Bovaird v Milstern Retirement Services Pty Ltd & Anor.

Supreme Court of NSW|2022-11-30|Before: Chen J, Mr J

Introduction

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.
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.

Background

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.
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').
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').
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.
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.
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.
On 3 August 2002, Mrs Bovaird moved into the unit.
Mr Frost passed away on 26 November 2002. He never lived in the unit.
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.
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].
Pausing here to signpost: part of the case that the plaintiff brings on appeal is that the evidence established that Mrs Frost moved out - and thereby permanently vacated - the unit by 24 September 2005. This issue was, however, the subject of findings by the Tribunal. Those findings were, first, that the giving up of possession by Mrs Bovaird in September 2005 (see [14], above) "did not constitute evidence that Mrs Frost concurred with the surrender so far as she herself was concerned" and, second, that there was "no evidence to support the proposition that Mrs Frost surrendered her interest in the premises": Appeal Panel reasons at [69]. There is a third - albeit intermediate - finding. The Appeal Panel, having noted that in November 2005 that Mrs Bovaird and Mrs Frost executed a transfer of the joint tenancy interest in the lease to an interest as tenants in common in equal shares, indicated that "both parties asserted a continuing interest as lessees", a step that was "inconsistent with the view that Mrs Frost had previously concurred with any surrender or had authorised" Mrs Bovaird's son "to act on her behalf for the purpose of surrendering the lease": Appeal Panel reasons at [69].
On 18 November 2005, a document was executed pursuant to which the interest in the lease then held by Mrs Bovaird and Mrs Frost as joint tenants was severed, and converted to a tenancy in common in equal shares. This was the subject of the further finding, just noted.
Mrs Bovaird passed away on 29 November 2011 - not having occupied the unit since May 2005.
Mrs Frost passed away on 13 January 2014. She never lived in the unit.
In April 2015 the unit was sold for $240,000.
Milstern issued an exit statement, dated 12 August 2015, detailing the exit fee payable to it on settlement of the sale - in the amount of $234,650.29 (less a deposit of $1,220.00). That amount comprised: 1. $7,920.00: commission. 2. $60,000.00: a departure fee. 3. $167,950.29: recurring charges.
From the proceeds of the sale of the unit, the plaintiff and the second defendant have - so far - each received $2,427.60.
Ultimately, two applications were made to the Tribunal arising from the dispute.
The first was an application filed by Milstern dated 15 April 2020 - described as a 'Retirement villages application'- seeking an order as to the amount owing to it on settlement of the sale of the unit in accordance with s 128(e) of the Retirement Villages Act 1999 (NSW) ('the RV Act'). In simple terms, by this application, Milstern sought payment in respect of the liabilities referred to in the exit statement - albeit in different amounts to those listed in the exit statement. (Nothing turns on this difference, in my view, and no party submitted that it did).
The second was an application, filed on behalf of the plaintiff, which sought an order under s 180(5)(a) of the RV Act. In simple terms, by this application, the plaintiff sought a recalculation of payments made to Milstern from 2003 and the adjustment of entitlements following the sale in 2015. (The orders sought by that application are Exhibit F, but the application itself is not in evidence).
On 21 January 2021 both applications were heard together. The plaintiff's application was dismissed on that day, essentially on the basis that the Tribunal had "no jurisdiction" to determine that application. It appears from the Appeal Panel reasons that this position was reached because some of the claims sought to be advanced were either barred by the Limitation Act 1969 (NSW) or, to the extent they were not, an extension of time was required in order to bring the remaining claims, and the Tribunal declined to extend the time required.
In relation to Milstern's application, the Tribunal, by reasons delivered on 16 April 2021, held that Milstern was entitled to be paid a commission of $7,920.00, a departure fee of $18,953.40 and recurrent charges of comprising $79,001.25 (for the period 1 August 2005 to 1 July 2005). The Tribunal found that Milstern was entitled to the sum of $105,907.66 (Appeal Panel reasons at 17).
The plaintiff, being dissatisfied with both decisions, appealed to the Appeal Panel. Orders were made for both appeals to be heard together. The Appeal Panel rejected all grounds of appeal, and made orders dismissing the appeal in each matter. In relation to the decision to dismiss the plaintiff's application, it is presently sufficient to note that the Appeal Panel found no error in the Tribunal's refusal to extend the time to enable the plaintiff's application to be determined. (The plaintiff challenges this by ground 6: see [128], below). In relation to Milstern's claim for recurring charges, the Appeal Panel held that Milstern was "entitled to claim recurrent charges for the entire period claimed (1 August 2005 to 1 July 2014) …": Appeal Panel reasons at [74]. The plaintiff has not pursued his challenge in connection with the commission and departure fee payable to Milstern, but does challenge the conclusion that Milstern was entitled to recurrent charges in the amount awarded: the plaintiff argues that the recurrent charges should only be $5,052.02.
The plaintiff, being dissatisfied with the decisions of the Appeal Panel, filed a Summons for Leave to Appeal in this Court. Milstern and the second defendant resist the appeal, and the grant of leave.
Before dealing with the substance of the plaintiff's appeal, I will outline: (a) the relevant contractual and statutory provisions that concern the right to reside in the unit, with some focus - bearing in mind the issues raised - on the liability for recurrent charges; (b) the decision of the Appeal Panel - particularly as it dealt with the issue of the recurrent charges; and (c) the nature of the appeal to this Court.

The contractual arrangements and statutory provisions

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.
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

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').
Relevantly, the key terms of that agreement are as follows.
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.
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).
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.
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.
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.
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".
Clause 13(a)(v) provides that the residence contract terminates "on the death of the last surviving tenant under the contract".
Clause 15 deals with departure fees: a departure fee "is payable by the resident on termination of the contract": cl 15(a). The fee is calculated in accordance with a schedule specified in cl 15(b). Given that no issue has arisen in connection with the departure fee levied, it is unnecessary to deal further with that fee.
Clause 19 deals with the incorporation of the lease into the residence contract. That clause provides: Subject always to the provisions of Clause 3 of this contract, the parties to this contract acknowledge and agree that the provisions of the Lease are incorporated by reference into this contract and that in consequence this contract gives rise to the resident's… right to occupy the residential premises pursuant to the Act.

The lease

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.
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 …".
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%".
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)".
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)

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.
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".
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.
Section 4 contains a definition of 'resident' as follows: '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.
Section 4(2) provides as follows: For the purposes of the definition of "residence right" in subsection (1), it does not matter that the person who obtains the right-- (a) is a corporation, if the premises concerned are intended for use as a residence by a natural person, or (b) obtains it for the purpose of allowing another person to live in the residential premises (instead of the person who obtained the right), and in those cases, a retired person who lives in the premises with the consent of the corporation or of the person (as the case may be) is taken to have the residence right. Note: Subsection (2) would apply in the case, for example, of a person who buys a strata-titled unit in a retirement village for the person's parent to live in.
The parties accepted that each of the residents were a 'registered interest holder' of the kind referred to in s 7(1)(c) of the RV Act: (1) For the purposes of this Act, a person is the registered interest holder to residential premises in a retirement village if: (a)… (b)… (c) the person's residence contract is in the form of a registered long- term lease that includes a provision that entitles the person to at least 50% of any capital gain.
Section 8 of the RV Act deals with when a person is taken to have permanently vacated residential premises in a retirement village. It provides: For the purposes of this Act, a person is taken to have "permanently vacated" residential premises in a retirement village when-- (a) the person (or another person on behalf of the person) delivers up vacant possession of the person's residential premises to the operator of the village following the person's vacation of the premises, or (b) the executor or administrator of the person's estate delivers up vacant possession of the person's residential premises to the operator of the village following the person's death, or (c) the Tribunal makes an order under section 143 declaring that the person's residential premises were abandoned by the person (and the person is taken to have permanently vacated the premises on the day specified in the order), or (d) if the person is a registered interest holder in relation to residential premises or is taken to be a resident of the premises by the operation of section 4 (2)-- (i) the person dies or moves out of the premises, or (ii) for the purposes of the payment of recurrent charges under section 152--the person moves out of the premises or the executor or administrator of the person's estate delivers up vacant possession of the person's residential premises to the operator of the retirement village following the person's death.
Part 10, Division 2 of the RV Act deals with recurrent charges. Section 151 deals with recurrent charges in respect of optional services. Section 152 deals with recurrent charges in respect of general services.
Section 152 of the RV Act applies to a "former occupant of residential premises in a retirement village who is a registered interest holder in respect of the premises": s 152(1). Section 152(2) then deals with, subject to s 152(3), when "the former occupant's liability to pay recurrent charges … that arise after the former occupant permanently vacated the residential premises" ceases. Section 152(3) is concerned with how the former occupant's liability to pay recurrent charges that arise after they have permanently vacated the residential premises is to be met.

The decision of the Appeal Panel

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.
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.
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.
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.
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]).
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)
Thus, the Appeal Panel held that each of the residents had a "residence right by s 4(1) and it did not matter that Mr and Mrs Frost acquired the residence right for the purpose of allowing Mrs Bovaird to live in the residential premises even if they did not then reside there themselves" (Appeal Panel reasons at [67]).
The Appeal Panel considered that the finding made by the Tribunal - that when Mrs Bovaird gave up possession in September 2005 and returned the keys those facts did not constitute evidence that Mrs Frost concurred with the surrender so far as she herself was concerned - was correct; and the finding that "there was no evidence to support the proposition that Mrs Frost surrendered her interest in the premises" was also correct (Appeal Panel reasons at [69]). Furthermore, the Appeal Panel considered (at [69]) the fact that, some two months later (in November 2005), Mrs Bovaird and Mrs Frost executed a transfer of their joint tenancy interest in the Lease to an interest as tenants in common in equal shares is indicative that both parties asserted a continuing interest as lessees under the Lease and inconsistent with the view Mrs Frost had previously concurred with any surrender or had authorised Mr Bovaird to act on her behalf for the purpose of surrendering the Lease.
The Appeal Panel agreed with the conclusion of the Tribunal "that the premises were not permanently vacated until Mrs Frost died" (Appeal Panel reasons at [70]).
When dealing with s 8(d) of the RV Act, the Appeal Panel held at [70]: Mrs Frost was a former occupant because she was a resident (meaning a retired person who has a residence right) and she was a person who was also a "registered interest holder" under s 7. That definition includes a person whose residence contract is in the form of a registered long-term lease that includes a provision that entitles the person to at least 50% of any capital gain: see s 7(1)(c) and (2). The definition of "former occupant" in s 4 contains cumulative provisions and Mrs Frost, on her death, satisfied those provisions. She continued to have rights and obligations under the contract and, although she had never been in occupation, she nevertheless satisfied the definition of having permanently vacated the residential premises contained in s 8(d)(i). This view was also the view of the Tribunal …
The Appeal Panel then expressed its dispositive conclusion thus (Appeal Panel reasons at [71]): It follows that Mrs Frost had residential rights being a right to occupy the residential premises and the residential contract did not terminate until the premises were permanently vacated which occurred on the death of Mrs Frost.

The nature of the appeal to this Court

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.
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.
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.
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].
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].
I will now deal with each of the plaintiff's grounds of appeal.

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

Introduction

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.
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".
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.
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.
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.
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.
Before dealing with the arguments raised by the plaintiff, it is necessary to mention appeal ground 2. That ground of appeal was argued with ground 1 but, more importantly, it identified the case that the plaintiff makes in connection with ground 1. By ground 2, the plaintiff argued 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". In the plaintiff's written submissions (at [20]), it was said that: Mrs Frost never moved in. Moreover, there was evidence below that by July 2005 Mrs Frost communicated to Milstern her intention never to move in. [The plaintiff] submits that those circumstances amount to Mrs Frost moving out of the unit; Mrs Frost had a residence right, but never 'physically occupied' the unit. The Appeal Panel should have found, and it is open to this court to find, that Mrs Bovaird and Mrs Frost moved out of the unit, thereby permanently vacating it, by 24 September 2005.
The difference between the two dates - July and September 2005 - reflects the fact that joint liability that exists for the recurring charges and, further, that the trigger for their cessation turned on when the last 'person' permanently vacated the premises. As to the case sought to be made by the plaintiff on appeal, it is important to emphasise what, by ground 2, the plaintiff seeks to argue in connection with ground 1: namely, that there is a factual complaint that underpins the success of ground 1. It will be necessary to return to this later.

The approach of the Appeal Panel

It is convenient to next address the plaintiff's challenge to the manner in which the Appeal Panel addressed the 'permanent vacation' issue.
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]).
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.
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.
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 47.
Before dealing with the substance of the plaintiff's argument concerning the proper construction of the term "move out", it is important to emphasise that although there is no clear statement by the Appeal Panel about when a resident "move[s] out" of their premises, that is readily explicable bearing in mind the findings that were made. The Tribunal found - findings which were upheld by the Appeal Panel - in effect that there was: (a) no evidence that Mrs Frost concurred with the surrender, and giving up possession, by Mrs Bovaird in September 2005; and (b) no evidence to support the proposition that Mrs Frost surrendered her interest in the premises. It was, therefore, unnecessary to undertake any close analysis of the meaning of that term in light of the concurrent findings of fact. Absent any basis to find that Mrs Frost moved out before her death, the only conclusion open was the one made by the Tribunal and upheld by the Appeal Panel - viz., that Mrs Frost permanently vacated the premises upon her death.
Furthermore, the absence of a clear statement about when a resident "move[s] out" of their premises is, I suspect, explicable for another reason. That is, I tend to doubt that the reasons of the Appeal Panel do anything more than appropriately deal with the arguments raised before it (and in the terms raised before it), and the emphasis placed upon the terms "move out" and "permanently vacate" on appeal was not replicated - or at least not clearly replicated - below (when the plaintiff was represented by different counsel). That this is so may be taken from the Appeal Panel's summary of the plaintiff's grounds of appeal (remembering that the Notice of Appeal to the Appeal Panel is not before me). The key ground dealing with 'permanent vacation' was summarised in these terms by the Appeal Panel (at [47]): (9) The Tribunal erred in the application and construction of ss 4 and 8 of the RV Act by finding that the unit was not permanently vacated in accordance with s 4(c) of the RV Act until 13 January 2014.
The reference in the Appeal Panel's reasons at [47] to 13 January 2014 is the date when Mrs Frost died.
The argument that the plaintiff then raised on that issue, included the following (Appeal Panel reasons at 47-(11)): … There was evidence that Mrs Frost had no interest in becoming a resident and that she concurred with the surrender of the premises. The [plaintiff] submits that the handing over of the keys to the operator by Mr Bovaird, with the concurrence of the co-lessee, constitutes a surrender of vacant possession, enabling the operator to enjoy the right of possession without impediment.
Two matters should here be noted. The first is that, having regard to the plaintiff's argument before the Appeal Panel identified in [90], above, it will be seen that this is precisely the way in which the Appeal Panel dealt with the arguments in the key paragraphs of its reasons - notably at [69]-[71]. Thus, rather than, as was argued, being an erroneous approach, it appears to represent a direct determination of the case advanced, and in the terms that it was advanced. The second is that the factual argument run below (before the Tribunal and the Appeal Panel) is also sought to be re-run here (as appeal ground 2, but in aid of appeal ground 1). As I explain later, when dealing with ground 2, there is no demonstrated basis to interfere with the concurrent factual findings below, nor is it open to this Court to make other ones.
Notwithstanding I do not consider that any error has been demonstrated, and that the Appeal Panel decided the issues framed by the way in which they were presented to it, I will proceed further to address the substance of the plaintiff's constructional arguments.

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

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.
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]).
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.
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 argues the second limb of the test that he has propounded was satisfied in connection with Mrs Frost. Applying what was argued to be the correct test, the plaintiff submitted that prior to her death in 2014, Mrs Frost "moved out" of the premises because Mrs Frost never moved into the premises and "there was evidence below that by July 2005 Mrs Frost communicated to Milstern her intention never to move in". The consequence being that, within s 8(d) of the RV Act, Mrs Frost moved out before her death (plaintiff's submissions at [20]).
The term "moves out" is not defined under the RV Act. The defendants argued that its meaning was one of ordinary English, and therefore only involves a question of fact, and not of law. Although it has been suggested that the meaning of an ordinary English word is not a question of law (Collector of Customs v Pozzolanic Enterprise Pty Ltd (1993) 43 FCR 280, 287; [1993] FCA 322), the distinction has been questioned as "artificial, if not illusory": Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389, 396; [1996] HCA 36. The argument raised - the meaning of "moves out" - is one of statutory construction, involving the "construction of the words the legislature has enacted": Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [39]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]. I will presently proceed further on the basis that a question of law is raised.
Section 8 of the RV Act deals with "permanent vacation" in four situations, with the present situation accepted by the parties to concern the fourth - viz., when a person, described as a 'registered interest holder', is taken to have permanently vacated the residential premises in a retirement village: s 8(d). Those interest holders have rights in relation to the residential premises in a retirement village - conveniently described in argument by the first defendant as involving property rights: ss 7(1)(a)-(c) of the RV Act. In this situation, therefore, a registered interest holder permanently vacates residential premises when they die or move out of them: s 8(d). In my view, the way the section operates is clear and its application in the present case is also equally clear: Mrs Frost moved out when she died, as the Tribunal and Appeal Panel held. That is because not having moved in, Mrs Frost could not have moved out - absent evidence and findings accepting that evidence that Mrs Frost's actions (or lack thereof) constituted 'moving out'.
The competing (and what I consider to be the correct) construction of the term "moves out", in the context of s 8(d), is that it means an external and objective manifestation that the registered interest holder no longer wants to occupy the premises - and whether, in a given case, a person has "moved out" is a question of fact for the decision-maker to determine. In my view that is the meaning of the term "moves out" - a construction that was essentially what the first defendant argued. It is worth observing that that is precisely what occurred - and what was found to have occurred - in connection with Mrs Bovaird: the finding in relation to her was that she "gave up possession in September 2005 and returned the keys": Appeal Panel reasons at [69]. It is also what the plaintiff argued occurred in connection with Mrs Frost: it will be remembered that the plaintiff argues that "there was evidence below that by July 2005 Mrs Frost communicated to Milstern her intention never to move in" (see [80], above). That this is so tends to undercut the idea that the term "move out" requires the refinement in the way that the plaintiff suggested. In my view there is no difficulty in the notion that a person being a 'registered interest holder', who has not physically moved into the premises, can move out of them on upon satisfaction of the relevant enquiry.
A number of further matters should also be noted, which in my view stand against acceptance of what the plaintiff has argued. First, there is no warrant, in my view, for substituting the language used with a series of different tests. Or, as the first defendant argued, why the statutory language should be re-expressed in this way. In any event, the second limb of the construction advanced by the plaintiff rather begs the question about what constitutes "reasonable time", and how that would be ascertained by a Village Operator. Secondly, given the way that the plaintiff seeks to satisfy what it has argued is the correct test - by reference to the "evidence" that in July 2005 Mrs Frost "communicated to Milstern her intention never to move in" - there is, in my respectful view, a disconnect between what is argued by the plaintiff as the correct statutory test and the factual finding which the plaintiff has agitated for. I will explain this.
By the construction argument raised by the plaintiff, it would follow that there can be a form of passive "moving out" - the very test pressed would permit a finding, absent any external sign, conduct or communication with the village operator, that a person (being a 'registered interest holder') who had not moved into the unit after a "reasonable time" had, in fact, moved out of it. Putting to one side the considerable reservation I have about whether this case was run below, it is to be observed that the plaintiff does not argue for a finding to support that case: the plaintiff argues that there was, as I have noted above, an 'external sign' - being that Mrs Frost communicated an intention to Milstern in July 2005 not to move into the unit which, when coupled with the finding that Mrs Bovaird returned her keys and communicated her intention never to return in September 2005, had the consequence that Mrs Bovaird and Mrs Frost moved out by that time. (That factual issue is the subject of ground 2).
I will deal now with the factual issue raised by this ground of appeal.
In the way that the case is put by the plaintiff based upon the "evidence", a factual issue is thrown up by this ground of appeal. For the plaintiff to (ultimately) succeed, the plaintiff accepts the need for a number of favourable factual findings (plaintiff's submissions at [20]). The first is that Mrs Frost "never moved in" - a matter of fact that appeared uncontroversial: Appeal Panel reasons at [8]. The second is a finding that "by July 2005 Mrs Frost had communicated to Milstern her intention never to move in" (plaintiff's submissions at [20]). On the basis of these matters, the plaintiff then argued that those circumstances amount to Mrs Frost moving out of the Unit; Mrs Frost had a residence right, but never 'physically occupied' the unit. The Appeal Panel should have found, and it is open to this Court to find, that … Mrs Frost moved out of the unit, thereby permanently vacating it, by 24 September 2005.
I consider there to be four difficulties with accepting what has been submitted. The first is that there are no factual findings favourable to the plaintiff on the second matter of fact - viz., that Mrs Frost had, by July 2005, communicated her intent to Milstern never to move in. The second is that, although, at least initially, the plaintiff sought for this Court to make the necessary factual findings, the plaintiff ultimately accepted during argument that such a course was not open: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [77]-[78]; Corcoran v Far [2020] NSWCA 140 at [20]. The third is that the basis for the finding that the plaintiff seeks is material that apparently formed part of the record below - the plaintiff's submissions refer to evidence in the form of an annexure to the plaintiff's application dated 16 December 2020 and replies to further and better particulars dated 16 November 2020 which apparently demonstrate these matters; but this material was not in evidence on this appeal. (I add: whether this material is actually 'evidence' of the facts asserted might be debatable; on the face of it neither document appears to have that quality). The fourth is that factual findings were made, below, that are contrary to those that the plaintiff seeks. There were three relevant ones: (a) the Tribunal found that when Mrs Bovaird gave up possession in September 2005 and returned the keys, those facts did not constitute evidence that Mrs Frost concurred with the surrender so far as she herself was concerned; (b) "there was no evidence to support the proposition that Mrs Frost surrendered her interest in the premises" (Appeal Panel reasons at [69]); and (c) that a letter that was sent by Mrs Frost's solicitors to Milstern on 3 February 2010, indicating that Mrs Frost was contemplating selling the property, confirmed "that Mrs Frost held the view in 2010 that she had a continuing interest in the unit" (Appeal Panel reasons at 52). (I add the following: although not argued in this way, in my view, these findings stand against acceptance that there was a form of "passive" moving out by Mrs Frost).

The plaintiff's argument: permanent vacation

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".
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

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.
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

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.
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.
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.
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.
No case for leave has been demonstrated in relation to ground 2 because: (a) no question of principle is involved; (b) the ground is not fairly arguable - even if a case for leave to appeal had been made out in relation to ground 2, I would reject that ground of appeal for the reasons outlined; and (c) having regard to what is sought to be argued, it is not in the interests of justice, particularly having regard to the amount in issue, that there be any further review of what is essentially a complaint about what findings should be made in connection with Mrs Frost's conduct in 2005 - something that necessarily would need to occur during a further hearing before the Appeal Panel.

Ground 3: vacant possession

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]).
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].
I would refuse leave for the reasons given in [114], above.

Grounds 4 and 5: termination of the Residence Contract

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].
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]).
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".
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.
To approach this in a slightly different way: if there was an error of this kind, precisely how this impacted upon the plaintiff, in terms of an adverse monetary outcome, was not identified. Given that grounds 1 and 2 - on the plaintiff's case - would result in a reduction of the plaintiff's liability by approximately $73,000, success on this ground presumably could only involve a mere fraction of that amount. In the circumstances it is unnecessary to seek to ascertain the actual amount that might be involved.
In my view, in the circumstances outlined, no case for the grant of leave is made out in connection with this ground, and I refuse it.
Ground 5 was an alternative to ground 4, and was in the following terms: … the Appeal Panel erred by applying the wrong legal principle to the facts, namely that the 'residential [sic] contract did not terminate until the premises were permanently vacated which occurred on the death of Mrs Frost', or by failing to draw the proper inference of fact from the primary facts, namely that the residence contract terminated when the lessees 'abandoned' the premises, pursuant to cl 21.1.2 of the lease: reasons for decision, paragraph [71].
The plaintiff's essential argument in support of this ground was that the Appeal Panel erred by concluding that the lease, as the relevant residence contract, only came to end when Mrs Frost died - whereas the lease itself contained termination provisions, relevantly cl 21.1.2 (plaintiff's submissions at [31]). In furtherance of this submission, the plaintiff argued that it was open for this Court to conclude that Mrs Bovaird and Mrs Frost "had abandoned the premises by 24 September 2005" - specifically, in the case of Mrs Frost because she "had not moved in despite having had a right to do so for over three years, and having (according to the evidence) expressed to Milstern her intention never to do so" (plaintiff submissions at [32]).
I do not accept these submissions. This ground, like ground 4, appears to be a variant to ground 1. In my view it fails for broadly similar reasons, including the following. First, the argument rests on an invitation for this Court to make findings, favourable to the plaintiff, when that course is not open: B & L Linings at [77]-[78]; Corcoran at [20]. Secondly, as has earlier been pointed out, the undisputed findings made below in fact preclude acceptance of any case that the plaintiff seeks to make in connection with this ground. Thirdly, as the first defendant submitted, a necessary finding, in order for there to be an abandonment, is that the termination be accepted by the lessor - with the consequence that a party cannot "put an end to a lease by just walking away from it": Taluja v Australian International Academy of Education Ltd [2011] NSWCA 416 at [101]; Konica Business Machines Australia Pty Ltd v Tizine Pty Ltd (1992) 26 NSWLR 687, 693 and 697. In this case, however, there is no such finding. Fourthly, the materiality of this suggested error - if it be one - has not been demonstrated.
Further, despite being unpersuaded that error of law has been shown (or, a question of law), I would refuse leave to appeal of this ground: there is no arguable error, no substantial injustice has been demonstrated (even if there were error) and no question of principle is involved.

Ground 6: the dismissal of the plaintiff's application

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.
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.
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].
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.
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]).
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.
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]).
The plaintiff accepted that the application made by him raised broader issues than those raised in the application made by Milstern and also accepted that in relation to some of them - the recurrent charges incurred between 2002 and 2005 and the monthly value of recurrent charges incurred thereafter - that those claims were time-barred.
The essential complaint made by the plaintiff is that its application "in part" mirrored the application made by Milstern: specifically, it is said that the application raised, pursuant to s 180(5) of the RV Act, the question "of during what period of time were recurrent charges payable to Milstern in relation to the unit" (plaintiff submissions at [36]). The plaintiff has argued that the Appeal Panel was in error because "there plainly was an explanation" for the plaintiff's delay - being the explanation that the Tribunal accepted in relation to Milstern's application (plaintiff submissions at [38]).
In my view there are a number of difficulties with this submission, and ground of appeal more generally. The first is that if the plaintiff's claim "mirrored" Milstern's claim - which I assume is a way of saying that it is the same - then dismissal of it causes no injustice to the plaintiff because Milstern's claim was determined. The second is that to the extent that the plaintiff's claim did not "mirror" Milstern's claim, then the plaintiff's argument falls away (as the plaintiff's argument - perhaps implicitly - appeared to accept): the findings below were that no adequate explanation was provided for those claims. The third is that the submission assumes that because one party in a dispute adequately explains the delay in commencing proceedings and secures an order extending time, then the corollary is that others with "mirroring" claims - with no explanation or an explanation that is rejected by the decision-maker - have a presumptive right to an order extending time. I cannot, respectfully, accept the breadth of that submission.
Before dealing further with the substance of the plaintiff's complaint, the following matters should also be noted. The first is that the plaintiff accepted that the decision - whether or not to grant an extension of time to bring the application - was a discretionary one (s 41 of the NCAT Act; reg 23 of the Civil and Administrative Tribunal Rules 2014 (NSW)), with the consequence that review of such a decision engaged the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40. The second is that the plaintiff's argument - putting to one side whether it raised a question of law - was that the decision was unreasonable or plainly unjust, and thus within the second category of error formulated in House v The King. This had the consequence of the plaintiff accepting the findings of fact that had been made: that follows because error based upon the second category of error in House v The King is premised not upon identification of error of the kind referred to in the first category of error in House v The King; rather, appellable error may be inferred from the result that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance": House v The King at 505.
In my view no error of the kind alleged - or indeed any error - has been demonstrated by the plaintiff. Put simply, once it is accepted (and as the Tribunal found, and the Appeal Panel confirmed) that the plaintiff formed the opinion five years prior to commencing proceedings that there was an issue under s 180 of the RV Act and provided no explanation for why he did not do so, then I do not consider that an order refusing an extension of time admits to the characterisation of being unreasonable or plainly unjust.
This ground is also one upon which I would not grant leave. In order for the plaintiff to attract a grant of leave, it would, at least, be necessary to show that some practical injustice resulted from the decision of the Appeal Panel. However, as I have noted, as the basis to show that the Appeal Panel acted unreasonably (in not accepting what was submitted to be the same explanation for the delay that had been given by Milstern), the plaintiff argued that the applications "mirrored" each other - with the consequence, so the plaintiff argued, that, like Milstern, he should have secured an order extending time to bring his application. In those circumstances (the claims, on the plaintiff's argument, being the same), I consider that that only reinforces that there is no injustice in the outcome - a fact that tells against a grant of leave. Put a little differently, the plaintiff did not demonstrate how - or in what way - any injustice arises from the decision under review.

Orders

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

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