Butterworth v Trustees of the Society of St Vincent de Paul

District Court of NSW|2012-11-16

Table of Contents Summonses [1] Context [2] Jurisdiction [3] Factual background [4] - [24] Summons 2012/242395 (CTTT RV 10/47361) [25] - [26] Summons 2012/211047 (CTTT RT 10/44292) [27] - [29] Issues for determination [30] - [38] Legal principles governing this CTTT appeal [39] - [40] Affidavit evidence in the appeals [41] - [43] Transcript of oral evidence given in the CTTT [44] - [76] Mr Gregg [51] - [53] Mr Butterworth [54] - [56] Mr Hill [57] Mr Bourgas [58] Mr Noonan [59] - [76] Reasons for decision in the CTTT [77] - [81] Consideration of the application for leave to appeal [82] Consideration of the appeal [83] - [119] Disposition [120] Costs [121] Orders [122]

Summonses 1The appellant/plaintiff, Mr Ron Butterworth, has filed two summonses seeking leave to appeal two separately delivered decisions of the Consumer, Trader and Tenancy Tribunal ["CTTT"]. The respondent/defendant is a charity known as The Trustees of the Society of St Vincent De Paul ["the Society"]. The two summonses have been consolidated. The hearing of these applications for leave to appeal, and the consolidated appeals, were heard concurrently.

Context 2Since 2008, the Society has provided residential care to Mr Butterworth at its premises known as the Mount St Vincent's Village ["the Village"]. Beforehand, Mr Butterworth was homeless and was living in a tent in a park. Following a dispute between the parties, in 2012, the Society obtained orders for Mr Butterworth to quit the Society's premises he has occupied since 2008. On 4 May 2012, the CTTT gave the parties notification of those orders. Mr Butterworth is dissatisfied with those orders. The summonses numbered 2012/242395 and 2012/211047 respectively raise appeals with respect to those orders.

Jurisdiction 3In the present case, as Mr Butterworth is dissatisfied with the orders of the CTTT, his right to appeal from the decisions of the CTTT is to this Court, on questions with respect to matters of law, pursuant to s 67(1) of the Consumer, Trader and Tenancy Act 2001 ["CTTT Act"].

Factual background 4In about 1958, the Society established the Village as a complex of 24 self-contained residential units at 6-16 Smarts Crescent, Burraneer NSW. The purpose in establishing the Village was to provide accommodation for occupants generally over the age of 55 years and requiring financial assistance with their housing needs. 5Historically, there have been some variations in the details completed by the Society within the documentation of special occupancy conditions incorporated in some 17 individual Residential Tenancy Agreements prepared by the Society concerning the occupation of the Village by persons in the same position or similar positions to that of the plaintiff: Exhibit "1". Those variations arise from the differing interpretations, at different points in time, concerning the effect of legislation, on the activities of the Society. 6This appeal relates only to the agreement concerning the residency of Mr Butterworth at the Village, although the other agreements in evidence provide some background to the view the Society seeks to maintain in the present dispute. 7On or about 7 June 2008, Mr Butterworth commenced to reside at the Village following the parties entering into a "Residential Tenancy Agreement" pursuant to the Residential Tenancies Act 1987 ["RT Act"], which defined their mutual rights and obligations. At that time he was aged 63 years. He is now aged 67 years. The signatories to that agreement were Mr Gordon Price as witness, Mr John Noonan, on behalf of the Society as the landlord, and by Mr Butterworth, in his own right as the tenant. That agreement formed the legal basis of the plaintiff's occupancy. It was signed by Mr Butterworth in the presence of Mr Noonan, and several other persons belonging to the Society. That agreement, in its original form was Exhibit "#A6" in the CTTT: Transcript Day 1, page 67. 8Mr Noonan has been the President of the Village since 2007. He was appointed to that position by the Southern Regional Council for the Society. His role is that of manager, which is a part-time unpaid voluntary position. All staff at the Village are unpaid volunteers. At the time the agreement was signed, so far as Mr Butterworth is concerned, Mr Noonan had ostensible authority to bind the Society by that agreement. 9Passing over some intervening events of only marginal if any relevance, three years later, on 1 September 2010, without any prior consultation or agreement with Mr Butterworth, and whilst purporting to act on behalf of the Society, Mr Noonan, unilaterally altered the terms and conditions on a copy of the June 2008 written agreement between the parties. He did so by overstriking some existing text, and by adding some additional words, as set out in the following extract: 10I shall return to this event, and its significance, in my summary of the evidence of Mr Noonan, and in my consideration of the issues. 11Mr Butterworth had never agreed to either the deletion or to the addition of the above alterations to the text in the agreement. It therefore follows, on the evidence, that these alterations could have no retrospective or any prospective force or effect without the further agreement of Mr Butterworth, which was not forthcoming. The CTTT decision recognised this analysis to be correct. 12In these reasons, it is not necessary to canvas the history of contentious interpersonal issues that may have existed between Mr Butterworth and the representatives of the Society. Instead, it is sufficient to focus only on the legal issues that arise for determination, and on the essential chronological sequence of facts that relate to those issues. 13At some stage in either late 2009 or early 2010, the Society came to a decision that it would renovate the residential units in the Village. This necessarily required that the units to be renovated had to become vacant. This appeal is not concerned with the appropriateness or otherwise of any alternative accommodation arrangements the Society proposed for the affected residents. Instead, the issues are confined to construction of the agreement between the parties, which governs their rights and entitlements. 14In early 2010, following what I infer to have been unresolved discussions between the parties, and adverse to Mr Butterworth's interests, the Society filed an application in the CTTT for termination and possession, seeking vacant possession of the unit occupied by Mr Butterworth. That application was in conformity with the procedure required under the RT Act. That application was filed pursuant to a decision made by the Society to evict Mr Butterworth from the unit that he occupied in the Village. The Society subsequently withdrew that application in June 2010. 15Subsequently, on 22 September 2010, the Society filed a further application in the CTTT, which was adverse to Mr Butterworth's interests. That further application was for termination and possession, by which it sought enforcement of a no grounds notice served on Mr Butterworth pursuant to s 58 of the RT Act 1987, requesting that he give vacant possession of the premises on a deemed date: CTTT file number RT 10/44292. 16In response to that second application filed by the Society, on 12 October 2010, Mr Butterworth filed his own application in the CTTT, by which he sought a declaration that the provisions of the Retirement Villages Act 1999 ["RV Act"] applied to his occupancy of his residential unit at the Village. Mr Butterworth also sought an order pursuant to s 128(1)(c)(i) of the RV Act, to restrain a claimed breach of a village contract: RV 10/47361. 17In the CTTT, by consent, it was decided that the application filed by Mr Butterworth should be heard first. This was because it was agreed that if it was found that the RV Act applied to the circumstances, then the application by the Society for termination and possession pursuant to the RT Act, would necessarily be found to have been misconceived. 18In the CTTT, Tribunal Member C Paull heard Mr Butterworth's application on 1 August 2011 and 5 December 2011. She dismissed that application four months later, on 30 April 2012. That outcome was notified to the parties on 4 May 2012. Mr Butterworth then made an application to the CTTT for a rehearing. Mr Butterworth's application for a rehearing was rejected by the CTTT on 23 May 2012. 19Thereafter, on 14 June 2012, the Society's application that was made pursuant to the RT Act, then proceeded to a hearing in the CTTT. The result of that hearing was that the Society was successful in obtaining an order for possession adverse to Mr Butterworth, as it had claimed, pursuant to s 64 of the RT Act 1987. 20At the hearings before the CTTT in the retirement village matter, Mr Butterworth was represented by Ms Boettcher, a solicitor from The Aged Care Rights Service. In the tenancy matter, in the CTTT, he was represented by Ms Wilkinson, a solicitor from the Southern Sydney Tenancy Advocacy Advice Service. The Society was represented throughout by its solicitor, Ms Fox. 21The orders of the CTTT on 30 April 2012 and 14 June 2012 that were all adverse to the interests of Mr Butterworth have led to the present appeals. 22On 6 July 2012, Mr Butterworth filed his own summons in this court in a somewhat rudimentary form, seeking leave to appeal the 30 April 2012 decision of the CTTT, the outcome of which had been notified to him on 4 May 2012. The conduct of that appeal was then taken over by lawyers presently acting on his behalf, having been assigned to him from the Legal Aid panel. 23On 3 August 2012 Mr Butterworth's summons was later amended into its final formulation. On the same date, on behalf of Mr Butterworth a second summons was filed seeking leave to appeal the second decision of the CTTT, given on 14 June 2012. 24During the course of interlocutory listings, prior to the hearing of these summonses, other Judges of this Court have made orders having the effect of consolidating the two summonses and ordering a statutory stay of the orders made by the CTTT in the proceedings before it that were numbered RT 10/44292. As the consolidation order has not yet been formalised, I will do so when making my final orders disposing of these appeals.

Summons 2012/242395 (CTTT RV 10/47361) 25The summons filed by Mr Butterworth on 3 August 2012 relating to CTTT proceedings 10/47361 challenges the 30 April 2012 decision of the CTTT, by which it was found that the Village agreement in question, which is at the centre of the dispute between the parties, was not governed by the Retirement Villages Act 1999, but was instead governed by the Residential Tenancies Act 1987. 26The resolution of that question is of pivotal significance to the parties, as markedly differing rights and obligations arise for both landlords and tenants under these two very different statutory regimes.

Summons 2012/211047 (CTTT RT 10/44292) 27The amended summons filed by Mr Butterworth on 3 August 2012 relating to CTTT proceedings RT 10/44292 challenges the 14 June 2012 decision of the CTTT, which determined that Mr Butterworth's occupancy of the unit at the Village was pursuant to the RT Act 1987. Mr Butterworth also challenged the appropriateness of the order that his agreement entitling him to occupy the premises was terminated at the request of the Society pursuant to s 64(2)(c) of that Act. He claims that decision was wrong in law and he also claimed that the CTTT erred in refusing to find, pursuant to s 65(2)(ii) of that Act, that the termination of his tenancy was retaliatory to complaints by him. 28This summons sought that the orders of the CTTT be set aside, with costs, and that the proceedings be remitted to the CTTT to be determined according to law. It is now agreed that the resolution of the issues raised in this summons should abide the result of the matters identified in the preceding paragraph. 29The RT Act 1987 was replaced by the RT Act 2010 on 17 July 2009. The savings provisions of the 2010 Act preserved any existing entitlements under the 1987 Act.

Issues for determination 30In the appeals, the parties sensibly agreed that the arguments concerning the challenges to the 30 April 2012 retirement village decision of the CTTT should proceed as the first issue to be decided, as the outcome of that issue would determine the outcome of the residential tenancy issue. 31Mr Butterworth claims that the 30 April 2012 decision of the CTTT was erroneous in respect of the finding that the provisions of the RV Act did not apply to his residence at the Society's village, thus raising an arguable question with respect to a matter of law. 32That finding in the CTTT was made in reliance of s 5(3)(h) of that Act which relevantly provided that a "retirement village" means any residential premises the subject of a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010 to which the operator of a retirement village is a party, and that contains a term to the effect that the Retirement Villages Act 1999 does not apply to the residential premises the subject of the agreement. 33In support of that claim, Mr Butterworth argued that there were two constituent errors within the CTTT finding that led to the finding being an error with respect to a matter of law. As a result, he claims the CTTT incorrectly construed the agreement between the parties. This raises a question with respect to matter of law, or at least a question that involves mixed questions of fact and law. 34The first contended constituent error was that despite the CTTT acknowledging that it was necessary to interpret the 2008 agreement between the parties objectively, in order to identify their contractual intentions as at the time it was entered into, the CTTT nevertheless impermissibly had regard to subsequent, and therefore irrelevant material that post-dated the agreement between the parties, when it purported to determine that the Village in question was not a retirement village at the relevant time. 35The second contended constituent error was that in dealing with the question of whether, at the time the parties had entered into their 2008 agreement, the Society's complex was a retirement village, the CTTT interpreted the definition in s 5(1) of the RV Act incorrectly by concluding that other factors or indicators were necessary in order for the complex to fit within the definition of a retirement village. 36On behalf of the Society, it was argued that no relevant questions with respect to matters of law have arisen within the reasoning or orders of the CTTT. On behalf of the Society, it was also argued that the orders in respect of which Mr Butterworth is dissatisfied, were reasonably open to the CTTT. 37If Mr Butterworth's contention that the 30 April 2012 decision of the CTTT is found to be wrong either in law, or wrong on a question with respect to a matter of law, then it is common ground that the decision of the CTTT dated 14 June 2012 must also be set aside, as it applied to the Society's application for termination and possession under the RT Act, and not under the RV Act. 38In the event that the first appeal is upheld, Mr Butterworth seeks orders setting aside the orders made on 4 May 2012 by the CTTT. Alternatively, he seeks remittal of the proceedings to the CTTT to be re-determined according to law. The plaintiff also sought an order for costs.

Legal principles governing this CTTT appeal 39In identifying the applicable legal principles which apply to these appeals, it is now accepted that unlike certain defined categories of appeals limited to questions of law alone, an appeal such as in the present case, made pursuant to s 67(1) of the CTTT Act on a question with respect to a matter of law, is wide enough to encompass questions of mixed law and fact: Kostas & Anor v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 270 ALR 228, per French CJ at [25]. 40Questions with respect to matters of law may be the subject of express formulation within the stated findings of a tribunal, or they may be implicit within the findings of the tribunal, or relating to decisions that are necessary steps in the tribunal's reasoning, even though the precise matter has not been mentioned in the reasons: Kostas & Anor v HIA Insurance Services Pty Ltd, per French CJ at [23]; Kalokerinos v HIA Building Services Pty Ltd [2004] NSWCA 312, per Bryson JA at [47]. This is in keeping with the aim of avoiding undue technicality in CTTT proceedings.

Affidavit evidence in the appeals 41The affidavit evidence in support of the position of Mr Butterworth in the appeals comprised: (a)The affidavit of the plaintiff, Ronald Anthony Butterworth, sworn on 31 August 2012; (b)The affidavit of Peter Baker, solicitor for the plaintiff, sworn on 18 September 2012; (c)The affidavit of the plaintiff, Ronald Anthony Butterworth, sworn on 4 December 2011; 42The affidavit evidence in support of the position of the Society in the appeals comprised: (d)The affidavit of John Edward Noonan, on behalf of the Society, sworn on 3 September 2012, which annexed Mr Noonan's earlier affidavit sworn on 8 December 2010, which was filed in the CTTT proceedings on 12 December 2010; (e)The affidavit of Catherine Eileen Fox, solicitor for the defendant, sworn on 3 October 2012. 43These affidavits referred to compendious documentary exhibits, including 17 agreements with other residents of the complex. It is not necessary to canvas the detail of the documentary evidence as this has been adequately summarised in paragraphs [4] to [24] above for the purpose of identifying the legal issues calling for decision.

Transcript of oral evidence given in the CTTT 44The transcript of the retirement village proceedings in the CTTT was in two parts: Transcript Day 1, pages 1 to 135; Transcript Day 2, pages 1 to 79. 45The majority of the transcript was taken up with interchanges between the CTTT Member and the legal representatives of the parties, in which the issues were examined. In the CTTT, Mr Butterworth's legal representatives called oral evidence in an attempt to demonstrate the retirement village status of the complex. 46In my view, it was not necessary to call such evidence, as it was the agreement itself which required construction, and not the surrounding circumstances, a matter to which I shall return in my consideration of the issues. 47It seems to me that the evidence called from the various residents of the Village seeking to elucidate the status of the Village as a retirement village, or otherwise, was irrelevant to the task of discerning the respective contractual intentions of Mr Butterworth and the Society at the time they entered into their agreement on 7 June 2008. 48The central contractual issue is what was the objective contractual intention of the parties concerning their legal relationship. The CTTT Member recognised this to be the essential matter for decision. I shall return to this in my consideration of the issues. 49On behalf of Mr Butterworth, in the CTTT, oral evidence was called from Mr Neil Gregg: Transcript Day 1, pages 31 to 61; the plaintiff, Mr Ronald Butterworth: Transcript Day 1, pages 63 to 95; Mr Douglas Hill: Transcript Day 1, pages 96 to 111; and Mr Eduardo Burgos: Transcript Day 1, pages 111 to 116. On behalf of the Society, in the CTTT, the only oral evidence given on behalf of the Society was from Mr John Edward Noonan: Transcript Day 2, pages 8 to 43. 50The evidence of the understanding or the belief of other residents at the Village as to the status of the Village as a retirement village has little or no bearing on that question. However, for completeness, since it has become necessary to review the evidence of Mr Noonan, in the paragraphs that follow, I shall also review and summarise the evidence of the residents who were called to give oral evidence.

Mr Gregg 51Mr Gregg said he had been a resident at the Village since February 2001, when he was aged 60 years. At the time he entered the Village he was in permanent part-time employment, which approximated full-time work, but as he aged he found work more difficult and he reduced his hours down to 24 hours per week at some stage, and then ceased work altogether once he reached the age of 70 years as he became too disabled to work. It was not entirely clear what Mr Gregg's occupation was, other than he was a former monk who had been in training in a monastery, and had worked with disabled persons. 52At the time Mr Gregg commenced living at the Village he was very close to retirement age although he was not actually retired at that time. He conveyed his understanding as being, that the Village gave preference to retirees entering the Village as residents. At the time of his own entry into the Village, he did not enquire, and was not told, whether he was in fact entering a retirement village. Mr Gregg's evidence had to be weighed with caution because, at the time he gave his evidence, as he acknowledged, his memory of some of the events was failing to a degree, on account of dementia. 53The original agreement signed by Mr Gregg was silent on the question of whether the RV Act applied to his tenancy. In 2010 it appears that he signed another agreement, which stated that it excluded the application of the RV Act. That event must be seen to be an irrelevant consideration to the matter at hand, namely, the contractual intentions of the Society and Mr Butterworth with regard to the agreement which is the subject of these proceedings.

Mr Butterworth 54Mr Butterworth said that when he originally entered the Village he knew it provided accommodation for elderly people on very low incomes. He confirmed that at that time, the agreement he signed in 2008 did not include the contentiously altered or "corrected" text identified at paragraph [9] above. He said that this text had been added later, in 2010, by Mr Noonan, without consulting him. 55Mr Butterworth stated that on 22 October 2010 he became aware that the Society wanted to evict him from the bed-sitting room unit which he occupied in the Village in order to enable that unit to be renovated. Mr Butterworth's rent was paid for him by various government agencies or schemes for some time, during which he tried unsuccessfully to establish an obesity counselling business. It appears he has not been in paid employment for some considerable time, and had variously been in receipt of government benefits and more lately, he has been in receipt of the old age pension. 56Although the evidence does not establish with any precision whether Mr Butterworth knew the Village was a retirement village when he entered into residence there, ultimately, this is an irrelevancy, as will become clear from the analysis of the contractual issues.

Mr Hill 57Mr Douglas Hill entered the Village as a retiree resident in about December 2007. At that time he was aged 51 years. The agreement he signed with the Society provided that the RT Act did not apply to his agreement with the Society. He was not in employment at that time. He had carried out some volunteer caretaker duties at the Village over time. He assisted Mr Noonan to distribute further or amended agreements to the residents in September 2010. He was asked questions about the further agreement he signed in 2010, and he stated that he had no idea about whether the agreement stated that it excluded the application of the RV Act. He said he thought he was entering into a retirement village at the time he arrived there, although he stated that he later took a different view after he had taken up residence. In my view, this latter evidence was of limited relevance or probative value to the issues that the CTTT was required to determine.

Mr Bourgas 58Mr Eduardo Bourgas entered into an agreement with the Society on 4 October 2008. His agreement with the Society stated that the RT Act did not apply to their agreement. At the time he entered into residence at the Village, he was aged about 46 years and he was not working. He has been on long-term unemployment benefits. In 2010 he signed a different agreement that stated that the RV Act was not applicable to the agreement between himself and the Society.

Mr Noonan 59Mr Noonan gave oral evidence in addition to the evidence set out in his affidavit for the CTTT proceedings sworn on 8 December 2010, which was filed in the CTTT on 12 December 2010. His affidavit in these proceedings, sworn on 3 September 2012, annexed that affidavit material. 60Mr Noonan gave oral evidence of his understanding of the considerations that affected the Society in its operation of the Village as a low cost housing facility in the light of regulations that affected retirement village operators after 1 July 2000. That evidence was to the effect that the Society believed it could no longer continue to provide low cost accommodation at the Village if it were to be subject to those regulations: Transcript Day 2, page 9.21. 61This evidence, and Mr Noonan's later evidence, including his explanations for some Village contracts being subject to the condition purporting to exclude the provisions of the RV Act from operating on residential agreements, was evidence that permitted the inference and finding that the Society considered that it could be understood to have been operating a retirement village prior to 2000, but at some later stage, decided that it wished to exclude itself from the burden of the onerous provisions of the RV Act. 62However, that desire was not consistently expressed in the agreements that were tendered as background material to this appeal. In my view, this was plainly evident from the tendered bundle of 17 residential agreements in the CTTT proceedings: Transcript Day 2, pages 37 to 39. In this appeal, that bundle was marked Exhibit "1". 63Those contracts fell into 3 categories, as was observed by the CTTT Member. Some were said to be subject to the RT Act, some were said to be subject to the RV Act, and some were silent as to those matters. 64However, evidence of that nature must be evaluated for relevance, and read subject to the circumstances of each of the individual residence contracts on a case-by-case basis. This is particularly so because there was no evidence of a master agreement covering all residents. Instead, the entry of each resident into accommodation at the Village was dependent upon the binding nature of the terms of the individual contracts that had been entered into between the Society and each of the individual residents. 65Mr Noonan explained that generally, but not invariably, the Society applied an arbitrarily assessed entry age of 55 years for entry into residence at the Village. The fact that there was variability in the application of the Village entry criteria is a further good reason for not placing determinative weight on the other contracts that comprised Exhibit "1". 66Suitability for entry into residence at the Village was assessed in terms of ability of the individual to self-care, as well as the need to satisfy the requirement of having a low income. Rent was then set according to a percentage of the aged pension. 67It emerged from Mr Noonan's evidence that in July 2000, the Society had obtained legal advice to the effect that it should call a meeting of residents at the Village to present them with changed forms of standard residential tenancy leases and explain the reasons for doing so, which I infer related to the Society's view that it could not afford to continue to operate as a retirement village under the burden of the new regulations that came into effect at that time. 68Such a meeting could not have changed the status or the terms of the pre-existing agreements unless there was consent from the individual residents for changes to the contractual arrangements, based upon consideration. This was the position that prevailed with respect to Mr Butterworth's agreement dated 7 June 2008. 69As events have transpired, it was not until some 10 years after that 2000 advice had been obtained by the Society, that in September 2010, the Society sought to obtain the signatures of tenants on forms of agreement with altered terms. This occurred after Mr Noonan had commenced his involvement with the Village, which was in early 2007. 70In that regard, Mr Noonan explained that he had actively sought the signatures of residents on changed versions of the agreements that sought to exclude the operation of the RV Act on the agreements the Society had earlier transacted with individual residents at the Village. 71Mr Noonan acknowledged that he had unilaterally amended Mr Butterworth's agreement without his consent to purportedly exclude the RV Act from applying to Mr Butterworth's residency at the Village: Transcript Day 2, page 26.45. 72Mr Noonan's explanation for having done so was that in the context of the evolving dispute, he had become suspicious of Mr Butterworth's request for a copy of his agreement with the Society. He said that he did not want to release a copy of the agreement to Mr Butterworth with what he considered to contain incorrect wording, namely the exclusion of the RT Act. He therefore altered the document to a "corrected" version purporting to exclude the RV Act instead, without beforehand discussing this proposed alteration with Mr Butterworth. 73The copy of the "corrected copy for Ron Butterworth" agreement introduced into evidence was marked: CTTT Exhibit "#A4". In his evidence, Mr Noonan acknowledged that this was the wrong thing to have done in the circumstances: Transcript Day 2, page 27.1 to page 27.14. 74In answer to a question from the CTTT Member, Mr Noonan confirmed that he did not have the authority to sign these agreements on behalf of the Society, as this was the function of the Trustees: Transcript Day 2, page 31.40 to 31.45. Mr Noonan also confirmed he had no authority to amend the residential agreement contracts as he had purported to do in the case of Mr Butterworth's contract: Transcript Day 2, page 32.23. On any reasonable view, the purported amendment was misguided. 75No Trustee was called on behalf of the Society to explain the contractual arrangements or the intention of the parties at the time they had entered into the various agreements with residents from time to time. If such evidence had been called, it would only have been relevant if there were ambiguities evident in the agreement between the Society and Mr Butterworth. 76Mr Noonan had signed the original agreement with Mr Butterworth on 7 June 2008 in the stated context of signing on behalf of the landlord, the Society. There was no evidence called to contradict the available inference that as at 7 June 2008, Mr Noonan had the ostensible authority to bind the Society in its contractual dealings with Mr Butterworth. That is the only relevant date upon which to base the consideration of the construction of the agreement in question in order to ascertain the contractual intentions of the parties.

Reasons for decision in the CTTT 77At the conclusion of the evidence and during oral argument, the CTTT Member identified the correct legal approach to construing the contract between the parties as being an approach that required an objective determination of the contractual intention of the parties when they signed their agreement in 2008: Transcript Day 1, page 83.39; Transcript Day 2, pages 65.38, 72.37 to 73.34. The relevant intention was the mutual contractual intention of the parties. 78In identifying that approach, the CTTT Member specifically and correctly identified the need to disregard the events that occurred in 2010, which were subsequent to the signing of that agreement, in determining the contractual intention of the parties: Transcript Day 2, page 72.47. 79In her statement of reasons for her decision, consistent with the approach identified in the preceding paragraph, the CTTT Member confirmed her earlier stated view that the additional text cited at paragraph [9] above and that had been unilaterally added to the agreement by Mr Noonan on 22 September 2010 without the consent of the plaintiff, had no effect: CTTT reasons, paragraph [31]. 80The CTTT Member then proceeded to set out the remainder of her reasons and conclusions. She commenced that process by posing the essential question as being whether the parties entered into an agreement that was intended to be subject to the RV Act, and then rejected that proposition, as follows: "... 32.The question still remains, however, did the parties enter into an agreement that is caught by the RV Act? 33.It is to this issue that I now turn. 34.I have already found that Mr Noonan's evidence of the steps the Society took to invoke s 5(3)(h) of the RV Act and the mistake the Society made in attempting to implement s 5(3)(h) is not directly refuted and is supported by the three categories of agreements in evidence. 35.While Mr Butterworth called several occupants to give evidence, I accept the Society's submission that on the whole, this evidence did not suggest that the occupants intended to or considered themselves to be living in, or indeed were living in, a "retirement village" as envisaged under the RV Act. 36.Indeed, Mr Gregg was the only witness who positively stated that he considered that he lived in a retirement village. Curiously, however, a letter from Mr Gregg that is before the Tribunal, does not support this oral evidence. 37.There is no evidence before the Tribunal of any procedures or practices which one would normally consider are closely associated with, if not integral to retirement villages, as contemplated under the RV Act. For example, there is no evidence of any "residents committee", "village contracts", "disclosure statements", "village rules"; no provision for or payment of "recurring charges", or "annual budgets". There is no evidence of any provision for or payment of "departure fees", there is no paid caretaker, no paid staff. 38.While I accept Mr Butterworth's submission that these things are not mandatory under the RV Act, they do appear necessary to allow a retirement village, as contemplated under the RV Act, to operate and function. 39.The only real evidence before me as to how the complex operates is from the Society. For example Mr Noonan's uncontradicted sworn evidence, that the Society decides to allow occupants to reside at the complex after evaluating their income and assets; that the Society takes no security fees from the occupants and charges a weekly fee based on a percentage of the occupant's pension. 40.I should note that the only evidence of the implementation of any of the matters addressed under of the RV Act, was the attempt to hold a residents' meeting which was initiated by Mr Butterworth after he received advice that led to his instigating these proceedings. As such, I find nothing turns on this. 41.Nor am I satisfied that the Local Council's Directory is overly persuasive evidence. There is no evidence to explain how this directory came into existence. It does not go so far as to establish that the Society is operating a retirement village as provided for under the RV Act. 42.While there is no doubt that the complex is occupied by persons predominantly over 55 years of age or who have retired from full time employment, this of itself is not sufficient, in my view, to attract the operation of the RV Act. 43.In light of the above, I am not satisfied that Mr Butterworth has discharged the burden he bears to show that he entered into an agreement with the Society that attracts the operation of the RV Act." 81I shall return to an evaluation of those reasons in my consideration of the substantive matters raised by the appeal after considering the application for leave to appeal.

Consideration of the application for leave to appeal 82Mr Butterworth's retirement village appeal has been filed out of time. In contrast his residential tenancy appeal was filed within time. It is appropriate that both appeals should be heard together as they involve a consideration of the same rights and entitlements, and the proceedings have already been consolidated. In those circumstances, no relevant prejudice has been shown to affect the Society, and the case for granting leave is therefore compelling. Accordingly, pursuant to Uniform Civil Procedure Rules 2005 r 50.3(1)(c), during the course of the hearing, I granted Mr Butterworth leave to continue his appeal concerning issues arising from the retirement village matter, notwithstanding that the appeal has been filed out of time. In any event, the appeals have been consolidated.

Consideration of the appeal 83In considering the substantive appeal, it is important to focus upon the essential question raised by the agreement between the parties, namely CTTT Exhibit "#A5", and not extraneous matters, as I consider to have occurred in the CTTT. 84In my view, those extraneous matters were whether the Village in question was a retirement village, whether the Society had the resources to enable it to comply with the RV Act, or whether, in the circumstances, the Society should be excused from compliance with the RV Act, and like matters. 85The reason these matters should be seen to be extraneous to the true question for decision is that the construction of the agreement between the parties should first address the essential question of whether there was a binding agreement between the parties with identifiable and non-ambiguous terms. 86If that essential question is answered affirmatively, then reference to the circumstances surrounding the parties entering into the agreement, or events occurring afterwards that affected how the Village was run, becomes a superfluous and an unnecessary inquiry. 87It is only if the agreement between the parties is found to have been affected by ambiguity that justification would arise for widening the factual inquiry beyond the essential question in order to construe the agreement between the parties. In the present circumstances, the uncommunicated subjective motives or intentions of the parties are an irrelevant consideration: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165 at [38]. 88The claim by the Society that the agreement embodied a mistake must be read in the light of that statement of principle. 89I now turn to examine what I consider to be the essential question, which the CTTT Member correctly identified, namely, whether the parties had entered into a binding agreement that is caught by the RV Act: CTTT Reasons, paragraph [32]. 90Turning then to the contract, it is plain from its terms that the necessary elements of a contract have been shown to exist. The parties were identified, the subject tenancy is identified, there was consideration, there was the mutual intention to create legal relations, and the contract then went on to identify the terms and conditions by which the parties agreed they would be bound. 91It is therefore irrefutable that objectively, and on its face, the contract comprising CTTT Exhibit "#A5", as formed, without the post-contractual alterations evident in the copy "corrected" by Mr Noonan, namely CTTT Exhibit "#A4", which the CTTT Member acknowledged should be ignored, contained no relevant ambiguity. 92In those circumstances, in the absence of misrepresentation or obviously communicated mistake that was obvious to Mr Butterworth, there was no justification for the CTTT looking outside the terms of the contract to construe its meaning for the purposes of identifying the mutual contractual intention of the parties at the time the contract was formed: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165. 93On that approach, disregarding the unauthorised alterations on the copy of the agreement, which must be ignored, the only reasonable conclusion open on the construction of the contract was that the Society, which was the party that drew up the contract, intended that it be bound by the provisions of the RV Act because the provisions of the RT Act were excluded. That conclusion arises because the provisions of the RT Act were specifically excluded in the section of the document dealing with special conditions. Furthermore, that process of exclusion was permitted by s 8(1)(b) of the RT Act 2010 and s 6(1)(c1) of the RT Act 1987. 94In identifying Mr Butterworth's contractual intentions at the time he signed his agreement with the Society, it is reasonably clear on the evidence, he simply accepted the terms offered, probably without understanding the legal implications of those terms. Nevertheless, according to the objective theory of contract, he too was bound by those same terms: Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165, at [42]. 95In my view, on that analysis, no further construction issues arose for consideration by the CTTT beyond that point, which effectively and conclusively defined the rights and liabilities of the parties. 96However, the CTTT Member took a different course, and considered the surrounding circumstances, and looked to the extraneous matters earlier identified. In doing so I consider that the CTTT Member reached a different, and impermissible construction, that involved several errors with respect to matters of law. 97The first such error was not to recognise that there was no relevant ambiguity in the contract between the parties. Had the CTTT Member recognised this position, that would have been the end point of any further consideration of the matter. 98The second such error was the finding recorded at paragraph [34] of the CTTT reasons, that there had been a mistake in the terms of the agreement between the parties, following which, in the remainder of the reasons, the CTTT Member sought to apply an equitable remedy seeking to rectify the purported mistake. 99Aside from the question of whether the CTTT had the requisite equitable jurisdiction to do so, there was no explicit finding classifying the type of mistake under consideration. This is a matter of some significance. 100In analysing the scope for legal classification of the finding of a mistake referred to in paragraph [34] of the CTTT reasons, it is clear that the asserted mistake was not of the kind known as common mistake. Nor did it involve any misrepresentation, fraud or any disentitling conduct on the part of Mr Butterworth that would ordinarily attract equitable relief against his interests. If anything, the asserted mistake could only then be reasonably described as being a unilateral mistake. 101For a remedy to be available to rectify a mistake of that kind, assuming the CTTT had equitable jurisdiction to rectify it, the purported mistake must be classified to fit in with the accepted principles according to the objective theory of contract, for example, as described in the following extract from Contract Law in Australia, 5th Ed, Carter JW, Peden E, Tolhurst GJ, Butterworths 2007, p 435: "[20-13] Mistake and objective theory of contract. The primary emphasis of the law of contract in common law systems is on how one party's words and conduct ought reasonably to have been understood by the other, rather than their subjective states of mind: Taylor v Johnson [1983] HCA 5;(1983) 151 CLR 422 ... [omitting other footnotes] ... It would be unjust in the mind of the other when unaware of that person's state of mind. This injustice does not exist where the other party knew or should have known of the other's actual state of mind." 102For the Society's "mistake" argument to be made good, it must be shown that Mr Butterworth was aware of that mistake or misapprehension, or adopted a position of "wilful ignorance": Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 per Mason ACJ, Murphy and Deane JJ, at [14]. There was no evidence that this was so. 103Having regard to that statement of principle, on the evidence before the CTTT, it cannot be reasonably said that Mr Butterworth either knew or ought to have known that at the time the parties entered into their agreement, the Society intended that their relationship should be governed by the provisions of the RT Act, and not, the provisions of the RV Act. 104Furthermore, in cases where a party asserts that the ultimate terms of a contract differ from the terms which the parties had commonly intended, establishing such an assertion is a heavy burden that is not lightly discharged. The evidence discharging that onus must be in the clearest and satisfactory manner, especially where the party asserting the existence of a mistake drew up the agreement. This is because, to rectify the mistake effectively, means rewriting the agreement of the parties to change their rights and obligations: Australian Gypsum Ltd v Hume Steel Ltd [1930] HCA 38; (1930) 45 CLR 54, at p 64. Written documents are not to be varied or re-written on the basis of slight presumptions: Moses v Northern Assurance Co (1856) 1 VLT 114, at p 115. 105The third such error, which involved a mixed question of fact and law, was that the CTTT Member did not recognise the importance of the conceded limitation within Mr Noonan's evidence to the effect that he was not authorised to amend the Village residential agreement contracts. Accordingly, Mr Noonan's evidence was a flimsy and unsound basis upon which to seek to re-write the rights and obligations of the parties under the agreement that they had signed, especially where he lacked the authority to make the assertion relied upon to establish the alleged "mistake". The consequential error was that Mr Noonan's evidence was then incorrectly used to base the finding at [34] of the CTTT reasons, that there had been a mistake made by the Society in attempting to implement s 5(3)(h) of the RV Act. 106The terms of s 5(3)(h) of the RV Act provide an exclusionary definition to the effect that a retirement village does not include any residential premises the subject of a residential tenancy agreement in the form prescribed under the RT Act where the operator of the premises is a party and the agreement contains a term to the effect that the RT Act does not apply to the residential premises that are the subject of the agreement. 107The agreement that the parties signed was just such an agreement. No suggestion of mistake arises from the face or the content of the agreement itself. 108The asserted mistake was raised in submissions to the CTTT by the defendant's solicitor: Transcript Day 2, page 72.22. That submission was not based on evidence that was reasonably probative of the claim of mistake, and should have been disregarded given the unambiguous terms of the agreement between the parties. 109The fourth such error involved the construction of s 5(1)(a) of the RV Act, which relevantly provides that if the premises are either predominantly or exclusively occupied or intended to be so occupied, by retired persons who have entered into village contracts with the operator of the complex, then the premises are a retirement village. 110That provision is an undemanding stand alone definition that is capable of being considered on its own to be used as a test to determine whether the Village was a retirement village within the meaning of that statutory definition. At paragraph [42] of the CTTT reasons the CTTT Member stated that she was "in no doubt" that the matters required by the cited s 5(1)(a) RV Act definition had been fulfilled. 111If a finding was required to the effect that the Village was a retirement village within the meaning of the statutory provision, according to the terms of s 5(1)(a) of the RV Act, given the CTTT finding at [42], this was sufficient for the conclusion to be reached that the complex in question was a retirement village. 112In those circumstances, it was then unnecessary for the CTTT to instead entertain notions of whether the matters identified at paragraph [109] above were sufficient to attract the operation of the RV Act, or to find, as the CTTT Member stated, that the otherwise accepted evidence was insufficient for that conclusion. 113The construction by the CTTT of s 5(1)(a) of the RV Act also involved an additional error because the real question was not whether the complex attracted the operation of the RV Act, as stated at paragraph [42] of the CTTT reasons. 114Instead, ultimately, as earlier identified, the real question was whether the parties intended to agree, as their agreement effectively stated, that the RT Act, should not govern their legal relations, thus bringing the RV Act into play, which is an entirely different matter. 115An evaluation of the agreement on its face demanded an affirmative answer to the preceding question according to the objective theory of contract. On that approach, a further error resides in paragraph [43] of the CTTT reasons in that, contrary to the conclusion there stated, beyond tendering the agreement and identifying its unaltered form and content, Mr Butterworth carried no further burden of proving that he had entered into an agreement with the Society that attracted the operation of the RV Act. 116The only matter Mr Butterworth had to show in order for him to succeed in the CTTT proceedings, was that he had an agreement with the Society that was on its face, unambiguous in its original terms. In my view he discharged that burden at the CTTT hearing. The findings against him to the contrary involved errors with respect to matters of law within the meaning of s 67(1) of the CTTT Act. 117It is clear from the Reasons for Decision of the CTTT, that in construing the agreement in question, the CTTT Member had regard to considerations that went beyond the terms of the agreement, and sought to determine an entirely separate and irrelevant matter that did not call for decision. That matter was the question of whether the Village in question was a retirement village within the meaning of s 5 of the RV Act. 118In my view, in the CTTT, a fundamental distinction arose to be recognised. This was the distinction between an analysis which examines the question of whether or not a village is in fact a retirement village to which the Act applies, and the quite separate analysis of a contract in which the parties have agreed that their binding mutual rights and obligations would incorporate the provisions of the RV Act by excluding the provisions of the RT Act. 119In my view the CTTT Member incorrectly focussed on the former proposition instead of the latter, and in doing so, made an erroneous decision on a question with respect to a matter of law.

Disposition 120As a material error on a question with respect to a matter of law has been demonstrated within the Reasons for Decision of the CTTT, this finding requires that Mr Butterworth's consolidated appeal should be allowed. I now formally assign the consolidated proceedings the number 12/242395.

Costs 121Having succeeded in his appeal, Mr Butterworth is entitled to have his costs of the appeal paid by the Society on the ordinary basis, unless some other basis can be shown, in which case, I grant liberty to apply for some other order.

Orders 122I make the following orders: (1) Mr Butterworth's appeal in consolidated proceedings numbered 12/242395 which in turn relate to the subject proceedings in the Consumer, Trader and Tenancy Tribunal, is allowed; (2) The decisions and orders of the Consumer, Trader and Tenancy Tribunal proceedings before that Tribunal and numbered RV 10/47361 and RT 10/44292 are set aside; (3) The respondent/defendant, The Society of St Vincent De Paul is to pay Mr Butterworth's costs of the consolidated appeal on the ordinary basis unless some other entitlement to costs can be shown; (4) The exhibits may be returned; (5) Liberty to apply on 7 days notice if further orders are required; (6) The Registry of this Court is to return the papers and files forwarded by the Consumer, Trader and Tenancy Tribunal in proceedings numbered RV 10/47361 and RT 10/44292, together with a copy of these reasons.

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: 19 November 2012

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