SA Civil and Administrative Tribunal|2017-09-11|Before: Parker J

Kingsley & Thorne v Living Choice Woodcroft Pty Ltd [2017] SACAT 16 (11 September 2017)

Kingsley & Thorne v Living Choice Woodcroft Pty Ltd [2017] SACAT 16

South Australian Civil and Administrative Tribunal (Member Thomas) 2016/SH011734 and 2016/SH012956

Retirement village - Obligation upon residents not to interfere with the use and enjoyment of other residents - Unreasonable interference

Internal review - correct and preferable decision - Equity, good conscious - Substantial merits of the case

Retirement Villages Act 1987 ss 17, 31, 40, sch 1 cl 6,

Retirement Villages Regulations 2006 reg 5, sch 1 cl 2,

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1978) 180 CLR 266

Featherstone v Tully [2002] SASC 243; (2002) 83 SASR 302

House v The King [1936] HCA 40; (1936) 55 CLR 499

Townsville City Council and Delfin Lend Lease Ltd v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77

JRL v Williams & Williams [2017] SACAT 15

For the respondent: Jason Sack, Living Choice Woodcroft Pty Ltd and Alf Macolino, O'Loughlins Lawyers

This decision concerns two applications for internal review lodged by Carol Kingsley (2017/SIR000117) and Peter Thorne (2017/SIR000120). Ms Kingsley and Mr Thorne are parties to separate contracts with Living Choice Woodcroft Pty Ltd (LC), the operator of a retirement village at Woodcroft. While the contracts relate to the occupation of two separate apartments, the issues in the two cases are very similar, albeit not identical. For that reason, the two applications were heard together, both at first instance and on internal review. At each stage, Ms Kingsley and Mr Thorne represented themselves and Mr Alf Macolino of O'Loughlins Lawyers appeared for LC. Member Thomas heard the matter at first instance.
My resignation as President of the South Australian Civil and Administrative Tribunal was accepted by his Excellency the Governor on 4 July 2017 and took effect upon its acceptance. Section 68 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) provides that I may continue to exercise my powers after ceasing to be a member for the purpose of completing part heard matters. I have relied upon s 68 to complete these reasons. While I have resigned from SACAT, I continue to hold office as a judge of the Supreme Court. My duties at the Court have delayed completion of these reasons as it has been necessary to deal with the matter at weekends and in the evenings.
I have included far more detail in my reasons than is my ordinary practice, whether as a judge or as a Tribunal member. I have done so because I am concerned to ensure that both Ms Kingsley and Mr Thorne recognise that all matters raised by them have been taken into account. They complained that Mr Thomas failed to do so.
Mr Thomas informed the parties at the conclusion of the hearing that they may make further written submissions but must provide a copy to the other party. While Mr Thorne and Ms Kingsley did make further submissions, they did not supply a copy to Mr Macolino. Because it became clear at the internal review hearing that additional material had been received from the applicants by Mr Thomas but not provided to the respondent, I was obliged by the principles of procedural fairness to provide the respondent with the opportunity to make further submissions about that additional material. This had a "snowball" effect because more relevant information then emerged. It therefore became necessary to conduct a further hearing.
The practice of allowing further submissions and the provision of additional information after a hearing is generally best avoided. If it is allowed, care needs to be taken to ensure that no party is denied procedural fairness.
While I do not suggest that orders for discovery should be made in all retirement village cases, with the benefit of hindsight, it was clearly necessary in this case. That was because of the extent of the relevant correspondence that had been exchanged between the applicants and the respondent and its Sydney solicitors. Whether there is a need for a discovery order should be explored at a directions hearing.

The primary issue in these proceedings is whether the social gatherings of other residents held in an area near to the separate apartments occupied by Ms Kingsley and Mr Thorne interfered with their contractual right to reasonable peace, comfort and privacy under the licence agreements they had entered with LC. A second issue is the legal effect of the licence agreements and the separate fixtures, fittings and furnishings agreement[1] that each had entered with LC.
Mr Thomas found that LC had not breached the contractual obligations it owed to Ms Kingsley and Mr Thorne in relation to their reasonable peace, comfort and privacy. He found that the gatherings did not unreasonably interfere with the use and enjoyment of their apartments.
Mr Thomas also found that the amount of $20,000 paid by each of Ms Kingsley and Mr Thorne under the respective fixtures agreement was part of the premium paid for the right to reside in the village. He therefore indicated that the sum of $20,000 should be returned to each of Ms Kingsley and Mr Thorne subject to any deductions applicable under the licence agreement. Mr Thomas did not make any orders in respect of that matter as he expected that the parties could reach agreement. He granted them liberty to apply to the Tribunal to deal with the matter if they could not reach agreement.
LC has not applied for review of the finding by Mr Thomas that the $20,000 paid under the respective fixtures agreements was part of the premium. None of the parties has acted upon the permission granted by Mr Thomas to request that the Tribunal decide the amounts refundable under the two fixtures agreements. Instead, Ms Kingsley and Mr Thorne have lodged internal review applications. The focus of their submissions has been that Mr Thomas wrongly decided that the social gatherings did not unreasonably interfere with the use and enjoyment of their apartments. They both seek orders requiring, amongst other things, that LC repay to them the amounts paid under the licence agreement and under the fixtures agreement.
Mr Thomas appears to have concluded that LC may be entitled to deduct some moneys from the $20,000 payable under the fixtures agreement. I consider that analysis to be correct for the reasons explained at paragraphs [156 to 159] below.
Ms Kingsley and Mr Thorne submitted that they were disadvantaged by the fact that LC was legally represented and they were not. Clause 6(3)(d) of Schedule 1 to the Retirement Villages Act 1987 ("the RV Act") provides that if the sum in dispute exceeds $50,000 any party may be represented by a legal practitioner. The amount in dispute in both cases far exceeds that sum. Thus, it was unnecessary for Mr Macolino to seek permission of the Tribunal to appear because LC was entitled to be represented by a legal practitioner.
I was careful to ensure that Ms Kingsley and Mr Thorne were not disadvantaged by their lack of representation. For that reason I allowed them very considerable leeway as to how they presented their case while seeking to ensure that this did not disadvantage LC. I am also satisfied from reading the transcript that Mr Thomas ensured that Ms Kingsley and Mr Thorne were not disadvantaged by their lack of representation and that all parties were also accorded procedural fairness. I note that soon after the hearing, Ms Kingsley thanked Mr Thomas in writing for conducting a fair hearing.

Leaving aside the dates and the amounts payable, the terms of the licence agreements signed by Mr Thorne and Ms Kingsley were identical. I will refer first to the provisions dealing with reasonable peace, comfort and privacy and then to the other provisions.

Clause 7.2 in each licence agreement provided as follows:

LC must take all reasonable steps to enforce the obligation of other residents of the Village not to cause or permit any interference with the reasonable peace, comfort and privacy of the Resident in the Resident's use of the Residence.

Clause 40.3 contains the following undertaking on the part of the resident:

Not to do or permit anything to be done in the Residence or any part of the Village which is illegal or an annoyance or nuisance to any other person.

Clause 40.4 contains an undertaking by the resident in the following terms:

Not to use the Communal Facilities or the Common Areas or cause or permit them to be used in such a manner as may unreasonably interfere with the use and enjoyment of any other person.

The phrase "Common Areas" is defined in clause 1 to mean "the areas available for common use in the Village as LC may determine from time to time". That definition specifically includes gardens, landscaped areas and passageways, amongst other places.

Clause 40.10 contains an undertaking by the resident "to observe the Residents Rules and ensure that any visitors observe the Residents Rules". In accordance with the definition of "Residents Rules" in clause 1, the Residents Rules are set out in Schedule 2. Clause 4(b) of Schedule 2 provides as follows:

Residents shall not use or enjoy their Residences or common areas in such a manner or for such purpose as to interfere with the use and enjoyment of other Residences or the common areas by any other residents or persons legally using those areas.

Clause 6 of the licence agreement provides that in consideration of payment of the ingoing contribution, the capital contribution and the deferred management fee, the resident is granted a right and licence to use and reside in the residence and to use its facilities.
Clause 9 of the licence agreement provides that the ingoing contribution is an interest free loan from the resident to LC that is repayable under cl 11 (mistakenly numbered as cl 10). Clause 11.1 provides that if the agreement is terminated LC must repay to the resident the whole of the ingoing contribution. If LC elects not to remarket the residence for occupation by a new resident, the refund of the ingoing contribution must be made within one calendar month. If LC does elect to remarket the residence then repayment must be made within 10 business days of the earlier of either receipt by LC of the ingoing contribution from a new resident or five years after termination of the agreement. That clause is of central importance in these proceedings.
Clause 13 requires the resident to pay a general service charge to LC. The combined effect of cl 12, cl 13.3 and cl 14 is that the general service charge covers the total operating costs incurred by LC in operating the village. Clause 12.2 contains an extensive list of matters included in the total operating cost. The amount payable as the general service charge at the commencement of the licence agreement appears in item 10 of Schedule 6. In the case of both Mr Thorne and Ms Kingsley, the amount payable was $370 per month.
Clause 15 provides for the resident to pay for personal services provided by LC. No claim has been made by LC for such a payment.
Clause 17.10 provides that the resident must pay an outgoing settlement and administration fee advised by LC on the date of repayment of the ingoing contribution. LC has advised that the amount payable is $1,000. Mr Macolino has informed the Tribunal that this amount covers the legal fees incurred by LC on settlement and also its administration costs. I note that LC is provided with conveyancing and related services by a firm of solicitors based in Sydney. In light of that explanation, I consider that the total fee of $1,000 is a proper reflection of likely costs and not an invalid penalty.
Clause 18.2 sets out the fees payable upon a resident ceasing to reside in the village. The effect of cl 18.2.2 and cl 18.2.3 is that the general services charge will be payable from the date of departure until the earlier of a new resident taking up occupation of the residence or six months (or such longer period as may be permitted by the Tribunal).
Part 7 of the licence agreement provides for termination of the agreement. Clause 20 requires that a tenant give 30 days' written notice of termination. Clause 23 permits a resident to give notice of termination during the cooling off period of 15 business days after the date of the contract stipulated in s 17(7) of the RV Act. However, s 17(7)(b) provides that the period of 15 business days runs from the date on which the last of the documents required to be given to the resident under s 17(3) was provided to them. Mr Thorne has complained that he did not receive the ingoing report until 1 December 2015. He gave notice of termination on 3 December 2015. I took further evidence on that issue and have made findings at paragraphs [145 to 149] below.
Clause 23 does not state the length of the cooling off period and simply refers to the period set by the Act. That approach is apparently contrary to regulation 5(a)(ii) of the Retirement Villages Regulations 2006 (the "RV Regulations") and, more specifically, regulation 5(c). The latter provision requires that a contract must include definitions of words and phrases used in the Act. The phrase used in cl 23 "during the cooling off period referred to in the Act" does not appear to satisfy that requirement. In my view, the contract should specifically state the cooling off period. This matter was not dealt with in submissions. In the interests of procedural fairness I refrain from making any finding. In any event, there is nothing before the Tribunal to suggest that either Mr Thorne or Ms Kingsley were prejudiced in any way by the failure to state specifically the cooling off period in the contract. In the circumstances, a failure to comply with regulation 5 would not provide a ground for unilateral termination of the licence agreement by Mr Thorne or by Ms Kingsley.
Clause 24 of the licence agreement provides that a resident may give notice of termination during the settling in period. The "settling in period" is defined in cl 1 to mean the period ending 90 days after the date of the agreement or the date of occupation (whichever is the later). LC acknowledges that both Mr Thorne and Ms Kingsley gave notice within the settling in period.
If a resident gives notice of termination during the settling in period, cl 24.2 provides that they will receive repayment of the ingoing contribution in accordance with cl 11. As I have already noted, cl 11 operates in the cases of both Mr Thorne and Ms Kingsley to require payment within 10 business days of either receipt by LC of an incoming contribution from a new resident or after five years, whichever is the earlier.
Clause 24.3.1 requires a resident who has given notice during the settling in period to pay the amount set out in item 13 of Schedule 2 as the fair market rent less any amount paid by the resident for services that would otherwise be included in the assessment of fair market rent. In Mr Thorne's case the fair market rent was set at $1,020 per month. However, the licence agreement signed by Ms Kingsley imposed a fair market rent of $1,380 per month. LC has informed the Tribunal that it accepts that Ms Kingsley should be liable for the same fair market rent as Mr Thorne, ie $1,020 per month. LC also accepts that the fair market rent should be reduced by the monthly general service charge of $370 per month. Thus, in each instance LC has sought a net fair market rent of $650 per month in accordance with cl 24.3.1.
Clause 24.3.2 provides that if the agreement is terminated during the settling in period then the resident must pay the amounts referred to in cl 28.3. I have considered that issue at paragraphs [156 to 159] below.
Clause 26.3 requires that on termination of the agreement the resident and LC must act under the remarketing policy. That policy is set out Schedule 3. Clause 1.1 of Schedule 3 entitles a resident to appoint their own agent to remarket the residence. If so, the resident must meet the costs. Clause 2 of Schedule 3 provides that LC may remarket the residence if requested by the resident. In that event, LC and the resident must enter a remarketing agreement under which the resident is to pay the costs incurred. LC is entitled by cl 2.2 to nominate an agent to conduct remarketing on behalf of the resident.
In the case of both Mr Thorne and Ms Kingsley, LC was initially engaged to conduct remarketing on their behalf and used an agent for that purpose. The agent was an associated company of LC. After the first three months, Mr Thorne and Ms Kingsley each appointed another agent but have not persisted with that arrangement. Schedule 3 sets out in considerable detail the arrangements that are to apply when remarketing.
Clause 28.1 and cl 28.2 require a resident who terminates the Licence Agreement after the settling in period to pay to LC a deferred management fee and a capital contribution. Because Mr Thorne and Ms Kingsley terminated the agreement during the settling in period they are not liable to make these payments. However, residents who terminate the agreement during the settling in period are liable to make the payments covered by cl 28.3. Clause 28.3.2 requires the resident to pay amounts recoverable under cl 18.2.3. I have already referred to the operation of that provision. Of specific relevance in the case of Mr Thorne is cl 28.3.4. This requires the resident to pay to LC any costs incurred to modify the residence if alterations have been made and LC considers it necessary or desirable to remove or alter such alterations. In addition, a resident is also required under cl 28.3.5 to pay all reasonable costs incurred by LC to bring the residence to a suitable condition for occupation by a new resident, including cleaning, painting, maintenance and repair of the interior of the residence. The effect of that provision needs to be compared with the operation of the fixtures agreement. I will return to that point at paragraphs [155 to 159] below.
Clause 29.1 deals with the situation where the value of the residence has changed in those situations where the agreement has been terminated after the cooling off period. This provision is applicable to both Mr Thorne and Ms Kingsley. Clause 29.1.1 requires that if the next ingoing contribution is less than the amount paid by the resident they must pay the difference to LC. Clause 29.1.2 operates in the reverse situation where the resident had paid less than the next ingoing contribution. In that situation LC must pay the capital gain to the departing resident.
Ms Kingsley strongly asserted that the agreement did not provide for the payment of any capital gain to her. It is apparent from clause 29.1.2 that she was mistaken although, of course, she will be only entitled to payment of the capital gain if the next resident pays a greater ingoing contribution than she had paid.
Clause 31 of the Licence Agreement deals with dispute resolution procedures. It empowers LC to make rules for the resolution of disputes which are not inconsistent with the resident's rights under the agreement after consultation with the Residents' Committee. The dispute resolution procedures in effect at the date of the agreement appear in Schedule 4. The procedures set out in Schedule 4 apply to disputes between residents and also to those between a resident and LC. Clause 2 of Schedule 4 requires the disputing parties to meet and discuss the matter within 14 days after it comes to the attention of all parties. If that does not resolve the dispute, cl 3 requires that a meeting must be held in the presence of a mediator within 10 days. Clause 4 requires that the mediator must either be a person selected by agreement between the parties or, in absence of such agreement, where there is a dispute between a resident and LC, the Office for the Ageing is to appoint the mediator. The balance of Schedule 4 sets out the procedures to be followed in conducting a mediation. Clause 9 notes that if the mediation process does not resolve the dispute, the parties may seek to resolve it under the RV Act or otherwise at law.
While the meeting of residents held on 19 November 2015 may possibly have been called under cl 2 of Schedule 4, no action was taken under cl 3 and cl 4 to engage a mediator. In my view Ms Kingsley and Mr Thorne may have been far better served if they had followed this course before they took the very serious step of terminating their residence agreements.
Clause 33 requires a resident at their own expense to keep the interior of their residence in the same state of repair and condition as at the date of occupation, including the repair of damage caused by fair wear and tear. In addition, the resident must at their expense effect any repairs with respect to any alterations, renovations or additions that they have made under cl 36.2.
Clauses 35 to 39 deal with the redevelopment of the village. In accordance with cl 38, item 7 of Schedule 6 stated that 100 additional residences were to be built with an estimated completion date during 2018. A leisure centre and associated facilities were also estimated to be completed by 2018 together with various external landscaping and planting of grounds. It should have been apparent that this work was going to involve considerable disruption at the village with a likely negative effect on the sale of units until the project was completed. It may potentially also be the case that the new leisure centre and landscaping may make units more marketable and yield a higher price once the work is finished.

Mr Thorne noted in his initial submission dated 14 November 2016 that because the social gatherings were closer to his apartment 309 he was more significantly affected by the noise than was Ms Kingsley in apartment 317. He also suggested that she was more significantly affected by traffic noise. I note from the plan of the Village that the traffic noise would clearly come from Panatalinga Rd, a busy thoroughfare.
Mr Thorne provided the following chronology:

He posted the signed agreements to the solicitors for LC.

He received signed agreements by post from LC's solicitors.

Mr Thorne handed the village manager a petition signed by 11 apartment residents concerning noise and building security issues.

Mr Thorne telephoned the manager at 4 pm about loud noise. She offered to return to witness the noise but then agreed to listen while she was at work on the next occasion. According to Mr Thorne, this did not happen.

Mr Thorne and manager conducted the inspection for the incoming premises condition report.

He emailed notice of termination to the village manager.

Mr Thorne has not referred in this chronology to receipt of the incoming premises condition report (as distinct from conduct of the incoming premises inspection which occurred on 1 December 2015). As previously noted, the date upon which Mr Thorne received this report is of great importance. I will return to this issue at paragraphs [145 to 149] below.
Mr Thorne has contended that the meeting of residents on 19 November 2015 "was a farce". He alleges that the village manager, Ms Catherine Stacey, in her capacity as chair of the meeting, appeared to be openly hostile towards the petitioners. She allowed other residents from the group that attended the social gatherings to interrupt submissions made by him and Ms Kingsley. Ms Stacey stated that she was not prepared to consider moving the social gatherings to an alternative site.
Mr Thorne has also alleged that LC misused the fixtures agreement to circumvent the operation of the RV Act and also to reduce the value of his ingoing contribution. He contended that this action had been taken to avoid repayment to him of the full amount of the ingoing contribution. He contended that the ingoing contribution was $269,900, ie the total of the licence fee of $249,900 and the fixtures payment of $20,000. In support of this contention he referred to an email message from the solicitor for LC dated 7 September 2015 which stated that the ingoing contribution was $269,900. Mr Thomas found in favour of Mr Thorne on this point and LC has not challenged this finding. As I have said, I regard this finding as correct.
Mr Thorne also referred to the fact that the estimated calculations sheet provided to him by LC on 15 December 2015 stated that he was entitled to only $9,170 of the $20,000 that he had paid under the fixtures agreement, albeit that this calculation was subject to the results of the inspection to be conducted when he provided vacant possession. He contended that the ingoing and outgoing reports showed the condition of the premises to be identical save for the fact that he had improved the condition of the property by proper cleaning and arranging for several maintenance and replacement items to be attended to while he was in residence. He also added that he had installed Holland blinds and an external roller shutter at a cost of $4,370. He contended that these items were essential to make the apartment habitable (it had never previously been occupied).
Mr Thorne sought the following remedies:
- Repayment of the full sum of $269,900 paid under the licence agreement and the fixtures agreement.
- Compensation of $4,370 in respect of the blinds and roller shutters that he had installed.
- That no deduction be made for reinstatement of the apartment.
- Reimbursement of his legal fees.
- Compensation for breach of the licence agreement and the legislation.
- Reimbursement of the commission paid to his agent when a new tenant is secured.
- That he not be required to pay commission to the agent engaged by LC.

Ms Kingsley submitted in the written submissions that she lodged with the Tribunal on 22 November 2016 that she had terminated her residence agreement within the 90 days settling in period because LC had breached the agreement by not upholding her right to quiet enjoyment of her residence. The basis for the breach was said to be the noise caused by the group of residents meeting in close proximity to her windows and balcony. She said that the noise made it impossible for her to open her doors or to sit on her balcony. She would not have purchased the apartment if she had known how often these gatherings occurred. She stated that she had raised the alleged breach with LC but had met with a hostile response and no resolution.
Ms Kingsley stated that because she was dissatisfied with the response by LC she had engaged Jones Harley Toole Lawyers to act on her behalf. They had written to LC on 19 August 2016 and UBK Lawyers had responded on behalf of LC on 25 August 2016.
While Ms Kingsley did not refer to the terms of those letters it is necessary for me to do so. Jones Harley Toole stated that Ms Kingsley had decided to terminate the licence agreement because of the failure by LC to take any action to resolve her complaints and those of other residents about "the constant noise and disruptive activity generated by a group of other residents". She sought payment of a total sum of $273,800 within 5 business days. That sum comprised her ingoing contribution and the payment under the fixtures agreement totalling $269,900, the cost of curtains, blinds and a water filter (being $3,250) and relocation expenses of $650.
UBK Lawyers responded on behalf of LC on 25 August 2016. They stated that only seven residents had signed the petition although 22 apartments were occupied.[2] The meeting called to discuss the petition had been attended by all but two of the apartment residents. A document described as the minutes of the meeting was provided to Ms Kingsley's solicitors. UBK stated that residents of both the villas and the apartments had been meeting for many years most Friday afternoons (depending on the weather) in the location complained about between 4 PM and 7 PM. This was currently the only location in the village that provided shade. The majority of residents from the apartment block were concerned that two new residents (i.e. Ms Kingsley and Mr Thorne) were seeking to change what had been a regular social occurrence for many years. LC had received development consent to develop a community centre for use by all residents. Ms Kingsley had been informed of that fact. I understand UBK implicitly to suggest that the residents might in future conduct their social activities at that location.
Ms Kingsley contended in her submission that the effect of s 31(6) of the RV Act is that the restrictions imposed by cl 11 of the licence agreement upon repayment of the ingoing contribution were void. Section 31(6) provides that any provision in a contract that makes a resident liable to pay an amount by way of a penalty if they terminate their right of occupation during the settling in period is void. On this basis she contended that she was entitled to full repayment of her ingoing contribution less fair market rent.
Ms Kingsley also contended that her ingoing contribution was $269,900 rather than $249,900. She submitted that the amount of $20,000 payable under the fixtures agreement was in fact part of the ingoing contribution. She also pointed to the fact that her apartment could not be occupied without the items included in the fixtures agreement. The agreement covered such items as the internal walls and ceilings, doors, door frames, power points, taps, toilet suite, all cupboards, lights, basins and so forth. In her submission the intention of LC was to absolve itself of any future liability for maintenance or replacement of the items covered by the agreement. She submitted that the fixtures agreement was contrary to s 40 of the RV Act and thus void and of no effect.
While Mr Thomas did not refer to s 40 of the RV Act, he did find that the sum of $20,000 paid under the fixtures agreement was part of the ingoing contribution. As I have said, I agree with that finding. Most, if not all, of the items referred to in the agreement were fixtures at law and, as Ms Kingsley correctly submitted, the apartment could not be occupied without those items.
A further complaint made by Ms Kingsley was that the ingoing premises condition report had been signed by LC on 16 September 2015, being after the licence agreement was signed on 1 September 2015. She submitted that this was contrary to s 17(3)(c)(i) of the RV Act and cl 2 of Schedule 1 to the RV Regulations. In her contention, the report should be signed prior to the signing of the licence agreement. She suggested that this had denied her the opportunity to insist that the apartment was properly cleaned before she moved in.
Ms Kingsley also submitted that the fair market rent of $1,380 per month stated in her licence agreement was excessive. However, after that submission was made LC reduced the amount charged as the fair market rent to the same as that charged to Mr Thorne, ie $1,020 per month. The monthly general service charge of $370 is to be deducted from that amount leaving a net market rent payment of $650.
A further contention by Ms Kingsley was that she could not lawfully be required to pay any monthly fees after she vacated her apartment on 7 March 2016. She submitted that a demand for such a payment would be contrary to s 31(6) of the RV Act which provides that a contract between a village and a resident cannot make the resident liable to pay an amount by way of penalty if they terminate their right of occupation during the settling in period. Any such provision is void to the extent that it has such an effect.
Ms Kingsley also raised in her submission her concern that LC may charge her a marketing fee even though the agent it had engaged did not achieve a sale. In fact, Mr Macalino has informed the Tribunal that no commission has been or will be charged by the agent for LC.
In addition to her complaint about the noise caused by the social group, Ms Kingsley complained that her apartment provided poor insulation against noise and extremes of temperature. Although she claimed to have been told by Ms Stacey that the walls between apartments were very well insulated, she was able to hear every sound when the adjacent apartment was used as a community room.
Ms Kingsley also referred to various medical issues arising from vibrations and traffic noise. However, the Tribunal does not have any jurisdiction to consider or determine personal injury claims.
Ms Kingsley provided the following chronology:

Findings at first instance about the reasonable peace, comfort and privacy issue

Mr Thomas set out at paragraph 9 of his reasons a passage from the written submission filed by Mr Thorne stating his concerns about the effect of the gathering of other residents adjacent to his unit. That passage was:

Specifically, the complaint from both applicants was, and I quote the written submission filed by Mr Thorne:

Soon after taking possession, a small group of residents began gathering around 4 PM to socialise in the common area directly in front of the apartment building. Two outdoor tables were provided by management under shading elms lining my side of the village entry road.
As the weather warmed the group expanded to 15 people on occasions. Their raised voices became progressively louder during the two or three hours they stayed. I recorded in a diary the evenings they gathered for a month. The group met on 12 occasions, including six consecutive evenings.

The group was sitting only five or 6 metres from the front of my upstairs apartment, the closest in the building complex. The front walls of all the apartments are almost[3] entirely floor-to-ceiling (single glaze) three millimetres thick which is an extremely poor sound insulator, and is well below recommended Australian building standards. We felt like we were living in open-ended boxes.

The noise was extremely intrusive regardless of whether windows were open or closed, and drowned out my television or music. My frustration and stress levels progressively increased every evening they gathered.
I could not open any windows or the balcony door for ventilation the evenings they were there. The nearness of the group and subcontractor privacy (with glass balustrades) prevented me even considering using my balcony while they were there.[4]

Mr Thomas noted that the complaints made by Ms Kingsley echoed those of Mr Thorne. He also noted that the oral evidence given by Mr Thorne and Ms Kingsley was consistent with the passage quoted from Mr Thorne's written submission.
Mr Thomas noted that a diary kept by Mr Thorne recorded 12 occasions between Friday 30 October 2015 and Sunday 29 November 2015 when there were gatherings by other residents adjacent to his apartment. Mr Thorne stated in oral evidence that it was not practicable for him to ask Ms Stacy to assess the noise level as the gatherings commenced at about 4.00 pm, being the time that she left work. Mr Thomas was careful to note that there was no suggestion of any conspiracy. He was simply highlighting that Ms Stacey had not witnessed the noise level.
Mr Thomas also observed that there was no evidence that the gatherings involved the playing of loud music, excessive anti-social noise or excessive consumption of alcohol. He stated "they were simply a group of people gathering in what was effectively a park to enjoy the late afternoon in the shade".
Mr Thorne has criticised the latter finding on the basis that the area adjacent to his apartment was not a park. However, I note that Mr Thomas used the words "effectively a park". That description is consistent with the photographic evidence supplied by Mr Thorne. The photograph showed a pleasant looking lawned area with trees, a couple of tables and chairs. The fact that such an area is accessible by all residents makes it tantamount to a park.
Mr Thomas stated that he had no reason to doubt the evidence of Ms Kingsley and Mr Thorne. He accepted that they were clearly affected by the noise from the gatherings held by between 10 to 15 people some five to six metres away from their apartment balconies.
LC adduced evidence from Mr Douglas Tilley, the former President of the Residents Association. He lives in a unit almost on the opposite side of the village from the apartments occupied by Ms Kingsley and Mr Thorne. He stated that he was not aware that gatherings had occurred at the relevant location as frequently as had been alleged by Ms Kingsley and Mr Thorne. He also agreed that he had not been present at every such gathering and because of the distance of his unit from that location he would not necessarily be aware when all gatherings occurred. In that light Mr Thomas found that the evidence of Mr Tilley provided him with minimal assistance.
Mr Thomas accepted that the complaint made by Mr Thorne and Ms Kingsley had not been manufactured so as to provide a justification for the early termination of their agreements with LC although they had decided to leave the village for other reasons. He specifically noted that there had been no suggestion of fabrication put to either Mr Thorne or Ms Kingsley. However, a suggestion came to my attention that Ms Kingsley may have been primarily concerned by traffic noise. I will return to that point.
Mr Thomas also referred to the contention of Mr Thorne that the shape of the roof of his balcony caused sound to be focussed directly into his apartment. Mr Thorne also drew attention to the fact that the wall of his apartment facing the site of the gatherings was entirely glass from floor to ceiling. Moreover, the glass was only 3 mm thick and did not provide effective sound insulation. I note that a document provided by Mr Thorne to the Tribunal suggests that 3 mm glass has poor sound insulation qualities. LC did not contend otherwise.
Mr Thomas referred to clause 7.2 of the residence agreement and also clause 4(b) of Schedule 2.[5] He did not refer to either clause 40.3 or clause 40.4. However, he did note that the obligation placed upon LC by clause 7.2 obliged it to take steps to ensure that other residents did not interfere with the reasonable peace, comfort and privacy of the resident but that the obligation imposed on residents by clause 4(3) of Schedule 2 was not qualified by the adjective "reasonable". Nevertheless, Mr Thomas held that the word "reasonable" must be implied into the latter clause so that the obligation was not to interfere with the reasonable use and enjoyment of other residences.
Mr Thomas observed that he was having difficulty in finding that the social gatherings unreasonably interfered with the use and enjoyment by Mr Thorne and Ms Kingsley of their apartments. He noted that the gatherings were not taking place late at night and interrupting sleep. They did not involve amplified music nor alcohol-fuelled anti-social behaviour. They were small gatherings of people under a tree enjoying the shade in the late afternoon. Mr Thomas also stated that his finding that there had not been an unreasonable interference with the enjoyment of Mr Thorne and Ms Kingsley was a difficult conclusion. The issue highlighted the tensions that exist in close community living and trying to balance the needs of those wish to socialise against those who prefer absolute silence. He commented that Mr Thorne and Ms Kingsley were never going to enjoy absolute silence living in an apartment complex with a grassed area immediately under their balconies.

Mr Thorne contends that the frequency, volume and duration of the noise caused by the socialising group was absolutely unreasonable by any standards. In that context he also submits that Mr Thomas had failed to apply the principles expressed in s 39(1)(b) and (c) of the SACAT Act.
Mr Thorne also complains that Mr Thomas failed to make any finding about the interference with his absolute right to enjoy private use of his own balcony at any time. He also complains that LC had breached the licence agreement by failing to recognise and refusing to consider a quite feasible alternative site for the social gathering. LC had also breached the agreement by failing to take action to deal with the unreasonable interference with his enjoyment of his apartment and its failure to deal with his absolute right to private use of his balcony. He also complained that Mr Thomas failed to take into account multiple other breaches of the licensing agreement and the RV Act. I will refer to those matters below.
Mr Thorne has also submitted that insufficient time was provided during the hearing at first instance for him to discuss the alleged breaches of the RV Act and the licence agreement. However, I note that Mr Thomas specifically invited Mr Thorne and Ms Kingsley to raise any further matters that they wished to consider. They took that opportunity. Mr Thomas also made clear during the hearing that he would set the matter down for a further hearing if required by the parties. No such request was made. Moreover, if they were denied a proper opportunity to present their case the internal review process has cured any such deficiency by providing two substantial further opportunities.
Mr Thorne has also expressed concern that Mr Thomas failed to make any specific reference in his reasons to the matters referred to in the second written submission lodged with the Tribunal on 9 January 2017. I have referred to those matters in my reasons.
Mr Thorne has also complained that Mr Thomas failed to address the differences between his circumstances and those of Ms Kingsley. He submits that the noise problem and the breach of privacy that prevented him from using his balcony was more extreme in his case because he lived closer to the area where the group gathered. He also submits that the breaches of the Licence Agreement and the RV Act were more serious in his case as the group was allowed to gather closest to his unit and also because LC had been guilty of extreme delay in providing him with the premises condition report. He also complains that LC had failed to control the meeting called to discuss the petition initiated by him and Ms Kingsley and one of the offending group of residents had personally abused him at the meeting. This fact and other intimidation and bullying he alleges occurred at the meeting were not recorded in the minutes. In my view, the document that has been referred to as the "minutes" is better described as in internal LC file note rather than rather than a complete record of the meeting.
Mr Thorne also submits that prior to his purchase of the apartment LC had failed to mention the social gatherings held adjacent to the apartment. If he had known about this, he would not have purchased the apartment.
Mr Thorne contends that he did not see the condition report for the apartment until an ingoing inspection was conducted on 1 December 2015. He submits that the failure to provide the report prior to him entering the residence contract was contrary to s 17(3)(c)(i) of the RV Act and therefore an offence under s 17(9). He also submits that the delay in providing the report was contrary to clause 2 of Schedule 1 of the RV Regulations. He submits that the failure to comply with the Act and the RV Regulations justifies an order by the Tribunal requiring LC to repay immediately his ingoing contribution.
Mr Thorne has also informed the Tribunal about his circumstances following his departure from the Woodcroft village. He stated that he purchased a licence to occupy a unit in another retirement village. He had paid a higher than usual deposit because he was confident that he would be able to settle on the balance promptly as he believed that sales of the Woodcroft Apartments were still occurring. Thus, he believed that he could pay the balance due to the new retirement village as soon as he received a refund from LC. He had not been aware until he heard evidence from Mr Jason Sack that no apartments or villas had been sold at the Woodcroft village during 2016 as a result of the disruption caused by extensive building works. At the time he prepared his written submission Mr Thorne was living in a different village under the goodwill of the operator. However, he informed the Tribunal at the internal review hearing that he had been required to move out of that village and was now renting a flat. He is a single 73 year old pensioner with no family support. If LC continue to hold his funds for another three to four years he will not be able to buy a place in another village.
In addition to the matters referred to in his original written submission, and which were quoted by Mr Thomas, Mr Thorne has added that the evening gatherings prevented him from opening his front door and window for fresh air and additional cooling, using his balcony, watching television at a comfortable volume, working on a computer, listening to music or the radio, talking comfortably with a friend or neighbour and reading a book without distraction. He has added that earmuffs did not block the noise and submitted that his privacy was utterly compromised. For these reasons he submits that the Tribunal erred in finding that the interference with his use and enjoyment of the premises was reasonable.
Mr Thorne also contends that he had been told by other residents that verbal complaints had been made about the gatherings and there had been verbal abuse between the group and the closest residents. I note that there was a reference at the first instance hearing to a complaint made by a named individual resident but there was no direct evidence about the issue. While the Tribunal is not bound by the rules of evidence, I cannot attach any weight to an allegation that there were other complaints in the absence of reliable evidence that established the details of those complaints and their factual basis. In any event, an allegation that other residents have made complaints about the effect of noise upon them is of little or no assistance in determining whether the level of noise was an unreasonable interference with the use and enjoyment of the specific apartments occupied by Mr Thorne and by Ms Kingsley.
Mr Thorne has submitted that Mr Thomas erred by finding that clause 4(3) of Schedule 2 imposed an implied obligation upon residents not to interfere with the reasonable use and enjoyment of other residents.
Mr Thorne has also submitted that the management of the village had unofficially sanctioned the gathering by residents adjacent to his apartment, had disregarded the concerns expressed by the nearby residents about the level of noise and the loss of privacy and had refused to take any action. He submitted that the venue condoned by management for the gatherings was manifestly inappropriate. It was not the fault of the nearby residents that the proposed leisure centre had not yet been provided by LC. That failure did not justify the interference with the use and enjoyment of nearby apartments. His suggestion made at the meeting of residents that shade cloth could be added to the trellis in the Central Park area as an alternative venue had been shouted down by other residents from the group that had caused the problem.
For these reasons Mr Thorne submitted that his departure from the village was not of the type contemplated by the 90 day settling in provision. It was not the case that he was not suited to communal living but his departure had been caused by the multiple breaches committed by LC. On that basis he submitted that it was a "no transaction" position and he was thereby entitled to an immediate full refund of his ingoing contribution as he had not voluntarily terminated the agreement.

Ms Kingsley's submissions on the internal review

Ms Kingsley submitted that her case should be considered separately to that of Mr Thorne as their complaints differed and they had not been afforded sufficient time by the member to cover all issues.
Ms Kingsley contended that LC had not taken reasonable steps to enforce the obligation of other residents not to interfere with her reasonable peace, comfort and privacy. She suggested that Mr Thomas had found that the onus was on the resident not to engage in such interference. In fact, at paragraph 21 of his reasons Mr Thomas was discussing whether the word "reasonable" should be implied into clause 4(b) of the residents rules contained in Schedule 2 of the licence agreement. He interpreted that provision as to impose an obligation on residents not to unreasonably interfere with the use and enjoyment of other residences. Unfortunately, Ms Kingsley has misunderstood the point being made by Mr Thomas. He clearly recognised in paragraph 18 of his reasons that clause 7.2 of the Licence Agreement imposes an obligation on LC to take all reasonable steps to enforce the obligation of other residents of the village not to cause or permit any interference with the reasonable peace, comfort and privacy of another resident.
Ms Kingsley submitted that Mr Thomas had erred in failing to find that the level of noise and interference with privacy was not unreasonable. She complained that LC had taken no action to resolve the matter and had allowed intimidation to occur unchecked. She also submitted that there were a number of other locations where the residents could have gathered without disturbing others.
Ms Kingsley also submitted that the noise insulation in the apartment building was inadequate. She stated in her written submission that when she first considered purchasing her apartment she had listened for external noise and found the level to be acceptably quiet. However, she complains that in peak hour traffic she found the noise level to be excessive to the extent that it caused her windows to vibrate. There were also problems with the wall of the corridor outside her apartment which resulted in reverberation. She also asserted that the insulation between the apartments was not sufficient even though she had been told to the contrary by Ms Stacey, apparently prior to her purchase of a licence to occupy. In the latter context she complained that after she had taken up residence the vacant apartment next to hers had been set up as a community meeting room. She submitted that she would not have purchased her apartment if she had been informed of the regular gatherings nearby. She had been told that the male and female residents met elsewhere on Friday evenings.
Ms Kingsley disputed the suggestion made in evidence by Mr Jason Sack that she would be entitled to the capital gain on her apartment when it was eventually sold. She asserted that the effect of the licence agreement was that because she had terminated the agreement within 90 days her entitlement to a refund was limited to her ingoing contribution of $269,900. I have already noted that she misunderstood cl 29.1.2 and is entitled to any capital gain that may arise from the next sale of her apartment.
Ms Kingsley also contends that the fixtures agreement was void under s 40 of the RV Act on the basis that it was a contract to avoid the Act. As I have stated above, Mr Thomas found that the sum paid under the fixtures agreement was part of the premium paid for entry to the Village. Mr Thomas did not find that the fixtures agreement was void under s 40 as a contract to avoid the Act. He found that the sum paid under the fixtures agreement was part of the premium paid for the right to reside in the village. He arrived at that conclusion on the basis that the definition of "premium" in s 3 of the RV Act refers to "a payment ... made to the administering authority of a retirement village in consideration for ... admission of the person ... as a resident ...". Mr Thomas concluded that the $20,000 paid under the fixtures agreement was clearly a "premium" as defined.
Mr Macolino made detailed submissions at the internal review in relation to the fixtures agreement. He contended that this was not a contract to avoid the RV Act contrary to s 40. He submitted that the RV Act allows use of a separate agreement to provide additional facilities to a resident. The fixtures agreement was used because there was a varying standard of fixtures, fittings and furnishings provided within the village. It was inequitable to share the cost of replacement, repair and maintenance equally across all residents. The effect of the agreement was that a person who had a smaller unit would be required to contribute less than a person with a larger apartment. The payment of an appropriate amount for reinstatement of the items covered by the agreement did not amount to a penalty as it was merely the reimbursement of the actual cost of reinstatement to the agreed standard. Clause 7 of the agreement enabled a resident to obtain an independent valuation of the cost of reinstatement. Even if the agreement did operate as a penalty, cl 33.1.1 of the licence agreement required Ms Kingsley and Mr Thorne to keep the interior of their respective apartments in the same state of repair and condition as at the date of occupation. Thus, according to Mr Macolinos' submission, LC was entitled to the cost of reinstatement.
I consider the analysis by Mr Thomas to be correct. The amount paid to purchase the fixtures was plainly part of the price paid for the licence to occupy the apartment. The fixtures are, at law, part of the apartment. As a matter of fact they were also part of the apartment. It was not possible to sell the fixtures separately from the right to occupy the apartment. While clause 4.2 of the fixtures agreement provides that the amount payable for the fixtures is not part of the incoming contribution, that provision must be regarded as void under s 40 of the RV Act. However, I have found at paragraph [158] below that this had no practical effect on the rights of Ms Kingsley and Mr Thorne.
Ms Kingsley also complained that the calculations made by LC in respect of the amounts payable by her as a result of the termination within the settling in period were excessive. However, I note that LC has conceded that the figure of $1,380 stated as the fair market rent in the licence agreement was a typographical error and the correct amount should have been $1,080 per month. She also contended that the fixtures, fittings and furnishings payment of $20,000 should have been refunded in full as she had left the apartment in pristine condition and had added "tasteful curtains and blinds worth $4,000".
Ms Kingsley stated in relation to the reselling of her apartment she had engaged a private real estate agent for three months from November 2016 and had paid $2,200 by way of fees. I infer that the fees were advertising costs. However, the agent had been unable to sell her apartment due to the poor presentation of the village resulting from the building works and the inadequate number of parking spaces.
Ms Kingsley stated that she was now living in private rental accommodation and the rent over the five year period until her payments under the licence agreement must be refunded will be $75,000. Had she been able to remain in her apartment her monthly maintenance fees over that five year period would have been about $22,000. Thus, she submitted that she had suffered a loss of $53,000. Furthermore, she had been unable to retire from her part-time employment. She sought repayment by LC of the sum of $262,224.36. This amount represented her ingoing contribution of $269,900 less the fair market rent.
Ms Kingsley also complained that the solicitor for LC had not lodged his written submissions in the time set by the Tribunal even though she had done so. She said that she had been disadvantaged by this conduct and was also disadvantaged by the decision of the member to allow a practitioner to appear for LC. However, as I have already noted, because the sum in dispute exceeded $50,000, LC had a right under cl 6(3)(c) of Schedule1 to the RV Act to be legally represented. Mr Thomas had no power to refuse to allow legal representation.
The final matter raised by Ms Kingsley was that "the procedure of taking an oath on the bible should be revised, to reflect our multicultural society". I point out that s 40 of the SACAT Act makes clear that a person may make an oath or affirmation. This reflects longstanding law and practice in South Australia. Unfortunately, the transcript does not indicate whether witnesses were given the option of swearing an oath on the Bible or making an affirmation nor does it show whether Ms Kingsley indicated a preference to make an affirmation. As far as I am aware, all members of SACAT are well aware that witnesses must be given a choice between swearing and affirming. In addition, as in the courts, witnesses may take an oath other than on the Bible, eg on the Koran or in another culturally appropriate fashion. If that did not occur on this occasion due to an oversight, I apologise to Ms Kingsley on behalf of the Tribunal.

I have already referred at paragraph [91] to the submissions made by Mr Macolino at the internal review in relation to the fixtures agreement. I will not repeat that material.
Mr Macolino also submitted that in considering the internal review the Tribunal must take the approach that I adopted in Re AKS [2016] SACAT 19. Mr Macolino further submitted that the member who had conducted the initial hearing was very experienced in determining applications made to the Tribunal and to the former Residential Tenancies Tribunal under the Retirement Villages Act. For that reason, in accordance with s 70 and Re AKS, the Tribunal must place considerable weight on his findings and his assessment of the evidence and the credibility of witnesses.
Mr Macolino further submitted that the complaint by the applicants that they were disadvantaged because LC was represented by a lawyer is not a matter capable of review. That is because the Tribunal had decided after hearing written submissions by all parties that it would assist the Tribunal if LC was legally represented. That was not a decision made on the evidence at the hearing. In fact as I have already observed, LC had a statutory right to legal representation.
Mr Macolino also submitted that the complaint by the applicants that he had not lodged his written submissions until the day prior to the initial hearing is not capable of being reviewed. There was no obligation to lodge written submissions and he had done so to assist the Tribunal and the applicants to understand the issues and the submissions of LC.
A further issue raised by Mr Macolino is that Mr Thorne was not entitled to rely upon the additional submission to the Tribunal dated 6 January 2017. That submission had not been provided to LC or its solicitors and therefore should not be taken into account. I note that Mr Thomas specifically stated that any further submission must be provided to the other parties to the proceedings. While Mr Thorne failed to comply with that direction, I am satisfied that Mr Macolino has now had adequate opportunity to address any additional points made by Mr Thorne on 9 January 2017. In any event, there is very little material in Mr Thorne's submission that was not before Mr Thomas. The only additional information is the contention by Mr Thorne that the average attendance at the social gatherings during November 2015 was about 11 or 12 persons. As Mr Macolino has now had the opportunity to respond, that has cured any procedural unfairness caused by the failure of Mr Thorne to provide the material to him in the first instance. I will therefore take that material into account.
Mr Macolino referred in some detail to the oral evidence given at the hearing by Mr Thorne, Ms Kingsley, Mr Tilley and Mr Sack. He submitted that this evidence strongly supported the conclusions reached by Mr Thomas. He had made the correct or preferable decision.
Mr Macolino restated the submissions that had been made on behalf of LC at the initial hearing. The effect of these submissions was that LC acknowledged that it had a contractual obligation to take all reasonable steps to enforce the obligation of other residents not to cause or permit any interference with the reasonable peace, comfort and privacy of Ms Kingsley and Mr Thorne. The provisions of the licence agreement did not impose an absolute obligation as both the contract and the common law imposed an objective test as to whether or not the covenant of quiet enjoyment had been breached. That question needed to be considered in the context of a retirement village where one of the benefits is the interaction and support provided by living with other residents of a similar age. For that reason it is appropriate that residents meet regularly for informal conversation and refreshment. Some level of noise and activity must be tolerated. In that light Mr Macolino submitted that because the conduct of the residents had not breached the covenant of quiet enjoyment there had also been no breach on the part of LC.
LC contend that, contrary to the submission made by Mr Thorne, he was provided with the premises condition report prior to his signing of the licence agreement. However, the report had not been signed on behalf of LC until 1 December 2015 although he had signed his licence agreement on or about 11 September 2015. Ms Kingsley had been provided with the premises condition report for her apartment with a letter dated 28 August 2015. She had signed her licence agreement on or about 1 September 2015 but the condition report was not signed by LC until 16 December 2015. Mr Macolino has submitted that it was not necessary for the condition reports to be signed by LC prior to entry into the contract. In that context Mr Macolino has pointed out that the resident is only required to sign when they are satisfied as to the information contained in the report. For these reasons Mr Macolino submits that LC had not breached its obligation concerning the provision of the condition reports to Ms Kingsley and Mr Thorne.
Mr Macolino made submissions concerning the operation of the settling in period and the payment provisions in the licence agreement. He also contended that LC has complied with its remarketing policy in respect of both apartments. Its agent, LCA Sales Pty Ltd (an associated company) could not effect a sale. Thus, no remarketing fee is payable. As LC has met its obligations under the licence agreement, there is no basis for the Tribunal to award any damages for consequential losses such as the rent paid for alternative accommodation.

Additional information relevant to Ms Kingsley's application

I have already noted that Mr Thorne stated in his original written submissions that he experienced greater disturbance than Ms Kingsley because the social gatherings were immediately adjacent to his apartment but a short distance from hers.
I also note that at several points Ms Kingsley referred to her concern about traffic noise. At page 7 of her initial submission and again at page 2 of her submission in support of her internal review application she described the noise in peak hour traffic as "untenable" and complained that it caused the windows to vibrate. This observation was made in support of her complaint about the poor standard of noise insulation in her apartment.
Following the first instance hearing, and in accordance with the invitation by Mr Thomas, Ms Kingsley made a further written submission dated 16 December 2016. After thanking Mr Thomas for conducting a fair hearing she provided an explanation for her decision to temporarily rescind the termination of her licence agreement. That matter had been raised by Mr Sack during the hearing. She explained that she had decided to defer rescission because she was having difficulty in finding alternative rental accommodation over the December holiday period and also because it was difficult to find a landlord that would accept her cat. She noted that her cat had been suffering from stress due to the vibrations in her apartment.
That submission was not provided to Mr Macolino. The rules of procedural fairness (or natural justice) prevented the submission being taken into account by Mr Thomas unless he gave Mr Macolino the opportunity to respond. It is not clear whether Mr Thomas took this further submission into account. Accordingly, so as to avoid any possibility of procedural unfairness, I permitted Mr Macolino to respond to the submission made by Ms Kingsley on 16 December 2016. His response referred to a series of email messages sent by Ms Kingsley to LC and UBK Lawyers
Ms Kingsley stated in an email message she sent to UBK lawyers on 27 November 2015 that:

There are major issues with the apartment building complex which do not meet my standard of quiet retirement living, and are not resolvable. The issues are with external traffic noise which reverberates throughout the building, noise from other apartments which resounds into the passageway, problems with building security, and the lack of temperature regulation in the glassed in portions and large windows of the apartment complex. These issues will be substantially amplified when the leisure centre is built. I am seriously considering moving out. So that I can consider my options, would you please inform me of my exit rights and costs, and when I could expect the repayment of my ingoing contribution of approx $60,000.

On 14 December 2015 Ms Kingsley sent an email message to the Village Manager, Ms Stacey, and to Mr Sack giving 30 days written notice of the termination of her licence agreement. She stated:

This is for the reasons previously discussed with you: the traffic noise which is amplified by the glass windows and the corridor.

On 11 January 2016 Ms Kingsley sent a further email message to Ms Stacey. She asked whether she could rescind her termination notice and remain in her apartment for the time being. This was because she was unable to find rental accommodation at the right price that would take pets. She was also unable to discharge her loan from LC until she was paid out by her previous retirement village. In addition, she also stated:

Although I find the traffic noise disturbing, I will have to cope with it until August/Sept 2016.

The clear effect of the email messages sent by Ms Kingsley was that due to her difficulty in finding appropriate alternative accommodation she was seeking permission to stay at the LC Village for the time being. She was not proposing that she stay permanently. However, these messages also suggest that her primary concern was not the gathering of other residents near her apartment (which is not mentioned in any of the three messages) but the fact that the structure of the apartment and the lack of effective sound insulation resulted in her being disturbed by the traffic noise on Panatalinga Road.
I questioned Ms Kingsley about this issue at the second internal review hearing. She stated that she had not referred in these email messages to her concerns about the noisy gatherings because it was clear to her after the meeting of residents that nothing was going to be done about that issue. She saw no point in further pursuing that complaint. Mr Macolino did not challenge that explanation. I accept the correctness of Ms Kingsley's evidence on this point.
The statutory cooling off period is intended to protect people who have a change of mind upon finding that the property they have agreed to purchase did not meet their expectations or requirements. LC cannot be held liable for the traffic noise. Ms Kingsley has alleged that she had been told that the apartment was well insulated before she decided to purchase the licence to occupy. However, a subjective assertion on behalf of a vendor about the general qualities of a property (ie that it is "well insulated") will rarely provide a proper basis to sue. Moreover, this case has been conducted entirely on the basis that there had been a breach of the right to quiet enjoyment caused by the actions of other residents and not on the ground that the vendor was guilty of misleading and deceptive conduct concerning the structure and features of the apartment. There would also be a serious question whether such an issue was within the jurisdiction of the Tribunal. For these reasons I will not further consider the complaint by Ms Kingsley that she was misled about the level of sound insulation.

As I indicated at the outset of the internal review hearing, the decision of the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 requires me, when assessing the credibility of evidence, to recognise the advantage held by Mr Thomas who had seen and heard the witnesses give evidence. Nevertheless, if he reached a decision based on questions of witness credibility that is "glaringly improbable" or "contrary to compelling inferences" then I must give effect to my own conclusion (see Gleeson CJ, Gummow and Kirby JJ in Fox v Percy at 125-128). I firmly consider that the principles expressed by the High Court in Fox v Percy are completely compatible with the obligation in s 70 of the SACAT Act to give appropriate weight to the decision made at first instance.
I also held in Re AKS that an internal review under s 70 is, in substance, a merits review. That is the case because of the obligation to arrive at the correct or preferable decision. Because of that obligation the principle of appellate restraint stated by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 does not operate when SACAT is conducting an internal review. Under the House v The King principle an appellate court (or tribunal) may not set aside the exercise of a judicial or quasi-judicial discretion unless it is satisfied that the decision-maker has either made a process error or an outcome error. Rather than focus on the identification of error, s 70 requires SACAT to determine whether the initial decision was the correct or preferable decision.
The finding by Mr Thomas that there was no breach of the right to quiet enjoyment (to use a shorthand description) constitutes the making of an evaluative judgment rather than the exercise of a judicial discretion. Nevertheless, the principles I have discussed in the preceding paragraph are equally applicable to the making of an evaluative judgment as they are to the exercise of a judicial discretion. Thus, while SACAT is required by s 70 to give appropriate weight to the making of an evaluative judgment by the primary decision-maker, it may depart from that decision if it concludes on internal review that it was not the correct and preferable decision.
Mr Thorne has submitted that Mr Thomas had failed to apply s 39(1)(c) of the SACAT Act. This requires the Tribunal to act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms. The question therefore arises as to whether s 39(1)(c) permits or requires the Tribunal to depart from the strict terms of the contracts entered by Mr Thorne and Ms Kingsley with LC.
The statutory direction found in s 39(1)(c) commonly appears in legislation governing the operation of tribunals and some inferior courts. I recently considered the effect of s 39(1)(c) in SACAT in JRL v Williams & Williams [2017] SACAT 15. I will largely repeat what I said on that occasion.
I observed in JRL v Williams & Williams that in Featherstone v Tully [2002] SASC 243; (2002) 83 SASR 302 the Full Court of the Supreme Court of South Australia had considered the operation of s 103 of the Electoral Act 1985, which is worded similarly to s 39(1)(c) of the SACAT Act_._ Bleby J (with Mullighan J agreeing) held at [157 - 158]:

... the court must exercise its judgment according to its good conscience and according to what it considers to be the substantial merits of the case as to whether the respective common law or statutory criteria have been met. It permits resort to a common sense judgement in all the circumstances. However, the court's judgment cannot be merely arbitrary. It must still apply the common law principles. ...

The section therefore has a useful function, but it does not, as was suggested in the course of the petitioner's argument, allow the court to create new law.

In Townsville City Council and Delfin Lend Lease Ltd v Chief Executive, Department of Main Roads [2005] QCA 226; [2006] 1 Qd R 77 Keane JA (as his Honour then was) held at [45] (with McMurdo P and White J agreeing) that:

The authorities suggest that a statutory obligation to have regard to the "substantial merits of the case" means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion.

I am bound by the decision of the Full Court in Featherstone v Tully. That decision is not inconsistent with the view of the Queensland Court of Appeal in the Townsville City Council case. Thus, the effect of the authorities is that the equity, good conscience and substantial merits formula requires that any relevant judicial discretions must be exercised flexibly so as to do justice between the parties in accordance with the substantial merits of the case. However, the statutory formula does not authorise departure from relevant common law principles and statutory provisions or from the terms of a valid contract. While it is unnecessary to decide the point in this case, it also appears to me that the statutory formula operates to confer an equitable jurisdiction on the Tribunal that it would not otherwise have.
The effect of s 39(1)(c) is that the Tribunal must give effect to the contracts entered by Mr Thorne and Ms Kingsley with LC. Those contracts must be construed in accordance with the ordinary principles of contract law. For that reason I consider that Mr Thomas did not err in the approach that he adopted to the interpretation of the provisions in the licence agreement covering unreasonable interference with the right of quiet enjoyment.
Against that background I turn to the finding made by Mr Thomas that the social gatherings did not infringe the right of Mr Thorne and Ms Kingsley to quiet enjoyment.

Finding that no interference with reasonable peace, comfort and privacy

Mr Thorne has submitted that Mr Thomas had not correctly interpreted cl 40.3 by implying the word "reasonable" into the clause. In fact, Mr Thomas found that implication in clause 4(b) of the residence rules rather than in cl 40.3 of the licence agreement.
At first glance there appears to be an internal inconsistency in the various contractual provisions dealing with the behaviour of residents. That is because cl 40.4 refers to unreasonable interference whereas the qualification "unreasonable" does not appear in either cl 40.3 of the licence agreement or in clause 4(b) of the residence rules.
When read literally cl 40.3 imposes an obligation on all residents not to do or permit anything which is an annoyance or nuisance to any other person (whether they are a resident or not) and regardless of whether or not their conduct is objectively unreasonable. A literal reading of cl 4(b) of the residence rules would prohibit residents doing anything that interferes with the use and enjoyment of other residents.
I do not accept the contention by Mr Thorne that Mr Thomas had wrongly implied the word reasonable into cl 4(b) (and also cl 40.3). I do so for three reasons.
First, cl 40.3 prohibits actions that cause an annoyance or nuisance to any other person. In law, an action will be a nuisance if it unreasonably interferes with the use and enjoyment by another person of their land.[6] Thus, the prohibition in cl 40.3 upon actions that cause a nuisance to another resident necessarily applies only to unreasonable actions.
The further question is whether a subjective test or an objective test must be applied when determining whether there has been any breach of the prohibition in cl 40.3 upon causing annoyance[7] to another resident or the prohibition in cl 4(b) upon interfering with the use and enjoyment of other residents or visitors. If the test is subjective then a person might breach the prohibition simply because another resident finds their actions to be an annoyance even though, when viewed from the objective perspective of an independent observer, their actions would not be regarded as unreasonably causing annoyance or interfering with use and enjoyment. Thus, if a subjective test was to be applied, residents would face the risk of breaching their contractual obligations because another resident is particularly sensitive even though they may have no knowledge of that sensitivity.
In that light, and because each of 40.3 and cl 40.4 of the licence agreement and cl 4(b) of the residence rules are intended to facilitate communal living, I firmly consider that cl 40.3 and cl 4(b) must be taken to prohibit only behaviour which unreasonably interferes with other residents. I also consider that the reasonableness of conduct must be judged on an objective rather than subjective basis. If a subjective test was to be applied, the required standard of behaviour would vary in accordance with the particular sensitivity of individual residents. That would make the scheme for community living established by the licence agreement and the residence rules unworkable.
My second reason for rejecting the contention advanced by Mr Thorne is that a literal reading of cl 40.3 and cl 4(b) of Schedule 2 would produce a result that is not consistent with the obligation placed upon LC under cl 7.2. The latter clause only requires LC to intervene to protect the reasonable peace, comfort and privacy of residents. The result of Mr Thorne's contention would be that the rights of tenants would be breached by the behaviour of others that they subjectively consider to cause an annoyance or interference. However, because cl 7.2 only obliges LC to deal with unreasonable conduct, there would be no obligation placed on the management of the village to do anything about the problem. That difficulty does not arise if the obligation placed upon residents by cl 40.3 and clause 4(b) is taken to refer only to behaviour that unreasonably interferes with others.
My third reason for concluding that Mr Thomas was correct to imply the word "reasonable" into cl 40.3 and cl 4(b) of Schedule 2 is that such an implication is consistent with the test for implication of contractual terms in fact adopted by the Privy Council in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1978) 180 CLR 266. In my view the implication of the word "reasonable" is, of itself, reasonable and equitable, is necessary to give business efficacy to the contract, so obvious that it "goes without saying", is capable of clear expression and does not contradict an express term of the contract.
For these several reasons I consider that Mr Thomas was correct to interpret cl 4(b) of the residence rules (and also cl 40.3 of the licence agreement) as referring only to behaviour that unreasonably interfered with the rights of others.
The central issue in this case is whether or not LC took all reasonable steps as required by cl 7.2 of the licence agreement to enforce the obligation of other residents not to interfere unreasonably with the peace, comfort and privacy of Mr Thorne and Ms Kingsley. The important point is that LC was only obliged to take action if other residents were breaching that obligation. If not, LC was not required to take any action.
Thus, the outcome of this internal review depends upon whether I consider that Mr Thomas made the correct and preferable decision in finding that other residents were not unreasonably interfering with the peace, comfort and privacy of Mr Thorne and Ms Kingsley.
Mr Thorne has submitted that while there had been some consumption of alcohol at the social gatherings that had never been the issue of concern to him. His concern lay with the noise level. There is nothing in the reasons of Mr Thomas to suggest that he thought that the issue of concern was alcohol consumption. He observed that "there was no evidence that these gatherings involve the playing of loud music, or excessive antisocial noise arising from excessive consumption of alcohol ". It is quite clear that the point being made by Mr Thomas was that the heightened noise level typically found when a group have been consuming alcohol was not a feature of the gatherings.
My understanding of the evidence is that the noise was that which might be expected from a gathering of sometimes 5 or 6 people and at other times 10 to 15 people of relatively advanced years sitting in a roughly circular formation around tables who may be conducting multiple conversations, joking and laughing. The gatherings occurred some five or six metres from the balcony of Mr Thorne's apartment and somewhat further away from that of Ms Kingsley. The evidence of Mr Thorne and Ms Kingsley concerning the relatively poor sound insulation in the apartments that they occupied, and the noise funnelling effect of the design, was not contradicted by LC.
Mr Thorne stated that Ms Kingsley was less affected by the noise than him, albeit that she still found it unacceptable. She did not challenge his evidence.
Mr Thorne recorded in his diary that the gatherings occurred on six successive evenings in November 2015 and 12 occasions in total that month. However, the evidence suggests that this frequency was not necessarily the norm. The evidence indicated that the gatherings did not occur during cooler weather nor when it was very windy or particularly hot.
As previously noted, I am required by s 70 of the SACAT Act to give appropriate weight to the decision made by Mr Thomas. In assessing the weight to give to his decision, I take account of his particular expertise in deciding matters under the Retirement Villages Act. As Mr Macolino noted in his submissions, Mr Thomas decided virtually all such matters over a period of several years. I also take account of the advantage that he had in hearing and seeing the witnesses give evidence. Although I took further evidence from both Mr Thorne and Ms Kingsley, my assessment of that evidence did not suggest that his Mr Thomas's conclusion on the facts was incorrect.
While Mr Thorne and Ms Kingsley were clearly annoyed and frustrated by the gatherings of other residents, I am not persuaded that Mr Thomas did not arrive at the correct and preferable decision in finding that the level of interference with the peace and enjoyment of the applicants was not unreasonable. Moreover, even if I were to have no regard to the decision of Mr Thomas, I would still come to the same conclusion. Like Mr Thomas, I am not persuaded that the level of interference was so significant as to constitute unreasonable interference with the rights of Mr Thorne and Ms Kingsley. I accept that there must necessarily be a degree of "give and take" in communal living and that residents will wish to socialise. I also note that Mr Thorne had a stronger case than Ms Kingsley because of the greater proximity of the gatherings to his apartment.

Provision of the incoming premises condition report

Mr Thorne has contended that he did not receive the incoming premises condition report until 1 December 2015 when he and Ms Stacey signed the report. LC contended that he had received the report under cover of the letter from UBK lawyers dated 3 September 2015. I sought additional information about that issue from Mr Thorne by email message sent by my associate. Because Mr Thorne maintained his insistence that he had not received the report with the letter dated 3 September 2015, I called the matter on to take further evidence.
The significance of the date of receipt of the report is that s 17(7)(b) of the Retirement Villages Act provides that the right to rescind a residence contract expires 15 business days after the date on which the last of the documents required to be given to the resident, or prospective resident, under s 17(3) was actually provided to them. The incoming premises condition report is one of the documents that must be provided under s 17(3). Thus, if the report was not received by Mr Thorne until 1 December 2015, he was entitled to exercise his cooling off right within the period of 15 business days after that date. Mr Thorne gave notice of termination to LC on 3 December 2015. If he did not receive the report until 1 December, his notice would have been given within the cooling off period. He would therefore have been entitled to rescind the contract.
The evidence of Mr Thorne was that he had not received the report with the letter from UBK lawyers dated 3 September 2015 even though the letter specifically refers to that report as one of the several documents enclosed. He was asked why he had not mentioned the failure to enclose the report with the letter when he had sent email messages to UBK on 4 September 2015 and 7 September 2015 raising various other concerns about the documentation. His evidence was that his focus at that time was on the content of the agreement and he must have overlooked the failure to supply the report. He said that he had tried to make contact with Ms Stacey on a number of occasions between September and December 2015 in relation to completion of the incoming premises condition report. The evidence of Ms Stacey was that they had missed making contact with each other.
Ms Elizabeth Jenkin, a paralegal with UBK, provided an affidavit and oral evidence. She stated that the records of UBK clearly established that the report had been provided to Mr Thorne as an enclosure to the letter dated 3 September 2015 in accordance with the usual practice of the firm. A copy of the letter and of the enclosures was held on the UBK file. Ms Jenkin was quite clear and unequivocal in her evidence. I have no reason to doubt its correctness.
I consider that Mr Thorne was mistaken in his contention that he had not received the incoming premises condition report until 1 December 2015. His own evidence was that he had been a public servant for many years and pays careful attention to matters such as documentation. His email messages of 4 September 2015 and 7 September 2015 display that character trait. I am satisfied on the balance of probabilities that if he had not received the form with the letter of 3 September 2015 he would have drawn that to the attention of UBK in one of his email messages. I conclude that he did receive the form with that letter. Thus, the possibility that he gave notice of termination within the cooling off period does not arise.
Ms Kingsley was provided by UBK with a copy of the ingoing premises condition report under cover of a letter dated 25 August 2015. In accordance with s 33 of the Acts Interpretation Act 1915, in the absence of contrary evidence, this letter and report must be taken to have been received in the ordinary course of mail. In other words, in the absence of contrary evidence, the report must be taken to have been received prior to Ms Kingsley signing the licence agreement on 1 September 2015. Ms Kingsley did not contend otherwise.
Both Ms Kingsley and Mr Thorne contended that LC had breached the RV Act by failing to ensure that they had signed the incoming premises condition report prior to taking up occupation of their apartments. This contention was apparently advanced in support of a submission that the residence agreements should be set aside by the Tribunal.
I consider that LC was not required to ensure that Ms Kingsley and Mr Thorne and signed the incoming premises condition report prior to taking up residence. Section 17(3)(c)(i) of the RV Act required LC to supply a detailed report providing information about the condition of the premises as at the date of the contract. The report must also specify who is responsible for repairing or replacing items, when they were due to be repaired or replaced and how the cost of doing so was to be funded.
Clause 2 of Schedule 1 of the RV Regulations imposes obligations concerning the premises condition report. Clause 2(a) stipulates that that the report must be completed as at the date of the contract. Clause 2(c) provides that the report must be signed and dated by the administrating authority (or its nominee) and also signed and dated by the resident if and when they are satisfied as to the information contained therein (my emphasis).
The combined effect of cl 2 of Schedule 1 of the RV Regulations and s 17(3) of the RV Act is that the operator of a retirement village must provide a completed premises condition report prior to the resident signing the contract. However, it is not necessary for the resident to sign the report prior to signing the contract or even prior to moving into the premises. The resident is only required to sign when they are satisfied as to the accuracy of the report. It is entirely feasible that a resident may not be satisfied as to its accuracy of the report until they have taken up occupation and had the opportunity to examine closely the condition of the property and the operation of fittings, fixtures and so forth. Mr Thorne and Ms Kingsley were mistaken in their submission that the RV Act and RV Regulations required both the Village operator and the resident to sign the report before the contract was executed and before they took up occupation. They were both provided with a completed report prior to signing their contracts. LC was not required to sign the form before it was provided to Ms Kingsley and Mr Thorne. There was no breach by LC of s 17(3) of the RV Act and cl 2 of Schedule 1 of the RV Regulations.
I have confirmed the correctness of the finding by Mr Thomas that the sum of $20,000 paid under the fixtures agreement was part of the premium paid for the licence to reside in the village. A question therefore arises as to whether that sum is refundable forthwith and, if so, to what extent.
Clause 7.1.1 of the fixtures agreement provides that when the residence contract is terminated the resident must pay for reinstatement of the fixtures to "as new" condition. Under clause 7.2 the price for reinstatement is set by LC. The effect of the finding that the sum paid under the fixtures agreement was simply part of the premium paid under the residence agreement is that the fixtures agreement has no operation.
If the resident gives notice of termination during the settling in period cl 24.3.1 of the residence agreement requires the resident to pay to LC the amounts referred to in cl 28.3. Clause 28.3.4 requires the resident to pay to LC any costs incurred in modifying the residence if alterations have been made and LC considers it necessary or desirable to modify the residence by removing or altering those alterations. In addition, clause 28.3.5 requires the resident to pay all reasonable costs incurred by LC in bringing the residence to a suitable condition for occupation by a new resident, including cleaning, painting, maintenance and repair of the interior of the residence.
The result is that although the $20,000 purportedly paid under the fixtures agreement must be regarded as part of the premium paid under the residence agreement, LC remains entitled, if it so chooses, to recover from the amount repayable to the resident the cost of removing alterations made by Ms Kingsley and Mr Thorne.
Ms Kingsley and Mr Thorne will be entitled to receive a refund of the $20,000 (less any deductions made under cl 28.3) in accordance with the terms of the residence agreement. Thus, they will not be entitled to receive that money until such time as their respective apartments are resold or after 5 years. However, that result is no different to the operation of cl 7.6 of the fixtures agreement which, in effect, requires the net amount refundable under that agreement to be paid at the same time as the ingoing contribution is refunded under the residence agreement. Thus, the finding by Mr Thomas that the sum paid under the fixtures agreement was actually part of the premium payable under the residence agreement has no practical effect upon the rights of Ms Kingsley or Mr Thorne.
Ms Kingsley has contended that in two respects LC has imposed penalties upon her contrary to s 31(6) of the RV Act. Section 31(6) provides that no provision in a contract can have the effect of making a resident liable to pay an amount by way of penalty if they terminate their right of occupation during the settling in period. To the extent that any provision has such an effect, it is void. The reference to payment by way of a "penalty" in s 31(6) clearly there bears the meaning applied to that term in the law of contract. A provision in a contract that provides for a payment to be made upon breach of a contract will be regarded by the courts as an invalid and unenforceable penalty if the amount payable is not fixed as a genuine pre-estimate of loss or damage but operates in terrorem, i.e. as a threat or deterrent_._
The first contention made by Ms Kingsley concerning penalties is that the provisions in clause 11 governing repayment of the ingoing contribution are contrary to s 31(6). Clause 11.2.3 provides that the ingoing contribution will be refunded to a resident on the first occurring of (i) a new resident paying their ingoing contribution or (ii) five years after termination. Leaving aside for the moment the five year provision, I do not regard the fact that LC is entitled to retain the ingoing contribution until a new resident "buys" the apartment as constituting a penalty. There is an obvious analogy with the sale of a house. If an owner who is selling their home chooses to move out before the settlement date, they will not receive any money until the settlement takes effect. If a resident chooses to move out they will not receive any money until the property is "sold" to a new resident. I do not regard this element of cl 11 as operating as a penalty.
The second aspect of clause 11 is the stipulation that a refund will not be made to a departing resident until five years have elapsed if the property is not "resold". While the five year period could obviously cause difficulty to a departing resident where there is a problem in reselling the property quickly (as in the present case), if LC were required to refund the incoming contribution immediately upon departure of a resident even though it had not received any contribution from a new resident that would impose a financial burden upon LC. For that reason I do not regard cl 11 as constituting an invalid penalty provision. The clause simply protects LC from loss.
Ultimately, clause 11 will require the money to be repaid after five years even if the apartment has not been sold. Thus, there is a temporal limit upon the protection from loss that it confers upon LC. In that context I note that cl 27(2)(b) of the Retirement Villages Bill 2016 will require a refund of the incoming contribution to be made after 18 months. The Bill has been passed by both Houses of Parliament but not yet proclaimed to commence operation. If the Bill had been in operation when the events under discussion occurred, the outcome for Ms Kingsley and Mr Thorne would have been far more favourable.[8]
The second contention made by Ms Kingsley concerning invalid penalty provisions is her suggestion that she could not be required to pay any fees to LC after she vacated her apartment. Clause 24.3 requires that a resident who terminates the agreement during the settling in period will be required to pay fair market rent less service fees and also the amounts referred to in clause 28.3. The latter clause requires payment of maintenance, repair and restoration costs and any arrears of the personal service charge or the general service charge that had accrued prior to leaving the village. These payments are each attributable to liabilities that would have arisen either prior to (ie arrears of charges) or upon leaving (eg restoration costs) the village. More importantly in the present context, cl 28.3.2 also requires a departing resident to pay any fee that is recoverable under cl 18.2.3. The latter clause allows LC to recover the general service charge from the date the resident left the village until either a new resident moved into the apartment or 6 months have elapsed. In the present case, cl 18.2.3 would have required payment of the general service charge for six months. In accordance with cl 12 and cl 13, the general service charge is the share of the total operating costs of the village payable by the resident. LC will continue to incur these costs while the apartment located by the departing resident is unoccupied. For that reason I consider the analogy that I referred to above concerning the vacation of a house prior to settlement is equally apposite here. Even though the owner may not be living in the house, they will still be required to meet the expenses associated with ownership until settlement. I do not consider that cl 28.3.2 in combination with cl 18.2.3 operates as an invalid penalty. The removal of the liability from the departing resident after six months operates as a reasonable compromise between the interests of LC and the resident.
For these reasons I consider that the decision made by Mr Thomas was the correct and preferable decision. He correctly found that the gatherings by other residents did not reasonably interfere with the use and enjoyment by Mr Thorne and Ms Kingsley of their apartments. There is no basis to make orders granting the various remedies sought by them. I dismiss the applications for internal review lodged by Ms Kingsley and by Mr Thorne.
I also point out that even if Mr Thomas and I had both accepted that LC had not taken reasonable steps to deal with an unreasonable interference with the use and enjoyment by Mr Thorne and Ms Kingsley of their apartments, it cannot be assumed that they would have been entitled to terminate the residence agreements and receive a full refund. That would only be possible if it was established not only that LC had breached the agreement but also that the breach either demonstrated repudiation of the agreement by LC or related to a condition of the agreement or was a serious breach of an intermediate term contained in the agreement. I very much doubt that there was any repudiation by LC and also hold doubts that the relevant clauses were a condition. Thus, the case for Mr Thorne and Ms Kingsley taken at its highest might have been that there was arguably a serious breach of an intermediate term that potentially warranted termination. However, even if that were the case, and while recognising that Mr Thorne and Ms Kingsley were clearly frustrated with the situation, it was most unwise to terminate the agreements without first exercising their right to have the matter referred to an independent mediator under Schedule 4.
I direct that a copy of my reasons be provided to the Office for the Aging.

[1] For brevity, I will refer to this as the "fixtures agreement".

[2] Mr Thorne and Ms Kingsley contend that there were 11 signatories.

[3] Mr Thomas changed the wording to read "... apartments or more are almost". This error appears to have been caused by inadequate editing, perhaps after use of Dragon Dictate.

[4] The sub-paragraph numbers were inserted by the member, presumably for ease of reference. I also note that the word "subsequent" appeared as "sub-contractor" and "balustrade" appeared as "magistrates". Once again those errors appear to have arisen from use of Dragon Dictate without adequate editing.

[5] I note that the Member incorrectly identified the number of these clauses.

[6] I refer to private nuisances. A public nuisance is a different concept that is concerned with unreasonable interference with the use of public roads.

[7] The Macquarie Dictionary defines an "annoyance" as something that is "disagreeable or troublesome".

[8] The Retirement Villages Act 2016 was proclaimed on 8 August 2017 and will commence operation on 1 January 2018.

Interpretation Act 1915

Villages Regulations 2006

Administrative Tribunal Act 2013

Kingsley & Thorne v Living Choice Woodcroft Pty Ltd [2017] SACAT 16

At a glance

Court

Decision date

Before

Source

Judgment (76 paragraphs)

Kingsley & Thorne v Living Choice Woodcroft Pty Ltd [2017] SACAT 16 (11 September 2017)

Parties

Legislation Cited (5)

Cases Cited (4)