Tarragal Glen Retirement Village II Pty Ltd and Errol Investments Pty Ltd v De Carli

NCAT Consumer and Commercial|2021-07-22

REASONS FOR DECISION

This is an application by a retirement village for an order terminating the contract of a resident of the village due to her behaviour towards her neighbours. The retirement village is located on the Central Coast of NSW.
The respondent resides in Villa XXX of the village. Her immediate neighbours are Mr and Ms McConville ('the McConvilles'), who live in Villa XXX. Mr and Ms McConville are in their late 80's. The respondent is in her 60's. Both the respondent and the McConvilles have resided in the retirement village since 2014.
The matter was listed for hearing at the Tribunal on 22 and 23 July 2021. The hearing was conducted by telephone. The hearing was able to conclude on 22 July without the necessity of progressing to the second day of the hearing.
The applicant was represented by Mr Vickery, Solicitor, of Minter Ellison. The respondent appeared self-represented.
The applicant filed the application with the Tribunal on 24 November 2020.
The matter was listed for a directions hearing at the Tribunal on 26 February 2021 when it was set down for a special fixture hearing.
For much of the proceedings the respondent was represented by a local Solicitor, but that Solicitor wrote to the Tribunal on 19 May 2021 stating that she was ceasing to act.
At the commencement of the hearing, both parties indicated they were ready to proceed and were not seeking an adjournment for any reason, or knew of any issue that would likely lead to an adjournment application.

ORDERS SOUGHT

When the proceedings were filed in the Tribunal, the applicant sought the following orders: 1. Termination under s 134 of the Retirement Villages Act 1999 (NSW) ('the RV Act') due to breach by the applicant of her obligation under the village Rules (which form part of the lease and village contract) not to unreasonably interfere with the peace, comfort and privacy of her neighbours, Mr and Ms McConville. 2. Termination under s 135 of the RV Act due to the applicant intentionally or recklessly causing or permitting, or likely to intentionally or recklessly cause or permit, (a) serious damage to any part of the village; or (b) injury to any other resident of the village (the said injury being psychological injury to the McConvilles or the likelihood of a future injury). 3. Termination under s 133 of the RV Act on the basis the premises are unsuitable to the respondent due to her mental incapacity. 4. In the alternative to termination of the village contract; an order under s 83 of the RV Act that the respondent comply with her obligations under the contract by not unreasonably interfering with the peace, comfort and privacy of Mr and Ms McConville.
However, at the commencement of the hearing, Mr Vickery conceded that the applicant had not served a Notice of Termination on the respondent under s 131 of the RV Act (further, any notice to terminate must be in compliance with Regulation 49 and Part 5 Sch. 1 of the Retirement Villages Regulation 2017 (NSW) ('the RV Regulations')).
Accordingly, the termination order under s 134 of the RV Act was not sought (because the Tribunal had no jurisdiction in any event). Mr Vickery also stated that no order was now sought under s 133 of the RV Act.
The only orders sought by the applicant were 1. Termination under s 135 of the RV Act; or 2. If the applicant was unsuccessful in that application a 'specific performance order' under s 83 of the RV Act.

Applicant

The applicant relied on the following affidavits: 1. Ms Ramage, the manager of the village, dated 24 November 2020 and 8 April 2021. 2. Ms Patricia McConville dated 8 April 2021 and 24 May 2021. 3. Mr Vincent McConville dated 8 April 2021 and 24 May 2021. 4. Mr Smith (another resident of the village) dated 8 April 2021. 5. Ms Coote (another resident of the village) dated 8 April 2021.

Respondent

The respondent relied on an affidavit dated 10 May 2021.
As the affidavits of Mr McConville and Ms McConville were not evidence in reply (containing a medical report from their General Practitioner that was clearly evidence in chief) the respondent was granted leave to give further oral evidence.
All of the witness of the applicant and the respondent gave evidence and were cross examined at the hearing.

THE ALLEGED HARRASSMENT OF MR AND MS MCCONVILLE

The evidence of Mr and Ms McConville was that the applicant had engaged in harassing conduct that had commenced in 2017. Prior to that time, they had a reasonably amicable relationship with the respondent. Since that time, the relationship has significantly deteriorated.
According to the McConvilles the harassment by the respondent commenced from about May 2017, when the respondent sent a letter to them accusing Mr McConville of wetting the respondent's driveway when he was washing his car.
From that date, the McConvilles assert that the respondent has engaged in a series of behaviours and incidents that constitute harassment and have caused them to become distressed, upset, and depressed.
It was unclear, however, whether such conduct had continued (and if so, whether the duration of the conduct had increased; decreased; or remained the same) since the commencement of proceedings in the Tribunal.
It is unnecessary to detail all of the incidents referred to by the McConvilles. However, the conduct can be relevantly summarised as follows: 1. Falsely accusing the McConvilles of breaking into the garage of her residence and stealing items. Such accusations have been made to the McConvilles'; the manager of the applicant; and other residents of the retirement village. 2. Falsely accusing the McConvilles of damaging plants in the garden of the respondent's residence. 3. Hosing water into the yard of the McConvilles in the early hours of the morning, including deliberately hosing clothes of the McConvilles. 4. On occasions, throwing chemical substances into the yard of the McConvilles to kill their plants and lawn. 5. Cutting plants in the McConvilles garden. 6. On one occasion, throwing a 'bleach' substance on the clothes of the McConvilles that were hanging on their clothesline. 7. Shining a torch into the McConvilles' residence in the early hours of the morning. 8. Making numerous abusive telephone calls, including in the early hours of the morning. 9. On one occasion, throwing an "oil" substance (such as cooking oil) onto their garage door. 10. Throwing mulch and leaf debris onto their property. 11. Standing near the fence and "staring" at the McConvilles. 12. Telling Mr McConville he was "and old man" who would likely die soon. 13. Being verbally aggressive to Ms McConville, calling her "fat and ugly". 14. On one occasion, raising a knife in a threating manner towards Ms McConville when near the fence between the two residences and using abuse language.
The McConvilles state they complained to the manager of the retirement village, Ms Ramage, about the conduct of the respondent. Their first meeting with Ms Ramage was in August 2019. They had repeatedly complained since that time.
In September 2019 the McConvilles had requested the applicant install video surveillance cameras in the vicinity of their residence and the respondent's residence. The applicant installed such cameras.
The McConvilles had complained to the police about the respondent's behaviour and enquired about taking out an Apprehended Personal Violence Order. According to the McConvilles, they were advised against this course of action by police as it could exacerbate the situation.
The McConvilles stated the manager of the village had met with the respondent on numerous occasions to request she desist from her conduct; but the conduct continued.
According to the McConvilles they have become upset and distressed as a result of the conduct of the respondent. They assert the respondent's conduct has deleteriously affected their health.
The evidence of the McConvilles' included a reports from their General Practitioner Dr Bennett dated 8 April 2021.
The reports of Dr Bennett set out the history of medical treatment of the McConvilles since 2014. Dr Bennett asserted that the McConvilles were "suffering a significant amount of depression and anxiety as a direct consequence of the issues surrounding the relationship with their neighbour".

EVIDENCE OF MS RAMAGE

Ms Ramage's evidence set out the history of her interactions with the respondents and the McConvilles.
In essence, the McConvilles had repeatedly complained about the conduct of the respondent. The respondent had complained on a number of occasions about the conduct of the McConvilles, asserting that the McConvilles were responsible for cutting her plants; and stealing property from her residence. The respondent stated that the McConvilles (and in particular, Ms McConville) were conducting a "vendetta" against her.
Ms Ramage states that in April and May 2020 she viewed security footage taken from the surveillance cameras installed in proximity to the McConvilles residence. According to Ms Ramage, the footage she viewed supported the McConvilles version of events rather than the respondent's version. The footage showed the respondent engaging in conduct including late at night and in the early hours of the morning that included entering into the property of the McConvilles and using a hose to hose water over their clothes on the clothesline and onto the walls and roof of the McConvilles residence.
On 4 May 2020 the applicant sent the respondent a warning letter identifying the conduct that the McConvilles complained of, and requested that she desist.
On 7 July 2020 Ms McConville telephoned Ms Ramage asserting that the respondent had waived a "knife or scissors" at her whilst engaging in verbal abuse at the fence. Ms Ramage stated that she reviewed the security camera footage of the incident, and believed the footage supported Ms McConvilles version of events.
In August 2020 Ms Ramage spoke to the police about the respondent's conduct, and provided them with security camera footage. The police did not take any action against the respondent.
According to Ms Ramage, she viewed further security camera footage in August 2020 that again showed the respondent hosing water onto the clothesline and walls of the McConvilles residence in the early hours of the morning.
Ms Ramage stated that she had attempted to discuss the respondent's conduct with the respondent and the respondent's family, but that the family was not receptive. Ms Ramage stated she was concerned about the conduct of the respondent both in respect of the health of the respondent and the health of the McConvilles.
Ms Ramage stated that the respondent had, on various occasions, admitted engaging in harassing conduct towards the McConvilles, but did so because the respondent was angry with them (in particular Ms McConville) and believed she had the right to "retaliate".

EVIDENCE OF MR SMITH AND MS COOTE

Mr Smith resides in Villa XXX at the retirement village. Ms Coote resides at Villa XXX of the village.
Both are friends of the McConvilles. It is unnecessary to set out their evidence in detail. Both state that the McConvilles have stated to them on many occasions that the respondent has engaged in harassing conduct, and both believe that the health of the McConvilles has deteriorated due to the actions of the respondent.

EVIDENCE OF THE RESPONDENT

The respondent denied that she had engaged in harassing conduct towards the McConvilles.
Rather, her version of events was that it was the McConvilles (and in particular Ms McConville) who were harassing her by killing her plants and stealing property from her residence.
In respect of the incident where it was alleged she had verbally abused and raised a knife towards Ms McConville, the respondent stated that had a small knife because she was gardening, and only used the knife to remove weeds. She denied being verbally abusive towards Ms McConville or threating her, and asserted that Ms McConville was exaggerating.
The respondent stated she had complained to Ms Ramage about the conduct of the McConvilles but the village manager took the side of the McConvilles. The respondent believed she had not been supported by management of the village and did not deserve to have her lease terminated.
In cross examination, the respondent made some concessions. In particular, the respondent stated that she was not the type of person to start a confrontation, but would take action to "defend" herself if she believed that another person was attacking her.
The respondent also conceded that, in an angry state of mind, she had thrown a substance on the washing of the McConvilles. However, the respondent denied the substance was bleach. According to her it was more like dishwashing liquid.
The Tribunal asked the respondent what she would do in respect of alternative accommodation if the lease was terminated. The respondent stated she had a daughter who lived in the Southern Highlands (in a house jointly owned by the respondent and her daughter) and a grandson in his late teenage years who lived on the Central Coast.
The respondent stated she could not live with her grandson and it would be "difficult" to live with her daughter. The respondent stated that if her lease at the retirement village was terminated she would not be able to purchase a new residence.
The respondent stated that she wished to stay at the retirement village and would comply with any orders of the Tribunal directing her to adhere to the village Rules (which formed part of her lease and contract with the village) not to interfere with the peace, comfort and privacy of the McConvilles.

CONSIDERATION

Under Sch. 4 of the RV Regulations, an application to the Tribunal to terminate under s 135 (1) of the RV Act is to be made "up to 30 days after the alleged incident became known to the operator".
The applicant submitted that the application had been filed within time as the respondent had engaged in ongoing conduct, and there was no single "incident".
There was no clear evidence before the Tribunal that there was conduct of the respondent towards the McConvilles in the 30 day period prior to 24 November 2020.
However, irrespective of whether there was any "incident" during the 30 day period prior to 24 November 2020, the Tribunal has the power under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) to extend this limitation period. The applicable principles are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevantly, the considerations are the reasons for the delay; the length of the delay; the extent of prejudice to the other party if the extension is granted; and the merits of the substantive application.
Any extension is of a reasonably short period of time, considering, the evidence of Ms Ramage that security camera footage in August 2020 showed harassing conduct by the respondent towards the McConvilles. In light of the long and well documented history of the dispute and the lack of any prejudice to the respondent by reason of granting an extension, the Tribunal is satisfied an extension of time (to the extent such an extension is required) should be granted.
Section 135 of the RV Act states as follows: 135 Termination on grounds of resident's causing serious damage or injury (1) The Tribunal may, on application by the operator of a retirement village, make an order terminating a residence contract if it is satisfied that the resident has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit - (a) serious damage to any part of the village, or (b) injury to the operator or an employee of the operator or any other resident. (2) If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned. (3) An application under this section may be made whether or not the operator has given notice of his or her intention to apply to the Tribunal under this section for an order terminating the residence contract
The respondent submitted that some of the actions of the respondent constituted "serious damage to any part of the village". Such damage involved the killing of plants and the throwing of oil onto the garage door of the McConvilles.
However, the Tribunal is not satisfied any of the conduct of the respondent falls within the auspices of "serious damage to any part of the village".
Rather, the primary issue is whether the conduct of the respondent constitutes intentional or reckless conduct causing injury to the McConvilles or likely to cause injury to the McConvilles in the future under s 135 (1) (b) of the RV Act.

The Definition of "Injury"

There is no evidence of any physical injury to the McConvilles. The applicant submitted that the relevant injury to the McConvilles was "psychological injury" caused by a multiplicity of harassing conduct by the respondent over a long period of time.
The Tribunal accepts that "injury" in s 135 of the RV Act involves both (or either) physical injury or psychological injury. It is well established in both criminal law and the law of tort that an injury can be psychological (see, for example, Shu Qiang Li v R [2005] NSWCCA 442 at [45] in the context of the crime of assault occasioning actual bodily harm).
However, an "injury" and the emotional consequences to another person caused by conduct are not the same thing; nor do emotions caused by conduct automatically constitute an "injury".
For a psychiatric "injury" to have occurred, a person must have sustained a recognised psychiatric illness or condition caused by the relevant conduct. Emotional conditions such as distress; mental suffering; anxiety; and grief are insufficient to constitute an "injury" unless a recognised psychiatric illness has occurred (Moore v Scenic Tours Pty Ltd [2020] HCA 17; (2020) 377 CLR 209 at [55]-[57]).

The Definition of "Intention"

"Intention" means that a party meant to produce a particular result by his or her conduct. In other words, the person foresaw a particular consequence or result of his or her actions, and meant to produce that particular result or consequence (Zabouroni v R [2016] HCA 12; (2016) 256 CLR 482 at [14]-[17] per Kiefel, Bell and Keane JJ).
In the context of s 135 of the RV Act as applicable to the circumstances of this matter, this requires that the respondent realised her actions would cause psychological injury to one or both of the McConvilles' and meant to produce that result or consequence by reason of her actions. In other words, the causing of psychological injury now or in the future was her purpose.

The Definition of "Recklessness"

Other than in respect of the crimes of murder and sexual assault, the well-established definition of the mental state of "recklessness" in criminal law is that a person, when they performed the relevant conduct, had foresight of the possibility of harmful consequence yet performed the relevant conduct in any event (e.g. Williams v R (1990) 50 A Crim R 213). Recklessness is a mental state less than intention.
In the context of s 135 of the RV Act as applicable to the circumstances of this matter, this requires that the respondent realised that her conduct could possibly cause psychological injury now or in the future to one or both of the McConvilles.

The Definition of "Intention" and "Recklessness" In Analogous Legislation

There are no decisions of the RV Act that the Tribunal has been able to locate that discuss the relevant mental elements under s 135 of the RV Act. The submissions of the applicant were of no assistance in respect of the applicable legal principles, other than referring to a decision of the Consumer Trader and Tenancy Tribunal in Baptist Community Services v Duffin (Retirement Villages) [2010] NSWCTTT 528 ('Duffin'). That decision was brief, and did not discuss the applicable principles.
However, Section 90 of the Residential Tenancies Act 2010 (NSW) ('the RT Act') involves termination of a residential tenancy where a tenant has intentionally or recklessly caused or permitted serious damage to the residential premises; or injury to the landlord; the landlord's agent; or a neighbour.
In Cure v Bridge Housing Ltd [2014] NSWCATAP 80 ('Cure'), the Appeal Panel of the Tribunal held the applicable legal test for "intention" and "recklessness" under s 90 of the RT Act is equivalent to the criminal authorities. The Appeal Panel held it is insufficient if the actions of the tenant are intentional or reckless, there must also be foresight of the particular result those actions will cause. The Appeal Panel also pointed out (as is well established in criminal law) that the mental states of "intention" and "recklessness" can be inferred from all of the facts and circumstances of the matter.
In Cure the Appeal Panel referred to "recklessness" as involving knowledge of a particular result as "probable (or in some cases possible)" referring to Halsbury's Law of Australia as authority for that principle. There was no discussion of criminal authorities that deal with the concept of "recklessness".
Cure was cited with approval by the Appeal Panel of the Tribunal in Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 ('Lindsay'). However, Lindsay involved s 92 (1) (b) of the RT Act; being the intentional harassment or intimidation by a tenant of the landlord; the landlord's agent; or the landlord's employee. There was no discussion of the concept of recklessness.
The Tribunal is satisfied that, applying criminal law principles, "recklessness" occurs in the context of s 135 (1) (b) of the RV Act where the occupant of the village realises that the causing of psychological injury to another resident (or the operator or employee of the operator) is a possible consequence of his or her actions (rather than a probable consequence) now or in the future, and the resident performs the conduct with such knowledge.
Such an approach is, as discussed previously, consistent with the legal test for recklessness in the criminal offences of assault and aggravated assault; and also the offence of dealing with the proceeds of crime (Blackwell v R [2011] NSWCCA 93; (2011) 81 NSWLR 119; Ke v R [2021] NSWCCA 177). The same test is applied to the element of "recklessness" in environmental and planning offences (e.g. Chahoud v Penrith City Council [2020] NSWLEC 167 at [71]-[77]).

What Was The Conduct of The Respondent?

As discussed previously, the respondent denied most of the conduct alleged by the McConvilles.
However, the Tribunal accepts the evidence of the McConvilles. The Tribunal is satisfied that the respondent, since mid-2017 has engaged in repetitive harassing conduct including hosing the McConvilles residence and washing; cutting the plants of the McConvilles; putting substances on the lawn and garden of the McConvilles to kill their plans; throwing leaves and gardening debris into the yard of the McConvilles; making late night calls the McConvilles which were aggressive and abusive; and being verbally abusive towards the McConvilles whilst making unfounded accusations they had stolen the respondent's property and killed her plants.
The most serious allegation was that the respondent brandished a knife towards Mrs McConville in an incident near the boundary fence of the properties. The Tribunal is satisfied that the respondent was verbally aggressive towards Ms McConville whilst holding a small knife, but is not satisfied that she deliberately motioned the knife towards Ms McConville with an intention to cause her fear or to harm her.
The McConvilles were creditable witnesses and there is no logical reason why they would invent the pattern of behaviour from the respondent they described to the Tribunal.
Further, their version of events regarding the hosing of their property and the throwing of debris into their property is supported by the security camera footage viewed by Ms Ramage. The McConvilles have also made numerous contemporaneous complaints to Ms Ramage about the conduct of the respondent.
The evidence of Mr Smith and Ms Coote is consistent with the McConvilles making contemporaneous complaints to them about the behaviour of the respondent; and both Mr Smith and Ms Coote have viewed the McConvilles being upset and distressed by reason of the conduct of the respondent.
Further, as discussed previously, the respondent conceded that she had thrown a substance over the washing of the McConvilles. She was also forthright in her view that the McConvilles (in particular, Mrs McConville) had stolen items from her property and killed her plants.
The respondent presented to the Tribunal as a person who strongly believed (erroneously, and without any evidence) that her neighbours the McConvilles had stolen from her and killed her plants and that management of the village had "sided" with the McConvilles.
The Tribunal is satisfied that the respondent engaged in conduct towards the McConvilles because she was angry with them and as a method of causing upset and distress to the McConvilles. In the mind of the respondent, such behaviour is her way of "defending" herself and obtaining vengeance, no matter how objectively unjustified.
As discuss previously, the Tribunal does not accept that the McConvilles have done anything to justify or invite the harassing behaviour of the respondent; nor has management of the applicant not properly investigated the complaints and allegations of the respondent towards the McConvilles.
However, the evidence of Mr and Mrs McConville; and Ms Ramage did not address in detail whether the conduct of the respondent had reduced; or escalated; or remained the same since September 2020.
On 28 January 2020 the applicant wrote to the respondent regarding her behaviour towards Mr and Ms McConville. Such correspondence did not state that the applicant would take any action against the respondent in respect of terminating her lease and contract with the applicant.
On 29 April 2020 the respondent again wrote to the respondent about her behaviour towards the McConvilles. That letter refers to the respondent contravening an "agreement" with the respondent on 14 April 2020 that she would cease such behaviour, and that the respondent had "contravened" the agreement by "recently" making phone calls to the McConvilles; throwing much over the garden and onto the clothesline; and hosing into the McConvilles property in the early hours of the morning on "many occasions". The letter stated that the behaviour must "stop immediately" and that if it does not do so the applicant "would need to exercise the operator's rights under the village rules and the retirement Villages act (sic) as this behaviour is in breach of Section 86 of the Retirement Villages Act (sic)".
On 18 May 2020, the Solicitor for the applicant sent a "final warning" letter to the respondent. That letter particularised the behaviour of the respondent, but did not make reference to the period the behaviour had occurred. The letter referred to the provisions of s 83 of the RV Act; the village Rules; and clauses of the respondent's contract with the applicant that the respondent not interfere with the reasonable peace, comfort of privacy of other residents. The letter stated that if the respondent engaged in further "antisocial" behaviour the applicant would, without further warning, take proceedings in the Tribunal under s 134 of the RV Act to terminate the respondent's residence contract; or alternatively seek an order under s 83 (3) of the RV Act that the respondent comply with her obligations under the village Rules and the residence contract.
The letter of 18 May 2020 did not allege that the conduct of the respondent had caused, or was likely to cause, psychological injury to the McConvilles. It made no reference to the provisions of s 135 of the RV Act. As discussed, previously, despite the applicant filing proceedings seeking orders under s 134 of the RV Act, the applicant never issued a Notice to Terminate on the respondent for breach of village Rules or the provisions of the residence contract.
In respect of the evidence of the conduct of the respondent, the affidavit of Ms Ramage dated 24 November 2020 only refers to conduct up to August 2020. Ms Ramage's affidavit of 8 April 2021 only refers to video footage downloaded to a USB (which was not admitted into evidence, as in the context of a telephone hearing it would have been procedurally unfair to the respondent to do so) and having spoken to other residents, including Mr Smith and Ms Coote. However, there is no detail of the extent of the respondent's behaviour from September 2020.
The affidavits of Mr and Mrs McConville dated 8 April 2021 do not detail whether the conduct of the respondent has changed since September 2020; or provide any significant detail of recent events.
The affidavits of Mr and Ms McConville dated 24 May 2021 simply attach a copy of the respective reports of their General Practitioner Dr Bennett dated 8 April 2021.
The affidavits of Mr Smith and Ms Coote also do not assist in determining whether the conduct of the respondent towards the McConvilles has increased; decreased or remained the same since September 2020.
In cross examination of the respondent, there were no questions that clearly addressed whether the conduct of the respondent towards the McConvilles has increased; decreased or remained the same since September 2020. It was also never put to the respondent that she intended to cause psychological injury to the McConvilles or knew that psychological injury was a possibility as a result of her conduct.

Has The Conduct of the Respondent Caused, Or Is Likely to Cause, Psychological Injury?

The expert medical evidence relied upon by the applicant is reports of Dr Bennett dated 8 April 2021 in respect of both Mr McConville and Mrs McConville. Such reports are addressed "to whom it may concern".
The body of the reports is very similar in respect of both Mr McConville and Ms McConville. Many of sentences are identical.
Dr Bennett states "it is difficult to draw direct correlations between the upsetting situation with an apparently very disruptive neighbour" and the current health conditions of the McConvilles.
In respect of Mr McConville, Dr Bennett refers to him showing "signs of anger, frustration and depression during recent consultations".
However, the clinical notes attached to Dr Bennett's report only make reference to "anxiety/depression" on one occasions, being 15 July 2020. There is no reference to Mr McConville being prescribed any anti-depressant medication; nor being referred for treatment to a psychologist; a psychiatrist; or a geriatrician.
Dr Bennett states that Mr McConville has had significant heart problems, including a heart valve replacement in April 2020. Dr Bennett states that Mr McConville is "suffering from a significant amount of depression and anxiety as a direct consequence of the issues surrounding the relationship with his neighbour" which is "having a major impact on his perceived quality of life".
However, a reference in a report by a General Practitioner to "depression" is not sufficient to establish that Mr McConville has a recognised psychiatric illness or condition beyond anxiety, upset or distress, nor that he is likely to suffer from a psychiatric illness or condition in the future by reason of the conduct of the respondent.
In respect of Mrs McConville, the same issues arise in respect of the sufficiency of the medical evidence. Dr Bennett makes almost identical statements about Mrs McConville, with the only relevant differences being that Ms McConville would "regularly break down in tears during consultations" whenever the issue comes up" and that stress and anxiety is a causal factor in Mrs McConville suffering shingles (Herpes Zoster) in April 2020.
However, Mrs McConville's clinical notes do not make any reference to "depression". There is, as with Mr McConville, no reference to Mrs McConville being prescribed any anti-depressant medication; nor being referred for treatment by a psychologist; a psychiatrist; or a geriatrician.
As discussed previously, the Tribunal accepts the evidence of the McConvilles. Such evidence includes a past history of becoming upset, anxious and unhappy by reason of the conduct of the respondent. Mrs McConville referred to crying on occasions after receiving abusive telephone calls from the respondent; and both Mr and Mrs McConville having difficulty in sleeping.
However, as discussed previously, anxiety; anger; grief and unhappiness is not sufficient of itself to constitute psychological injury.
There is insufficient evidence for the Tribunal to be satisfied that the McConvilles currently suffer from any psychological injury as a result of the conduct of the respondent.
There is also insufficient evidence to establish that the McConvilles are likely to suffer a psychological injury in the future by reason of the past or future conduct of the respondent. Dr Bennett makes no clear reference to this issue. As discussed previously, there was no clear evidence whether or not the conduct of the respondent that had taken place up to August 2020 was continuing; and if so, whether the duration and magnitude of the conduct had increased; decreased; or remained the same.
The Tribunal accepts as a general proposition that the health (including the mental health) of an elderly person can be deleteriously affected by harassing conduct by a neighbour. However, the Tribunal can only determine this case on the evidence before it. The applicant has failed to provide sufficient evidence to satisfy the Tribunal of a current psychological injury or likely psychological injury in the future by reason of the conduct of the respondent (including likely future conduct).
Had the applicant brought this application under s 134 of the RV Act for breach of the requirements under the contract and village Rules that a resident must not unreasonably interfere with the peace, comfort, and privacy of other residents, the test for breach would have been different. It is unnecessary to speculate whether or not the Tribunal would have been satisfied the respondent's conduct would have been, in the circumstances of the case, sufficient to justify termination of the residence contract under s 134 (3) of the RV Act.
As the Tribunal is not satisfied the applicant has proved the respondent has caused, or is likely to cause, psychological injury to the McConvilles, it is unnecessary to make findings as to whether or not the applicant has established the requisite intention or recklessness.

Application for an Order Under s 83 of the RV Act

Section 83 of the RV Act states as follows: 83 Residents to respect rights of other persons (1) It is a term of every residence contract that the resident will respect the rights of other residents of, and other persons in, the village. (2) In particular, a resident - (a) must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of another resident, and (b) must respect the rights of the operator of the village, and agents and employees of the operator, to work in an environment free from harassment or intimidation, and (c) must not act in a manner that adversely affects the occupational health and safety of persons working in the village. (3) If the operator of the retirement village is of the opinion that a resident of the village has contravened any provision of this section, the operator may apply to the Tribunal for (and the Tribunal may make) an order directing the resident to comply with this section.
As discussed previously, the applicant seeks an order under s 83 (3) of the RV Act as an alternative to a termination order under s 135 of the RV Act.
From the factual findings made previously, the Tribunal is satisfied that the respondent has interfered with the reasonable peace, comfort or privacy of the McConvilles. Accordingly, breach of s 83 (2) of the RV Act is established.
Considering the duration of the conduct (which occurred between May 2017 to at least August 2020) and the failure of the respondent to accept responsibility for her actions, the Tribunal is satisfied that it is appropriate for the Tribunal to make an order under s 83 (3) of the RV Act.
Considering the nature and duration of the conduct, the Tribunal is satisfied that the order should be made for the duration of 1 year (12 months) from the date of this decision.
The applicant submitted that the Tribunal should grant the applicant a right to re-list the application for termination should the respondent fail to comply with the s 83 (3) order. In residential tenancy matters, the Tribunal (by reason of the powers it has under s 188 of the RT Act) often makes an order when a landlord seeks termination for breach of the lease that a tenant comply with the provisions of the tenancy agreement; and if they do not the landlord may re-list the matter before the Tribunal to seek a termination order without issuing a fresh Notice to Terminate.
It is unnecessary to discuss whether or not the same powers exist under the RV Act. The Tribunal notes that in Duffin the retirement village was granted a right to re-list the application to seek a termination order should the orders of the Tribunal not be complied with, but there was little discussion of how or why such a power was exercised).
However, even if the Tribunal has the power to grant a re-list, there is no utility of doing so in the circumstances of this matter.
The applicant never issued a Notice to Terminate for breach and so could not pursue an order for termination under s 134 of the RV Act. Consequently, there is no termination to re-list based on breach of the retirement village contract or village Rules, and if the applicant re-listed the proceedings before the Tribunal the only basis the Tribunal could consider termination would be under s 135 of the RV Act.
If the applicant seeks a termination order under s 134 of the RV Act, it must comply with the provisions of s 131 of the RV Act by issuing a Notice to Terminate that complies with the form of a Notice set out in Clause 49 of the RV Regulation and bring proceedings within the Tribunal in within the time limit set out in Clause 34 and Schedule 4 of the RV Regulation (unless an extension of time occurs under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW)).
The applicant cannot use this application under s 135 of the RV Act as a 'Trojan horse' to employ the provisions of s 134 of the RV Act.
Further, there is no point in making a re-list order in regards to the termination application under s 135 of the RV Act. If there is fresh conduct of the respondent that falls within the auspices of s 135 of the RV Act, the applicant can file fresh proceedings in the Tribunal without the issue of a Termination Notice.
If further proceedings are taken by the respondent in the Tribunal seeking a termination order, the findings of the Tribunal in these proceedings may be of relevance on the issue of discretion to terminate, if further breach is established.
Accordingly, a "re-list" order serves no purpose.
Finally, the Tribunal notes the respondent informed the Tribunal that she seeks to remain a resident of the village.
It is in the best interest of the respondent for her to understand that, irrespective of how she feels about the McConvilles (or management of the applicant), it is a term of her village contract that she not unreasonably interfere with the peace, comfort and privacy of the McConvilles. Her erroneous perception of their actions does not justify the conduct she has engaged in.
If the respondent engages in harassing conduct towards the McConvilles in the future, this will likely invite a fresh application by the applicant to terminate the lease and village contract of the respondent.
It is in the interests of both the McConvilles and the respondent that the respondent complies with her obligation not to unreasonably interfere with the peace, comfort and privacy of the McConvilles and take heed of the order of the Tribunal under s 83 (3) of the RV Act.

ORDERS 1. The application for a termination order is dismissed. 2. The respondent is not to cause or permit any interference with the reasonable peace, comfort and privacy of her retirement village neighbours, Mr and Mrs McConville. 3. The duration of order 2 above is 12 months from the date of this decision.

            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2021

Retirement Villages Regulation 2017(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (13)