered into two contracts: the first, described as a "Lindfield Manor" Residence Contract (the 'residence contract'), was a retirement village contract for a retirement village unit (Unit 41) with Milstern Retirement and Milstern; the second was a 99 year lease with Milstern Retirement Living Pty Ltd ('the lease').
4. It is accepted by the plaintiff that, by these agreements, Mrs Bovaird shared the right to occupy unit 41 ('the unit') with Maxwell and Margaret Frost.
5. Shortly stated, by the residence contract, having acquired the leasehold interest in the unit, the residents were obliged to pay an ingoing contribution (cl 3) and recurrent charges (cl 4) in consideration for Milstern providing services and facilities (cl 5). The ingoing contribution paid by the residents in accordance with the lease was $215,000. And, by the lease, the lessees were conferred the right to occupy - for a period of 99 years - the unit, as well as a car space identified as D4.
6. The lease also made provision for expenses that were of a similar kind to the recurrent charges referred to in the residence contract: they were described as operating expenses, and were dealt with by cl 20 of the lease. Pausing here: the plaintiff argued that the liability for recurrent charges arose from the residence contract, whereas the defendants argued the source of the obligation derived from both agreements. Given the way in which the matter was, ultimately, argued it is unnecessary to resolve that issue, or dwell upon it: no party argued that anything turned on the precise identification of the source of the obligation to pay the recurrent charges. That is because the central issue is when the liability for them ceased - something that the parties agreed was determined by the residence contract.
7. On 3 August 2002, Mrs Bovaird moved into the unit.
8. Mr Frost passed away on 26 November 2002. He never lived in the unit.
9. Mrs Bovaird resided in the unit from that time until around 29 May 2005, when she suffered a fall - following which she was hospitalised. Thereafter, she resided in a nursing home.
10. On 24 September 2005 Leon Bovaird, the son of Monica, hand delivered a letter to Milstern advising that Mrs Bovaird was unlikely to return. The Tribunal found that Mrs Bovaird "gave up possession in September 2005 and returned the keys": Appeal Panel reasons at [69].

The contractual arrangements and statutory provisions

1. As I have earlier noted, the residents entered into two agreements: the residence contract and the lease. Before identifying the key terms of these agreements, two matters should be noted. The first is that the parties accepted that the agreements are to be read and construed together, and to be treated, in effect, as forming a single composite document. The second is that these agreements were expressly subject to the provisions of the RV Act: cl 2.1.5 of the lease; clause 2(b) of the residence contract - and the parties proceeded on the basis that the agreements were also to be read and construed subject to the provisions of the RV Act.
2. In what follows, the key provisions - under the residence contract, the lease and the RV Act - are set out, with some focus upon the liability for recurrent charges.

The residence contract

1. The residence contract is dated 26 July 2002. The parties to the residence contract were the residents, Milstern Retirement and Milstern (who is described as the 'Village Operator').
2. Relevantly, the key terms of that agreement are as follows.
3. The residents were required to "pay the ingoing contribution on or before the date" of the residence contract: cl 3(a). The Schedule to the contract, on page 1, identified the amount as $215,000.
4. Clause 4 of the residence contract makes provision for the payment of 'recurrent charges' by the residents. Those charges were payable "monthly in advance" to Milstern: cl 4(a).
5. Clause 4(d) dealt with the payment of recurrent charges for personal services during the absence of a resident. It provides: If the resident is absent from the retirement village for any reason for 28 consecutive days the resident is not liable for recurrent charges for personal services in respect of any remaining period of absence.
6. Clause 4(e) deals with the liability for recurrent charges for general charges after permanently vacating the premises. These are the ones in issue in these proceedings. The parties agreed that the relevant clause under which the liability for recurrent charges ceased was cl 4(e)(v) - which provides: (e) The resident is liable to continue to pay recurrent charges for general charges after permanently vacating the residential premises until: … (v) the date that is 6 months after the date on which the resident otherwise delivered up vacant possession of the residential premises to the village operator, whichever date occurs first, or such earlier date as the village operator and the resident may agree.
7. To recap: the conclusion of the Appeal Panel was that Milstern was entitled to payment of recurring charges until 1 July 2014 - which is approximately six months after the date of Mrs Frost's death. The material did not explain why the charges were not for the entire six months, but nothing turns on this: no question about the calculation of these charges is raised by the appeal: the issue is confined only to when the liability for them ceases.
8. Clause 5 deals with services and facilities provided or made available to the resident by or on behalf of Milstern. These services and facilities are of a general kind, however cl 5(a)(viii) provides that the village operator will provide, or make available to the resident, if personal services are selected, "cleaning of the apartment once per week, three meals a day, laundering of linen once per week".

The lease

1. The terms of the lease did not feature significantly during submissions - except in relation to ground 5 (which concerned cl 21 'termination of this lease' or, as it was described during argument, the 'abandonment ground'). With this in mind, and having regard to the fact that the issue of, and the liability for, recurrent charges formed the principal challenge on this appeal, the relevant terms of the lease are as follows.
2. By special condition cl B.2, the "provisions" contained in the lease "as varied by the Residence Contract shall be deemed to be part of this Lease as if fully set out herein …".
3. As I earlier noted, the lease provides that lessees are to make a contribution to "operating expenses": cl 20. That term is defined (cl 20.1.3), and includes matters such as statutory charges, insurances, security and caretaking, management costs, repairs and maintenance general expenditure etc: cl 20.1.3. The contribution is 1/46th of the operating expenses as set forth in cl 20.1.3 (a)-(u) (expressed as a percentage as specified in item 5 of the Reference Schedule): cl 20.1.1. The Reference Schedule, Item 5 ("LESSEE'S CONTRIBUTION TO OUTGOINGS (clause 20): 2.174%".
4. The lessee is required to pay the lessor "by equal monthly instalments in advance on the first day of each month" the operating expenses: cl 20.2. The estimate of those contributions is contained in item 6 of the Reference Schedule: cl 20.2.1 - which provides: "serviced: $1,040.93 per calendar month (inclusive of GST)".
5. Clause 1.1.15(b) defines "Lessee" to (relevantly) mean and include "where the Lessee is more than one person each and every and any one or more of the persons comprising the lessee…".

The Retirement Villages Act 1999 (NSW)

1. It was accepted by the parties that the agreements were expressly subject to the provisions of the RV Act. I will set out some of the key sections of that Act.
2. The RV Act defines, in s 4(1), a number of terms. Relevantly, they include: 1. 'Former occupant' is defined thus: former occupant of a retirement village means a resident, or former resident, of the village: (a) it has permanently vacated any residential premises in the village; and (b) whose residence contract has been terminated… (c) who continues to have rights or liabilities under a village contract relating to the village, it includes the executor or administrator of the estate of such a person. 1. Optional services is defined to mean: 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. The Note to this provision is: "Examples of optional services are the provision of meals, laundry services and the cleaning of the residents' residential premises". Services of this kind, it will be observed, are similar to those described as 'personal services' in the residence contract: cl 5(a)(viii). 1. Recurrent charge "means any amount (including rent) payable under a village contract, on a recurrent basis, by a resident of a retirement village". 2. Residence contract "means a contract that gives rise to a residence right".
3. Section 4 contains a definition of "residence right" as follows: 'residence right' of a person means the person's right to occupy residential premises in a retirement village, being a right arising from a contract-- (a) under which the person purchased the residential premises, or (b) under which the person purchased shares entitling the person to occupy the residential premises, or (c) in the form of a lease, licence, arrangement or agreement of any kind, other than a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010 -- (i) that is entered into under Division 5 of Part 10, or (ii) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, or (d) in the form of any other contract of a kind prescribed by the regulations, or any other right of a kind prescribed by the regulations.

The decision of the Appeal Panel

1. Before I outline the decision of the Appeal Panel, the material received on this appeal should be noted, together with some consequences of the confined nature of that material.
2. The 'evidence' before me was limited. It included the reasons of the Appeal Panel, as well as at least parts of the applications made by the plaintiff and Milstern to the Tribunal. The evidence concerning the application of the plaintiff is incomplete: all that is in evidence is an annexure identifying the orders that the plaintiff sought. There is no immediate difficulty with this because the substance of the orders sought by the plaintiff have been summarised by the Appeal Panel. However, the parties' submissions (whether written or oral) and the transcript of what occurred below were not in evidence. Perhaps more importantly, the notices of appeal that initiated the appeal to the Appeal Panel (and identified the grounds for the appeal) were not in evidence. While the Appeal Panel did provide a general summary of the grounds of appeal, the absence of the notices of appeal (notably the plaintiff's notice of appeal) has made it somewhat difficult to discern, at least with precision, what the grounds of appeal were. It has also made clear identification of how the matter was presented to the Appeal Panel - what it was asked to decide, and what arguments were advanced before it - somewhat difficult to clearly determine.
3. As I have earlier noted, there were two applications before the Tribunal: one by the plaintiff and the other by Milstern. The plaintiff's application was dismissed - and that dismissal is challenged by ground 6. It is presently unnecessary to refer to those reasons: they are outlined when dealing with the background to the appeal - see [128]ff, below.
4. In relation to Milstern's application - although it will be necessary, when dealing with the specific grounds to return to the reasons - the key findings of the Appeal Panel were as follows.
5. The Appeal Panel held that despite never occupying or moving into the unit, Mrs Frost nevertheless had a "residence right", as defined in s 4 of the RV Act because she had a right to occupy the unit by reason of the lease (Appeal Panel reasons at [64]).
6. The acquisition of that right was not contingent upon the person who had the residence right "occupying the premises" (Appeal Panel reasons at [65]) - an interpretation that the Appeal Panel considered was supported by two matters. The first was the fact that "where the residence right is acquired by a corporation, the corporation would never occupy the premises as 'residential premises' as defined in the RV Act" (Appeal Panel reasons at [66]). The second was the terms of s 4(2) of the RV Act which provides that in addition to "the person who obtains the [residence] right" (emphasis added), which may be a corporation or natural person, a person who lives in the residential premises with the consent of the corporation or person is also "taken to have the residential right". This view is also supported by the note at the foot of s 4(2) which refers, as an example, to a person who buys a strata-titled unit in a retirement village for the person's parent to live in. In this case, the parent has a residence right in addition to the residence right of the owner. (underlining in original)

The nature of the appeal to this Court

1. The Further Amended Summons Seeking Leave to Appeal sought, in addition to seeking leave to appeal "from the whole of the decision" of the Appeal Panel, an order quashing that decision pursuant to s 69 of the Supreme Court Act 1970 (NSW). At the hearing, however, the plaintiff abandoned the claim for judicial review.
2. Section 83 of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') deals with appeals from the Tribunal to the Court. That section (relevantly) provides: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. (2) … (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following - (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.
3. It is to be observed, in connection with the appeal prescribed by 83(1), that there are two express limitations: the first is the requirement for leave; the second is the existence of a question of law - which is "not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself": TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178; [1988] FCA 119.
4. In relation to the requirement for leave, there was no issue about the relevant principles that govern the question of leave. It was accepted that leave to appeal will ordinarily only be granted "concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable": Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Corcoran v Far [2020] NSWCA 140 at [12].
5. A further matter should also be noted - namely, the appeal to this Court is confined to the decision of the Appeal Panel, and not the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10].
6. I will now deal with each of the plaintiff's grounds of appeal.

Grounds 1 and 2: "permanent vacation" of the premises

Introduction

1. Ground 1 is the plaintiff's central ground of appeal, and it relates to when the liability to pay the recurrent charges in connection with unit 41 ended.
2. The issue raised by this ground concerns cl 4(e)(v) of the residence contract - in particular, the meaning of the term, within that clause, "permanently vacating". As to that clause, it will be recalled that a resident "is liable to continue to pay recurrent charges for general charges after permanently vacating the residential premises until" the date "that is 6 months after the date on which the resident otherwise delivered up vacant possession".
3. The residence contract does not define the term "permanently vacating" (nor the term: vacant possession), but a definition of "Permanent vacation" is provided by s 8 of the RV Act. The parties agreed that, in relation to the proper construction (and operation) of cl 4(e)(v), it was necessary to construe (and apply) that clause having regard to the definition provided in s 8 of the RV Act - specifically, s 8(d). Thus, applying that statutory definition: determining when the liability for those recurrent charges ceased turns on whether the 'resident' has permanently vacated the premises, and if so, when that occurred.
4. By s 8(d) of the RV Act, a person (being a 'registered interest holder') is "taken to have permanently vacated residential premises in a retirement village when … the person dies or moves out of the premises". Mrs Frost died on 13 January 2014, and the recurring charges were calculated on the basis of vacant possession being delivered up on that basis: thus, the liability continued, under cl 4(e)(v) of the residence contract, until 6 months after that time.
5. The plaintiff's argument focused upon Mrs Frost. That was because the plaintiff accepted that joint liability exists in relation to the recurring charges - with the consequence that it was necessary to look at the position of Mrs Bovaird and Mrs Frost, and when each permanently vacated the premises. The basis for this concession was not expressly identified, but presumably was anchored in the fact that each of them had a 'residence right' (s 4(1) of the RV Act) and each of them were a registered interest holder within s 7(1)(c) of the RV Act. It is unnecessary to dwell further on the basis for the matter being argued in this way.
6. Appeal ground 1 had two parts to it. The first was that Mrs Frost "moved out" - an argument that picked up the terms of s 8(d) of the RV Act. The second, an alternative to the first, was that Mrs Frost permanently vacated the premises - an argument that picked up the words in the chapeau to s 8.

The approach of the Appeal Panel

1. It is convenient to next address the plaintiff's challenge to the manner in which the Appeal Panel addressed the 'permanent vacation' issue.
2. The plaintiff's first argument was that the Appeal Panel erroneously "construed s 8(d) as confining the circumstances in which such a resident could permanently vacate their premises, to their death" - this being appeal ground 1 (plaintiff's submissions at [14]).
3. In the case of Mrs Frost, I do not consider that the Appeal Panel erred by confining the circumstances under which a resident could permanently vacate the premises, to her death. The structure of the reasons of the Appeal Panel stand against acceptance of the plaintiff's complaint. That is because the approach that was adopted by the Appeal Panel involved an assessment of whether there were, like Mrs Bovaird, sufficient indicators that Mrs Frost had "moved out". Like the Tribunal however, the Appeal Panel was satisfied that the evidence did not establish this.
4. It is therefore clear that the Appeal Panel concerned itself with whether or not Mrs Frost had permanently vacated the premises by giving up possession, or by her death: Appeal Panel reasons at [69]. The findings made by the Tribunal, and which the Appeal Panel confirmed, were directed to that very end. For example, the Appeal Panel, although invited to do so, did not disturb the finding that there was no evidence that Mrs Frost had "concurred with [Mrs Bovaird's] surrender" of the property in 2005: Appeal Panel reasons at [69]. That finding is directed to a consideration of whether - apart from the death of Mrs Frost, and before it - Mrs Frost had "moved out" and thereby permanently vacated the premises. It also makes plain that the Appeal Panel correctly focused its attention on whether there was any evidence to support a finding that Mrs Frost had moved out. In the absence of evidence to that effect, the Appeal Panel concluded that Mrs Frost permanently vacated the premises upon her death.
5. The plaintiff next argued that if the Appeal Panel - at least implicitly - concurred in a view that the term "move out" meant to cease having a "residence right", it had erred (plaintiff's submissions at [15]). The plaintiff pointed to the Appeal Panel reasons at [69] as evidencing this error. In my respectful view the reasons of the Appeal Panel at [69] cannot be read in this way. The first sentence of that paragraph of the Appeal Panel's reasons - where there is a reference to 'residence right' - also makes it explicit that the Appeal Panel did not commit the error: the end of that sentence makes it clear that the enquiry posed about whether Mrs Frost had "moved out" did not turn upon the giving up of a 'residence right', but instead was to be determined upon whether Mrs Frost had "either surrendered the property herself or died". I would also observe that the reasons of the Appeal Panel - and the manner of their expression - appeared to reflect the very specific ground of appeal advanced by the plaintiff below concerning an error in the application of s 4 of the RV Act: Appeal Panel reasons at .

The plaintiff's argument: when a person "moves out"

1. The plaintiff's essential submission was the same in connection with whether the enquiry is approached from when Mrs Frost "moved out" or whether it was approached from when Mrs Frost is said to have "permanently vacated" the premises: it was said that Mrs Frost had "moved out", or had permanently vacated the premises, not upon her death in 2014 but by July 2005 (see [80], above). As to the permanent vacation argument, although the plaintiff accepted that s 8 deems certain matters to be within it (the respective sub-paragraphs), it was argued that the definition was not exhaustive: the plaintiff argued it was open to prove separate from, relevantly, the terms of s 8(d) of the RV Act, that the 'person' - here, Mrs Frost - permanently vacated the residential premises. Put another way, even though Mrs Frost did not "move out" before her death, she permanently vacated the premises.
2. The plaintiff argued this ground of appeal by reference to what the term did mean, and also about what it did not mean. In relation to what the term did mean, the plaintiff argued that the term "move out" covered two situations: when a person ceases "living in" the premises, as well as those "who, after a reasonable time has passed, have not moved into their premises, such that they do not in fact have the benefit of it" (plaintiff's submissions at [19]; plaintiff's supplementary submissions at [5]).
3. In aid of this submission, the plaintiff also relied upon the online Macquarie Dictionary, which was used to support the argument that a person can permanently vacate premises by failing, or ceasing, to physically occupy them in a lasting way, rather than giving up any interest in them. In my view, the use of this definition in the present situation is of limited assistance: although dictionaries can illustrate usage of a term in context, they cannot assist in the interpretative task because they say little, if anything, about how that term is to be understood in any particular situation: House of Peace Pty Limited v Bankstown City Council (2000) 48 NSWLR 498, 505; [2000] NSWCA 44.
4. In relation to what it did not mean, it was argued that a person "can permanently vacate premises without having given vacant possession". The submission gains some support from the decision in Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWCA 38 at [35], albeit that, in the context of dealing with the phrase "moves out", that support only goes so far. The plaintiff also argued that the term should not be equated with "giving up a residence right" (plaintiff's submissions at [16] and [17]). That can, I think, be accepted: the loss of a residence right (a concept defined in s 4(1) of the RV Act) is not synonymous with, nor a precondition to, permanent vacation. The first defendant accepted as much.

The plaintiff's argument: permanent vacation

1. In the way in which the plaintiff argued the matter, the question of permanent vacation requires no separate analysis: the result is the same as the one reached in connection with the term "moves out".
2. In those circumstances, it is unnecessary to determine whether, as the plaintiff contended, the proper construction of s 8 was such that it was open to the plaintiff to prove, separate from the matters within s 8(d), that Mrs Frost permanently vacated the premises in July 2005: even if the terms of s 8 were not exhaustive, and the approach open (for which I entertain some reservation), the case must fail on the facts, for the reasons that I have given.

Deposition and summary: ground 1

1. In my view, the Appeal Panel committed no error of the kind alleged, and the approach adopted was correct. Even if that were not so, as the defendants essentially argued, the (undisturbed) factual findings made below preclude acceptance of the plaintiff's case they have sought to make on appeal.
2. Thus, although an abstract question of law might be said to have been raised, it is not a matter that I consider should be the subject of a grant of leave. That is because the Appeal Panel approached the matter in a way that I consider to be legally correct. No injustice arises in the refusal of leave because, as I have explained, even if one assumed the test propounded by the plaintiff was correct, the plaintiff did not prove (on the case sought to be made on appeal) that Mrs Frost had moved out - indeed, there are concurrent findings that she did not. Finally, I do not consider, contrary to what was argued, that there is some wider question of principle involved requiring a grant of leave - rather, as the defendants submitted, I consider this to be a case which, whilst presenting an unusual feature (being that one resident never moved in), involves no more than an application of facts to the statutory test.

Ground 2: alleged error in failing to draw the proper inference of fact from the primary facts

1. Ground 2 of the Further Amended Summons alleges that the Appeal Panel erred in "failing to draw the proper inference of fact from the primary facts, namely that Mrs Bovaird and Mrs Frost had 'moved out' of and therefore 'permanently vacated' the premises by 24 September 2005". The plaintiff accepted, during argument, that this Court could not make factual findings with the consequence that this ground "rises and falls" with the first ground of appeal. My rejection of the first ground therefore disposes of the second ground.
2. In any event, there is, in my view, no error of the kind identified in ground 2. Expressed in these terms, and understood in light of the plaintiff's submissions, the argument in truth is that the Tribunal (or Appeal Panel) when presented with these facts should have accepted them and made findings favourable to the plaintiff. I will explain why I consider this to be the substance of the complaint.
3. The plaintiff has framed the ground as involving a failure to draw an inference from the primary facts. It is, I think, important to distinguish between evidence, on the one hand, and facts on the other. To do otherwise blurs a distinction that is fundamental, particularly where (put simply) the gateway to appeal is error of law. In this case when the plaintiff refers to primary facts, the plaintiff is referring to evidence: this is apparent from the submissions that were made in aid of this ground referred to in [110], above. Thus, in relation to the material there referred to - they are not facts (in the sense discussed), but evidence; and, to be clear, they have not been found as fact. There may well have been evidence of the kind raised (I have earlier noted that I do not have this material before me and there might be a question about whether it is evidence, properly so called), as the plaintiff argues, but it was not accepted.
4. So understood, the true question is not about what inference can be drawn from 'facts' found, but is in substance no more than complaint that certain evidence should have been accepted, but was not. That is not an error of law: "no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another": Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151. Axiomatically, it does not raise a question of law.

Ground 3: vacant possession

1. By this ground, the plaintiff argues that, for the purposes of cl 4(e)(v) of the residence contract, the Appeal Panel erroneously equated the term vacant possession with a requirement that Mrs Frost "surrender her interest" in the unit: Appeal Panel reasons at [69] (plaintiff submissions at [25]). The plaintiff argued that it was sufficient for Mrs Bovaird and Mrs Frost to simply physically vacate the unit in order to deliver vacant possession of it - something that the plaintiff further argued occurred by 24 September 2005 when Mrs Bovaird told Milstern that she never intended to return to the unit, and returned the keys; and occurred when Mrs Frost, at that same time, had never lived in the unit "and had also indicated that she never intended to do so" (plaintiff submissions at [26]).
2. I do not consider that the Appeal Panel found, contrary to what has been argued, that vacant possession required Mrs Frost to surrender her interest under the lease. That is because, first, the specific phrase that is the subject of this challenge - the Appeal Panel's use of the phrase "surrender her interest" - was merely a reference to, and a contrast with, what Mrs Bovaird did in September 2005, namely, give up possession and return the keys. I am not persuaded that, when used in their reasons, the Appeal Panel was using that phrase in a technical way. Secondly, and as the first defendant submitted, the overall context of the paragraph is a discussion about the lease remaining on foot. It does not betray a wider error of the kind alleged by the plaintiff. Thirdly, in my view it is clear that the Appeal Panel directed itself to consider the terms of s 8(d) of the RV Act: Appeal Panel reasons at [70]-[71].
3. I would refuse leave for the reasons given in [114], above.

Grounds 4 and 5: termination of the Residence Contract

1. Ground 4 concerns the interplay between s 152 of the RV Act and cl 4(e) of the residence contract. The ground is expressed as follows: The Appeal Panel erred by applying an improper construction of s 152 [of the RV Act] and/or cl 4 [of the residence contract] … namely that they require a person to become a "former occupant", rather than simply a "resident", before recurrent charges can cease to become payable': reasons for decision, paragraph [69].
2. The plaintiff's written argument involved the following steps: (a) s 152 of the RV Act applies to a 'former occupant' and expressly allows for the parties to contract for an earlier cessation of liabilities; (b) cl 4(e) of the residence contract provides for an earlier cessation of liabilities by applying to a 'resident' - as opposed to a 'former occupant'- who permanently vacates their premises, and satisfies one of cll 4(e)(i)-(v); (c) as the Appeal Panel found that Mrs Bovaird and Mrs Frost each had a "residence right", by cl 4(e) of the residence contract, their obligations to pay recurrent charges could cease before their residence contract had terminated upon satisfaction of one of the matters within cll 4(e)(i)-(v); and, (d) the Appeal Panel erred in concluding that as the lease remained on foot, "entitling the operator to impose recurrent charges": Appeal Panel reasons at [69] (plaintiff submissions at [29]-[30]).
3. During submissions it was said that the Appeal Panel "erred in determining that because the lease remained on foot, therefore recurrent charges were still payable".
4. Much of what the plaintiff argued - the first three steps of the argument - are unexceptional. Nevertheless, in my respectful view, the materiality of this ground is neither self-evident, nor demonstrated. Indeed, the first defendant argued that it was irrelevant. That was because, whilst it may be accepted that s 152(2) of the RV Act expressly preserves the right of the parties in the contract between them to provide "for an earlier cessation of that liability", no attempt was made by the plaintiff to demonstrate that an earlier, and thus more favourable, termination date is provided by cl 4(e). I respectfully agree. To the extent that this ground is tethered to the idea that there should have been factual findings favourable to the plaintiff in terms of when Mrs Frost moved out, then I have already dealt with the difficulties faced by the plaintiff in seeking to have those findings made, and outflank the ones that have already been made: see [105], above.

Ground 6: the dismissal of the plaintiff's application

1. In order to explain, and resolve, this ground of appeal, it is necessary to traverse some of the detail of the proceedings before the Tribunal.
2. What follows is, necessarily, a broad sketch of that detail. That is because the material that is in evidence on this appeal is confined: the plaintiff's application to the Tribunal is not in evidence before me, albeit that the orders sought are (Exhibit F). Largely, what follows has been "re-created" from the decision of the Appeal Panel.
3. As I have earlier mentioned, the plaintiff brought an application in the Tribunal in relation to the fees claimed by Milstern. That application was filed in December 2020 (Appeal Panel reasons at [12]). The Tribunal dismissed that application as having been brought out of time - a decision that was upheld by the Appeal Panel: Appeal Panel reasons at [76]-[78].
4. The application brought by the plaintiff was summarised by the Appeal Panel in these terms (Appeal Panel reasons at [12]) - namely that the plaintiff sought an order under s 180(5)(a) of the RV Act directing Milstern to recalculate certain amounts in accordance with the RV Act and pay any additional amount to him as executor of the Bovaird estate. He disputed the calculation of the departure fee, recurrent charges, reinstatement costs and in so doing relied upon various provisions of s 180 of the RV Act. He also claimed an order for the payment of interest.
5. By contrast, Milstern's application "sought an order as to the amount owing to Milstern on settlement of the sale of the unit in accordance with s 128(e) of the RV Act" (Appeal Panel reasons at [11]).
6. The Tribunal, recognising that the plaintiff sought to challenge payments from 2003 and sought to adjust entitlements following the sale of the premises in 2015, found that the "extent of the delay has not been explained" and the Tribunal did not consider it appropriate "to extend time to bring the application by more than 5 years" (Appeal Panel reasons at [13]). Accordingly, the Tribunal dismissed the plaintiff's application.
7. The plaintiff challenged this dismissal in its appeal to the Appeal Panel. The Appeal Panel considered "the Tribunal did not err in dismissing" it, making the following key findings/conclusions: 1. The "Tribunal's refusal to extend time does not display any error of law and nor is there any basis for granting leave to appeal under clause 12 of schedule 4 of the NCAT Act" (Appeal Panel reasons at [77]). 2. The Tribunal "was not in error in determining that the Bovaird Application was brought more than five years after the date on which the Appellant had formed an opinion that the amount paid (or proposed to be paid) under s 180 was not calculated in accordance with the RV Act" (Appeal Panel reasons at [78]). 3. The Tribunal's "decision not to extend time does not display error. As the Tribunal recorded at [28] of the Primary Decision there was no explanation for the Appellant's delay of five years in lodging the application" (Appeal Panel reasons at [78]).

Orders

1. For the above reasons, I make the following orders: 1. Order that the Amended Summons filed 30 November 2022 be dismissed. 2. Order that the plaintiff pay the first and second defendant's costs of the proceedings in this Court.

Amendments 06 March 2023 - Format changes 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: 06 March 2023