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[2014] WASC 80
General information, not legal advice.
Supreme Court of WA
2014-03-13
Mr J, Pritchard J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : SWANCARE GROUP INC -v- COMMISSIONER FOR CONSUMER PROTECTION [2014] WASC 80
CATHERINE DEVEREAUX (AS REPRESENTATIVE OF BENTLEY RESIDENTS)
Retirement Villages Act 1992 (WA) - Requirement to lodge a memorial under s 15(3) - Termination of retirement village scheme - Rectification of Memorial - Equitable principles of rectification - Transfer of Land Act 1893 (WA) - Correction of errors in the Register and instruments - Meaning of 'error' under s 188(3) - Meaning of 'instrument' under s 188(3)
Aged Care Act 1997 (Cth)
Fifth Defendant (Representative Defendant) : Mr S J Penrose
First Defendant : Commissioner for Consumer Protection
Second Defendant : State Solicitor for Western Australia
Third Defendant : State Solicitor for Western Australia
Fifth Defendant (Representative Defendant) : Tottle Partners
1 PRITCHARD J: SwanCare Group Inc (SwanCare) is a notforprofit incorporated association which owns and operates retirement homes and aged care facilities in Western Australia. It was formerly known as Swan Cottage Homes, and later as Swan Village of Care Inc.
2 SwanCare owns land in Bentley (the Bentley land) and Carlisle (the Carlisle land). The Bentley land and the Carlisle land are the subject of a memorial lodged with the Registrar of Titles (the Registrar) in 1992 (the Memorial)[1] pursuant to the Retirement Villages Act 1992 (WA) (the RV Act). Since its enactment in 1992 the RV Act has required that a memorial be lodged with the Registrar in respect of land which is, or is proposed to be, used for the purposes of a retirement village.
3 SwanCare contends that the Carlisle land is no longer used for the purposes of a retirement village under the RV Act. It has redeveloped the Carlisle land into a complex of residential strata units which it wishes to sell, and has entered into some contracts of sale for that purpose. However, its plans cannot be pursued to finality while the Carlisle land remains subject to the Memorial. As I explain below, the complicating feature of this case is that the Memorial was lodged in respect of both the Bentley land and the Carlisle land. In fact, the land the subject of the Memorial included all of the land owned by SwanCare in 1992, including not only the Bentley land and the Carlisle land, but also land in Midland and in St James.
4 SwanCare applied to the Court for various orders designed to facilitate the termination of the retirement village scheme which it says operates in respect of the Carlisle land, and the removal of the Memorial from the title to the Carlisle land, whilst leaving the Memorial in place in respect of the Bentley land. The thrust of SwanCare's application was not opposed by any party, although the Commissioner for Consumer Protection (the Commissioner) made submissions in relation to whether some of the relief sought by SwanCare could or should be granted. Notwithstanding the absence of any contest in relation to the thrust of SwanCare's application there remained a number of novel and complex legal issues which have been necessary to resolve in these reasons.
5 For the reasons set out below, I have made the following findings and reached the following conclusions:
(i) since 1992, a retirement village has been situated on the Bentley land (the Bentley Village) and the Carlisle land (the Carlisle Village);
(ii) since 1992, the Bentley land and the Carlisle land have been used for the purposes of separate retirement village schemes;
(iii) SwanCare no longer uses, or intends to use, any part of the Carlisle land for the purposes of a retirement village scheme;
(iv) the termination of the retirement village scheme for which the Carlisle land has been used should be approved by the Court;
(v) SwanCare's intention in executing the Memorial was to comply with the requirements of the RV Act and in doing so to effect the registration of a memorial in respect of each of the various parcels of land (including the Bentley land and the Carlisle land) which were being used, or were intended to be used, for the purposes of separate retirement villages;
(vi) the terms of the Memorial indicate that all of the land the subject of the Memorial (including the Bentley land and the Carlisle land) is used for the purposes of a single retirement village, and that all of that land may be the subject of a charge under s 20 of the RV Act to protect the right of a resident of that single retirement village to recover a premium paid for the right to reside in that village;
(vii) in those respects the content of the Memorial is incorrect, and does not reflect SwanCare's intention in executing the Memorial;
(viii) having regard to s 15(3) of the RV Act, a single Memorial should have been lodged in respect of the land used, or intended to be used, by SwanCare for each retirement village it operated;
(ix) it is not possible to amend the Memorial, so as to fully reflect SwanCare's intention when the Memorial was executed. None of the alternative forms of orders for rectification sought by SwanCare should be made in these circumstances; and
(x) in so far as its terms are incorrect in the manner described above, the Memorial contains an error or errors which would be amenable to correction by the Registrar, on the direction of the Commissioner of Titles, pursuant to s 188(3) of the Transfer of Land Act 1893 (WA) (the TL Act). The correction of those errors would in turn require the correction of an error or errors in the Register and any duplicate certificates of title pursuant to s 188(3) of the TL Act.
6 In order to explain each of these conclusions, in the balance of these reasons for decision I deal with the following matters:
7 In this section of my reasons I deal with the following matters:
8 The Commissioner is required to be a party to any proceedings in which the Court's approval for the termination of a retirement village scheme is sought.[2] The Commissioner appeared by counsel at the hearing, and made helpful submissions in relation to the legal issues that arose in relation to the various forms of relief sought by SwanCare.
9 The State solicitor, who acts for the Registrar and the Commissioner of Titles advised the Court that those defendants would not appear at the trial, but would abide by any orders of the court, save as to costs. However, brief written submissions were received from those parties in relation to s 188(3) of the TL Act.
10 The fourth defendants, Mr and Mrs Garrity, entered into occupation of residential premises in the Carlisle Village under the retirement village scheme operating in relation to the Carlisle land.[3] They continue to reside on the Carlisle land.
11 The fifth defendant was joined to the action as the representative of the residents living in the Bentley Village. Following that joinder, a newsletter was delivered to each of the units in the Bentley Village, alerting residents to the proceedings which had been commenced and to the fifth defendant's appointment as a representative defendant. The fifth defendant advised her solicitor that after the newsletter was delivered to residents the only concerns which were raised with her by residents of the Bentley Village were whether these proceedings meant that the residents would be at risk of losing their homes and whether each resident was required to engage a lawyer.
12 The fifth defendant appeared by counsel and supported SwanCare's application to the Court.
13 The sixth to twentieth defendants have each entered into contracts with SwanCare to purchase strata units on the Carlisle land and have entered into occupation of those units in advance of settlement of those contracts. They were joined to the proceedings on the basis that they may be persons who were admitted to occupation of residential premises on the Carlisle land under the retirement village scheme, or at least while that scheme was in operation.[4]
14 Each of the fourth and sixth to twentieth defendants (other than the ninth defendant, who did not enter an appearance) appeared by counsel and supported SwanCare's application to the Court.
15 In order to establish the facts relevant to SwanCare's application, counsel for SwanCare tendered an affidavit of Natalie Larissa Hodi, the General Manager Retirement Living, for SwanCare, sworn 17 October 2013 and a supplementary affidavit sworn by Ms Hodi on 25 November 2013.
16 The Memorial was executed on behalf of Swan Cottage Homes Inc (as SwanCare was known in 1992) by Mr Geoffrey Cleaver (then the Secretary of Swan Cottage Homes Inc, and between 1998 and 2000, the Chief Executive Officer of SwanCare) and Mr Albert Johnson (then the Deputy Chairman of Swan Cottage Homes Inc, a member of the Board of SwanCare from 1984 to 2006, Chairman of the Board in 1998, and Deputy Chairman from 1999 to 2006). Counsel for SwanCare tendered an affidavit sworn by Mr Cleaver on 21 October 2013, an affidavit sworn by Mr Johnson on 21 October 2013 and a supplementary affidavit of Mr Johnson sworn 25 November 2013.
17 The Memorial was lodged with the Registrar of Titles by Mr Frank Meredith Smily Hollingsworth, the Financial Controller for Swan Cottage Homes Inc between 1987 and 2006. Counsel for SwanCare tendered an affidavit sworn by Mr Hollingsworth on 25 November 2013.
18 The background facts and the facts in relation to the present use of the Carlisle land, which are set out below, were established by the affidavit evidence tendered by SwanCare. None of the defendants contested this evidence.
19 I deal separately with the evidence in relation to SwanCare's intention in executing and lodging the Memorial, and particularly with the intention of Mr Cleaver and Mr Johnson who executed the Memorial on SwanCare's behalf.
20 Between 1963 and 1989, SwanCare acquired the Bentley land[5] on which it built a complex of independent living units, care facilities and associated buildings, which are now known as 'Bentley Park'. (In the retirement village context, the term 'independent living units' is intended to encompass flats, apartments or units in which residents are able to live independently, rather than with aged care support.)
21 In 1973, SwanCare acquired the Carlisle land at 106 Star Street Carlisle[6] on which it built a complex of 48 independent living units, together with a social centre.
22 The independent living units, care facilities and other buildings and facilities located on the Bentley land, and the independent living units and the social centre on the Carlisle land, were operated by SwanCare for retired persons or predominantly for retired persons.
23 In 1966, SwanCare acquired land at 49 Charles Street Midland (the Midland land)[7] on which it built a complex of six independent living units.
24 Between 1981 and 1988, SwanCare acquired three properties in the St James and Bentley area (the St James land).[8] There was a house on each of these properties and those houses were rented to staff members of SwanCare.
25 For completeness, I note that in July 2004 and October 2006, SwanCare registered deposited plans in respect of part of the Bentley land, and the Memorial was endorsed on the certificates of title for the land the subject of those deposited plans.[9]
26 Also for completeness, there was evidence that after 1992, SwanCare acquired land in Australind and in Dunsborough, with the intention of developing that land for independent living units in retirement villages. In each case it lodged a separate memorial over the land in question.[10] I mention this only to illustrate that in the years since 1992, when SwanCare acquired land which was to be used for a new and separate retirement village, SwanCare lodged a memorial over the land which was used, or intended to be used, for each retirement village.
27 The RV Act commenced operation in July 1992. Subsection 15(3) of that Act provides that 'where land is, or is proposed to be, used for the purposes of a retirement village, a memorial in the form approved by the Registrar of Titles containing such information as is prescribed shall be lodged with the Registrar of Titles'. Subsection 15(4) required that in respect of retirement villages established prior to the commencement of s 15, the owner of the retirement village land had to lodge the memorial within three months of the commencement of s 15.
28 The Memorial was lodged with the Registrar of Titles on 10 September 1992.
29 A copy of the Memorial was in evidence. The Memorial stated:
30 The land described in the Memorial as being the subject of the Memorial comprised all of the land then owned by SwanCare, namely the Bentley land, the Carlisle land, the Midland land and the St James land.
31 The Memorial was subsequently endorsed on the Certificates of Title for the Bentley land, the Carlisle land, the Midland land and the St James land.
32 The evidence suggested that SwanCare operated a retirement village on the Midland land. However, it was far from clear whether the St James land was used for the purposes of a retirement village scheme at any time. As nothing turns on those matters for present purposes, I will assume that the Midland land and the St James land were used for the purposes of a retirement village scheme or schemes.
The sale of the Midland land and the St James land
33 In 2004, SwanCare sold the Midland land, and the Memorial was removed from the certificate of title for the Midland land.
34 On various dates in 2003, SwanCare sold the St James land, and the Memorial was removed from each of the certificates of title for the St James land.
35 The limited evidence suggested, at least by implication, that at the relevant times the view was taken that the RV Act permitted, or did not preclude, the removal of a memorial from the title to land which was no longer being used for the purposes of a retirement village scheme, other than in circumstances where the scheme itself was being terminated. The resolution of the present case does not require further analysis of the removal of the Memorial from the Midland land and the St James land.
36 In the balance of these reasons, in discussing the Memorial I focus on the Bentley land and the Carlisle land.
The leases and rental agreements in respect of the Bentley land
37 As at September 2013, there were 608 residents occupying units in the Bentley Village. For many years, and certainly since 1992, residents of the Bentley Village who have occupied independent living units there have done so pursuant to either a lease (the Bentley lease) or a rental agreement.
38 The Bentley lease which has been in use since 2010 is described as 'Retirement Village Scheme and Residential Premises Lease'. It refers to the premises comprising a retirement village, and refers to the provisions of the RV Act.
39 Although the terms of the Bentley lease have varied over the years the consistent feature of the terms of the Bentley lease has been that the resident pays a partially refundable entry amount, and then leases a unit. Each of those payments is a 'premium' for the purposes of the RV Act.[11]
40 The rental agreements which have been used at the Bentley Village since 1992 have not required the residents to pay a refundable entry payment. Rather, those residents pay rent, a share of the operating costs and an administration fee.
41 Residents at the Bentley Village who reside in the aged care facilities there do so pursuant to residential care agreements, and SwanCare is an approved provider of aged care under the Aged Care Act 1997 (Cth). The terms of those agreements are not presently material.
42 Prior to April 2008, the residents who occupied the units on the Carlisle land did so pursuant to rental agreements. The payment of a refundable entry premium was not required pursuant to those agreements.
43 By about 2005, SwanCare decided to redevelop the Carlisle land and approached the residents of the units on the Carlisle land about relocating to independent living units, or to other accommodation, on the Bentley land. By 2008, all of the units on the Carlisle land were vacant. SwanCare then proceeded to redevelop the Carlisle land by constructing new independent living units on the land. By December 2012, 33 new units had been built. The new development was known as 'TheSpace@Carlisle'.
44 During the construction of the development, SwanCare endeavoured to enter into agreements with prospective residents for the reservation of units intended to be constructed, or under construction, with a view to entry into a lease over those units upon their completion (reservation agreements). Only 5 such reservation agreements were entered into, and only 1 couple, Mr and Mrs Garrity, proceeded to enter into a lease for a unit on the Carlisle land once the redevelopment was completed. (The remaining parties terminated their reservation agreements.)
45 The lease entered into by Mr and Mrs Garrity referred to a 'retirement village' on the Carlisle land, and also referred to the RV Act. In 2012, pursuant to the terms of that lease, Mr and Mrs Garrity paid what was described as an interest free 'entry loan' to SwanCare, repayable upon termination of the lease, and were granted a lease over a unit on the Carlisle land for their exclusive occupancy for the remainder of their lives. That entry loan constituted a 'premium' for the purposes of the RV Act.
46 As a result of the poor takeup of leases over the units on the Carlisle land, SwanCare abandoned its plan to operate TheSpace@Carlisle as a retirement village. It decided that it would seek approval from the Town of Victoria Park to change the approved use of the Carlisle land to permit SwanCare to use that land for general residential accommodation, and with a view to selling the units as separate strata units.
47 Mr and Mrs Garrity agreed to surrender their lease over their unit on the Carlisle land. SwanCare repaid their entry loan. It also agreed to maintain some of the benefits to which Mr and Mrs Garrity would have been entitled under the lease.
48 Mr and Mrs Garrity have now entered into a residential tenancy agreement to rent their unit on the Carlisle land, pending the completion of a contract for the purchase of the unit as a strata title. They have not been required to pay a premium, for the purposes of the RV Act, pursuant to those arrangements.
49 In December 2012, the Town of Victoria Park granted approval for a change in the use of the Carlisle land, subject to certain conditions, one of which was the removal of the Memorial from the title to the Carlisle land.
50 In June 2013, SwanCare arranged for new certificates of title to be issued so that it had a separate certificate of title in respect of each of the units (forming part of the strata plan) on the Carlisle land.[12] Each of those certificates of title is endorsed with the Memorial.
51 SwanCare then applied to remove the Memorial from the certificates of title to the Carlisle land. The Commissioner of Titles refused that application.
52 A number of contracts for the sale of units on the Carlisle land have been entered into. None of those has settled, pending the outcome of this litigation. Since June 2013, the sixth to twentieth defendants have entered into a residential tenancy agreement, or reached some other agreement with SwanCare, to permit them to live in the unit the subject of those contracts of sale, pending settlement. None of the purchasers has made a payment constituting a 'premium' for the purposes of the RV Act.
2. Whether retirement villages were operating on the Bentley land and the Carlisle land at the time the Memorial was lodged
53 The application of the RV Act hinges on the existence of a 'retirement village scheme' and a 'retirement village'. I discussed the meaning of these terms at some length in Retirement Care.[13]
54 A retirement village scheme is a programme of action or a plan or policy concerning the use of residential premises, which has three elements, namely that the scheme is established for 'retired persons' (as defined in the RV Act[14]) or predominantly retired persons, that it pertains to the occupation of 'residential premises' (again, as defined in the RV Act[15]) which may be of a wide variety, and which may be occupied pursuant to a wide variety of legal arrangements, and finally, that at least one resident or prospective resident must pay a 'premium' (as defined in the RV Act[16]) in consideration for, or in contemplation of, admission as a resident under the scheme.
55 A 'retirement village' is the complex of residential premises and appurtenant land, occupied or intended for occupation under the retirement village scheme or used or intended to be used for or in connection with the retirement village scheme.[17]
56 The evidence established that since 1992, the complex of residential premises on the Bentley land has been occupied under, or used for, a retirement village scheme. SwanCare operated the premises on the Bentley land pursuant to a plan or policy by which it made the accommodation on that land available to retired persons or predominantly retired persons. The independent living units were occupied pursuant to either the Bentley lease or tenancy agreements. The terms of the Bentley lease meant that residents occupying pursuant to that lease paid a premium in consideration for, or in contemplation of, admission as a resident.
58 I find that when the Memorial was executed in 1992, the complex of residential premises on the Bentley land constituted a retirement village occupied under, or used for, a retirement village scheme. The complex of residential premises on the Bentley land continues to constitute a retirement village occupied under, or used for, a retirement village scheme.
59 The evidence in relation to the Carlisle land, at least in 1992, was less clear. SwanCare operated the complex of independent living units on the Carlisle land pursuant to a plan or policy by which it made those units available to retired persons or predominantly retired persons. The evidence established that until 2008, all of the residents occupied the units on the Carlisle land pursuant to residential tenancy agreements, and in no case had a resident paid a premium in consideration for, or in contemplation of, admission as a resident.
60 However, as the definition of a 'retirement village' makes clear,[18] a complex of residential premises may constitute a retirement village even if the units in the retirement village are not (yet) occupied under, or used for, a retirement village scheme, provided that the complex is intended for occupation under, or for use for or in connection with a retirement village scheme. Furthermore, since the RV Act was enacted, it has been the case that a memorial is required to be lodged in respect of land where the land is, or is proposed to be, used for the purposes of a retirement village.[19]
61 I find on the balance of probabilities that when the Memorial was lodged in 1992, the Carlisle land was proposed to be used for the purposes of a retirement village, under SwanCare's policy or plan of providing accommodation on the Carlisle land for retired persons or predominantly for retired persons. That was so even though in 1992 no resident had yet paid a premium in consideration for, or in contemplation of, admission as a resident of the premises on the Carlisle land. I have reached that conclusion having regard to the fact that SwanCare lodged the Memorial in respect of the Carlisle land, and to Mr Johnson's recollection that the Memorial was lodged to comply with the requirements of the legislation. That evidence permits the inference that the officers of SwanCare responsible for its management and control (or at least Mr Cleaver and Mr Johnson, who executed the Memorial on behalf of SwanCare) intended that the units on the Carlisle land would be occupied under a retirement village scheme at some stage in the future.
62 Accordingly, I find that the complex of independent living units on the Carlisle land constituted a 'retirement village' in 1992.
63 The 'entry loan' paid by Mr and Mrs Garrity in 2012 constituted the payment of a premium in consideration for, or in contemplation of, admission as a resident to the complex on the Carlisle land. That confirmed the continued existence of a retirement village on the Carlisle land in 2012.
3. Whether the residential premises on the Bentley land and on the Carlisle land were part of the same retirement village, and occupied under, or used for or in connection with, the same retirement village scheme
64 The RV Act does not expressly preclude the conclusion that one retirement village may be spread over a number of different locations.
65 The definition of 'retirement village' refers to 'a complex of residential premises ... and appurtenant land'. The word 'complex' is not defined in the RV Act. Its ordinary meaning refers to 'the buildings and ancillary equipment required for a specified purpose: shopping complex; launch complex'.[20] In my view, the 'complex of residential premises' refers to the body of different residential premises (which may exist in a variety of different configurations, such as apartments or units or villas) together with any ancillary buildings or facilities, such as libraries, gymnasiums, conference rooms or social rooms which, together with the appurtenant land, make up the retirement village. The 'appurtenant land' is land which belongs, pertains or is pertinent to those residential premises or the complex as a whole.[21]
66 I accept the submission by counsel for the Commissioner that it will be a question of fact and degree whether there are separate complexes (and thus separate retirement villages). However, in the present case, the evidence does not support the conclusion that buildings on the Bentley land could be considered part of the same 'complex' as buildings on the Carlisle land, or that any part of the Bentley land could be described as 'appurtenant land' in respect of residential premises forming part of the retirement village located on the Carlisle land, so that all of the residential premises and land comprising the Bentley land and the Carlisle land could be said to comprise a single retirement village.
67 The complex of residential premises and appurtenant land comprising each village is, and always has been, geographically separate. The complexes are located in different suburbs separated by some distance. Furthermore, the complexes of residential premises at each location has always had its own facilities, and its own social club, for residents.
68 Furthermore, those responsible for SwanCare's management and control treated the complexes as discrete retirement villages, rather than as one retirement village but with premises located on two sites. At various places in the minutes of meetings of SwanCare's Board of Management in and after 1992 there are references to 'the Village' (which appears to be a reference to the Bentley Village) or to Bentley Park, on the one hand, and to the 'Carlisle village' on the other hand.[22]
69 Mr Hollingsworth deposed that 'because of the different facilities at each complex and the different budgets, at all times I regarded the complex at Carlisle and the complex at Bentley Park as separate villages each with their own residents, but each being within the control of the SwanCare Board of Management'.[23]
70 Mr Cleaver deposed that he viewed each of the Midland, Carlisle and Bentley villages as separate retirement villages and that one of the reasons for this was 'because the residents of each village preferred and would choose the particular suburb in which the village was located for personal or family reasons'.[24]
71 The evidence clearly established, and I find, that the retirement village on the Bentley land and the retirement village on the Carlisle land were separate retirement villages.
72 The more significant question for present purposes is whether the retirement villages on the Bentley land and the Carlisle land were occupied under, or used for or in connection with, the same retirement village scheme. Neither the definitions of 'retirement village' nor 'retirement village scheme' in the RV Act expressly precludes the conclusion that more than one retirement village may be operated pursuant to one retirement village scheme.
73 For present purposes it is not necessary to determine whether the RV Act permits more than one retirement village to be occupied under, or used for or in connection with, one retirement village scheme. That is because the evidence supports the conclusion that the retirement villages on the Bentley land and the Carlisle land have always been occupied under, and used for or in connection with, separate retirement village schemes. The evidence established that since 1992 the Bentley Village and the Carlisle Village have each been operated pursuant to a separate policy or plan by which SwanCare used, or intended to use, the residential premises and land for accommodation for retired persons or predominantly retired persons, in circumstances which met the requirements set out in the definition of 'retirement village scheme' in the RV Act. Three aspects of the evidence supported this conclusion.
74 First, the evidence established that SwanCare managed the Bentley Village and the Carlisle Village as separate concerns. Mr Cleaver deposed that the Board of Swan Cottage Homes would receive monthly reports relating to specific issues or recommendations from each village separately.[25] A separate Annual General Meeting was held for each Village, and Mr Johnson deposed that the Bentley Village and the Carlisle Village 'each had their own Resident's Committee to deal with issues relevant to their particular village'.[26]
75 Each Village also had its own social club. Mr Cleaver and Mr Johnson recalled that the Carlisle Village residents would have their own outings, although on occasion they would visit the Bentley Village (for example to watch a concert in the auditorium at Bentley).[27] Mr Johnson recalled that the Bentley Village residents would also have their own outings, which were separate from those of the Carlisle residents.[28]
76 Secondly, the Bentley Village and the Carlisle Village have, generally speaking, been subject to separate financial management. SwanCare has maintained separate budgets for the Bentley Village and the Carlisle Village.
77 Extracts from SwanCare's accounts were in evidence. Although the revenue and expenditure in relation to the Bentley Village and the Carlisle Village were occasionally referred to collectively in those accounts, revenue and expenditure from the Bentley Village and the Carlisle Village were generally separately identified in SwanCare's accounts. Mr Cleaver confirmed that during his time as the Chief Executive Officer, there were generally separate accounts for the retirement villages at Bentley, Carlisle and Midland.[29]
78 Mr Johnson deposed that as a member of the Board and of the finance committee for SwanCare over many years, he recalled that
there was a requirement that there be no 'cross-subsidy' between each of the retirement villages. Similarly there was a requirement that there be no cross-subsidy between the residents of the care facilities and the residents of the retirement village. By cross-subsidy I mean that the residents at Carlisle did not contribute towards the costs involved with providing the services and facilities at the Bentley village, and vice versa.[30]
79 Mr Hollingsworth also deposed that the residents in each of the Bentley, Midland and Carlisle complexes were charged a maintenance fee for the upkeep of their residences and the common areas in their complex. Mr Hollingsworth confirmed that there was no cross subsidisation between the residents for each complex, so that the Carlisle residents would only pay the maintenance fee determined by reference to the maintenance of facilities at the Carlisle complex, and the Bentley residents would pay fees for the upkeep of the Bentley facilities and did not pay for the maintenance of the facilities at Carlisle.[31]
80 Further, a redevelopment of the Bentley land as 'Bentley Park' and the redevelopment of the Carlisle land proceeded independently of each other.
81 Thirdly, the leasing and rental arrangements employed by SwanCare in respect of the Bentley Village and the Carlisle Village have, generally speaking, been quite separate.
82 Since 1992, separate leases and rental agreements have been used for the Bentley Village and for the Carlisle Village.
83 The various Bentley leases and rental agreements over the years have referred to the Bentley Village by reference to the Bentley land, the amenities of the village (all located on the Bentley land) and to the right of residents to use those amenities.
84 Some of the terms of the Bentley leases were more equivocal about the separate schemes operating in respect of the Bentley Village and the Carlisle Village. A version of the Bentley lease executed in January 2000 provided that in the event of a resident leaving an Independent Living Unit in either the Bentley Complex, Carlisle Units or Midland Units or being permanently being transferred to the Hostel or Nursing Home, he or she would be entitled to a refund of all entitlements. On one view, that might suggest that the units on the Carlisle land were considered to be part of the same retirement village, or used pursuant to the same retirement village scheme, as the units on the Bentley land. However, when viewed in light of the totality of the evidence, the more likely explanation appears to be that this clause which simply reflected the fact that SwanCare operated retirement villages in different locations, in respect of which the same refund entitlements applied for residents.
85 The evidence as to the terms of the Bentley leases and the rental agreements pertaining to the Bentley Village supports the conclusion that the provision of residential accommodation at the Bentley Village was pursued as a separate scheme from the provision of residential accommodation at the Carlisle Village.
86 There was also evidence in relation to the terms of the rental agreements used for the Carlisle units from 1987 through to 2002. The evidence from those documents is more ambiguous as to whether the Carlisle Village was operated by SwanCare pursuant to the same retirement village scheme as the Bentley Village. By way of example, a tenancy agreement from 1987, by which the tenants accepted an offer of a unit at '21 Carlisle units' was headed 'Bentley Retirement Village Tenancy Agreement'.[32] Similarly, a copy of a rental agreement entered into in 2002 in respect of a unit on the Carlisle land referred to the use of common areas on the land but defined the Land to mean 'Swan Village of Care 26 Plantation Drive Bentley', notwithstanding that the unit the subject of the agreement was located at 106 Star Street Carlisle.[33] Further, an extract from a rental agreement entered into in 2001 described the 'Land' as 'Swan Village of Care (Inc) 26 Plantation Drive Bentley.'[34] In each of these documents it appears that the reference to the Land as the Bentley Village was an error, given that in each case the unit which was the subject of the agreement was not itself located on the Bentley land.
87 However, the position was unambiguously expressed in the lease entered into by Mr and Mrs Garrity on 30 September 2011 (pursuant to which they paid their premium). The lease referred solely to the Carlisle land and to the use of facilities on that land. There was no suggestion that a resident of the Carlisle Village would be entitled to enjoy the use of the amenities in the Bentley Village.
88 Having regard to the evidence, I find that by 1992, SwanCare had adopted a plan or policy by which it made residential premises, and appurtenant land, available for occupation by retired persons, or predominantly retired persons, at least one of whom had paid a premium for admission as a resident to those premises. SwanCare decided to use the premises and appurtenant land on the Bentley land in pursuit of this plan. SwanCare had therefore established a retirement village scheme pertaining to its use of the Bentley land. I find that in 1992, the complex of residential premises and appurtenant land on the Bentley land constituted a 'retirement village' in that the premises and land were occupied under, or used for, the retirement village scheme which SwanCare had established. No part of the Carlisle land was used for, or in connection with, that retirement village scheme. Accordingly, the Carlisle land could not be said to constitute part of the retirement village which was operating on the Bentley land.
89 I find that it remains the case that the complex of residential premises, and appurtenant land, located on the Bentley land constitutes a retirement village, and that those premises and that appurtenant land are occupied under, or used for, a retirement village scheme which is particular to the Bentley land, and that no part of the Carlisle land is used for, or in connection with, that retirement village scheme. In the balance of these reasons I refer to this scheme as the Bentley Scheme.
90 I find that by 1992, SwanCare had also adopted a plan or policy by which it made residential premises, and appurtenant land, on the Carlisle land available for occupation by retired persons, or predominantly retired persons, and in connection with which it intended to require one or more residents to pay a premium for admission as a resident to those premises. SwanCare had therefore established a retirement village scheme in relation to its use of the Carlisle land.
91 I find that in 1992, the complex of residential premises and appurtenant land comprising the Carlisle land constituted a retirement village in that the premises and appurtenant land were intended for occupation under, or intended to be used for, a retirement village scheme. Once Mr and Mrs Garrity paid the entry loan pursuant to the lease agreement into which they entered in 2012, the residential premises, and the appurtenant land, on the Carlisle land, were in fact occupied and used in connection with a retirement village scheme. That retirement village scheme was pursued solely in relation to the Carlisle land. In the balance of these reasons I refer to this scheme as the Carlisle scheme.
92 Neither in 1992, nor any time since, has any part of the Bentley land been used for, or in connection with, the Carlisle scheme. Accordingly, neither in 1992 nor since can it be said that the Bentley land constituted part of the retirement village which SwanCare intended to operate, or in fact operated, on the Carlisle land, pursuant to the Carlisle scheme.
93 The present position is that SwanCare no longer intends to use the premises and appurtenant land on the Carlisle land for a retirement village, and it wishes to terminate the Carlisle scheme. I turn to consider whether termination of the Carlisle scheme should be approved.
4. Whether termination of the Carlisle scheme should be approved
94 As I explained in Retirement Care[35] the owner of the land on which a retirement village is situated may terminate the retirement village scheme which that owner has pursued in relation to that land. However, the RV Act prohibits the termination of a retirement village scheme without the approval of this Court in those cases in which a person who has been admitted to occupation of residential premises under the scheme remains in occupation of those premises.[36]
95 In the present case, SwanCare wishes to terminate the Carlisle scheme because it wants to sell the units on the Carlisle land for private residential accommodation, and without limitation to retired persons or predominantly retired persons. SwanCare requires the Court's approval to terminate the retirement village scheme which pertains to the Carlisle land because persons who were admitted to occupation of the Carlisle units under the scheme remain in occupation.
96 Under s 22 of the RV Act, the Court clearly has a discretion as to whether to approve the termination of a retirement village scheme. The fact that the Court is empowered to approve the termination of a scheme but with such orders as the Court thinks necessary to protect the interests of existing residents conveys Parliament's intention that the protection of the interests of existing residents should be at the forefront of the Court's consideration of whether to grant approval for the termination of a scheme.[37]
97 The existence of a statutory charge or charges under s 20(1) of the RV Act is a consideration relevant to the exercise of that discretion. Under s 20(1) of the RV Act, the rights of a resident to repayment of a premium, or part of a premium, under s 19 of that Act are a charge 'on land in the retirement village'. As I explained in Retirement Care the 'land in the retirement village' encompasses all of the land on which the retirement village is situated, namely its buildings and the appurtenant land (other than residential premises owned by a resident, or any other prescribed part of, or interest in, the retirement village, which are excluded by s 20(1)).[38]
98 The fact that the Bentley Village and the Carlisle Village are discrete retirement villages has consequences for each charge which came into existence upon the payment by a resident of each of those villages of a refundable, or partly refundable, premium for entry into accommodation in those villages. Any resident of the Bentley village who paid a refundable (or partly refundable) entry premium as consideration for admission as a resident to the Bentley Village, and whose premium has not been repaid, has a charge over the land in the Bentley Village. The charge does not apply to the Carlisle land.
99 Similarly, after Mr and Mrs Garrity paid the entry loan as consideration for admission as residents to the Carlisle Village, they held a charge over the land in the Carlisle Village. That charge did not apply to the Bentley land.
100 Given that Mr and Mrs Garrity's entry premium has since been refunded, and as no other resident of the retirement village on the Carlisle land has paid an entry premium, the position is now that no resident of the Carlisle land has paid a premium for admission to the Carlisle Village, and no statutory charge under s 20 of the RV Act applies to that land.
101 Apart from the existence (or nonexistence) of any statutory charge under s 20, other interests of existing residents of a retirement village will be relevant in determining whether the termination of a retirement village scheme will be approved. Those interests may include the fact that the protections available to the residents of a retirement village under the RV Act will no longer apply to the residents of the village if the scheme is terminated. However, the absence of those protections is of little significance in the present case because if the scheme is terminated, Mr and Mrs Garrity and the other residents of the Carlisle land will eventually become registered proprietors of strata titled units on the land. The dispute resolution provisions of the RV Act, in respect of the kinds of disputes contemplated by Part 4 of that Act, will no longer be relevant to those residents.
102 A further consideration relevant to whether approval to terminate the scheme should be given in this case is that Mr and Mrs Garrity enjoyed other practical benefits as a result of their being residents of the Carlisle Village. SwanCare has agreed to continue the provision of such benefits, including the provision and maintenance of a call assistance system, the maintenance of internal fixtures and fittings and maintenance of the external gardens.
103 The interests of SwanCare are also relevant to the question whether termination of the Carlisle scheme should be approved. SwanCare has been unable to market the Carlisle Village successfully as a retirement village, and now wishes to be able to sell the units on the Carlisle land. I accept that to refuse approval to terminate the Carlisle scheme would be likely to have an adverse financial impact on SwanCare, in that it will hold property which has not proved attractive to retired persons, yet will be unable to meet its contractual obligations to the purchasers of the Carlisle land.
104 If the termination of the Carlisle scheme is not approved, and if the Memorial is not removed from the Carlisle land, the settlement of the sale of the unit on the Carlisle land which Mr and Mrs Garrity have agreed to purchase is likely to be impeded. Accordingly, counsel for Mr and Mrs Garrity submitted that it was in his clients' interests for the termination to be approved and the Memorial to be removed.
105 For the same reason, counsel for the sixth to eighth, and tenth to twentieth, defendants appeared at the hearing to support SwanCare's application for relief, including its application for approval to terminate the scheme.
106 It may be doubted whether the interest of Mr and Mrs Garrity and of the sixth to twentieth defendants in the settlement of their contracts to purchase units on the Carlisle land constitute interests they have as residents of the Carlisle Village. It is unnecessary to resolve this question because these interests favoured the grant of approval to terminate which I consider to be warranted in any event.
107 A further question which may arise in considering whether to grant approval for the termination of a scheme under s 22 of the RV Act is whether it is necessary to take into account the interests of any persons (other than residents of the retirement village in question) who may be affected by the termination of that scheme. It is unnecessary to resolve that question here. The only other persons whose interests may be affected by the termination of the retirement village scheme operating in respect of the Carlisle land are the purchasers of units on the Carlisle land who have not taken up residence in the units on the land pending settlement. The interests of those persons would clearly be served by the approval of the termination of the scheme, because their contracts to purchase units on the Carlisle land will not be able to be completed if the retirement village scheme on the land is not terminated and the Memorial removed. I consider that the grant of approval to terminate the scheme is warranted even without taking the interests of these purchasers into account.
108 For completeness, I note that as the residents of the Bentley Village are not residents of the Carlisle Village, and do not hold charges over the Carlisle land, there was no suggestion by the fifth defendant that the termination of the Carlisle scheme would affect the interests of residents of the Bentley Village.
109 I am satisfied that the grant of approval to terminate the Carlisle scheme will not adversely affect Mr and Mrs Garrity's interests, will be in the interests of SwanCare, and will not adversely affect the interests of any of the other residents of the Carlisle Village. No orders are required to be made pursuant to s 22(3) of the RV Act to protect the interests of existing residents.
110 The Court's approval for the termination of the Carlisle scheme should be granted.
111 SwanCare sought rectification of the Memorial on two alternative bases. First, it contended that rectification of the Memorial could be ordered in the exercise of the Court's power under s 22(3) of the RV Act to 'make such orders as it thinks necessary to protect the interests of existing residents'. Secondly, it contended that the application of the equitable doctrine of rectification permitted rectification of the Memorial.
112 I do not accept that s 22(3) of the RV Act would permit the Court to make orders requiring the rectification of the Memorial. For the reasons set out above, I do not consider that the rectification of the Memorial is necessary to protect the interests of existing residents of the Carlisle scheme.
113 SwanCare contended that the rectification of the Memorial was necessary to ensure that Mr and Mrs Garrity were put in a position where, as far as practicable, no person is able to contend for any reason that the title to their unit on the Carlisle land is impaired by a charge under s 20 of the RV Act. I do not accept that submission for three reasons. First, rectification of the Memorial would not, of itself, address the situation to which counsel referred. The removal of the Memorial under s 15(8) of the RV Act is the necessary step to achieve this objective. Secondly, the existence of a specific power in s 15(8) of the RV Act (which permits the Registrar to remove a memorial) militates against the conclusion that the Court can or should order the removal of a memorial under s 22(3). Thirdly, Mr and Mrs Garrity's interest in the sale of their unit being able to proceed is not an interest they have as residents of the Carlisle Village, as a retirement village, with the protections granted by the RV Act to the residents of a retirement village. It is, instead, an interest they have in common (along with all of the other purchasers of the units in the Carlisle Village) in the finalisation of contracts for the purchase of strata units at the Carlisle Village.
114 SwanCare's case for rectification of the Memorial thus falls to be determined in accordance with wellestablished equitable principles.
115 The equitable doctrine of rectification relates to documents. While it most commonly applies to contracts, rectification can be sought of any document, including unilateral instruments.[39]
117 Rectification is available when the party or parties who executed the document made a mistake in recording their intention.[42] It is now accepted that rectification is available when the party or parties who executed the document are mistaken about the meaning or effect of the words deliberately chosen to express their intention.[43]
118 The purpose of rectification is to make the terms of the document conform with the actual intention of the party, or the common intention of the parties, who executed it.[44]
119 Rectification thus turns on the subjective intentions of the maker, or makers, of the document.[45] A party seeking rectification must advance proof often described as clear proof, or convincing proof, or very strong proof that at the time of execution of the instrument the relevant party (or parties) had an actual intention (or if more than one party, a common intention) as to the effect which the instrument would have which was inconsistent with the effect which the instrument as executed did have in some clearly identified way.[46] The reason for requiring a high degree of proof is because the party must displace the hypothesis, arising from the execution of the written instrument, that it expressed the true intention of the person or persons who executed it.[47]
120 The Memorial which was lodged on behalf of SwanCare indicated that 'the land described ... is or is proposed to be used for the purposes of a Retirement Village scheme within the meaning of [the RV Act]' and that 'by virtue of s 20 of the [RV Act] the Land above described may be subject to a charge securing repayment of money to residents of the Retirement Village'.
121 As I have noted, the land referred to in the Memorial included all of the land owned by SwanCare in 1992, namely the Bentley land, the Carlisle land, the Midland land and the St James land. By its terms, the Memorial thus indicated that all of the land referred to in the Memorial was used or proposed to be used for the purposes of a single retirement village and a single retirement village scheme, and that all of the land referred to may be subject to the statutory charge under s 20 of the RV Act to secure the repayment of any entry premium by any resident of that retirement village.
122 The execution of the Memorial, and its lodgement, were preceded by a resolution of SwanCare's Board of Management. Two related extracts of the minutes of meetings of the Board of Management of SwanCare were in evidence. An extract from the minutes of the Board's meeting on 17 August 1992 simply noted that 'it was resolved that the Common Seal should be affixed to the Memorial documents relative to the Retirement Village Act 1992'.[48] An extract from the minutes of the Board's meeting on 21 September 1992 noted that the 'chairman reported that all Swan Homes properties had now been placed on Memorial'.[49] This evidence does not establish SwanCare's intention in executing and lodging the Memorial, other than to confirm that it was SwanCare's intention to comply with the requirements of the RV Act.
123 As Mr Cleaver and Mr Johnson executed the Memorial on SwanCare's behalf, it is necessary to look more closely to their subjective intentions in doing so. The evidence of the intention of Mr Cleaver, and of Mr Johnson, in relation to their execution of the Memorial was limited. Given the passage of time since the Memorial was executed, that is hardly surprising.
124 Mr Cleaver executed the Memorial in his capacity as the then Secretary of SwanCare. He had no specific recollection of the preparation and execution of the Memorial. He had no recollection as to why one memorial form was lodged. Mr Cleaver recalled that 'new legislation' had come into effect at the time but he did not recall SwanCare getting legal advice about it. I infer that the 'new legislation' to which Mr Cleaver referred was the RV Act. In addition, as I have already noted, Mr Cleaver's evidence was that he viewed the Bentley Village and Carlisle Village as separate retirement villages.
125 Mr Johnson executed the Memorial in his capacity as the then Deputy Chairman of SwanCare. He did not have a specific recollection of the preparation or execution of the Memorial, but had a general recollection of the Memorial 'being lodged when new legislation came in force to comply with the legislation'. He did not recall why only one memorial was lodged in respect of the Bentley land and the Carlisle land. However, Mr Johnson deposed that in signing the Memorial, he
did not intend to do anything ... that would cause the three separate complexes at Bentley, Midland and Carlisle, which [he] considered separate retirement villages, to be treated as a single complex or retirement village [or to] ... restrict SwanCare's ability to deal with each of the three separate complexes at Bentley, Midland and Carlisle separately (for example by selling one complex without selling the others).[50]
126 Despite the limitations of this evidence, three matters were established by the evidence of Mr Johnson and Mr Cleaver. First, at the time they executed the Memorial they understood that there were separate retirement villages on the Carlisle land and the Bentley land. Secondly, their intention in executing the Memorial was to comply with the requirements of the RV Act, and their intention was that by lodging a single memorial they would be able to indicate that the land referred to was used for the purposes of the separate retirement villages that SwanCare operated. Thirdly, it was not their intention, in executing the Memorial, to indicate that there was a single retirement village covering all of the land listed in the Memorial, including the Bentley land and the Carlisle land.
127 For completeness, I should also mention the evidence of Mr Hollingsworth. Although Mr Hollingsworth did not execute the Memorial, his handwriting appears on the document, and he was responsible for the lodgement of the Memorial. Mr Hollingsworth deposed that in lodging the Memorial, he
did not intend to do anything ... that would cause the three separate complexes at Bentley, Midland and Carlisle, which [he] considered were separate retirement villages, to be treated as a single complex or retirement village [or to] ... restrict SwanCare's ability to deal with each of the three separate complexes at Bentley, Midland and Carlisle separately (for example by selling one complex without selling the others).[51]
The tenor of Mr Hollingsworth's evidence was not inconsistent with the conclusions I have reached about the intentions of SwanCare (discerned through the intentions of Mr Johnson and Mr Cleaver) in executing the Memorial.
128 Furthermore, there were in fact two separate retirement villages on the Carlisle land and on the Bentley land, and those villages were managed by SwanCare for the purposes of separate retirement village schemes. In that circumstance, it would have been highly surprising if Mr Johnson and Mr Cleaver had intended the Memorial to say something quite inconsistent with that factual position.
129 I accept that in its present form the terms of the Memorial do not reflect SwanCare's intention, at the time the Memorial was executed, as to the meaning and effect of its terms. The difficulty that arises in this case is whether, and if so, how, that disconformity could be corrected by rectification of the Memorial.
130 In its prayer for relief, SwanCare sought rectification of the Memorial in a number of alternative ways, namely:
131 There are difficulties in relation to each of these alternative forms of relief by way of rectification which in my view preclude an order for rectification in these, or any, terms. A fundamental difficulty that pertains to each of the proposed forms of relief by way of rectification is that SwanCare's intention in executing the Memorial - to indicate that the land referred to was used for the purposes of separate retirement villages that SwanCare operated - could not be achieved in one document, consistently with the RV Act. That is because the RV Act does not permit a single memorial to be lodged in respect of different parcels of land used for different retirement villages.
132 Subsection 15(3) of the RV Act requires a memorial to be lodged whenever land is, or is proposed to be, used for the purposes of 'a retirement village'. Counsel for SwanCare submitted that a single memorial could be lodged under s 15(3) in respect of the land used in more than one retirement village because the reference to 'a retirement village' in that subsection should be construed as meaning 'retirement village or villages'. I am unable to agree. Although the legislative presumption is that the singular includes the plural,[52] in my view the terms of s 15 as a whole, and the surrounding legislative context,[53] support the conclusion that that presumption is displaced in relation to s 15(3), so that the reference to land used for the purposes of a retirement village should be understood to mean land used for the purposes of a single retirement village. I have reached that view for five reasons.
133 First, s 15(3) itself refers to 'a memorial' being lodged in respect of 'a retirement village'. Further, s 15(4) and 15(6) qualify the obligation in s 15(3). In each case those subsections refer to 'the retirement village'. In addition, s 15(5) refers to 'a retirement village' in respect of which 'a memorial' is to be lodged.
134 Secondly, s 16 of the RV Act prohibits a person from inviting applications from prospective residents to enter into a contract, or from actually entering into a contract, which gives rise to a right to occupy 'residential premises in a retirement village in respect of which a memorial is required to be lodged under s 15' if that memorial has not been lodged. The underlying premise of that provision is that a single memorial will be lodged in respect of the land in a single retirement village.
135 Thirdly, the requirement that a separate memorial be lodged in respect of the land in each retirement village is consistent with the notification functions served by a memorial. I discussed these at length in Retirement Care[54] and it is not necessary to repeat that discussion here.
136 Fourthly, the requirement for a separate memorial in respect of the land in each retirement village is also consistent with the fact that the statutory charge which arises under s 20 of the RV Act (and for which the memorial serves a notification function) applies only to the 'land in the retirement village' in respect of which an entry premium was paid, rather than to the land in any other retirement village, or to other land, which may be owned by the owner of the retirement village. Similarly, s 21 of the RV Act gives a right to 'a resident of a retirement village in respect of which there is a charge'.
137 Fifthly, in order to cancel the registration of a memorial under s 15(8) of the RV Act, the Registrar must be satisfied that 'no part of the land to which a memorial relates is still used, or proposed to be used, as a retirement village'. That subsection also clearly operates on the assumption that a memorial will be lodged in respect of the land in a single retirement village. Furthermore, were s 15(3) construed to permit a single memorial to be lodged in respect of the land used for more than one retirement village, the utility of s 15(8) would be undermined. If a memorial pertained to multiple parcels of land, each used for the purposes of a different retirement village, then in the event that only one of those villages ceased to operate, it is difficult to see how it would be possible for the Registrar to be satisfied that no part of the land to which the memorial relates was used or proposed to be used for a retirement village.
138 I note for completeness that it was not submitted that the Memorial was invalid for non-compliance with s 15(3) of the RV Act.[55]
139 Turning then to each of the orders for rectification which are sought in the Prayer for Relief, it is appropriate to briefly explain why they cannot be made.
140 It is convenient to start with the order for rectification sought in par F of the Prayer for Relief. The proposed form of relief recognises that rectification of the Memorial alone cannot resolve the disconformity between SwanCare's intention and the terms of the Memorial. The proposed orders contemplate that not only would the Memorial be 'rectified' (so that it pertained only to the Bentley land), but SwanCare would subsequently lodge a further memorial in respect of the Carlisle land.
141 Turning next to par H of the Prayer for Relief, the Memorial cannot be rectified in this way because to do so would be inconsistent with s 15(3) of the RV Act. If pursued, it would result in the Memorial continuing to apply to all of the land used for the purposes of each of SwanCare's retirement villages, but in such a way as to delineate which land is used for each of those retirement villages. (A further possible difficulty with this proposed order for rectification may be that it seeks the amendment of what appears to have been part of the form approved by the Registrar which is required to be used under s 15(3) of the RV Act. However it is unnecessary to resolve that issue.)
142 Turning finally to par D of the Prayer for Relief, the proposed order holds some attraction, from a pragmatic perspective, in that at least in relation to the Bentley land, the rectification of the Memorial in the manner proposed would result in the Memorial correctly reflecting that the Bentley land is used for one retirement village. However, the proposed order would not accurately reflect SwanCare's intention in executing the Memorial because the outcome would be confined to the Bentley land, whereas SwanCare's intention in executing the Memorial in September 1992 was to lodge a memorial in respect of all of the land it owned which was used for its retirement villages. Rather, the rectified memorial would reflect the position at present (or, more precisely, would reflect the position after termination of the Carlisle scheme).
143 Accordingly, I would decline relief in the form of rectification, as sought in pars D - I of the Prayer for Relief. I would also decline to grant a declaration to the effect sought in par J of the Prayer for Relief.
144 The position nevertheless remains that the Memorial is incorrect. In my view, the appropriate means for correcting the Memorial (and in turn the Register) lies in the use of the power in s 188 of the TL Act.
6. Correction of the Memorial and of the Register
145 In par M of the Prayer for Relief, SwanCare seeks a declaration in that the registration of the Memorial on the Carlisle land constitutes an error on the Register or alternatively an error in an entry made in the Register within the meaning of section 188(3) of the Transfer of Land Act 1893 (WA). SwanCare also contends that the Memorial is an instrument for the purposes of s 188(3) which contains errors able to be corrected pursuant to that section.
146 Although various grounds were initially relied upon for the declaration sought during the hearing counsel for SwanCare confirmed that the declaration was sought on two bases, namely that the Memorial contained an error insofar as it suggested that any resident of the Bentley, Midland or Carlisle complexes may have had a charge under s 20 of the RV Act over land other than the land in the particular complex in which the resident resides, and in addition or alternatively that there would be an error in the Register once the Memorial was rectified in any of the ways sought by SwanCare.
147 As I have already observed, at the time it was executed and lodged, the Memorial was clearly incorrect in so far as it indicated that all of the land referred to in the Memorial was used for the purposes of a single retirement village scheme within the meaning of the RV Act, and that all of the land described in the Memorial may be subject to a charge securing the repayment of money to residents of that one retirement village.
148 It is appropriate to reiterate at this stage, for the avoidance of any doubt, that the terms of the Memorial did not dictate the land to which the charge applied. Any charge which came into existence under s 20 of the RV Act existed quite independently of whether a memorial was lodged, and necessarily did not depend upon the content of any such memorial. Accordingly, in this case, any charge which came into existence when a resident of the Bentley Village paid a refundable premium for the right to reside there applied only to the land in the Bentley Village. The charge which came into existence when Mr and Mrs Garrity paid their premium to reside at the Carlisle Village applied only to the land in the Carlisle Village. As I explained in Retirement Care, the purpose of a memorial under the RV Act includes to notify persons who may deal with the land in a retirement village that a charge may exist in respect of that land by virtue of the operation of the RV Act.[56]
149 Section 188 of the TL Act contains a power to correct errors in the Register, and in instruments. It relevantly provides:
(3) The Registrar shall upon the direction of the Commissioner correct errors in the Register or in entries made therein or in duplicate certificates (in cases of paper titles) or instruments or graphics and may supply entries omitted to be made under the provisions of this Act.
...
(6) Every error or entry so corrected or supplied shall have the like validity and effect as if such error had not been made or such entry omitted except as regards any entry made in the Register prior to the actual time of correcting the error or supplying the omitted entry.
150 Two questions arise for the purpose of the declaration sought in par M of the Prayer for Relief, namely whether the Memorial is an instrument and whether the fact that the Memorial was incorrect means that it is liable to correction pursuant to s 188(3) of the TL Act.
151 The term 'instrument' is defined in s 4 of the TL Act. The definition provides that 'instrument' includes certain documents. The list of documents does not include reference to a memorial, although that of itself is not surprising as the TL Act makes no mention of memorials. Instruments may be registered under the TL Act.[57]
152 Counsel for the Commissioner submitted that the definition of 'instrument' was not an exhaustive one, and that a memorial registered on the Register pursuant to s 15 of the RV Act would constitute an 'instrument' for the purposes of s 188(3). I accept that submission. The list of documents included within the definition of 'instrument' are, by their inclusion in the definition, added to the natural meaning of the word.[58] The ordinary meaning of the word 'instrument' includes a formal legal document.[59] A memorial lodged pursuant to s 15(3) of the RV Act is clearly a legal document. Further, the memorial lodged in compliance with s 15(3) of the RV Act is required to be registered by the Registrar and endorsed on the Register.[60] I accept that the Memorial is an instrument for the purposes of s 188(3) of the TL Act.
153 I turn to the question whether the Memorial contains an error which is amenable to correction by the Registrar pursuant to the power in s 188(3). There is no authority from this State in relation to the meaning of s 188(3) or in relation to the nature of the 'errors' which may be corrected by the Registrar under that subsection.
154 The term 'error' is not defined in the TL Act. However, the Act makes reference to a number of different kinds of errors - errors in the Register or in an instrument,[61] patent errors appearing on the face of an instrument[62] and 'actual patent mistakes or errors',[63] titles or instruments issued in error or endorsed in error,[64] or registered through error,[65] and errors of particular kinds (such as errors as a result of surveys or which occur by misdescription).[66] In my view, wherever it appears in the TL Act within these various contexts, the term 'error' simply bears its ordinary meaning of 'a deviation from accuracy or correctness; a mistake'.[67] By virtue of the context in which it appears, however, the meaning of the term error may be limited to mistakes of certain kinds, or mistakes made in certain ways. In other contexts, the error may include an omission to do something.[68] Subsection 188(3) encompasses a variety of errors - in the Register itself, in entries made in the Register, in duplicate certificates of title or in instruments. Clearly, it is not necessary that the error be a patent error on the face of the instrument, because the power to correct such errors lies in s 189 of the TL Act.
155 The construction of the term 'error' in s 188(3) must take into account the legislative context. That legislative context clearly encompasses the fact that the Torrens system established under the TL Act is designed to facilitate indefeasibility of title that is a title which cannot, in general, be defeated or annulled, subject to limited statutory exceptions.[69]
156 In Medical Benefits Fund of Australia Ltd v Fisher, McPherson J, in discussing s 11(4) of the Real Property Act 1861 - 1981 (Qld) (which was in very similar terms to s 188 of the TL Act), observed that the extent of the Registrar's power to correct errors in the Register 'is a largely unexplored area of the Torrens system. To recognise an unqualified power in that regard would have potentially destructive consequences'[70] which could undermine the principle of indefeasibility which underlies the Torrens system.
157 There has been some discussion in the authorities of provisions in other jurisdictions drafted in similar, but not identical, terms to s 188(3). In such cases, the courts have expressed (albeit in obiter) a clear preference to confine such provisions to 'slips' or administrative errors, at least in those instances where the Registrar acts of his or her own volition and without an order of the Court, largely because of concerns about the impact on indefeasibility of a more expansive construction.[71] On the other hand, the power of correction in s 188 of the TL Act has been recognised (again in obiter) as one of the exceptions to indefeasibility.[72]
158 Section 188(3) must, of course, be construed having regard to its terms, to the legislative context in which it appears and to the legislative purpose. Two considerations suggest that s 188(3) cannot be confined in its operation solely to administrative errors made by the Registrar or her staff: the fact that s 188(3) permits the correction of errors in instruments, many of which will have been prepared by parties and with no involvement by the Registrar, and the fact that the errors which may be corrected under s 188(3) are not confined to errors occurring in the process of registration.
159 It is neither necessary nor appropriate in the present context to attempt any comprehensive summation of the nature of the errors which may be corrected under s 188(3). Neither the Registrar nor the Commissioner of Titles fully participated in the hearing. However, the State Solicitor, who acts for those parties, made brief written submissions in relation to the operation of s 188(3), and in addition, correspondence from the State Solicitor, which was in evidence, dealt with the operation of that section.[73]
160 It suffices for present purposes to say that even if s 188(3) were to be construed as directed to the correction of 'slips' or administrative errors (a question which it is not necessary for me to decide), the error or errors in the Memorial can properly be described as a 'slip'. Each parcel of land referred to in the Memorial was used for the purposes of a retirement village, albeit a number of different retirement villages, rather than just one village. However, SwanCare simply sought to do in one memorial what should have been done in separate memorials in respect of the land in each retirement village.
161 Furthermore, given that a memorial under s 15(3) of the RV Act serves a notification function, and that any charges under s 20 of the RV Act apply independently of the existence and content of a memorial, the correction of that error or errors pursuant to s 188(3) would not impact in any way on the indefeasibility of title underpinning the Register. Accordingly I accept that the error or errors in the Memorial may be corrected pursuant to s 188(3) of the TL Act.
162 The power in s 188(3) is a power which falls to be exercised by the Registrar, on the direction of the Commissioner of Titles. The declaration which should be made should confirm the existence of the error or errors which exist in the Memorial, and the land affected. The precise manner in which an error for the purposes of s 188(3) should be corrected will ordinarily be a matter for the Commissioner of Titles.[74] However, as the matter has been argued before the Court, and given that this matter involved some difficult and novel legal questions, it is appropriate to make some observations about the terms of the declaratory relief which would need to be granted to facilitate the correction of the errors identified.
163 Given that a memorial under s 15(3) of the RV Act cannot apply to land in more than one retirement village, and given that the Midland land and the St James land have been sold (and the Memorial removed from the certificates of title to that land), it is difficult to envisage how the correction of the Memorial could do more than confine the application of the Memorial to the land in one of the remaining retirement villages. In these circumstances, one course may be to correct the error in the Memorial by deleting references to the Carlisle land, the Midland land and the St James land, so that the Bentley land is the only land which is the subject of the Memorial.
164 The correction of the Memorial in that way would mean that the Register would then contain an error in so far as it indicated that the Memorial applied to land other than the Bentley land (that is, the Carlisle land). The Register and the duplicate Certificates of Title in respect of the Carlisle land would need to be corrected insofar as the Memorial is endorsed on the titles of the Carlisle land. Were this approach taken, compliance with the requirements of the RV Act might then necessitate SwanCare lodging a further memorial in relation to any other land which continues to be used for a retirement village scheme.
165 The parties (including the Registrar and the Commissioner of Titles) should confer about the terms of the declarations and orders which should be made to reflect these reasons and if necessary I will hear further from the parties for the purpose of formulating those declarations and orders.
[3] Retirement Villages Act 1992 (WA) s 22(1); and see Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [137] - [139] (Retirement Care) (Pritchard J).
[4] Retirement Villages Act 1992 (WA) s 22(1); and see Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219, [137] - [139] (Pritchard J).
[5] Certificates of title Volume 1501 Folio 227, Volume 1413 Folio 543, Volume 1426 Folio 291, Volume 1259 Folio 388, Volume 349 Folio 46A, Volume 1252 Folio 742, Volume 1850 Folio 551 and Volume 319 Folio 35A.
[6] Certificates of title Volume 1367 Folio 507 and Volume 1367 Folio 508.
[7] Certificate of Title Volume 1251 Folio 299.
[8] Certificates of Title Volume 128 Folio 189A, Volume 1200 Folio 700 and Volume 1180 Folio 371.
[9] Certificates of Title Volume 2564 Folio 961, Volume 2564 Folio 962 and Volume 2638 Folio 290.
[10] Memorial K963787 lodged in respect of land the subject of certificate of title Volume 2642 Folio 163; and Memorial K913434 lodged in respect of land the subject of certificate of title Volume 2688 Folio 990.
[12] Certificates of Title Volume 2817 Folios 301 to 333.
[13] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [70] - [97] (Pritchard J).
[20] Macquarie Dictionary (5th ed, 2009).
[21] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [90] (Pritchard J).
[22] See, for example, Ex A Annexure NLH55 (514, 515, 516, 524, 528, 530, 535, 540, 547, 549, 550, 556, 563), Annexure NLH 56 - Annexure NLH 63A.
[33] See Items 2 and 3 of the Schedule to the agreement of Ex E Annexure NLH4.
[35] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [134] and following (Pritchard J).
[36] Retirement Villages Act 1992 (WA) s 22 and see Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [139] (Pritchard J).
[37] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [191] (Pritchard J).
[38] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [107] (Pritchard J).
[39] Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488, 547 [278] (McLure JA, Wheeler JA & Newnes JA agreeing); GE Capital Finance Australasia Pty Ltd v Commissioner of Taxation [2011] FCA 849; (2011) 84 ATR 128, 158 [105] (Gordon J); Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, 345 (McLelland AJA).
[40] Maralinga v Major Enterprises Pty Ltd [1973] HCA 23; (1973) 128 CLR 336, 345 346 (Barwick CJ); 346 (Menzies J), 350 (Mason J).
[41] Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488, 547, [280] (McLure JA, Wheeler JA & Newnes JA agreeing); Wright v Goff [1856] EngR 559; (1856) 22 Beav 207; (1856) 52 ER 1087, 1090.
[42] Mander Pty Ltd v Clements [2005] WASCA 67; (2005) 30 WAR 46, 50 [12] (Murray J, referring to Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, 340 (Sheller JA, Mahoney AP & McLelland AJA agreeing)).
[43] Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488, 547 - 548 [282] - [283] (McLure JA, Wheeler JA & Newnes JA agreeing).
[44] Mander Pty Ltd v Clements [2005] WASCA 67; (2005) 30 WAR 46 [11] (Murray J)
[45] GE Capital Finance Australasia Pty Ltd v Commissioner of Taxation [2011] FCA 849; (2011) 84 ATR 128, 158 [106] (Gordon J).
[46] Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, 345 (McLelland AJA); Pukallus v Cameron [1982] HCA 63; (1982) 180 CLR 447, 452 (Wilson J, Gibbs CJ agreeing), 456 (Brennan J); Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] HCA 23; (1973) 128 CLR 336, 351 (Mason J); Mander Pty Ltd v Clements [2005] WASCA 67; (2005) 30 WAR 46, 50 [11] - [12] (Murray J), 57 - 58 [49] - [54] (McKechnie J), 62 [84] - [85] (McLure J).
[47] Maralinga v Major Enterprises Pty Ltd [1973] HCA 23; (1973) 128 CLR 336, 351 (Mason J); Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329, 340 (Sheller JA, Mahoney AP & McLelland AJA agreeing).
[52] Interpretation Act 1984 (WA) s 10.
[53] Cf Blue Metal Industries Ltd v Dilley [1969] UKPCHCA 2; (1969) 117 CLR 651, 656.
[54] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection (Retirement Care) [2013] WASC 219 [114] - [118] (Pritchard J).
[55] Cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 388 - 391 [91] - [93] (McHugh, Gummow, Kirby & Hayne JJ).
[56] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [114] - [118] (Pritchard J).
[58] Electpark Pty Ltd v Minister for Fair Trading [1999] WASCA 286 [15] (Ipp J, Kennedy J & Murray J agreeing); Sherritt Gordon Mines Ltd v Commissioner of Taxation [1977] VicRp 42; [1977] VR 342, 353 (McInerney J).
[59] Macquarie Dictionary (6th ed, 2013).
[64] See, for example, Transfer of Land Act 1893 (WA) s 77.
[67] Macquarie Dictionary (6th ed, 2013).
[68] See, for example, Transfer of Land Act 1893 (WA) s 188(3).
[69] Burton v Arcus [2006] WASCA 71; (2006) 32 WAR 366, 401 [135] (Buss JA, Steytler P & McLure JA agreeing); Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180; (2008) 37 WAR 498, 508 [28] (Buss JA, McLure JA & Murray JA agreeing).
[70] Medical Benefits Fund of Australia Ltd v Fisher [1984] 1 Qd R 606, 611; see also Pirie v RegistrarGeneral [1962] HCA 58; (1962) 109 CLR 619, 632 (Kitto J).
[71] Frazer v Walker [1967] AC 569, 581 (Lord Wilberforce) in relation to s 80 of the Land Transfer Act 1952 (NZ) which provided 'The Registrar may, upon such evidence as appears to him sufficient, subject to any regulations under this Act, correct errors and supply omissions in certificates of title or in the register, or in any entry therein, and may call in any outstanding instrument of title for that purpose'. Section 81 of that Act, which was discussed by his Lordship, was in terms similar to s 76 of the TL Act, and was considered to be wider in scope. Similar statutory provisions to s 76 of the TL Act also exist in other States. In relation to s 12, s 135 and s 136 of the Real Property Act 1970 (NSW) see also Quach v Mavrickville Municipal Council (1990) 22 NSWLR 55, 60, 71 (Young J), State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1986) 4 NSWLR 398, 403 - 404 (Needham J), Scallan v RegistrarGeneral (1988) 12 NSWLR 514 and Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395 [183] - [193] (Campbell JA & Tobias AJA, McColl JA agreeing) (overturned on appeal, but without discussion on this point: Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; (2013) 247 CLR 149). In relation to s 103 of the Transfer of Land Act 1958 (Vic) see Casella v Casella [1969] VicRp 8; [1969] VR 49, 55 (McInerney J). In relation to s 64 of the Real Property Act 1886 (SA) see Elder's Trustee & Executor Co Ltd v Bagot's Executor & Trustee Co Ltd [1964] SASR 306 (Mayo J); Rogers v ResiStatewide Corp Ltd (No 2) [1991] FCA 535; (1991) 32 FCR 344, 351 (von Doussa J). See further Skead N & Carruthers P 'The Registrar's power of correction: 'Alive and well', though perhaps 'unwelcome'? Part 1: The Slip Provision (2010) 18(1) Australian Property Law Journal 32.
[72] Burton v Arcus [2006] WASCA 71; (2006) 32 WAR 366, 401 [135] (Buss JA, Steytler P & McLure JA agreeing); Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd [2008] WASCA 180; (2008) 37 WAR 498, 508 [28] (Buss JA, McLure JA & Murray JA agreeing).
[74] Cf Medical Benefits Fund of Australia Ltd v Fisher [1984] 1 Qd R 606, 611 - 612 (McPherson J).
(2009) 38 WAR 488
(2005) 30 WAR 46
(1982) 180 CLR 447
(1969) 117 CLR 651
(1962) 109 CLR 619
(1990) 22 NSWLR 55
(1986) 4 NSWLR 398
(1988) 12 NSWLR 514
(2013) 247 CLR 149
(1991) 32 FCR 344
(1995) 41 NSWLR 329
(1973) 128 CLR 336
(1998) 194 CLR 355
(2006) 32 WAR 366
(2008) 37 WAR 498