The circumstances leading to termination of the contract
15Much of the evidence in the case relates to the plaintiff's maintenance of the complex. The plaintiff's case is that many of the complaints about the maintenance of the building related to building problems. It is clear, from documents tendered by both parties, that there had been problems with the building work in relation to the complex from the time that it was first erected. Minutes of meeting of the body corporate refer to a Mr Anthony Gittany attending on behalf of the builder and prior manager, Atiglow, and sending correspondence to the body corporate in relation to these issues, as well as to a court decision of 29 October 2007 in relation to the defendant's claim for damages against the builder (Exhibit 23, p. 8).
16The plaintiff worked at the premises as an employee of Mr Gittany's company from about 2003. There had been complaints about the plaintiff's cleaning activities predating her appointment as manager, which were resolved in March 2009 by the plaintiff sending photographs once a month of the premises to Mr Anthony Gittany, whose company was responsible for the management of the premises up until the assignment of this contract to the plaintiff (Minutes of meeting, Exhibit 23).
17After the assignment from Mr Gittany's company to the plaintiff occurred in 2009, the defendant's minutes for the December 2009 Annual General Meeting noted that the plaintiff was now the manager, although no resolution in relation to the assignment appears in the Minutes. The plaintiff's exercise of the 10-year option occurred the following year. By that time, the defendant was already dissatisfied with the plaintiff's performance of her duties. There were proceedings in the Supreme Court of New South Wales, which were resolved when the parties agreed that the exercise of the option by the plaintiff was valid (Exhibit A, pages 20 - 21).
18The plaintiff's performance of her duties during 2011 and 2012 was the subject of frequent complaint by the residents. However, the principal complaint was that the plaintiff did not reside in the unit provided for her, and residents who needed emergency services or other assistance were left to their own devices outside the hours of 9 am - 5 pm and on weekends. As the complex could only be reached by car, and some of the residents could not drive, this resulted in a series of events where essential services called to the building were unable to enter.
19The relationship between the requirement for a live-in manager and the ongoing problem of access to the premises was as follows. As the body corporate minutes kept by the defendant set out, each unit in the complex was equipped with a red emergency button, but this only worked when the plaintiff was at the complex to answer it (Exhibit 23, p. 7). As the minutes go on to note, when the plaintiff was not at the complex, the emergency was referred to the security company, but it took about one to one and a half hours for someone to attend the premises in response to an emergency. This had long meant that if the plaintiff or some other person was not at the complex to respond to the emergency, residents had to telephone 000, as the minutes for 16 November 2005 (which refer to these matters being raised with the plaintiff, prior to her entering into the management agreement) attest.
20Even more importantly, the emergency services personnel, on arrival, would not be able to enter the building, which had security doors, unless someone was there to let them in. This link between the requirement for a live-in concierge and the provision of first-class services to the aged or disabled persons living in the complex arises from their requirement for assistance if medical or other emergencies arose with which they, due to their health problems or disabilities, were unable to cope.
21The failure of the plaintiff to reside in the premises in accordance with the management agreement meant not only that the red emergency button could not be used to locate the plaintiff, but that unless other residents knew that there was an emergency and could go to the foyer to let the relevant emergency services personnel in, the emergency services would have to either smash their way in or leave the emergency unattended to.
22The 11 April 2012 notice to the plaintiff referred to 11 occasions on which ambulances or other essential services were called to the premises and unable to enter due to the absence of the plaintiff from the unit she was supposed to occupy. The evidence on these issues during the hearing, and in the affidavit material, was somewhat discursive, but with the help of counsel at the close of submissions, I have put together the following list of dates when these events appear to have occurred:
(a)A resident named Diane Hampel was obliged to ring 000 in January 2011 at 3.30 am after a smoke or fire alarm went off in the unit of a 90-year-old resident, whose unit was directly above the unit which the plaintiff was supposed to occupy. This was described by Ms Hampel, in her letter of complaint to the managing agent, as "the second time" this had occurred. The smoke alarm could not be switched off, and continued to ring. By the time the fire brigade came at 5 am, many residents appear to have been woken. Ms Hampel told the managing agent, in her letter of complaint, that "we all went back to bed" at that time, but added "where is the caretaker that we pay so much money to" (Exhibit 23, p 29; see also affidavit, paragraph 23).
(b)On 17 June 2011 Mrs Hampel described a visit by police and ambulance at 1.30 pm. Although this occurred during working hours, the plaintiff was absent from the building and Ms Hampel had to let them in herself. Ms Hampel had earlier that day seen the plaintiff shopping at Menai (Exhibit 23).
(c)Ms Hampel also describes an ambulance arriving at 6 am on 26 June 2007. There was no one to let them in at the front of the building and by the time Ms Hampel arrived, they were "just about to break in to the building" (paragraph 24 of her affidavit). This occurred prior to the plaintiff entering into the contract, and I have accordingly not given this incident any weight in relation to this claim, but it indicates the plaintiff's awareness of the problem and of the need for a live-in attendant to be present on the premises to deal with out-of-hours emergencies.
(d)Late in the evening on 23 September 2011, another resident, Ms Jones, had to let two police officers into the complex after they were called to the premises. The police officers told her, according to her complaint to the managing agent at the time, that they were "worried" (Exhibit 23, p. 48) about the occupant of Unit 2, who had not been responding to calls. Ms Jones was alerted to their presence only because her dinner guests, when leaving the premises, saw the police officers at the front door, and telephoned Ms Jones to say that the police were at the front door and could not get in (affidavit, paragraph 17).This was one of several incidents occurring when Ms Haniotis was absent on holidays in Greece for five weeks in September-October 2011. During this time no one occupied the plaintiff's unit, but the plaintiff said she had delegated this task to another resident, Ms Ann Spring. According to Mr Oste, another resident, the plaintiff paid one of the residents, Ms Spring, $100 per week to sit at the front desk for two hours in the morning, and to perform light cleaning duties such as vacuum the foyer once a week and "spot clean" bird droppings in the pool area. Ms Spring gave evidence of performing light cleaning, but there was no evidence she considered herself obliged to assist other residents by attending to emergencies. The plaintiff also claimed that her brother occasionally attended, but according to Mr Oste, he came on six occasions for about two and a half hours to clear the walkways of leaves (Exhibit 23, p 37).
(e)On 14 November 2011 the woman occupant of Unit 32 had a fall. This was after the plaintiff's return from her holiday in Greece, but there was no one in residence in the plaintiff's unit, according to Ms Williams, the resident who found this resident in difficulties. Ms Williams wrote to the managing agent complaining that the plaintiff was not there to help gain access to Unit 32 (Exhibit 23).
(f)Four residents (Ms Jones, Ms Williams, Ms Hawsworth and Ms Arkwright) gave evidence about an ambulance called late in the evening on 25 November 2011 to Unit 2 of the premises, which was directly above the unit to be occupied by the plaintiff. The ambulance officers had been unable to gain entry to the premises and were let in by Ms Jones and these other residents (affidavit of Helen Hawksworth, paragraph 21; Exhibit 23, p. 44; affidavit of Sue Jones, paragraph 18). The ambulance officers were only found to be at the front door because one of the residents went downstairs to take out her rubbish (affidavit of Wendy Williams, paragraph 14).
(g)On 28 November 2011 Ms Williams was at the swimming pool when another ambulance came for a resident who was "on oxygen 24 hours a day" (Exhibit 23, p. 49). There was no one in attendance to let the ambulance officers into the complex (affidavit of Wendy Williams, paragraph 14) and the residents had to let the ambulance officers in.
(h)The most serious occasions occurred in 2012. Just before lunch on 14 January 2012, Ms Williams heard that someone on level 6 needed an ambulance. The lady in Unit 32 had fallen over and her niece, who had come to visit her, could not get in. Ms Williams called through the door to ask if the resident was bleeding or injured (Exhibit 23, p. 51). Ms Williams states in her affidavit that "Nora said to me through the door that she wanted to know if Ms Haniotis was available so her family could get into the unit. I looked for Ms Haniotis but I was unable to locate her" (affidavit, paragraph 14).
(i)Before Easter 2012 Ms Welch had to go to hospital by ambulance very early in the morning. When the ambulance arrived, there was no one to let them in. Ms Welch's next-door resident heard her crying out and let the ambulance in (affidavit paragraph 17). Ms Welch's apartment is immediately above the plaintiff's apartment. This was one of two occasions when Ms Welch needed an ambulance (T 130).
(j)On 30 March, the plaintiff sent an email to the managing agent stating that "as of 5.00 pm today, I am employing Ms Ann Spring to fill in for me while I am not on the premises. This will be on an ongoing basis indefinitely, I have made arrangements with my Accountant" (Exhibit 23, pa. 23). Ms Spring is the resident referred to in paragraph (d) above. However, the problem of how to let emergency services such as ambulance officers into the building did not change. In April 2012, after Ms Welch came out of hospital, another resident (identified by Ms Welch as "Don") required an ambulance. The plaintiff was not available to let the ambulance officers into the building (affidavit, paragraph 17).
(k)Ms Jones and Ms Williams referred in their evidence to another ambulance incident in 2012, but the evidence about this was very scanty.
(l)Access by police, the fire brigade and ambulances was not the only issue; anyone coming with a delivery after hours was in a similar position. Ms Sadler deposed to problems receiving special dietary meals which were delivered to her home each night (affidavit paragraph 8). Ms Hampel deposed to having to accept a parcel on 29 July 2011 from a delivery person who said "I have been buzzing [the plaintiff's unit] but there's no reply" (affidavit paragraph 12). Many such duties fell to Ms Hampel's lot, as her unit overlooks the front entrance, so she saw and heard persons wanting to get in, such as Optus and Telecom workers needing access to the mobile facility late at night, often around 11 pm (affidavit paragraph 22). Access for tradesmen was a constant problem; Mr Oste arranged for a plumber to attend on a Saturday morning and although the plaintiff was supposed to meet him she failed to attend; he said he "never" saw the plaintiff at the complex on weekends (affidavit paragraph 23). There was no one to supervise the painters while they were working at the complex during the plaintiff's overseas holiday. Ms Welch deposed to a workman who was looking for the plaintiff on 10 July 2012 to sign his worksheet but she was not available (affidavit, paragraph 15).
23As is set out below, the plaintiff's evidence concerning these events consisted of:
(a)Statements that she may have been elsewhere in the premises carrying out her cleaning duties during the day and not known about these incidents;
(b)The statement that "it's not my job to run to emergencies during the night" (T 218);
(c)Denial that any resident required medical assistance, because "I never ever got a phone call from anybody" (T 218); and
(d)The assertion the management agreement did not require her to remain on the premises at all times, and that she could stay with her parents if they were ill, or stay overnight with her boyfriend (T 219). When she was not there another resident, Ms Spring, was there to do her work for her (T 222).
24Even if the plaintiff had been in the residential premises to answer inquiries or requests for assistance, the evidence of all the residents called by the defendant was that they did not have her mobile phone number, or the telephone number for her unit. It was put to a number of the defendant's witnesses that they had received this telephone number when they moved into the complex, but each of them denied it. Most of these witnesses already resided in the complex when the plaintiff took assignment of the management agreement on 22 November 2009. There was no evidence of a list of emergency telephone numbers displayed on a notice board or other prominent place. Witnesses shown a piece of paper with the plaintiff's name and telephone typed on it denied having been given such a piece of paper. No evidence of a publicly listed telephone number or mobile was given.
25The grounds in the notice centred around dereliction of duty (whether by inadequate cleaning or failing to attend to emergencies) by the plaintiff relating principally to her absence from the premises.