Kary v B'nai B'rith Retirement Villages Ltd

The resident's documents

1. The primary documents filed by the applicant were filed on 6 February 2023, 13 March 2023 and 29 March 2023.
2. The documents filed on 6 February 2023 included but were not limited to a document titled "applicant's submissions and statement", correspondence, letters from medical practitioners, the original application to the Tribunal, the Princess Gardens Village Rules dated 14 October 2012 (Rules), the Appeal Decision, the decision of the Court of Appeal Cooper v The Owners - Strata Plan No 58060 [2020] NSWCA 250, a press release of the NSW Government dated 23 August 2021 tilted "End to blanket ban on pets in strata"; and a document titled "RSPCA Knowledgebase - What are the health benefits of pet ownership?"
3. The documents filed on 13 March 2023 were submissions responding to the operator's submissions filed 28 February 2013.
4. The documents filed on 29 March 2023 included but were not limited to a copy of the decision of the Appeal Panel Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275.
5. The resident was not required for cross-examination.

The operator's documents

1. The operator filed documents on 28 February 2023.
2. The documents included the Retirement Village Contract between the operator and the resident dated 5 September 2018, the Rules, initialled by the resident; a NSW Government Communicable Diseases Factsheet titled "Psittacosis (Ornithosis)" dated 31 March 2016; the Appeal Decision and submissions.

Factual findings

1. The first step in my determination is to set out my findings as to the relevant facts. These are not in dispute. Nevertheless, it is my obligation to set out the relevant facts before considering the application of the relevant law to those facts.
2. On or about 5 September 2018, the resident entered into a retirement village contract pursuant to s 43 of the Retirement Villages Act 1999 (NSW) (RV Act) (Contract) with the operator of the Princess Gardens Retirement Village (Village) in respect of an apartment in the Village (premises).
3. The nature of the applicant's interest in the premises is set out at p 7 of the Contract as: Nature of residence right You do not own the premises. We grant you the right to occupy the premises on the following basis. The provisions in this contract which apply to the residence right type ticked below will apply to you and us
4. The box for 'non-registered interest holder' is then ticked and the box for 'Owner of a lot in a strata scheme' is crossed out together with other boxes under the heading registered interest holder.
5. Clause 10 of the Contract relevantly provides: 10 VILLAGE RULES 10.1 How do the village rules apply? If there are village rules: (a) you must comply with the village rules and use your best endeavours to ensure compliance with the village rules by any person who is lawfully in your premises or who you invite to the village, and (b) we must comply with the village rules and use our best endeavours to ensure compliance with the village rules by our residents, our tenants, employees and any other person that we invite to the village.
6. Clause 11 of the Contract relevantly provides: GENERAL BEHAVIOUR OF OPERATOR AND RESIDENT 11.1 What are your general obligations? You must: (a) not interfere or cause or permit interference, with the reasonable peace, comfort or privacy of another resident, and (b) respect our rights and the rights of our agents and employees, to work in an environment free from harassment or intimidation, and
   (c) not act in a manner that adversely affects the health and safety of persons working in the village.
7. Clause 26 of the Contract provided: PROHIBITION ON PETS AND OTHER ANIMALS 26.1 Acknowledgments by you You acknowledge and agree that: (a) apart from the animals mentioned in part 2 of this clause: (i) you must not keep or allow any pets or other animals in your premises; and (ii) you must not allow a pet or other animal to be brought into the Village by a visitor, guest, or invitee of yours; and (b) for the purposes of this clause, pets or other animals include but are not limited to birds, cats, dogs, and any other companion animal. 26.2 Exceptions to Prohibitions on Pets We agree that the prohibition on pets or other animals contained in this clause does not extend to: (a) fish which you keep in your premises, or (b) a seeing-eye dog if one is required by you.
8. At the time the Contract was entered into the resident received a copy of the Rules. Rule 5 states: No dogs or cats allowed. You may keep fish in your premises at any time, without the need to let us know or get our consent. For safety of other residents, no other animals (including birds, cats, or dogs) are to be kept in your premises or brought onto common areas at any time.
9. On 20 October 2021, the applicant received a letter from his general practitioner Dr Lieb which relevantly states: I am writing as the GP for Mr David Kary. I have been looking after his medical and psychological health for the last 10 years. He suffers from multiple medical and psychological conditions including severe depression and lung cancer. He has had an exacerbation of his anxiety and depression and a return of his lung cancer. He would greatly benefit from a companion animal such as a budgie or 2. …
10. On 20 January 2022, the resident wrote to the operator as follows: As you are aware, recently informally made an oral application for permission to keep a pet at the Village which permission was refused. I now have the benefit of legal advice and now wish to formally apply in writing, for the sake of clarity, as follows: 1. 1 am the resident of Unit 24, Princess Gardens, Rose Bay pursuant to a Retirement Village Contract dated 5 September 2018; 2. I am in receipt of a medical certificate from Dr Inna Lie dated 20 December 2021 stating that the keeping of a budgerigar or two would be beneficial for my mental health. A copy of such certificate accompanies this letter; 3. Under rule 5 of the current Princess Gardens Village Rules no animals other than fish are to be kept on a resident's premises; and 4. Despite the above rule, I still wish to apply to keep a maximum of two budgerigars as having one or two in a small cage on my premises will not impact on any other resident on safety grounds or any other reason. It would also benefit me greatly to have a companion or two of this type as it would give me a sense of responsibility to look after it/them and would encourage me to have a more positive daily mood. Please inform me within 7 days whether the Village grants me the permissions sought. in the event that I do not hear back from you within 7 days or the Village refuses permission then I draw your attention to the following: (a) Section 54 of the Retirement Villages Act 1999 allows a resident to apply to NCAT for an order modifying the operation of a village rule in its application to a particular resident where the resident considers the rule to be "unjust, unconscionable, harsh or oppressive". (b) I will immediately apply to NCAT for an order that the relevant rule be modified on the basis that I consider the rule to be "unjust, unconscionable, harsh or oppressive" in my circumstances"; (c) As NCAT has the power to modify the rule with regard to me only, the Village is entitled to modify it with regard to me now so as to obviate the need for the legal proceedings to go ahead; (d) If my challenge at NCAT is successful then this would set a precedent that could be employed by other residents; and (e) I will be seeking a modification to the rule that applies to me only being as follows: "Despite the above, you may keep a maximum of two budgerigars on your premises provided you let us know in advance, you give us a medical certificate stating that the keeping of the budgerigar/s would be beneficial for your health and you do not allow the budgerigar(s) to leave its/their cage".
11. The operator did not reply to the letter, and on 6 February 2022 the resident filed application RV 22/06325 with the Tribunal.
12. In the application, the resident stated: Section B REASONS FOR ASKING FOR ORDERS I have suffered from depression since early childhood. I have been on medication most of my adult life. I have a weekly appointment with my psychiatrist Dr Ildiko Gintli. Dr Gintli believes it would be therapeutic for me to have a pet. My GP Dr Inna Lieb has provided a letter attached, in which she wrote that it would greatly benefit me to have a companion pet. Rule 5 of the Village Rules prevents a resident from having [a] pet other than a goldfish. I believe this rule is unjust, unconscionable, harsh or oppressive as the operator has refused me permission to have two birds as pets. I therefore seek to modify the [R]ules in relation to me.
13. The letter of Dr Lieb is the letter referred to above at [22].
14. On 17 February 2022, the applicant received a "support letter" from his psychotherapist and psychiatrist Dr Gintli which relevantly states: I am writing this letter of support in my capacity as Mr David Kary's long-term psychotherapist psychiatrist in the context of his application to the NSW Civil and Administrative Tribunal (NCAT) in relation to his request to be able to have a pet in his current accommodation. In my opinion having a pet would be greatly beneficial for Mr Kary's mental health. …

The resident's application

1. The resident seeks an order of the Tribunal under s 54(2)(b) of the RV Act modifying the operation of Rule 5 in its application to him. The resident does not dispute the validity of Rule 5 for the purposes of s 54(1)(a) of the RV Act. Nor does the resident seek an order setting aside or invalidating Rule 5 under s 54(2)(a) of the RV Act.
2. As appears in his letter to the operator of 20 January 2022, the modification sought in the application is as follows: Despite the above, you may keep a maximum of two budgerigars on your premises provided you let us know in advance, you give us a medical certificate stating that the keeping of the budgerigar/s would be beneficial for your health and you do not allow the budgerigars to leave its/their cage.

The resident's submissions

1. The resident provides an extensive analysis of the decision of the Court of Appeal in Cooper. Quite correctly, the resident notes that Basten JA and Fagan J appeared to offer two different approaches to interpreting the words "harsh, unconscionable or oppressive" contained in s 150 of the Strata Schemes Management Act 2015 (NSW) (SSMA).
2. That said, I note that Macfarlan JA agreed with both Basten JA and Fagan J, noting at [78] a by-law may be harsh, unconscionable or oppressive where it imposes a restriction that "could not on any rational view enhance or be needed to preserve the other lot owners' enjoyment of their lots and the scheme common property".
3. The resident submits that, on the one hand, "harsh, unconscionable or oppressive" may be considered as a single criterion and, on the other, each word is to be considered on its own merits. "For what it is worth", the resident submits that he considers the Rule 5 may be harsh or oppressive, but not necessarily unconscionable, noting the remarks of Fagan J at [92] that: … that term [unconscionable] is generally understood in equity as concerned with a stronger party to a transaction exploiting some special disadvantage of a counterparty.
4. The resident notes that when a statute empowers a court to grant relief in respect of something considered to be unjust a court, and by analogy must apply current community standards about what is just. He submits that current community standards regarding the keeping of pets can be ascertained from: 1. the result in Cooper where a pet owner prevailed over an unjust by-law banning the keeping of pets; 2. the subsequent amendment of the SSMA ending blanket bans on pets in strata schemes as referred to in a NSW Government Media Release on the subject dated 23 August 2021; 3. the proposed village rules of a new retirement village, "Hyegrove", in Willoughby, contains a rule stating that the operator's consent to keep a bird as a pet will not be unreasonably refused; 4. the fact that there are physical and psychological benefits of pet ownership (and here the resident refers to the RSPCA article noted above).
5. The resident then submits that: 1. the Tribunal is entitled to use its own awareness of the prevalence of pets in the general community and the obvious benefits to the well-being of pet owners, especially vulnerable and compromised persons such as the resident; 2. Rule 5 exceeds the purpose for which it was created; if it is used to ban the keeping of caged birds on a resident's premises in circumstances where they pose no danger to the safety of other residents, it is unjust, harsh and oppressive to allow the Rule to stand, at least as it applies to him, without the modification requested; 3. Rule 5 is unjust, harsh and oppressive in its application to the resident as it prevents him from keeping two small budgerigars as pets in circumstances where he suffers from depression and lung cancer and two medical professionals have indicated that he would greatly benefit from having the pets; 4. no other resident in the Village would be affected in any way by the budgerigars.
6. Finally, the resident relies on Cooper where Macfarlan JA stated at [79]: The by-law at issue in the present case (By-law 14) imposes a blanket prohibition (save in respect of assistance animals) on keeping any animal, or permitting it to be, on any lot or the common property. Its scope is broad enough to prevent lot owners using their lots in a way which could not, on any rational view, adversely affect other lot owners' enjoyment of their lots or the common property. The keeping of goldfish in a secure aquarium was an obvious example given in the course of submissions in this Court. Other examples, such as the keeping of a small bird in a cage, could also be given. (emphasis added)
7. The resident submits that: His Honour is saying that where a provision prevents the keeping of pets, it is irrational to claim that pets such as goldfish or caged small birds affect other residents so as to attract the ban imposed by [Rule 5].

The operator's submissions

1. By way of overall summary, the operator commences its submissions by stating that: 20. The applicant's case appears to be that Rule 5, which prohibits the keeping of pets, except in limited circumstances (in the case of assistance animals and fish), is harsh, unjust or oppressive in its application to him because: (a) insofar as the Rule prohibits the keeping of two caged budgerigars, it is irrational or perhaps inconsistent with the purpose of the Rule, which is alleged to be "for the safety of other residents', because the applicant claims (and the respondent denies) that "no other resident in the village would be affected in any way by the birds"? (the "Irrationality Argument"); (b) the Rule prevents the applicant, who suffers depression and lung cancer, from obtaining the psychological benefits said to be associated with pet ownership (the "Health Benefits Argument"3; and (c) Village rules imposing blanket bans on keeping pets are contrary to community standards (the "Community Standards Argument").
2. The operator filed 12 pages of submissions. After setting the background to the present application, summarising the Appeal Decision and the resident's case, the operator then sets out its submissions under the following headings:

• Is Rule 5 unjust, harsh, oppressive or unconscionable?
• Rule 5 is not unconscionable
• Rule 5 is not unjust
• Rule 5 is not Oppressive
• Rule 5 is not Harsh (Or Unjust) - Irrationality Argument
• Rule 5 is not Harsh - Health Benefits Argument
• Rule 5 is not Harsh - Community Standards
• Other Discretionary Considerations Argument

1. I will briefly summarise the operator's submissions on each topic.

Is Rule 5 unjust, harsh, oppressive or unconscionable?

1. The operator submits that the approach of Fagan J in Cooper is the better approach, as it accords with the treatment by the High Court of the expression "harsh, unjust or unreasonable" in the context on fair dismissals in Byrne v Australian Airlines Ltd [1995] HCA 24 per McHugh and Gummow JJ at [128] namely: Clause 11(b) is aimed at the situation where the termination of employment brought about by the dismissal, rather than the steps leading up to the dismissal, or lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, unjust or unreasonable because it is based on a ground defined as such by cl 11(b). This refers to such matters as termination "on the ground of" race, colour, sex and marital status. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
2. In any event, the Tribunal is required to make an evaluative judgment based on the circumstances of the particular case. The extent that general community standards may be considered must depend on the circumstances of the particular case. It is not permissible for the Tribunal to conclude from the alleged existence of "broad community sentiment" in favour of keeping pets in apartments that Rule 5 is therefore harsh, unjust or oppressive in relation to the applicant.
3. To the extent that "unjust, harsh, unconscionable or oppressive" is considered as a composite expression, the operator submits: 1. "unjust" describes a decision, action or rule that infringes or is contrary a person's rights; 2. "harsh" may describe the particular consequences, including economic and personal consequences, of adherence to Rule 5 for the applicant; 3. "oppressive" often describes a situation in which the will of the majority is imposed on, and to the substantial and unreasonable detriment of, a minority; 4. "unconscionable" describes a situation in which a stronger party exploits some special disadvantage in the weaker party to the detriment of the weaker party.

Rule 5 is not unconscionable

1. The operator submits that the resident correctly conceded that Rule 5 is not unconscionable in its application to him.

Rule 5 is not unjust

1. The operator submits that the resident does not own any part of the premises, the operator does, and therefore the relationship between the parties is not analogous to the relationship between a lot owner and the owners corporation in a freehold strata scheme. Rather, the relationship is more analogous to that of landlord and tenant in that the operator has agreed to allow the resident to occupy the operator's property on certain agree terms. Those terms include the Rules, and cll 10 and 26 of the Contract which contain the mutual agreement to abide by the Rules.
2. The application of Rule 5 to prevent the resident from keeping budgerigars in his premises involves no infringement of his rights and cannot properly be said to be unjust.

Rule 5 is not oppressive

1. The operator submits that the resident: 1. freely entered into the Contract and agreed to abide by the Rules; 2. Rule 5 applies equally to all residents. 3. does not have a particular need to keep animals other than fish in the premises; 4. is free to live in another retirement village which allows the keeping of birds as pets.
2. Therefore, the resident has not established that Rule 5 is oppressive.

Rule 5 is not Harsh (Or Unjust) - Irrationality Argument

1. The operator denies that the sole purpose of Rule 5 is to ensure the safety of residents other than the one who would otherwise keep a prohibited pet. Rule 5 may have a number of other purposes, for example, to promote the safety of the particular resident, and the peace and comfort of all residents of the village. Rule 5, in its application to birds, promotes the safety of the applicant and other residents by eliminating the risk from diseases spread by dust particles from the bird's faces, feathers and seed, such as Psittacosis and Avian Clamydiosis.
2. The Irrationality Argument ought to be rejected as it is inconsistent with the text and context of Rule 5. Rule 5 states in unqualified terms that no cats or dogs are allowed.
3. In particular, that prohibition is not qualified by the words "for the safety of other residents". Those words appear to relate to the phrase "no other animals", however the expression other animals expressly includes cats and dogs, as well as birds. If the prohibition on keeping or bringing onto common property other animals (including cats and dogs) was qualified by the alleged purpose, then this would be inconsistent with the unqualified prohibition in the first sentence of Rule 5. The Tribunal should not prefer a construction of the Rule that leads to an internal inconsistency.
4. The resident's construction calls for an objective determination of the purpose of Rule 5 and whether the operation of Rule 5 in particular circumstances exceeds that purpose.
5. However, if the operator, which is charged with the responsibilities under s 66(2) of the RV Act and has intimate knowledge of the operations of the Village, is not able to determine for itself what is necessary or desirable, for example, to prevent unreasonable interference with the peace, comfort and quiet enjoyment of residents of the Village, the operation of s 66 of the RV Act will be undermined.
6. The better construction of Rule 5, consistent with the proper operation of s 66 of the RV Act, is that the words "for the safety of other residents" are no more than a statement of fact, agreed between the respondent and the residents of the Village (including the applicant), that keeping in premises or bringing onto common property any animals other than fish is inconsistent with the safety of other residents. It is not open to the Tribunal to question that agreed fact.
7. The Irrationality Argument should be rejected because the proposition that the keeping of two caged budgerigars in the resident's premises (which includes an open balcony) poses no risk to the safety of other residents is a mere assertion, unsupported by any logically probative evidence.
8. The operator disputes the proposition, particularly as the applicant has not offered to keep the cage and the birds within the indoor parts of the premises at all times
9. If the cage is permitted outdoors, the birds may emit noise, faeces, feathers and dust and scatter food and may attract other birds or animals (wild, feral or domestic), such as cats, dogs, rats or foxes, to the detriment of the other residents. Even if the birds are kept within the enclosed parts of the premises, the noise from the birds is likely to impact on the peace, comfort and quiet enjoyment of residents of the Village. Further, the resident has no way of controlling the flow of air (and potentially disease bearing dust particles) through and out of his premises. Clearly, the resident cannot (and is not proposing to) keep his windows and doors permanently closed and sealed so as to prevent the spread of the dust particles generated by the birds beyond the confines of the resident's premises.

Rule 5 is not Harsh - Health Benefits Argument

1. The operator submits that the Health Benefit's Argument fails to withstand close scrutiny, and the letters of the two doctors do not assist the resident.
2. In particular, Dr Lieb does not address how the resident would obtain any special benefit of assistance in relation to his particular conditions, over and above the benefit that any resident would expect to obtain from having a companion animal.
3. As to Dr Ginlti, she does not refer to a type of pet or explain how being allowed to keep two budgerigars would be beneficial to his mental health. Further, she refers to "a pet", and her letter does not provide support for the keeping of two animals.
4. Neither doctor suggests that the resident could not obtain the same benefit from another animal, namely fish, which he is permitted to keep.
5. Finally, neither doctor address the potential adverse effects on the applicant's health from the keeping of budgerigars, "including whether the dust particles from the birds' feathers, seeds and faeces could aggravate his lung cancer".
6. The information from the RSPCA relied on by the resident is general in nature and of no probative value.

Rule 5 is not Harsh (or Unjust) - Community Standards Argument

1. The operator submits that the Community Standards Argument amounts to an argument to set aside Rule 5. If Rule 5 is harsh, unjust, unconscionable or oppressive because it offends community values then it must be so characterised in relation to all residents in the Village - but the resident has not applied to set aside Rule 5.
2. In any event, the applicant has failed to identify the relevant community whose standards are supposed to be taken into consideration.
3. To the extent that the Media Release is evidence of the acceptance, among apartment dwellers, of keeping pets on strata title property (which is not admitted) the document cannot properly be regarded as probative evidence of the attitudes in the community of non-owner village residents (or operators) towards the keeping of pets in retirement villages

Other Discretionary Considerations

1. If, contrary to the operator's submissions, the Tribunal is satisfied that Rule 5 is in fact harsh, unjust, unconscionable or oppressive, and the order sought by the applicant is capable of remedying the particular harshness, unjustness, unconscionability or oppression, the Tribunal should exercise its discretion to refuse the relief sought. Instead, the Tribunal should make an order under s 54(2)(c) of the RV Act upholding Rule 5.
2. While the resident seeks to modify Rule 5 only in relation to him, the granting of the application is likely to lead to further applications of a similar nature in relation to this Village: "how many residents should be allowed to have pets?" If every resident of the Village could potentially apply to the Tribunal for the modification of Rule 5 to allow to keep pets (even if it is confined to two small birds). the risks to the health, safety, peace, comfort and quiet enjoyment of other residents are amplified, mores if some residents are successful in modifying the Rule to allow them to keep cats or dogs.
3. The prospect of having to deal with multiple requests and applications for the modification of Rule 5 would also impose an unreasonable burden on the administrative and financial resources of the respondent and divert such resources from the proper management of the village for benefit of residents.
4. It cannot be an appropriate exercise of the discretion for the Tribunal to, in effect, allow the applicant to say to other residents "I know we all agreed to live here on the basis that there would be no animals here, but I've changed my mind - if you don't like it, you can lump it (move somewhere else)".

Resident's submissions in reply

1. The resident provided detailed submissions in reply. Where appropriate I will refer to these in the Consideration section of these reasons.

Relevant Law and principles

1. Section 54 of the RV Act provides: 54 Other applications to Tribunal concerning village rules (1) The operator of a retirement village or a resident of the village may, at any time, apply to the Tribunal for an order in relation to either or both of the following - (a) a dispute concerning the legal validity of a village rule in force in the village, (b) a village rule in force in the village that the operator or resident considers to be unjust, unconscionable, harsh or oppressive. (2) The Tribunal may determine an application made under subsection (1) by making an order - (a) setting aside the village rule concerned, or (b) modifying the operation of the rule in its application to a resident or to some or all of the residents of the village, or (c) upholding the rule.
2. The analysis of the Court of Appeal in Cooper is sufficiently summarised above. However, as the Appeal Panel observed in the Appeal Decision Cooper's case 45 Some of the Appeal Grounds dealt with the Court of Appeal decision in Cooper as it applied to the circumstances of this case. While we have determined for the reasons given to allow the appeal on other grounds, we make the following observations. In our view, the Member (Decision at [59] - [63], and [78]) properly distinguished Cooper's case. 46 In Cooper, the property interests were those of lot owners, being registered interests in real property under the Real Property Act 1900 NSW. The interests of lot owners in a strata scheme are fundamentally different to the interest of the resident/appellant, who holds an unregistered, contractual right of occupancy to the premises: see the Contract (page 30, Respondent's Appeal Bundle) under the heading 'Nature of Residence Right'; see also s 24 of the RV Act, the definitions of "residence contract" and "residence right" in s 4, and the definition of "registered interest holder" in s 7. The resident does not own any part of the premises. He does not have indefeasibility of title to anything in respect of the premises. He is not the registered proprietor of anything in respect of the premises. Rather, it is the operator/respondent who is the owner of the premises comprising Unit xx in the Village. 47. Cooper's case was also properly distinguished, in our opinion, on the basis that the resident's application to the Tribunal for orders under the RV Act, which was to modify the operation of Rule 5 as it applied to him, was materially different to the lot owner's application in Cooper, which concerned the validity of a by-law of the strata scheme. 48. Moreover, the Court of Appeal's decision in Cooper applied to a different statutory framework, the Strata Schemes Management Act 2015 (NSW), where the relevant sections of that Act (s 139(1) and 150(1)) do not contain the language of "unjust", and do not contain a provision equivalent to subsection 54(2)(b) of the RV Act, which permits the Tribunal to modify the operation of a by-law in its application to one or more lot owners. 49. Nevertheless, we accept that the Court of Appeal's decision provides some general guidance and assistance (see for example, Cooper per Basten JA at [28] - [29]) as to the meaning of the expression "harsh, unconscionable or oppressive", when the Tribunal in a particular case for orders under s 54 of the RV Act is required to consider whether a village rule is, in fact, "harsh, unconscionable or oppressive".
3. I note that the Appeal Panel stated in The Owners - SP No 91684 v Liu; The Owners - SP No 90189 v Liu [2022] NSWCATAP 1: 56. Returning to Cooper, Basten JA considered the term harsh unconscionable or oppressive as a "triune" conveying a single criterion in which community standards are one consideration; while Fagan J decided the term should be read disjunctively and so the subsection is breached if any of the words apply. … 58. We do not consider it necessary to resolve the subtle differences of opinion expressed in Cooper. It is sufficient for present purposes to observe that however one interprets the words "harsh, unconscionable or oppressive", Cooper stands for the proposition that the regulation of conduct by persons living in close proximity in a strata scheme will involve a valuative judgment and the fact that a by-law may be administratively convenient for an owners corporation cannot justify interference with the ordinary rights of lot owners by means of the by-law (see [46] - [52], [82] and [96]).
4. The Tribunal's task is to consider whether or not Rule 5 should be modified as requested by the Tribunal.
5. Guidance has been given to the Tribunal by the Appeal Panel in the Appeal Decision as follows: 41. Subsections 54(2)(a) and (c) define the Tribunal's powers to deal with an application under subsection 54(1)(a); whereas subsections 54(2)(b) and (c) define the Tribunal's powers to deal with an application made by a person who has the standing to do so under subsection 54(1)(b). There is no doubt that the resident in this case had, and has, standing to make the application for orders of the Tribunal under the RV Act; but in our view, the purpose of s 54 is remedial. The purpose is to provide retirement village operators and residents with relief in respect of invalid or unjust, unconscionable, harsh, or oppressive village rules. That purpose can be served only, in the case of a rule that is the subject of an application under s 54(1)(b), if the rule is, in fact, unjust, unconscionable, harsh, or oppressive, either per se, or in its application to the resident or to some or all the residents of a retirement village, depending on the nature of the application. Otherwise, there is no work for s 54(2) to do as there is nothing for an order under s 54(2) to remedy. 42. Moreover, before the Tribunal considers the exercise of its discretion under s 54(2), an order under subsection 54(2)(b) must be capable of remedying the asserted unjustness, unconscionability, harshness, or oppressiveness of the rule that is the subject of the application under subsection 54(1)(b). 43. While the resident did not press a case that Village Rule 5 was unconscionable, the resident did assert that the Rule was unjust, and/or that it was oppressive or harsh, as it applied to him. There were questions of fact in the application of s 54 of the RV Act to the case before the Tribunal, which were simply not answered by the Tribunal Member, or dealt with adequately, or at all, in his Reasons. These were errors on questions of law. The Tribunal Member did not consider whether Village Rule 5 was, in fact, unjust. The Tribunal Member may have considered whether, or not, a belief was reasonably held by the resident that the Rule as it applied to him, was harsh or oppressive, but this was the wrong question. In our view, the Tribunal Member should have considered, and then made findings as to, whether on the material before him for the hearing, the Rule was, in fact, harsh or oppressive, as it applied to the resident. 44. The finding of the Member at [76] of the Decision does not address whether the Rule was unjust, oppressive, or harsh. While we accept that s. 66 of the RV Act, together with the expectations of other residents who occupy residences at the Village under a contract of similar terms to the Contract, are matters for consideration as to whether, or not, orders under s 54(2) are made, including in the exercise of the Tribunal's discretion, they are not determinative matters. On a proper interpretation of s 54 of the RV Act, they are not matters which, in and of themselves, preclude findings of unjustness, harshness, or oppressiveness. To that extent, the findings of the Member particularly at [76] of the Decision were incorrect and it is a further basis for order 1 made on 3 August 2022 to be set aside. (Emphasis added)

Consideration

1. Rule 5 provides: No dogs or cats allowed. You may keep fish in your premise at any time, without the need to let us know or get our consent. For the safety of other residents no other animals (including birds, cats or dogs) are to be kept in your premises or brought onto common areas at any time.
2. The resident, who does not seek an order disputing the validity of Rule 5, or seeking to set it aside, seeks an that Rule 5 be modified in its application to him by adding the following to Rule 5: Despite the above, you may keep a maximum of two budgerigars on your premises provided you let us know in advance, you give us a medical certificate stating that the keeping of the budgerigars would be beneficial for your health and you do not allow the budgerigar(s) to leave its their cage.
3. In this respect, it is common ground, and the Tribunal accepts, that the resident has standing to bring the application in that he considers that Rule 5 to be unjust, harsh or oppressive as it applies to him (accepting that the resident does not press that the Rule is unconscionable).
4. The question the Tribunal must determine is whether Rule 5 is in fact unjust, unconscionable, harsh or oppressive as it applies to the resident.
5. The starting point is to decide how to interpret the expression "unjust, unconscionable, harsh or oppressive", that is whether as a composite expression (by analogy with the reasoning of Basten JA in Cooper), or disjunctively (as per Fagan J).
6. The operator submitted the better approach was the latter, but in oral submissions submitted the outcome would be the same with either approach. I infer from the resident's submissions that he too supported the latter approach, in that he submitted that Rule may be harsh or oppressive but not necessarily unconscionable.
7. I agree. As a matter of simple grammar, 'or' denotes an alternative. In ordinary speech the word 'and' is used conjunctively and the word 'or' used disjunctively: Pearce, Statutory Interpretation in Australia, Ninth Edition at [2.46], and that in any consideration of the effect of 'and' and 'or' they are to be given their usual meaning: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, cited in Pearce at [2.48].
8. At [2.46] Pearce relevantly states: However, one quite often finds arguments being put to the courts that items connected by the word 'and' and should be treated as alternatives and that items connected with 'or' should be treated as being cumulative. In some instances these arguments have been successful. Most of the cases fall into two groups. In one group the court has decided that there are compelling reasons for concluding that there is a printing or drafting error and that, in line with the golden rule, the provision should be interpreted as if the word that had been intended had been used. As mentioned in 2.45, it may be possible to correct some errors of this kind by relying on the purposive approach and taking account of the context in which the provision appears. That could include reading 'and' for "or' and vice versa if the underlying purpose or object and the context of the provision suggests such an interpretation. As to this see Smith v Papamihail (1998) 88 FCR 80 at 88-9; 158 ALR 451 at 458-9 where this analysis was endorsed. In the second group of cases the court has not decided that 'and' or 'or' was used in error. Instead, it has concluded, usually by reference to the context in which the word appears, that the cumulative or disjunctive effect of the provision should not be dictated by the presence of the word in question.
9. No argument was put to the Tribunal that the use of 'or' on this occasion fell into either of these groups, and in the Tribunal's view it did not.
10. The Tribunal considers it clear that the four words are alternatives. Accordingly, if the resident establishes objectively that Rule 5 is unjust or unconscionable or harsh or oppressive in so far as it affects him, then the discretion in s 55(2) of the RV Act is enlivened.
11. In Cooper Basten JA stated: 27. … as Edelman J noted in Kobelt, "[l]ike other open-textured criteria, such as 'unfair' or 'unjust', there is no clear baseline moral standard for what constitutes 'unconscionable' conduct" … 28. Similar language is found in other New South Wales statutes. The Contracts Review Act 1980 (NSW) empowers a court to declare void, or not enforce, an "unjust" contract, and defines "unjust" to include "unconscionable, harsh or oppressive": s 4(1). In Perpetual Trustee Co Ltd v Khoshaba Spigelman CJ stated: "[64] When the Parliament adopts so general, and inherently variable, a standard as that of 'justness', Parliament intends for courts to apply contemporary community standards about what is just. Such standards may vary over time, particularly over a period of two decades." 29. The Appeal Panel noted a possible comparison between the language of s 139(1) and the Contracts Review Act. However, it also noted that the Contracts Review Act requires a court in determining whether a contract or a provision of a contract is unjust to have regard to a wide range of circumstances, including "the public interest" and "all the circumstances of the case". It may be accepted that no similar list of considerations appears in the Strata Management Act; it does not follow, however, that the observations of the Chief Justice in Khoshaba as to the approach to be taken to the criterion of engagement language is inapplicable.
12. In my view, Rule 5 is unjust in its operation in respect of the resident. I also consider it to be harsh given the resident's circumstances.
13. This is for the following reasons.
14. The resident is a (soon to be) 65 year old man who lives alone. He suffers from multiple medical and psychological conditions including severe depression, anxiety and lung cancer. One of his doctors say that he would greatly benefit from a companion animal including "a budgie or 2". The other doctor says that a pet would be "greatly beneficial" for his mental health.
15. I reject the operator's submission that the proper approach to understanding unjustness is that, as Rule 5 involves no infringement of the applicant's rights Rule 5 therefore cannot properly be said to be "unjust".
16. I reject this submission; unjust has been defined as:

• not in accordance with accepted standards of fairness or justice; [1]
• not just or right; unfair; contrary to justice. [2]

1. In my view, regardless of whether there is or not an infringement of a resident's legal rights, a rule may be unjust, or unfair. The rule as it applies to the resident is unjust (that is, unfair), and harsh, because his medical advisers say a companion animal or pet (and one such adviser actually refers to budgerigars) would benefit his mental health.
2. I reject the submission that Rule 5, in its application to birds, promotes the safety of the applicant and other residents by eliminating the risk from diseases spread by dust particles from the bird's faces, feathers and seed, such as Psittacosis and Avian Clamydiosis. I regard this as an exaggerated ex post facto justification.
3. I reject the submission that if the operator, being charged with the responsibilities under s 66(2) of the RV Act and having intimate knowledge of the operations of the Village, is not able to determine for itself what is necessary or desirable, the operation of s 66 of the RV Act will be undermined. This argument overlooks the fact that Parliament has given the Tribunal power to strike down or modify Village Rules which are unjust, unconscionable, harsh or oppressive.
4. The operator submits that the resident's submission that keeping of two caged budgerigars in the resident's premises (which includes an open balcony) poses no risk to the safety of other residents is a mere assertion, unsupported by any logically probative evidence. I disagree. But similarly, the operator's submission that "[e]ven if the birds are kept within the enclosed parts of the premises, the noise from the birds is likely to impact on the peace, comfort and quiet enjoyment of residents of the Village", is an assertion unsupported by evidence.
5. But the point is that neither submission raises a matter which assists in determining whether the application of Rule 5 to the resident is unfair.
6. I find the operator's submissions about the risk of disease to the Village community to be exaggerated and hypothetical, in particular the following submission: If the cage is permitted outdoors, the birds may emit noise, faeces, feathers and dust and scatter food and may attract other birds or animals (wild, feral or domestic), such as cats, dogs, rats or foxes, to the detriment of the other residents.
7. The operator's use of "may" demonstrates the hypothetical nature of the concerns for which no evidence is offered in support. And, after all, I assume that there are other birds flying around the Village environs. In any event, I consider that modifying the rule and keeping the budgerigars in their cage and inside the resident's apartment and requiring the resident to follow the advice of NSW health will minimise any danger to other residents.
8. I reject the operator's criticism of the two doctors on whose support the resident relies. The operator could have required either doctor to attend for cross-examination. I see no reason to reject their opinions. And I place no weight at all on the argument that Dr Gintli only referred to a pet, singular. This is a submission of "splitting hairs" at its finest.

Conclusion

1. The ultimate question for determination is whether or not Rule 5, in its application to the resident, is unjust, harsh, oppressive or unconscionable. For the above reasons, Rule 5 is both unjust and harsh in so far as it applies to the resident.
2. This unjust and harsh effect will be ameliorated, if not eliminated, and any potential risk to the village community minimised, by modifying Rule 5 in relation to the resident so as to read as follows: No dogs or cats allowed. You may keep fish in your premises at any time, without the need to let us know or get our consent. For safety of other residents, no other animals (including birds, cats, or dogs) are to be kept in your premises or brought onto common areas at any time. However, you may keep a maximum of two budgerigars on your premises provided that: (a) the budgerigar/s remain within its/their cage at all times; (b) the cage remains within your apartment at all times; and (c) the cage is not to be paced on the balcony; (d) you must take all practical steps to comply with guidelines issued by NSW Health or other NSW Government agencies to minimise the risk of infectious diseases (including Psittacosis) posed by the keeping of the budgerigars.
3. For the benefit of the resident I note that there is a more recent Factsheet than that included by the operator in its documents; see Psittacosis (Ornithosis) fact sheet dated 1 July 2018. [3] That Factsheet relevantly states: How is it prevented? … to be safe: only purchase birds from a licensed pet store or breeder. wash your hands with soap and running water for 10 seconds before and after handling pet birds. avoid kissing pet birds (mouth-to beak contact with). house birds in clean cages of ample size that are lined with newspaper that is changed frequently. do not allow droppings in cages to build up, dry up or become airborne. wear a P2 respirator (available from pharmacies and hardware or other stores), and gloves and dampen any bird droppings or cages, before cleaning the case. wash your hands after cleaning the cage. take sick birds to a veterinarian as soon as possible. wear a P2 respirator, gloves, disposable cap and protective clothing when dealing with infected birds.

Orders

1. The Tribunal makes the following order: (1) Rule 5 of the Village Rules of the Princess Gardens Retirement Village is modified in relation to the applicant so that it reads: "No dogs or cats allowed. You may keep fish in your premises at any time, without the need to let us know or get our consent. For safety of other residents, no other animals (including birds, cats, or dogs) are to be kept in your premises or brought onto common areas at any time. However, you may keep a maximum of two budgerigars on your premises provided that: (a) the budgerigars remain within their cage at all times; (b) the cage remains within your apartment at all times; (c) the cage is not paced on the balcony; (d) you must take all practical steps to comply with guidelines issued by NSW Health or other NSW Government agencies to minimise the risk of infectious diseases (including Psittacosis) posed by the keeping of the budgerigars".

Endnotes

1. https://www.collinsdictionary.com/dictionary/english/unjust
2. https://www.yourdictionary.com/unjust
3. Psittacosis (Ornithosis) fact sheet I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 06 June 2023 - Typographical errors corrected. 21 August 2023 - Formatting amendments. 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: 21 August 2023