Preliminary issue - Whether a residential complex is a retirement village - Proper construction of s 55 of the Retirement Villages Act 1992 (WA)

Residential Tenancies Act 1987 (WA)

Retirement Villages Act 1992 (WA), s 3, s 55, s 55(1)

1. The name of the applicant is amended to Hamish Wilcox Ford

2. The preliminary issue as to whether the respondent is a retirement village in accordance with the Retirement Villages Act 1992 (WA) is determined by the Tribunal finding that for the purposes of the application that the respondent is not a retirement village nor is it an operator of a retirement village

3. Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed on the basis that it is misconceived

Mohammadi v Bethune [2018] WASCA 98

Retirement Care Australia (Hollywood) Pty Ltd -v- Commissioner for Consumer Protection [2013] WASC 219

1. On 26 October 2018, Hamish Wilcox Ford (the applicant), entered into a Residential Tenancy Agreement (the agreement) under the Residential Tenancies Act 1987 (WA) (RT Act) with the Grand Lodge of Western Australia Freemasons Homes for the Aged t/as Masonic Care WA (the respondent).[1]
2. The agreement permits the applicant on payment of rent of $355 per fortnight to occupy a unit at a residential village in Esperance, Western Australia, which is operated by the respondent (the unit or the village).
3. On 29 April 2025, the applicant lodged an application with the Tribunal under s 55(1) of the Retirement Villages Act 1992 (WA) (RV Act), 'to resolve a dispute between parties to a residence contract'.[2]
4. The applicant seeks the following orders from the Tribunal:[3]

(1) I am bringing a Civil Suit claiming long-term misconduct. I am requesting rent reimbursement of $62,876.00 to compensate for the home lifestyle experience I should have had during the lengthy period of intermittent misconduct while renting a unit within the Esperance WA, Masonic Care WA Village. I also claim legal fees of $ 1,097.50

(2) Or I claim damages under Tort for trespass.

(3) I also claim several breaches of my lease agreement occurred.

I am requesting that the six-year statute of limitations be extended, and if required, an expedited court hearing be held due to my poor health and the fact that the other party's leading representative is either 98 or 99 years old.

1. Section 55 of the RV Act is in the following terms:
   1. Disputes in relation to residence contracts

(1) If a dispute arises between the parties to a residence contract as to the residence contract's compliance with a requirement of regulations made for the purposes of section 14A(1) -

(b) if the dispute has been brought to the attention of the Commissioner - the Commissioner,

may make an application in relation to the matter to the Tribunal.

(2) If the Tribunal is of the opinion that an order, if made under subsection (3), may be relevant to other residence contracts (including residence contracts that relate to another retirement village), the Tribunal -

(a) may order the operator of a retirement village or other person to provide the Tribunal with specified information or documents in relation to any residence contract; and

(b) on its own initiative or at the request of the operator or other person - may order that the operator or other person be joined as a party to the proceedings.

(3) The Tribunal may, on an application made under this section, order -

(a) the variation or cancellation of any of the terms of the residence contract, as specified in the order;

(b) specific performance of the residence contract;

and may make such other orders as the Tribunal considers appropriate and may declare that the order applies to any residence contracts specified in the order, and the order is to have effect accordingly.

(4) Subsection (2) does not limit the State Administrative Tribunal Act 2004 section 35 or 38.

1. On 17 June 2025 a Senior Member of this Tribunal made the following order:
   1. Subject to any further order the preliminary issue as to whether the respondent is a retirement village in accordance with the Retirement Villages Act 1992 is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
2. This preliminary issue turns upon the proper construction of the section under which this application is brought, which is s 55 of the RV Act.

1. The principles that apply to the construction of statutes are well settled and I will not repeat them here: Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
2. For the purposes of the proper construction of s 55 of the RV Act, I note:

An Act to regulate retirement villages and the rights of residents in such villages and for related purposes.

(2) the RV Act is consumer protection legislation: Retirement Care Australia (Hollywood) Pty Ltd -v- Commissioner for Consumer Protection [2013] WASC 219 per Pritchard J at [168].

1. Section 3(1) of the RV Act defines the following terms for the purposes of the Act:

...

operator, in relation to a retirement village -

(a) means the person by or on behalf of whom the retirement village is administered; and

(b) includes a person, other than a resident, who is the owner of land used for the purposes of the retirement village;

...

premium means a payment (including a gift) made to the operator of a retirement village in consideration for, or in contemplation of, admission of the person by or on whose behalf the payment was made as a resident in a retirement village (including any such payment made for the purchase of residential premises in a retirement village or for the purchase, issue or assignment of shares conferring a right to occupy any such residential premises) but does not include -

(a) any such payment excluded by regulation from the ambit of this definition; or

(b) a levy or recurrent charges;

...

residence contract means a contract, agreement, scheme or arrangement which creates or gives rise to a right to occupy residential premises in a retirement village, and may take the form of a lease or licence;

...

resident, in relation to a retirement village, means a person who has been admitted to occupation of residential premises in accordance with a retirement village scheme and includes a spouse or de facto partner of such a person who -

(a) is residing with that person; or

(b) was residing with that person at the time of that person's death;

...

retirement village means a complex of residential premises, whether or not including hostel units, and appurtenant land, occupied or intended for occupation under a retirement village scheme or used or intended to be used for or in connection with a retirement village scheme;

retirement village scheme means a scheme established for retired persons or predominantly for retired persons, under which -

(a) residential premises are occupied in pursuance of a residential tenancy agreement or any other lease or licence; or

(b) a right to occupation of residential premises is conferred by ownership of shares; or

(c) residential premises are purchased from the operator subject to a right or option of repurchase; or

(d) residential premises are purchased subject to conditions restricting the subsequent disposal of the premises; or

(e) residential premises are occupied under any other scheme or arrangement prescribed for the purposes of this definition,

but does not include any such scheme under which no resident or prospective resident of residential premises pays a premium in consideration for, or in contemplation of, admission as a resident under the scheme;

1. Section 14A of the RV Act states that the regulations may provide for provision of matters that must be included in a residence contract.
2. Division 3 of the Retirement Villages Regulations 1992 (WA) (Regulations) sets out certain matters that are to be included in a residence contract. Division 4 of the Regulations sets out certain matters that are not to be included in a residence contract.
3. The respondent says the RV Act does not apply to it as the Village at which the applicant resides is not a retirement village or a retirement village scheme for the purposes of the RV Act.
4. The respondent says a retirement village and a retirement village scheme is defined in s 3(1) of the RV Act to expressly exclude a complex of residential premises at 'which no resident or prospective resident of residential premises pays a premium in consideration for, or in contemplation of, admission as a resident under the scheme'.
5. The respondent says the applicant resides at a 'joint venture with Homeswest to provide a low-cost social housing rental village to any person eligible for a disability pension (of any age) and 55-year-olds and over'.
6. The respondent says all residents of the Village occupy their units pursuant to a Residential Tenancy Agreement under the RT Act.[4] That is, the respondent says that no resident or prospective resident has paid a premium in consideration for or in contemplation of admission as a resident to the Village.
7. Further, the respondent says that a memorial, which acts as a notice that the land to which the memorial relates is used or to be used as a retirement village, is not registered on the Certificate of Title pursuant to s 15 of the RV Act.
8. The applicant says in response that the RV Act 'does not mandate that residents pay a premium as being a defining characteristic of a retirement village'.[5]

1. On proper construction, taking into account 'the text, context and purpose' of s 55 of the RV Act, an application can only be made under s 55 of the RV Act by a party to a residence contract (or the Commissioner) concerning a dispute as to a residence contract's compliance with a requirement of the Regulations.
2. In this case, this would require:

(1) The applicant to be a resident of a retirement village;

(2) The respondent to be the operator of a retirement village; and

(3) There to be a residence contract between the resident and the operator.

1. It is clear that the definition of a retirement village scheme in s 3(1) of the RV Act that a complex of residential premises in which no resident or prospective resident pays a premium in consideration for, or in contemplation of, admission as a resident under the scheme, is excluded from being a retirement village scheme. The definition of premium in s 3(1) of the RV Act does not include a payment of a recurrent charge, such as rent.
2. Under the agreement, the only payment the applicant is to make to the respondent in return for the right to occupy the unit at the Village is the payment of rent.
3. I note the applicant does not contend that:

(1) Any resident of the Village (including the applicant himself) has paid a premium to reside there;

(2) He resides in the unit at the Village pursuant to any contract, agreement, scheme or arrangement other than the agreement; or

(3) A memorial has been placed on the Certificate of Title pursuant to s 15 of the RV Act.

1. For the purposes of determining this preliminary issue I am therefore satisfied and I find that no resident of the Village has paid a premium to reside there, that the only contract, agreement, scheme or arrangement under which the applicant resides at the unit at the Village is the agreement and that a memorial has not been placed on the Certificate of Title.
2. For these reasons, I find the Village at which the applicant resides is not a retirement village or a retirement village scheme for the purposes of the RV Act.
3. For these same reasons I also find:

(1) The applicant is not a resident of a retirement village within the meaning of the RV Act;

(2) The respondent, in respect of the Village, is not the operator of a retirement village or of a retirement village scheme; and

(3) The agreement under which the applicant occupies the unit at the Village is not a residence contract within the meaning of the RV Act.

1. Accordingly, I answer the preliminary issue by finding that for the purposes of the application the respondent is not a retirement village nor is it the operator of a retirement village.
2. As a consequence of my determination of the preliminary issue I must therefore also find that the Tribunal has no jurisdiction to determine this application under s 55 of the RV Act and I must now dismiss the proceeding.

1. The name of the applicant is amended to Hamish Wilcox Ford.
2. The preliminary issue as to whether the respondent is a retirement village in accordance with the Retirement Villages Act 1992 (WA) is determined by the Tribunal finding that for the purposes of the application that the respondent is not a retirement village nor is it an operator of a retirement village.
3. Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed on the basis that it is misconceived.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[5] Applicant's response to the respondent's written submission.