As respondent am having to advise that illness will prevent my attendance at the hearing scheduled for tomorrow 12 December 2013.

1. The Tribunal considered and refused the adjournment application because it was made too close to the hearing and the respondent had not provided a medical certificate to support his claim of illness. The consent of the applicants had not been sought and the applicants opposed the adjournment. An order refusing the adjournment was despatched to the respondents and the hearing proceeded without any appearance by or on behalf of the respondents.

1. From 1 September 1999 until its repeal on 30 June 2012, the FT Act applied to disputes arising between purchasers and suppliers of services.[5] From 1 July 2012, the FT Act was replaced by the ACL & FT Act.[6] The FT Act and subsequently, the ACL&FT Act, gave the Tribunal power to hear and determine such disputes in accordance with the common law of contract[7] and/or in accordance with the provisions within each Act which prohibit, among other conduct, misleading or deceptive conduct and unconscionable conduct.[8]
2. Both the FT Act and the ACL & FT Act provide that a person who, as an officer of a company, has been involved in a contravention of the Act may be liable in damages to a consumer suffering loss as a consequence of the contravention.[9]
3. Since 1987, the RV Act has regulated the rights of residents of retirement villages[10], being defined communities whose residents are retired persons who have paid in-going contributions for the provision of accommodation and services.[11]
4. The RV Act provides that the FT Act and the ACL & FT Act extend and apply to it as if any reference in those Acts to the FT Act and the ACL & FT Act was a reference to the RV Act.[12]

1. The issues to be determined by the Tribunal are:

(a) Have the respondents failed to comply with relevant provisions of the RV Act by:

i) Failing to hold an annual meeting or to provide audited yearly financial statements?

ii) Including in the quarterly fees charged to the applicants the cost of services for which they were not entitled to charge, specifically for the emergency bell/call service and the respondents' legal costs in defending these proceedings?

(b) If the respondents have failed to comply with the RV Act, can the Tribunal make a declaration to that effect?

(c) Have the respondents engaged in unconscionable conduct and if so, has Mr Martyniuk been involved in that conduct?

(d) Have the applicants suffered loss and damage as a result of the actions of the respondents and, if so, should they be awarded damages and if so, how much should be awarded?

1. On behalf of the applicants, sworn evidence was given by Mrs Stubbs, Mr Rees, Mrs Rees, Mrs Suzanne Campbell (daughter of Mrs Stubbs), and Mr McGrath. Their evidence is referred to in paragraphs 29-59 below.
2. Counsel for the applicants provided the Tribunal with a helpful summary of the legal relationship between the applicants and the respondents and the legal relationship between the four respondents. It should be recalled that the fourth respondent, Mr Martyniuk, admits he is the sole director of the second and third respondent, and the sole shareholder of the third respondent.
3. The Illawong Lakeside Retirement Village consists of the land described in the parent title, being Strata Plan 014662.
4. The applicants are each residents of Illawong Lakeside Retirement Village, specifically of the part known as "Stage 1", which consists of 44 residential units. A title search obtained by the applicants indicates that the sole proprietor of the land on which Stage 2 of the village is located, and of an undivided share in the common property described in Strata Plan 014662, is ILR. ILR was registered as proprietor in 1980.[13] Numbered shares in ILR were sold to purchasers who were then entitled to occupy specified residential units within Stage 1 of the village. The Articles of Association for ILR give occupancy rights to shareholders according to a specific schedule.[14]
5. A condition of the purchase of shares in ILR was agreement to enter a management agreement,[15] initially with IRG. However, since about 1998, the management provided by IRG has, by agreement between IRG and IRE, been assumed by IRE and, since that time, IRG has had no involvement in relation to the village.[16]
6. As manager, IRE undertakes the obligations of ILR[17] and, in return, IRE is paid a fee by ILR.[18] The Articles of Association for ILR stipulate that each shareholder shall pay a percentage of the fee charged by IRE.[19] The relevant percentage is calculated according to the entitlement flowing from the particular shareholding. It has been the practice of ILR to charge the fee on a quarterly basis. At the date of the hearing in December 2013, the annual fee for each of the 44 units was approximately $2400, giving total fee revenue for Stage 1 of the Village of over $100,000.
7. It has been impossible for the residents to determine whether the quarterly fees which they have been charged have been reasonable and warranted because ILR did not hold an annual meeting nor provide any financial information or statements between 2002 and 2012. As a result of the compliance proceedings in the Supreme Court of Victoria[20] an annual meeting was held on 12 June 2013 and unaudited financial statements for the financial years ending on 30 June from 2008 to 2012 were provided.[21] The financial statements provided very general information only. For example, the major item of expenditure identified in the statements was a line item for "Staffing". For the financial year ending 30 June 2011, the amount specified for staffing was $90,000. The only staff known to the residents are two handymen, one full-time and one part-time, who work across both "Stage 1" and "Stage 2". A further line item in the statements was "legal"; however, expenses under this line are only shown for the financial years ending 30 June 2011 and 30 June 2012, with the total amount for this item over the specified 2 years being $66,067. The residents can only assume that the legal expenses claimed relate to the defence of these proceedings.
8. A resident of Stage 2 of the Illawong Lakeside Retirement Village provided the applicants with helpful information and documents.[22] Stage 2 was established 10 years after Stage 1. Importantly, residents of Stage 2 are the registered proprietors of their own lots and are members of the owners corporation relevant to the applicable strata plan.[23] An express function of the owners corporation is the provision of an emergency bell/call service system.[24]
9. A copy of the Management and Personal Services Agreement applicable to Stage 2 indicates that management and services are provided by a company named Stage 2 Illawong Services Pty Ltd,[25] the directors of which are Mr Martyniuk and Mr Graham Cook.[26] Mr Cook reportedly plays an active role in the management of Stage 2. The management agreement indicates relevantly that Stage 1 and Stage 2 share reciprocal communal facilities[27] and share the salary of staff on an equal basis.[28] Owner residents of Stage 2 are to receive audited financial statements for each financial year which specify the costs of staffing, amongst other items.[29] A copy of the financial statements for Stage 2 for the financial year ending 30 June 2011 was made available to the applicants and comprised an income and expenditure statement and balance sheet, as well as particulars of the insurance renewal for the financial year ending 30 June 2012 and a reconciliation of the sinking fund for Stage 2.[30]
10. Counsel for the applicants submitted that the Tribunal should infer from the Stage 2 documents referred to, that Mr Martyniuk should be able to provide the same information to Stage 1 residents as must be provided to Stage 2 resident owners and that his failure to do so left the Stage 1 residents with no alternative but to guess and surmise as to the state of finances for Stage 1.
11. Counsel for the applicants noted that the tax invoices for the insurance cover for the financial year ending 30 June 2011 were produced in the course of the discovery process in these proceedings. The invoices indicate that, for that financial year, appropriate building and public liability cover had been arranged, under one policy for Stages 1 and 2, at a total cost of $19,498.53.

1. Mrs Nanette Mary Stubbs, aged 86 years, is a widow and has resided in Unit 5C of Illawong Stage 1 since 1995. She suffers from a hearing impairment. In 2002, she was awarded an OAM (Medal of the Order of Australia) for service to people with hearing impairments, particularly through the Victorian Federation of Parents of Hearing Impaired Children.
2. In 1995, Mrs Nanette Stubbs and her late husband purchased shares in ILR which gave them the right to reside in Unit 13B, a 2 bedroom unit facing directly onto the lake. Mrs Stubbs' husband died in 2004.
3. Mrs Stubbs greatly enjoys residing in the village and participating in its social activities. The residents are mostly aged in their 70s and 80s. She is a member of the Executive of the Illawong Stage 1 Residents' Committee, together with (the late) Mr Rees and Mr McGrath. She feels that many residents depend on her and sees these proceedings as being on behalf of all the residents.
4. In Mrs Stubbs' view, maintenance has always been a problem at the village despite the payment by residents of quarterly fees which should cover general upkeep, maintenance and the like. The quarterly fees for each unit were $350 in 1995 and are now $679. Initially the lawns were mowed but not much other work was done. Now, in addition to and despite paying their quarterly fees, units 1-18 separately pay a contractor to regularly mow the lawns outside their frontage to the lake to ensure the lawns are reliably maintained.
5. Mrs Stubbs' late husband used to undertake some handyman tasks in and around their unit but, since he passed away, she has paid a contractor to complete repairs to the outside of her unit, to the windows and fence, and to the skylight and garage door. Some handyman services are provided by management, but the handymen employed service both Stage 1 and Stage 2; Mrs Stubbs estimates from observation that the handymen spend only about 15% of their time on tasks associated with Stage 1.
6. The Residents Committee is very active and raises funds from its social activities and events. On one occasion, $4000 of its funds were used to pay for repairs to the clubhouse after Mr Martyniuk refused to cover the cost of the repairs from the quarterly fee revenue. The quarterly fee revenue does apparently cover the cost of weekly cleaning of the clubhouse, replacement of light globes, mowing of the grass outside the clubhouse, and the cost of insurance.
7. Mrs Stubbs said that the quarterly fees were also supposed to fund the emergency bell/call service. Although all units have the emergency bell/call service button hard wired to a position in the bedrooms, some buttons do not work and even if they do work, activation of the button does not assure a response. This is a concern because 33 of the 44 units in Stage 1 of the village are occupied by single elderly women.
8. Mrs Stubbs said that between 2002 and 12 June 2013, no annual meetings were held and no financial statements were provided. Mrs Stubbs is quite sure that, if these proceedings in the Tribunal had not been underway, the annual meeting held on 12 June 2013 would not have taken place and the unaudited financial statements would not have been provided. Indeed, it is also only because of these proceedings that Mr Martyniuk has provided confirmation of insurance.
9. Prior to issuing these proceedings, the residents made numerous attempts to raise the failure to hold annual meeting or provide financial information with Mr Martyniuk. Mrs Stubbs said approximately 30 letters had been sent to Mr Martyniuk, either by her as Secretary of the Residents Committee or by Mr McGrath as President of the Residents Committee, between 2003 and 2009.
10. Mr Martyniuk's usual response to the written correspondence of the Residents Committee was to ignore it. Mrs Stubbs could recall only one occasion when he provided minimal information which he had hastily hand-written on a piece of paper. Similarly, he usually ignored enquiries made to him in person, although from time to time, he would respond by asserting that IRE had no funds and threaten to impose additional levies. The threat of additional levies caused fear amongst the residents because, for many of them, the age pension is their only income and they are at risk of having their shares cancelled if their fees fall into arrears of six months or more.[31]
11. In 2013, after enforcement proceedings had been taken in the Supreme Court, Mr Martyniuk provided residents with an unaudited financial statement for the five consecutive financial years from 30 June 2008 to 30 June 2012 and on 12 June 2013, he convened an "annual meeting" which about 80% of the residents, including Mrs Stubbs, attended. From the financial statement, residents had noted that for the each of the 2011 and 2012 financial years, expenditure included an item simply titled "legal", specifying $35,535 as the amount expended in 2011 and $30,532 as the amount expended in 2012. Mrs Stubbs said that, at the meeting, when the residents asked Mr Martyniuk what these legal expenses related to, his response was typically indirect and unclear, but at one point he said the expenses were for "this trial", leading Mrs Stubbs and the other residents to assume that the expenditure item "legal fees" related the cost of defending these proceedings.
12. Mrs Stubbs said that it had been frustrating and upsetting to have the residents' queries, and the letters written on behalf of the Residents' Committee, ignored. The lack of information, particularly in relation to insurance, worried the residents. Mrs Stubbs had been very upset about the whole situation over the years. She feels that many of the residents depend on her and she feels a great sense of responsibility. Proceedings were commenced in VCAT as a last resort and were supported by the Residents Committee at its annual general meeting. The VCAT proceedings have required her, (the late) Mr Rees and Mr McGrath, to have numerous appointments and conferences with their solicitors and barrister and attend VCAT multiple times. They have continued to press on because they firmly believe they are acting on behalf of all the residents.

1. Mrs Suzanne Mary Campbell is Mrs Stubbs' daughter. She worries about the strain her mother is under as a result of residents being unable to obtain the basic financial information they are entitled to from Mr Martyniuk. She believes he is exploiting the residents and treating them off handedly because of their vulnerabilities which arise from their age and, for many, their limited means.
2. She thinks the stress on her mother is cumulative because Mrs Stubbs feels responsible for the other residents. Mrs Campbell said that whenever she visits her mother, her mother receives many telephone calls from residents seeking advice or reassurance. She believes Mr Martyniuk has intimidated many residents by threatening that adverse consequences will follow if her mother, (the late) Mr Rees and Mr McGrath persist with the VCAT proceedings.

1. (The late) Mr Mervyn Rees, (aged 86 years at the date of the hearing), and his wife, Janice (known as Jan) have resided in Unit 13B of Illawong Stage 1 since 2000.[32] At the hearing, he told the Tribunal that he was not in robust health, having been diagnosed with dementia 18 months ago. His wife has recently been diagnosed with Parkinson's Disease.
2. (The late) Mr Rees said he had listened carefully to Mrs Stubbs' evidence and he agreed with her "100%". After he and his wife moved into the village, he expected that he would be able to have a reasonable discussion with the manager but instead, he has been ignored. He said trying to talk with Mr Martyniuk was like "trying to talk to a brick wall" and that, rather than providing answers to straightforward questions, Mr Martyniuk's usual response was to either "walk away or look the other way". When Mr Rees asked him to confirm that the buildings were insured, Mr Martyniuk replied that was for him to know. The insurance issue has been very troubling, and has caused worry and concern as to whether there would be any or adequate coverage in the event of storm damage, for example.
3. Like Mrs Stubbs, (the late) Mr Rees and Mrs Rees have also paid for repairs that should have been undertaken by management and paid for from the quarterly fee revenue.
4. Mr Rees also agreed with Mrs Stubbs view that, despite the difficulties with Mr Martyniuk, the village was a "beaut place to live".

1. Mrs Janice (Jan) Adelaide Rees confirmed her recent diagnosis of Parkinson's Disease.
2. She agrees that the village is lovely, the residents are lovely, and it is conveniently located. She and her husband just wanted to live there happily; they have never wanted to stir up trouble. However, they have been particularly worried about whether there is insurance and whether it is adequate. They have also had repairs done to their roof and guttering, which they paid for, because when it rained, water leaked in to such an extent that they needed to use buckets and towels to mop it up. The outside of their garage needs maintenance as some of the boards are rotting. Their son has agreed to fix it for them because they all know that there is little chance that the repairs will be done by management.
3. Mrs Rees was concerned that the long running dispute with Mr Martyniuk was stressful for her husband, particularly given his age and poor health.

1. Mr John Earnest McGrath, known as "Jack", is aged 85. He is a retired builder/plumber. He and his wife, Yvonne, have resided in Unit 9B of Illawong Stage 1 since 1998. He is having treatment for cancer, diagnosed 13 years ago. He was the Chairperson of the Residents Committee for Stage 1 of the village but recently had to resign from that position, due to ill health.
2. Mr McGrath and his wife purchased their shares in ILR in 1998. Initially he dealt with a Mr Trevor Frater as the village manager. One annual meeting was held by Mr Frater but none have been held since. The failure to hold annual meetings has greatly concerned Mr McGrath.
3. Mr McGrath was aware that Mr Martyniuk had an involvement with the village, but he did not meet him until sometime in 2000 or 2001. Mr McGrath had been approached by the maintenance men then working at the village who complained to him about not being paid. When Mr McGrath asked about the finances of Stage 1, Mr Martyniuk gave him a piece of paper containing some monetary details which he had written in hand. Mr McGrath found Mr Martyniuk to be suspicious and secretive and thought he conducted his business in a very odd and peculiar way.
4. The question of the insurance cover was also a concern to Mr McGrath. He and his wife had their own contents insurance but had been unable to establish whether Mr Martyniuk had arranged insurance over for the buildings and grounds. Mr McGrath had a heightened awareness of the importance of building insurance because he had previously lost an uninsured home in a fire and as a result, was well aware of the risk. He was also concerned that some items of disrepair posed a danger to residents and visitors.
5. Mr Martyniuk was known to have told residents requesting repairs and maintenance to "get Jack to do it" because of Mr McGrath's experience as a builder. Mr McGrath still does handyman jobs because very little maintenance is done by management, he does know how to fix things and he finds it hard to refuse to help other elderly residents. He has replaced hot water services, cleaned and repaired spouting and repaired rooves. He agreed that residents often pay for maintenance and repairs which should be covered by the revenue from their quarterly fees.
6. Mr McGrath confirmed that he and Mrs Stubbs had, over the years, written numerous letters to Mr Martyniuk detailing their concerns and seeking information, and confirmed that their letters were simply ignored and had never been responded to. Mr McGrath said that on the occasions when, by chance, he and Mr Martyniuk crossed paths, he would try to ask him questions but the usual response he got was either a grunt or no response at all.
7. Mr McGrath described the financial statement provided by Mr Martyniuk in June 2013, after enforcement proceedings were taken in the Supreme Court, as farcical. He said that when he saw the expenditure item for "legal", he could not believe the gall of the man. He recalled Mr Martyniuk telling him that he would have "put a few new rooves on the places that were leaking if he had not been taken to court".
8. He was also concerned about the staffing expenditure given that so little maintenance was done in Stage 1 and that the handymen seemed to spend most of their working time in Stage 2.
9. Mr McGrath recounted a particular series of incidents which he said were indicative of Mr Martyniuk's attitude toward residents. After Mrs Stubbs had been awarded her OAM, the residents presented her with a framed photograph that had appeared in the local paper and placed in on display in the clubhouse. Mr Martyniuk reportedly took it down and did not replace it. The residents did replace it and Mr Martyniuk took it down again. This went on numerous times until eventually, Mr Martyniuk gave up.
10. Mr McGrath agreed entirely with the view of Mrs Stubbs and (the late) Mr Rees that, in spite of Mr Martyniuk, Illawong Stage 1 was a good place to live, largely because the residents are such a nice group of people. However, for all of the residents, their units are a major asset and it is important that their condition and value be maintained.

1. The applicants' cases were very well presented and thoroughly and comprehensively documented. The sworn evidence given by the applicants at the hearing was consistent as between the witnesses and consistent with the available documentary evidence. The applicants advanced age, and the relatively poor health most of them, was noted.
2. The documentary evidence included copies of approximately 30 letters from the Stage 1 Residents' Committee to Mr Martyniuk between 1 September 2003 and 12 February 2009.[33] Despite the request in the letters for a written response, no reply was ever received. In their letters, the residents made repeated polite and straightforward requests for the provision of accounts and other information to which they were entitled, for the holding of an annual meeting, and for action in relation to specific maintenance issues, some of which exposed residents and visitors to a risk of serious injury.
3. In relation to the existence of safety issues, the Tribunal noted that the relevant council, Kingston City Council, had by letter to Mr Martyniuk dated 18 May 2007, advised that its Vegetation Management Officer had inspected several trees on the common land at Stage 1 and had found that the trees posed a hazard and a danger of serious injury, death and or loss of property. The letter referred to constitute a Notice to Comply and required the removal of the trees within 14 days.[34]
4. The Tribunal noted further that concerns about the viability and utility of the emergency bell/call service were raised on numerous occasions and it was noted that many residents had arranged alternative services through an outside provider.[35]
5. The Tribunal had access to an audio tape-recording of the "annual meeting" held on 12 June 2013 pursuant to the consent orders made by the Tribunal on 14 May 2012. In addition, the solicitors for the applicants provided a written transcription of the tape. At the meeting, the residents had before them a copy of an unaudited income and expenditure statement for the year ending 30 June from 2008 to 2013. From listening to the tape, the Tribunal found Mr Martyniuk's responses to residents' reasonable enquiries and questions could only be described as unhelpful and obfuscatory. However, when asked specifically about the expenditure item "legal" shown for the years ending 30 June 2011 and 30 June 2012, Mr Martyniuk appears to concede that the legal fees refer to the respondents' costs of defending these proceedings.[36] It is noted that, coincidentally, the period during which solicitors were on the record as representing the respondents in these proceedings was from August 2010 until May 2013.
6. The Tribunal was mindful that, due Mr Martyniuk's failure to attend the final hearing, there was no contradiction of the applicants' cases. The Tribunal was, to a limited extent, able to ascertain the respondents' case by reference to the Points of Defence dated 24 September 2010, which were prepared and lodged during the period in which Mr Martyniuk and the other respondents were legally represented. Mr Martyniuk's conduct in these proceedings provided a further perspective.
7. In the Points of Defence, the respondents:
   1. agree that the units in which the applicants reside are three of the 44 units of the retirement village known as Illawong Lakeside Retirement Village Stage 1;[37]
   2. agree that ILR is the registered proprietor of the land comprising the village;[38]
   3. agree that Mr Martyniuk is the sole director of ILR and is the holder of shares in the company, with the residents of the village also being shareholders;[39]
   4. agree that Mr Martyniuk is sole director and shareholder of IRE;[40]
   5. state that IRG has had no involvement with the village since 1998 and that from that date, IRE has assumed and exercised the management duties, rights and obligations under the management agreement with the applicants;[41]
   6. agree that Mr Martyniuk received correspondence from the applicants between 2003 and 2009 but otherwise deny that there has been a long history of dispute between the applicants and the respondents regarding, amongst other matters, the respondents breach of their duty to properly maintain the village, to provide accounts in accordance with the requirements of section 34 of the RV Act or to hold annual meetings in accordance with section 33 of the RV Act;[42]
   7. assert that the services provided by the respondents do not constitute services under section 18 of the RV Act nor services within the meaning of section 3 of the FT Act because they are not services provided under a contract of service or granted or conferred under a contract;[43]
   8. assert that sections 33, 34, 38E and 41 of the RV Act are offence provisions and the applicants do not have standing to bring proceedings for offences against the respondents, and further assert that Mr Martinyniuk is not a person involved in the alleged contravention of those sections;[44]
   9. deny that the applicants are persons who suffer from a special disability;[45]
   10. deny that the respondents took advantage of the applicants or acted unconscionably.[46]
8. The Tribunal regards mere and/or blanket assertions and denials, such as are contained in the respondents' Points of Defence, of limited assistance in understanding the respondents' case in the absence of an alternative explanation or interpretation being put forward for the Tribunal's consideration.
9. Finally, the Tribunal considers the respondents' late request for an adjournment of the final hearing, a request which it is noted was made without any evidence in support of the claimed illness of Mr Martyniuk, to be indicative of an entirely unrealistic and unsatisfactory attitude to the proceedings brought by the applicants. Given the prior conduct of failing to comply with orders made with the respondents' consent, and failing to enter any appearance since 19 July 2013, it is aptly described as unsurprising.

Have the Respondents failed to comply with the RV Act by failing to hold annual meetings or provide yearly financial statements_?_

1. The Tribunal is satisfied that Illawong Lakeside Retirement Village Stage 1 is a retirement village as defined by section 3 of the RV Act; the respondents do not appear to deny this, but for completeness, the Tribunal notes that the majority of its residents are retired persons who are provided with accommodation and services but are independent in their self care, and whose right to residence in conferred by acquiring shares in a company.
2. According to section 1 of the RV Act, the purpose of the Act is to "clarify and protect the rights of persons living in retirement villages. To that end, the RV Act requires the manager to convene an annual meeting of the residents each year,[47] and, in summary, requires that the manager prepare and provide certain information at the annual meeting, namely a financial statement for the previous 12 months indicating the income received by way of charges for goods and services provided by the manager and details of the expenditure on those goods and services.[48] Unless the residents present at the annual meeting decide otherwise, the financial statement must be independently audited.[49]
3. The applicants commenced these proceedings in July 2009 because, despite their numerous written and oral requests, an annual meeting had not been held since 2001 and financial statements had not been provided since that date.
4. Section 3 of the RV Act defines "manager" to be:

(b) if there is no such person, the owner of retirement village land

1. The word "manages" is not defined in the RV Act but its ordinary meaning clearly encompasses being in charge of, governing, controlling or governing.
2. The evidence before the Tribunal as to the management of Illawong Lakeside Retirement Village Stage 1 is far from clear. The applicants and other residents have considered Mr Martyniuk to be the person who manages the retirement village. Mr Martyniuk by his conduct has acted consistently with this view of his position and role. The handymen employed between Stages 1 and 2 have looked to Mr Martyniuk as the person in charge of Stage 1. Third parties have regarded him similarly.[50]
3. Formally, the management of the village, according to the articles of association of ILR and the Respondents' Points of Defence, was initially provided by IRG but by agreement with IRE has, since 1998, been provided by IRE, in return for payment from ILR. Consistently with that arrangement, the residents have paid maintenance fees on invoices from ILR.[51] In the Tribunal's view this implies acceptance by ILR that it has primary responsibility for management of the village.
4. Despite the implication that responsibility for management of the village lies with ILR, IRG and/or IRE agreed to the consent orders made by the Tribunal on 14 May 2012 which required IRG and/or IRE to convene an annual meeting by 14 July 2012 and to provide financial statements in accordance with sections 34(3) and 34(4) of the RV Act with respect to the financial year ending 30 June 2011, and unaudited financial statements in accordance with section 34(3) for the financial years ending 30 June 2003 to 30 June 2010. In the Tribunal's view, a reasonable interpretation of IRG and/or IRE's agreement to consent orders in those terms implies acceptance by both companies of responsibility as manager under the RV Act.
5. However, following the proceedings in the Supreme Court of Victoria to enforce the consent orders referred to, an annual meeting was convened on 12 June 2013 and an unaudited financial statement for the financial years 30 June 2008 to 30 June 2012 was provided to the residents but it was provided under the name of ILR.
6. It is relevant to note that Mr Martyniuk is the sole director of both ILR and IRE. He has always been the sole natural person representing the respondents in these proceedings.
7. Thus it can be seen that each of the 4 respondents have, in the various contexts outlined, appeared to accept responsibility for management of the village. Nevertheless, Mr Martyniuk is the natural person who has actually been physically present at the village and in these proceedings, and as the sole director of ILR and IRE, he is in effective control of both companies.
8. In light of the above matters, the Tribunal considers the appropriate finding to be that Mr Martyniuk, either in his personal capacity or in his capacity as sole director of ILR and/or IRE, is the manager of the retirement village known as Illawong Lakeside Retirement Village Stage 1. The Tribunal further finds that, as such, Mr Martyniuk is responsible for the failure to comply with section 33 of the RV Act by failing to hold an annual meeting at any time between 3 December 2001 until 12 June 2013, and he is responsible for the failure to comply with section 34 of the RV Act by failing to provide any financial statements during the same period.

Have the Respondents expended amounts from maintenance fees paid by the applicants improperly_?_

1. In the unaudited financial statement provided by Mr Martyniuk for the financial years 30 June 2008 to 30 June 2012, ILR's total "maintenance fee" income for the period was stated to be $540,463,[52] which it is reasonable to assume refers to income from the quarterly maintenance fees paid by the residents because, based on the evidence presented, it equates broadly with the total amount they have paid.
2. According to the unaudited financial statement provided by Mr Martyniuk, expenditure from the maintenance fees paid by the residents included a total of $199 for the emergency bell/call service, and, for the years ending 30 June 2011 and 30 June 2012, expenditure included a total of $66,067 for legal expenses.
3. As the Tribunal understands it, the applicants argue that the combined effect of the relevant clauses in the management agreement, residence contract and Articles of association means that the management company (IRE) is restricted in its activities to legitimate functions of an owners corporation (known until 31 December 2007 as a body corporate) and that neither the provision of an emergency bell/call service nor the payment of the respondents' legal fees associated with these proceedings are legitimate functions.
4. The Tribunal prefers to characterise the quarterly fee paid by the applicants and the other residents of Illawong Lakeside Retirement Village Stage 1 as a maintenance charge within the definition set out in the RV Act section 3 which provides as follows:

Maintenance charge means a recurring charge payable by a resident for the provision of goods and services by a manager

1. Section 3 of the RV Act specifies that the services which may be provided by a manager means any of the following:

(c) hospital, nursing or medical services including accommodation;

(d) shops and other services for the provision of goods to residents;

(h) services or facilities for the recreation or entertainment of residents;

(i) other services for the care or benefit of residents

1. In the Tribunal's view, an emergency bell/call service could be within the RV Act definition of services, either as a medical service or a service for the care or benefit of residents. Accordingly, the Tribunal considers that the cost of this service could legitimately be included in the maintenance charge payable by residents. As noted above, according to the financial statement that was provided at the 12 June 2013 "annual meeting", for the 5 year period from 1 July 2008 to 30 June 2012, total expenditure for the emergency bell/call service was a modest $199, which equates to a nominal charge of about $4.50 for each of the 44 units. Whilst the evidence of the applicants indicates shortcomings with the service, no evidence was submitted in relation to the value of what was admittedly provided.
2. In relation to the expenditure of $66,067 for legal expenses, in the absence of any evidence to the contrary, the Tribunal finds it likely that this expense relates to the respondents' costs of defending these proceedings. The Tribunal does not consider that this expense could legitimately be included within the definition of services payable by a resident as part of a maintenance charge. It follows that the inclusion of these expenses in the maintenance charge was not permissible under the RV Act.

Can the Tribunal make a declaration in relation to the failure to comply with the RV Act?

1. Section 40 of the RV Act is headed "Application of Australian Consumer Law and Fair Trading Act 2012". The section says that certain provisions of the ACL & FT Act extend and apply to the RV Act as if any reference within the provision to the ACL& FT Act was a reference to the RV Act.[53]
2. Section 40(2) of the RV Act says that, amongst other sections, sections 216 and 217 of the ACL & FT Act are to be read in that way. The effect of section 40(2) is possibly best understood by setting out section 217(1) as it appears in the ACL & FT Act and then setting it out with the relevant modifications to all references to that Act.[54]
3. Section 217(1) of the ACL & FT Act provides as follows:

(1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

1. However, in the context of the RV Act, section 40(2) requires section 217(1) of the ACL & FT Act to be read as follows:

(1) A person who suffers loss, injury or damage because of a contravention of a provision of the RV Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision (of the RV Act) or was involved in the contravention (of the RV Act).

1. Section 217(3) of the ACL & FT Act provides that a proceeding under section 217 may be brought before VCAT or in any court of competent jurisdiction.
2. Thus the effect of section 40(2) of the RV Act is that the applicants may bring a proceeding before VCAT for any loss, injury or damage suffered by them as a result of a contravention of the RV Act.
3. Section 216(3) of the ACL & FT Act relevantly provides that in any proceeding under section 217, if VCAT finds that a party has contravened the provisions of, in the context of the present proceedings, the RV Act, and another person has suffered or is likely to suffer loss or damage as a result of that contravention, VCAT may make any order that might be made against an accused under section 216(1). Section 216(1) allows the court (or because of section 217(3), VCAT) to make any order it considers fair. Section 216(2) then specifies a non-exclusive range of orders that may be made and included in the range is the making of an order declaring that the party has contravened a provision of the RV Act.[55]
4. The Tribunal is satisfied that, as a result of the respondents' contraventions of the RV Act as identified above, each of the applicants has suffered loss. In relation to the failure to hold annual meetings or provide financial statements, the loss is the deprivation of the right to participate in, and vote in relation to any resolutions put forward at, the annual meeting, and the deprivation of relevant and important information as to the financial affairs of the retirement village in which they reside. These losses cannot be quantified in monetary terms. In relation to the improper inclusion of the respondents' legal expenses in this proceeding in the maintenance charge paid by them, the applicants can be considered to have suffered a degree of financial loss. This element of their loss is difficult to quantify in monetary terms because they may well have elected that the funds expended on these legal expenses were spent on other services for the benefit of residents. In the Tribunal's view, it has been clear throughout the proceedings that what the applicants seek is for their retirement village to be managed in accordance with the regulatory scheme set out in the RV Act.
5. In these circumstances, the Tribunal considers the appropriate remedy to be to make the declarations sought by the applicants.

Have the Respondents engaged in Unconscionable Conduct?

1. From 1 July 2012, section 21 of the Australian Consumer Law prohibits unconscionable conduct in connection with goods and services. Section 21 of the Australian Consumer Law applies in Victoria as a consequence of the operation of section 224 of the ACL & FT Act which gives VCAT jurisdiction to hear and determine a cause of action arising under any provision of the Australian Consumer Law.[56]
2. Unconscionability under section 21 is known as "statutory unconscionability". For the purposes of these proceedings, section 21 relevantly provides that a person must not, in trade or commerce, in connection with the provision of services, engage in conduct that is, in all the circumstances, unconscionable.
3. Section 22 of the Australian Consumer Law sets out a non-exclusive range of factors to which regard may be had when determining whether particular conduct is unconscionable for the purposes of section 21. The factors include, for example, the relative strengths of the parties' bargaining power, and whether undue influence or pressure or unfair tactics were used, amongst other enumerated factors.[57]
4. In relation to statutory unconscionability, Counsel for the applicants referred the Tribunal to a number of authorities, including the recent decision of the Full Court of the Federal Court of Australia in Australian Competition and Consumer Commission v Lux Distributors Pty Ltd,[58] which the Tribunal found particularly helpful. The judgment in Lux was dated 15 August 2013. The facts in the case had a number of similarities with the facts of the present case, namely that the conduct which was found to be unconscionable within the meaning of section 21 involved contravention of specific consumer protection legislation and the consumers were vulnerable elderly women who were polite and obliging.
5. In Lux, salespersons employed by the respondent were found to have engaged in unconscionable conduct in contravention of section 21[59] of the Australian Consumer Law in the course of selling Lux vacuum cleaners to three elderly women in door-to-door direct selling transactions at the women's homes. In the course of the sales, various provisions of the relevant consumer protection provisions of the Fair Trading Act 1989 (Qld) were breached. In its judgment, the Court emphasised the importance of normative standards of conscience to the assessment of unconscionability and considered the relevant standard to be reflected in community held values illuminated and elaborated upon by the setting of standards in legislation. The Court considered that in the case before it:

The existence of State legislation directed to elements of fairness is a fact to be taken into account. It assists the Court in appreciating some aspects of the publicly recognised content of fairness...

These laws of the States and the operative provisions of the ACL (Australian Consumer Law) reinforce the recognised societal values and expectations that consumers will be dealt with honestly, fairly and without deception or unfair pressure. [60]

1. The Tribunal considers that the following factors are relevant to the assessment of whether the respondents acted unconscionably towards the applicants in the present proceeding:
   • the respondents and applicants are not on even terms; the applicants are elderly and vulnerable and the units in which they reside are their primary residences and major asset whereas the respondents are conducting a business;
   • the relevant societal norms and values are recognised in the RV Act, the express purpose of which is to clarify and protect the rights of persons living in retirement villages;
   • the respondents' non-compliance with the RV Act was deliberate and continued over many years despite repeated reasonable requests by the applicants;
   • the conduct and attitude of Mr Martyniuk towards the applicants was obfuscatory, arrogant and disrespectful as exemplified by the failure to respond to any of the 30 letters sent on behalf of the Residents' Committee, the repeated removal of the portrait of Mrs Stubbs receiving her OAM and the disregard of significant risks to residents' safety as a result of inadequate maintenance of the village
   • the respondents' conduct in these proceedings was entirely unreasonable and unacceptable;
   • the use of moneys raised from maintenance charges paid by residents for the legal cost of defending what has been shown to be indefensible was dishonest and shameful
2. In light of the above factors, the Tribunal was satisfied that from 1 January 2011, the respondents acted unconscionably in contravention of section 21 of the Australian Consumer Law and to 31 December 2010, acted unconscionably in contravention of section 8 of the FTA 1999 (Vic).

Has Mr Martyniuk been involved in the unconscionable conduct?

1. The effect of section 197 of the ACL & FTA, in relation to the making of orders as a result of a contravention of the Act, is that orders may be made against a person who has been knowingly concerned, directly or indirectly in or party to, the contravention.
2. In the recent decision of the Federal Court in Australian Competition and Consumer Commission v Breast Check Pty Ltd,[61] consideration was given to the meaning of similarly worded provisions in the Australian Consumer Law and the Court stated that the person "must have intentionally participated in the contravention by some positive conduct and have actual knowledge of the essential elements of the contravention. What must be considered is the level of participation in the conduct and the knowledge of the conduct.
3. It follows from the matters referred to in paragraphs 74, and 78 to 80, above, that Mr Martyniuk was an intentional participant in conduct which he must have known was in contravention of the RV Act specifically and which he must have known was, in the circumstances outlined in paragraph 102 above, unconscionable.

Have the applicants suffered loss and damage as a result of the actions of the respondents and, if so, should they be awarded damages and if so, how much should be awarded?

1. Counsel for the applicants submitted that the Tribunal should consider it fair under section 216(1) of the ACL & FT to award each of the originally named applicants[62] damages, including aggravated damages, to compensate them for their loss which he characterised as including general distress and anxiety, in addition to the loss flowing from the misuse of their quarterly maintenance fees. He asserted that the award should be made against Mr Martyniuk personally. Counsel conceded that the exact amount of loss was difficult to quantify. At the hearing, counsel submitted that an appropriate amount would be $50,000 for each applicant. Subsequently, in proposed orders submitted after the hearing and dated 19 December 2013, the amount suggested as the appropriate order for each of the three originally named applicants, being Mr McGrath, (the late) Mr Rees, and Mrs Stubbs, was $10,500, being made up of $7,500 in general damages and $3,000 in aggravated damages.
2. Counsel for the applicants referred the Tribunal to a number of authorities which he submitted demonstrated that, in appropriate circumstances, damages could be awarded for non-economic loss such as distress, anxiety and inconvenience, under both section 216 of the ACL & FT Act and, prior to 1 January 2011, under section 158 of the FT Act. For example, in Aldersea v Public Transport Corporation,[63] Justice Ashley concluded that the authorities establish that, in appropriate circumstances, damages can be awarded for "distress" consequential upon statutory contravention.[64] His Honour doubted that expert evidence of the suffering of such distress was necessary because a listener could, from listening to a person's description of or response to certain circumstances, readily conclude whether what the person described was distress and if so, discern its apparent cause or causes.[65]
3. Counsel for the applicants noted that the decision of Justice Hargrave in Director of Consumer Affairs Victoria v Scully (No 4) establishes that aggravated damages may be ordered under section 158 of the FT Act[66] and that the purpose of such damages was compensatory, unlike exemplary damages which were awarded as punishment for offending conduct. According to counsel, aggravated damages were justified in the present case because of the circumstances and manner of the respondents' wrongdoing which caused injury to the feelings of each of the originally named applicants who were insulted and humiliated and made to feel angry, hopeless and powerless.[67]
4. The Tribunal accepts that in their oral evidence, (the late) Mr Rees, Mr McGrath and Mrs Stubbs, described suffering distress and anxiety as a result of the dismissive and high-handed conduct of Mr Martyniuk in ignoring their reasonable requests for annual meetings, financial information and maintenance of the buildings and grounds of the retirement village. They clearly expressed feelings of hopelessness and powerlessness arising from their long and largely unfruitful campaign of repeated requests to him for information and action. As noted in paragraph 95 above, they also suffered loss of their right to participate in decisions, and deprivation of relevant and important information as to the financial affairs of the retirement village in which they reside.
5. The Tribunal accepts that compensation should be ordered. Quantification of the loss is difficult to assess. Doing the best it can, in all the circumstances, the Tribunal has determined that (the late) Mr Rees, Mr McGrath and Mrs Stubbs should each be awarded $5000, being $2500 in general damages and $2500 in aggravated damages. The Tribunal agrees that its orders should provide be that damages are to be paid by Mr Martyniuk in his personal capacity.

1. Upon lengthy consideration of the complex factual matrix and legal issues arising in the present proceedings, the Tribunal made the following orders:

In proceeding C5899/2009, the Tribunal orders and directs that:

1. The principal registrar is directed to amend the application and the register to add Janice Rees as a co-applicant.
2. Pursuant to section 40 of Retirement Villages Act 1986 (Vic), section 158 of the Fair Trading Act 1999 (Vic) and section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, contravened section 33 of the Retirement Villages Act 1986 (Vic) by failing to convene an annual meeting at any time after 3 December 2001 until 12 June 2013, and contravened section 34 of the Retirement Villages Act 1986 (Vic) by failing to provide financial statements at any time during the same period.
3. Pursuant to section 40 of Retirement Villages Act 1986 (Vic), and section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, contravened section 3 of the Retirement Villages Act 1986 (Vic) by expending from the maintenance fees paid by the applicants and other residents of the retirement village, a total of $66,067 for the respondents' legal expenses during the financial years ending 30 June 2011 and 30 June 2012.
4. Pursuant to section section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent shall convene an annual meeting in accordance with section 33 of the Retirement Villages Act 1986 (Vic) within 60 days of the financial year ending on 30 June 2014.
5. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent shall at the annual meeting convened in accordance with order 3 above, present financial statements for the financial years ending 30 June 2013 and 30 June 2014 which comply with section 34(3) and 34(4) of the Retirement Villages Act 1986 (Vic).
6. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity shall pay to the fund holding maintenance fees paid by the applicants and other residents of the retirement village, the sum of $66,067.00 being repayment of the sum expended in respect of the respondents' legal expenses during the financial years ending 30 June 2011 and 30 June 2012.
7. Pursuant to section 8 of the Fair Trading Act 1999 (Vic) and section 9 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, engaged in unconscionable conduct within the meaning of section 8 of the Fair Trading Act 1999 (Vic) and section 21 of the Australian Consumer Law.
8. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity shall pay to the 1st applicant, (the late) Mervyn Rees the sum of $5000.00, being $2500.00 in general damages and $2500.00 in aggravated damages.
9. Liberty to the legal personal representative of (the late) Mervyn Rees to apply for amendment of order 8 above if necessary to enforce payment of the awarded sum.

In proceeding C5900/2009, the Tribunal orders and directs that:

1. The principal registrar is directed to amend the application and the register to add Yvonne McGrath as a co-applicant.
2. Pursuant to section 40 of Retirement Villages Act 1986 (Vic), section 158 of the Fair Trading Act 1999 (Vic) and section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, contravened section 33 of the Retirement Villages Act 1986 (Vic) by failing to convene an annual meeting at any time after 3 December 2001 until 12 June 2013, and contravened section 34 of the Retirement Villages Act 1986 (Vic) by failing to provide financial statements at any time during the same period.
3. Pursuant to section 40 of Retirement Villages Act 1986 (Vic), and section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, contravened section 3 of the Retirement Villages Act 1986 (Vic) by expending from the maintenance fees paid by the applicants and other residents of the retirement village, a total of $66,067 for the respondents' legal expenses during the financial years ending 30 June 2011 and 30 June 2012.
4. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent shall convene an annual meeting in accordance with section 33 of the Retirement Villages Act 1986 (Vic) within 60 days of the financial year ending on 30 June 2014.
5. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent shall at the annual meeting convened in accordance with order 3 above, present financial statements for the financial years ending 30 June 2013 and 30 June 2014 which comply with section 34(3) and 34(4) of the Retirement Villages Act 1986 (Vic).
6. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity shall pay to the fund holding maintenance fees paid by the applicants and other residents of the retirement village, the sum of $66,067.00 being repayment of the sum expended in respect of the respondents' legal expenses during the financial years ending 30 June 2011 and 30 June 2012.
7. Pursuant to section 8 of the Fair Trading Act 1999 (Vic) and section 9 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, engaged in unconscionable conduct within the meaning of section 8 of the Fair Trading Act 1999 (Vic) and section 21 of the Australian Consumer Law.
8. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity shall pay to the first applicant, John McGrath, the sum of $5000.00, being $2500.00 in general damages and $2500.00 in aggravated damages.

In proceeding C5902/2009, the Tribunal orders and directs that:

1. The principal registrar is directed to amend the application and the register to correct the spelling of the surname of the 4th respondent to Martyniuk.
2. Pursuant to section 40 of Retirement Villages Act 1986 (Vic), section 158 of the Fair Trading Act 1999 (Vic) and section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, contravened section 33 of the Retirement Villages Act 1986 (Vic) by failing to convene an annual meeting at any time after 3 December 2001 until 12 June 2013, and contravened section 34 of the Retirement Villages Act 1986 (Vic) by failing to provide financial statements at any time during the same period.
3. Pursuant to section 40 of Retirement Villages Act 1986 (Vic), and section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, contravened section 3 of the Retirement Villages Act 1986 (Vic) by expending from the maintenance fees paid by the applicants and other residents of the retirement village, a total of $66,067 for the respondents' legal expenses during the financial years ending 30 June 2011 and 30 June 2012.
4. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent shall convene an annual meeting in accordance with section 33 of the Retirement Villages Act 1986 (Vic) within 60 days of the financial year ending on 30 June 2014.
5. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent shall at the annual meeting convened in accordance with order 3 above, present financial statements for the financial years ending 30 June 2013 and 30 June 2014 which comply with section 34(3) and 34(4) of the Retirement Villages Act 1986 (Vic).
6. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity shall pay to the fund holding maintenance fees paid by the applicants and other residents of the retirement village, the sum of $66,067.00 being repayment of the sum expended in respect of the respondents' legal expenses during the financial years ending 30 June 2011 and 30 June 2012.
7. Pursuant to section 8 of the Fair Trading Act 1999 (Vic) and section 9 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the Tribunal declares that the 4th respondent in his personal capacity and/or as sole director of the 2nd respondent and 3rd respondent, engaged in unconscionable conduct within the meaning of section 8 of the Fair Trading Act 1999 (Vic) and section 21 of the Australian Consumer Law.
8. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the 4th respondent in his personal capacity shall pay to the applicant Nanette Stubbs the sum of $5000.00, being $2500.00 in general damages and $2500.00 in aggravated damages.

[1] Sadly, Mr Rees passed away on 7 March 2014.

[2] Points of Defence, paragraphs 7 and 9.

[4] By letter to the Tribunal, dated 12 August 2013, Russell Kennedy advised they had recently been retained by the respondents. By letter to the Tribunal dated 31 May 2013, Russell Kennedy advised that they had ceased to act for the respondents.

[7] FT Act section 108 and then ACL&FT Act section 184 for disputes based on contract law generally and FT Act section 159 and then ACL&FT Act section 236 for disputes based on contraventions of the sections referred to in footnote 8 below.

[8] FT Act sections 7-9 and then sections 18, 20 and 21 of the ACL.

[9] FT Act section 158 and then section 236 of the ACL

[13] Applicants' Tribunal Book, volume 1, tab 7.

[14] Applicants' Tribunal Book, volume 2, tab 31; see clause 5(a) at page 79 and Schedule A at page 97.

[15] By way of example, see management agreement between IRE and Mr and Mrs McGrath in Applicants' Tribunal Book, volume 2, tab 32, recital B at page 98, and see agreement between Mr and Mrs Rees as purchasers and the vendor from whom they purchased in Applicants' Tribunal Book, volume 2, tab 33, clause 2.3.1 at page 114.

[17] Applicants' Tribunal Book, volume 2, tab 32, clauses 2.1 at page 99.

[18] Applicants' Tribunal Book, volume 2, tab 32, clauses 3 at page 99.

[19] Applicants' Tribunal Book, volume 2, tab 31; see clause 5(b) at page 79.

[20] See paragraph 10 of these reasons.

[21] Applicants' Tribunal Book, volume 1, tab 18.

[22] These have been added as supplementary documents to the Applicants' Tribunal Book, volume 2.

[23] See Applicants' Tribunal Book, volume 2, new tab 80; the Schedule specifies that the resident is the registered proprietor of the relevant unit and provides the volume and folio references of the Certificate of Title for that unit.

[24] Applicants' Tribunal Book, volume 2, tab 80, see paragraph (viii) of the definition of "Total Expenses and Outgoings" at page 4 of the Management and Personal Services Agreement.

[25] Applicants' Tribunal Book, volume 2, new tab 80.

[26] Applicants' Tribunal Book, volume 2, tab 81.

[27] Applicants' Tribunal Book, volume 2, tab 80, see the definition of reciprocal community facilities at page 3 of the Management and Personal Services Agreement.

[28] Applicants' Tribunal Book, volume 2, tab 80, see clause 6.2 at page 7 of the Management and Personal Services Agreement.

[29] Applicants' Tribunal Book, volume 2, tab 80, see clause 10 at page 8 of the Management and Personal Services Agreement.

[30] Copies of these documents have been added to volume 2 of the Applicants' Tribunal Book under additional tab 84.

[31] Applicants' Tribunal Book, volume 2, tab 31; see clause 9(e) at page 80.

[32] As noted, Mr Mervyn Rees passed away on 7 March 2014.

[33] Affidavit of Nanette Stubbs sworn 30 June 2009, exhibits NMS-7 to NMS40.

[34] A copy of the letter referred to was included in the exhibits referred to in footnote 33.

[35] Paragraph 2 (l) of the letter to Mr Martyniuk dated 27 January 2007 in the exhibits referred to in footnote 33.

[36] Affidavit of Rachel Walls sworn 11 December 2013, exhibit RJW2, pages17-21.

[44] Points of Defence paragraphs 15 and 16.

[50] For example, the City of Kingston addressed the Notice of Compliance referred to in footnote 34 to Mr Martyniuk personally.

[51] See for example the invoice to Mr and Mrs Stubbs for the quarter ending 30 June 1996.

[52] The only other income specified for the period was an amount of $46 in the 2011 financial year identified as being "sundry income".

[53] From 23 May 2005 to 1 January 2011, section 40 of the RV Act was to like effect but referred to the equivalent provisions under the FT Act and permitted proceedings to be brought in VCAT pursuant to section 158 of the FT Act.

[54] The version of section 40 of the RV Act referred to in footnote 52 required the same substitution with the effect of equating contraventions of the RV Act with contraventions of relevant analogous provisions of the FT Act.

[55] See section 216(2)(h). The same effect occurred prior to 1 January 2011 by reference instead to sections 158 and 159 of the FT Act.

[56] From 1 January 2011 to 30 June 2012, section 9 of the Fair Trading Act (Vic) 1999 provided that the Australian Consumer Law applied as a law of Victoria. Until 1 January 2011, section 8(1) of the Fair Trading Act (Vic) 1999 prohibited unconscionable conduct in the provision of goods and services in trade or commerce.

[57] Section 8(2) of the Fair Trading Act (Vic) 1999 specified comparable factors in relation to the determination of unconscionability under section 8(1).

[58] [2013] FCAFC 90.

[59] In relation to the sales which occurred prior to the commencement of section 21 of Australian Consumer Law, the respondents were found to have engaged in statutory unconscionability in contravention of its predecessor, section 51AB of the Trade Practices Act 1974 (Cth).

[60] [2013] FCAFC 90; paragraph 23.

[61] [2014] FCA 190, at paragraph 212.

[62] Counsel agreed that as a matter of natural justice, it would not be fair for the Tribunal to award damages to the wife of (the late) Mr Rees or the wife of Mr McGrath because neither of them was formally added as a co-applicant until the order of the Tribunal at the commencement of the final hearing.

[63] [2001] VSC 169.

[64] [2001] VSC 169, at paragraph 39.

[65] [2001] VSC 169, at paragraph 16.

[66] [2012] VSC 556, at paragraph 4.

[67] These descriptors were used in the judgment in Director of Consumer Affairs Victoria v Scully & Ors (No 4) [2012] VSC 556, at paragraphs 5 and 7.