Tindall v Ridge Estate by Teman Pty Ltd; Ridge Estate by Teman Pty Ltd v Tindall

NCAT Consumer and Commercial|2021-05-24

Applications

Mr and Mrs Tindall ("the Residents") are residents in the retirement village known as Ridge Estate Retirement Village ("the Village") operated by Ridge Estate by Teman Pty Ltd ("Teman" or "the Operator") in Gillieston Heights. There are four applications before the Tribunal:

RV 20/33760

RV 20/33760 is an application filed by Mr and Mrs Tindall, seeking orders that Teman enforce the Retirement Villages Act 1999 ("the Act") and the Village Rules in respect of what is alleged to be: "ongoing (almost daily) intimidation and harassment by Lyndsay Gibb and Diane Wade"

RV 20/40799

RV 20/40799 is an application filed by Mr and Mrs Tindall, seeking an order under s 69(2) that the Operator supply the Residents with a copy of information about the Resident(s) held by the Operator.

RV 20/42946

RV 20/42946 is an application filed by Mr and Mrs Tindall seeking an order under s 54 (1) to declare a village rule to be invalid.
The four applications were heard consecutively. Evidence in each application was accepted as evidence in the other applications. These are the decisions in the four applications, and the reasons for those decisions.

Background

Mr and Mrs Tindall have been residents in the Village since 16 March 2015. In 2019, the operator of the Village went into liquidation. Teman acquired the Village and took over operation of it from 1 July 2020. Between April 2020 and July 2020, there was some contact between James Sterland, the managing director of Teman, and residents of the Village, including Mr and Mrs Tindall.
Mr and Mrs Tindall say that they like living in the Village, but are unhappy about what they allege to be a failure by the operator Teman, and the previous operator, to prevent what they say is ongoing bullying and harrassment by other residents. Teman says that from the time it became involved with the Village, it has received numerous complaints both from and about Mr and Mrs Tindall. It says that it investigated the various complaints and formed the view that Mr and Mrs Tindall have breached the terms of their agreement and the Village Rules. In addition, Teman has formed the view that Mr Tindall may be a threat to himself, other residents or management. This is based on the fact that on 11 September 2020 Teman received a letter from Mr Tindall in which he stated inter alia that he had discussed with his psychiatrist "the very real possibility that the ongoing intimidation and harassment (almost daily) at Ridge Estate may drive me to suicide." He stated that he wanted Teman to "do something to finally cease the ongoing (almost daily) intimidation and harassment at Ridge Estate. It can easily be stopped by using written warnings that contain deadlines and consequences".
On 15 September 2020 Teman made an open offer to Mr and Mrs Tindall to refund their ingoing contribution in full if they would vacate the village. Mr and Mrs Tindall did not accept the offer.
On 25 September 2020 Teman served a notice of intention to seek termination of the village contract and vacant possession of the unit.

RV 20/42946

RV 20/42946 is the application filed by Mr and Mrs Tindall seeking an order under s 54 (1) to declare a village rule to be invalid. I deal with it first because Mr and Mrs Tindall say that the bullying they allege started as a result of this issue. On the other hand Teman says that the fact that Mr and Mrs Tindall remain fixated on this issue supports its submission that Mr and Mrs Tindall are unsuited to community living.
Mr and Mrs Tindall said at the hearing that they have no real issue with the contents of the village rule itself, but they complain that the correct process was not followed when the rule was made or amended in 2019, and that the rule is thus invalid. They say: 1. On 15 May 2019 notice of a proposed change to the village rules was given to residents on behalf of the operator by the village manager Leanne Schmitzer. The notification included: "4 Parking (3) Operators of mobility scooters are to conform to the speed limit. Care should be exercised at all times and in all cases scooters are to give way to vehicles and pedestrians. Scooters must be driven forwards towards oncoming traffic on the right hand side of the road. … (7) Residents with two (2) cars must park their second car on Ryans Road from 9 am to 5 pm Monday to Friday. The second car can be parked in visitor parking overnight from 5pm to 9 am Monday to Friday." 1. On 24 May 2019 the Village Manager advised that the amendment had been passed. 2. There were only 10 days between the date of the notice and notification that the changes had been made. The Regulations require 21 days notice. 3. Mr and Mrs Tindall advised the Residents Committee that in their view there were shortcomings in respect of the proposed alterations. 4. An agenda for a residents committee meeting was circularised. It stated that the village rules were to be discussed but it did not set out any proposed resolution, specify that a special resolution was required, give 21 days notice, contain a ballot paper initialled by the returning officer, specify that residents could submit their vote in writing before the meeting or give 21 days notice. 5. On 11 June 2019 an ordinary resolution was passed to amend the rules to adopt the following: "4 Parking (3) Operators of mobility scooters are to conform to the speed limit. Care should be exercised at all times and in all cases scooters are to give way to vehicles and pedestrians. Scooters must be driven on the right hand side of the road. … (7) Residents with two (2) cars must park their second car outside the village from 9 am to 5 pm Monday to Friday. The second car can be parked in visitor parking overnight from 5pm to 9 am Monday to Friday." 1. The copy of the village rules which was supplied to Mr Tindall after what he says were many unanswered requests contains statements that the amendment to the rules was passed by special resolution on 3 June 2019. These statements are, Mr Tindall submits, "fraudulent". 2. Mr and Mrs Tindall lodged an application with NCAT on 22 August 2019. That application was withdrawn when the then operator went into receivership.
Teman does not address the matters raised by Mr and Mrs Tindall, save to submit that the fact that they are raising the matters shows that they cannot let go of things from the past, and are unsuited to community living.
However it is apparent that, if the evidence given by Mr and Mrs Tindall is accepted (and in the absence of any dispute to that evidence there would seem to be no reason for the Tribunal not to accept it), then the amendments to the rules, both in May and June 2019, have not been carried out in accordance with the Retirement Villages Act and the Regulations.
The Tribunal's power is found in s 54: 54 OTHER APPLICATIONS TO TRIBUNAL CONCERNING VILLAGE RULES (1) The operator of a retirement village or a resident of the village may, at any time, apply to the Tribunal for an order in relation to either or both of the following-- (a) a dispute concerning the legal validity of a village rule in force in the village, (b) a village rule in force in the village that the operator or resident considers to be unjust, unconscionable, harsh or oppressive. (2) The Tribunal may determine an application made under subsection (1) by making an order-- (a) setting aside the village rule concerned, or (b) modifying the operation of the rule in its application to a resident or to some or all of the residents of the village, or (c) upholding the rule.
This is a dispute about the legal validity of Rule 4. As I am satisfied that the rule has not been validly made, it is appropriate that I make an order setting it aside. It will be open to the residents to convene a meeting, on proper notice, and to regularise the rule by passing a special resolution, if that is the wish of the residents.

RV 20/40799

RV 20/40799 is the application filed by Mr and Mrs Tindall, seeking an order under s 69(2) that the Operator supply them with a copy of information about them held by the Operator.
By the date of the hearing Teman had supplied information to Mr and Mrs Tindall. Mr and Mrs Tindall also sought to be provided with a copy of the medical report received by Teman and referred to in the complaint made on behalf of Mr and Mrs Mead. Teman said that the report was a report relating to Mr and Mrs Mead and contained their confidential information, was not information held by them about Mr and Mrs Teman, and declined to provide it. Mrs Tindall said that they understood that.
The Tribunal accepts the evidence given by Teman that all information has been supplied. The Tribunal is not satisfied that there is any basis for an order to be made in respect of this issue and the application is dismissed.

RV 20/33760

RV 20/33760 is the application filed by Mr and Mrs Tindall, seeking orders that Teman enforce the Retirement Villages Act 1999 ("the Act") and the Village Rules in respect of what is alleged to be: "ongoing (almost daily) intimidation and harassment by Lyndsay Gibb and Diane Wade"
At the commencement of the hearing the Tribunal noted that, as Teman had only become the Operator of the Village on 1 July 2020, the Tribunal would concentrate on incidents complained of after that date.
Mr and Mrs Tindall complain that Teman has failed to reply to their complaints, and has failed to follow their own complaints policy. They say that they are being bullied by Lyndsay Gibb, Diane Wade and "their supporters". They say the bullying takes the form of vexatious complaints to management, a physical injury to Mr Tindall's ear when a car horn was honked in close proximity to him, stalking, nuisance phone calls, poison pen letters, junk mail placed in their letterbox, cyberstalking on their facebook pages, verbal insults, property damage, contacting Police, and whistling outside their unit.
In the hearing Teman addressed the complaints made by Mr and Mrs Tindall as follows: 1. Teman submitted that it has investigated the complaints made by other residents, and has satisfied itself in respect of them. 2. In respect of the physical injury to Mr Tindall's ear when he alleges that a car horn was honked in close proximity to him, Teman says that the letter from Mr Tindall's doctor is evidence of what he told the doctor, but not evidence that the incident occurred. There is no evidence of any permanent damage being caused to Mr Tindall. The incident is alleged to have occurred doing a period of heightened conflict between Mr and Mrs Tindall and other residents in the Village 3. In respect of the alleged stalking, Teman says that the evidence supplied by Mr and Mrs Tindall does not support their allegation. Teman says that in effect Mr and Mrs Tindall assume that the behaviour of other residents is directed at them, when those residents are merely going about their own business. 4. Teman says that there is no evidence that nuisance phone calls have been made by other residents. It is more likely that those calls are the usual nuisance calls made by telemarketers and others unrelated to the village. 5. Teman spoke to a resident in relation to Mr and Mrs Tindall's allegations in respect of the junk mail, and wrote to her to remind her of the rules. In addition, a camera has been placed near the garbage bins. 6. In respect of the Facebook pages, Teman says that the Wispurin Gums Retyrement Village page is deliberately provocative. Residents can be identified and have complained to Teman about the page. 7. Teman says that in at least some of the incidents recorded by Mr and Mrs Tindall, other residents have been reacting to Mr and Mrs Tindall's actions. In particular residents have complained to Teman that they do not like being filmed by Mr and Mrs Tindall. 8. The alleged property damage occurred in 2019. Teman was not the operator at that time. 9. Police have attended, at Teman's request, but the complaints both by and about Mr and Mrs Tindall did not abate. 10. The complaint that Ms Wade whistles outside Mr and Mrs Tindall's unit is further evidence that they perceive the behaviour of other residents to be directed at them. Teman has spoken to Ms Wade but submits that some background noise is to be expected in community living.

Consideration

The order sought by Mr and Mrs Tindall (see p 12 of the folder of documents) is: We want Teman to follow NSW law (Retirement Village Act 1999 No 81, Division 3, Certain rights of residents 66 Operator to respect rights of residents) and House Rules Ver 1.1 (10191010) Noise so that we may continue to live happily in our villa at Teman Ridge Estate without intimidation and harassment by Lyndsey Gibb, Diane Wade, Gail Bohatko and their supporters.
Section 66 RVA provides as follows: 66 OPERATOR TO RESPECT RIGHTS OF RESIDENTS (1) The operator of a retirement village must respect the rights of residents of the village. (2) In particular, the operator-- (a) must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of a resident, and (b) must take all reasonable steps to ensure that all residents meet their obligations under their village contracts, the village rules and this Act, so that a resident does not unreasonably interfere with the peace, comfort and quiet enjoyment of his or her fellow residents, and (c) must not interfere with the right of any resident to autonomy over his or her personal, financial and other matters and over his or her possessions, and (d) must not inhibit any resident from exercising self-reliance in matters relating to his or her personal, domestic and financial affairs, and (e) must use his or her best endeavours to ensure that each resident lives in an environment free from harassment and intimidation. (3) A resident of a retirement village who is of the opinion that the operator of the village has contravened any provision of this section in relation to the resident may apply to the Tribunal for an order for either or both of the following-- (a) an order directing the operator to pay compensation to the resident, (b) an order directing the operator to comply with this section. (4) On an application made under this section, the Tribunal may make the order sought or any other order of a kind set out in subsection (3).
The "House Rules" referred to by Mr and Mrs Tindall include the following: 3 Noise (1) As with any other residential complex, a level of noise within the village is to be expected. However, you must not make any noise likely to unreasonably interfere with the quiet enjoyment of others within the village. This rule applies whether you are inside your premises or on common areas. (2) When listening to music or a radio, or playing computer games, or watching television, you should not have the volume turned high enough to be heard from outside your premises. Residents with hearing problems are encouraged to use headphones or other aids.
Mr and Mrs Tindall have provided a list of 23 complaints which they made between 5 August 2020 and 14 September 2020. They made 10 separate complaints in the four days between 26 and 29 August 2020. The complaint on 13 September itemised numerous incidents between 29 August 2020 and 13 September 2020. They complain that none of these complaints has been properly addressed by Teman.
At the hearing Ms Connors gave evidence that these complaints were made at the time of escalating conflict between Mr and Mrs Tindall and other residents. Ms Connors says she determined that the appropriate action was for her to make a file note of incidents in which she was involved. She also asked the Police to speak to both parties. The matter was escalated to management. She said that because the complaints were in respect of categories of behaviour by other residents, and because Teman had determined that generally the behaviour was not directed at Mr and Mrs Tindall, this was the appropriate course for it to adopt.
Ms Connors also gave evidence that she investigated the complaints made in respect of Ms Wade whistling. She determined that the whistling was not unreasonable and she advised Mr and Mrs Tindall of that in writing on 9 October 2020.
I have watched and listened to the videos provided to the Tribunal by Mr and Mrs Tindall in support of their complaints. I am not satisfied that that evidence supports a finding that the other residents' behaviour amounts to bullying and harassment. It is clear that on some occasions, singing and whistling can be heard within Mr and Mrs Tindall's unit. I am however satisfied that the level of that noise does not unreasonably interfere with Mr and Mrs Tindall's quiet enjoyment of their premises.
Likewise it is apparent that laughter, singing and whistling can be heard from Mr and Mrs Tindall's porch when they are outside. I am satisfied that the level of that noise does not unreasonably interfere with Mr and Mrs Tindall's quiet enjoyment of their premises.
Mr and Mrs Tindall complain of car horns honking, on one occasion in close proximity to Mr Tindall causing an injury to his ear, and on another occasion, they allege that the occupants of the car looked in their window. I am satisfied that the honking of a car horn is not evidence of harassment or bullying. The doctor's report which Mr Tindall relies upon is evidence of what Mr Tindall told the doctor, but it is not evidence of a breach of Mr Tindall's quiet enjoyment.
A number of complaints were made by Mr and Mrs Tindall in relation to junk mail being placed in their mail box. On 31 July Ms Connor advised Mr and Mrs Tindall that all residents were receiving junk mail, but said that a proposed camera would enable the mailboxes to be seen. Then on 7 August, Mr and Mrs Tindall provided evidence that Ms Cooper of villa 34 was placing junk mail in the letter box. Teman responded by saying that they had spoken to her and reminded her of the Code of conduct.
Further complaints were made by Mr and Mrs Tindall on 28 August 2020, 1 September 2020 and on 14 September 2020. These complaints concerned what were alleged to be doctored newspaper clippings and targeted junk mail in their mail box. This could amount to harassment, and ought to have been investigated by Teman. I cannot find any evidence that, if action was taken by Teman in respect of these complaints, that action was communicated to Mr and Mrs Tindall.
Mr and Mrs Tindall perceive that residents' behaviour (Ms Wade whistling, Mr Gibb walking past their unit, car horns honking, people looking in their window) is directed at them. I am unable to make a finding that this is the case. I note that neither Mr Gibb nor Ms Wade gave evidence to the Tribunal, and they have not placed their version of these events before the Tribunal. The evidence supplied by Mr and Mrs Tindall does not support this finding.
However there is no doubt that there is significant disharmony between Mr and Mrs Tindall and other residents. There is evidence of: 1. Other residents keeping daily records of their complaints about Mr and Mrs Tindall. 2. Ms Wade indicating that she knew that she was blocking the exit to the Village when Mr and Mrs Tindall were seeking to exit but "I certainly didn't jump to attention when he was behind me at the gate". 1. She records that he "blasted" his horn and she then "beeped" hers. She stopped again, and she says that Mr Tindall again beeped his horn and said to her "Get out of the way you stupid bitch". 1. Mr Tindall says that Ms Wade was still blocking the road at that time. 2. This incident is evidence of both Mr Tindall and Ms Wade engaging in behaviour which had the effect of exacerbating the conflict between them. 3. Mr Gibb referring to Mr Tindall as "the devil" when advising residents that he was to attend mediation with Mr and Mrs Tindall. Mr Tindall also alleges that other residents attended the Court on the day of that mediation and formed a guard of honour, which Mr and Mrs Tindall found to be intimidating. (This incident occurred before Teman became the operator and I do not rely upon it in making the findings below). 4. Doctored junk mail being placed in Mr and Mrs Tindall's mail box.
A village operator has a positive obligation to use its best endeavours to ensure that each resident lives in an environment free from harassment and intimidation [s 66 (2) (e)]. By the time some of these complaints were received, Mr Sterling says that he had formed a view that Mr and Mrs Tindall had breached their agreement, and that "Mark, in particular, was simply unable to live in harmony in the Village due to mental health issues."
By mid September 2020, Teman had determined to seek the termination of Mr and Mrs Tindall's agreement. However, this decision did not relieve Teman from its obligations to them under s 66 of the Act.
I will examine the evidence in Teman's application before setting out the orders in both.

RV 20/41472

RV 20/41472 is the application filed by Teman against Mr and Mrs Tindall, seeking termination of their agreement, and vacant possession of their unit, pursuant to s 134 (1) of the Act for alleged breach of the Village Contract and the Village Rules, and under s 135 (1) on the grounds that the residents are likely to cause injury to the Operator, employee or other residents.

The law

Teman's application for termination is brought under s 134 and s 135. An application pursuant to s 134 requires that notice of intention to seek termination be given under s 131: 131 NOTICE OF INTENTION TO SEEK TERMINATION (1) If the operator or a resident of a retirement village intends to apply to the Tribunal for an order terminating a residence contract, the intending applicant must give the other party to the contract written notice of that intention, except as otherwise provided by this Act. (2) The notice is to be given in the form, and within the time, prescribed by the regulations. (3) The Tribunal is not to make an order terminating a residence contract unless it is satisfied that the notice (if required) has been duly given. 134 TERMINATION ON GROUNDS OF BREACH OF VILLAGE CONTRACT OR RULES (1) The operator of a retirement village may apply to the Tribunal for an order terminating the residence contract of a resident of the village who breaches any village contract between the resident and the operator or breaches a village rule. (2) A resident of a retirement village may apply to the Tribunal for an order terminating his or her residence contract if the operator breaches any village contract between the resident and the operator or breaches a village rule. (3) The Tribunal may, on application made under this section, make an order terminating the residence contract, but only if it is satisfied that-- (a) the breach, in the circumstances of the case, is such as to justify termination of the contract, or (b) persistent breaches by the resident or operator concerned are, in the circumstances of the case, such as to justify termination of the contract. (4) 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. (5) If the Tribunal forms the opinion, in the course of proceedings under this section, that a village rule is unjust, unconscionable, harsh or oppressive, it may make an order-- (a) setting aside the rule, or (b) modifying the operation of the rule, either in its application to the operator or to a resident (or to some or all of the residents) of the retirement village concerned. 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.
There is an issue in respect of the validity of the notice, because rather than placing a tick next to the grounds relied upon, Teman used bold font to identify the relevant grounds.
The issues to be determined are these: 1. Is the notice of intention to seek termination valid? In particular, is it rendered invalid because the reasons for seeking the order have been printed in bold, but no tick has been placed in the box next to each reason provided? 2. Have Mr and Mrs Tindall breached the village contract and/or the village rules? 3. If so, is the breach, in the circumstances of the case, such as to justify termination of the contract, or are there persistent breaches by Mr and Mrs Tindall which are, in the circumstances of the case, such as to justify termination of the contract? 4. Have Mr and Mrs Tindall intentionally or recklessly caused or permitted, injury to an employee of the operator or any other resident, or are they likely intentionally or recklessly to s do so? 5. If the residence contract is to be terminated, when should Mr and Mrs Tindall be required to give vacant possession of their premises?

The alleged breaches of the agreement

Teman allege the following breaches: Term 10.1 (a) & (c) of the village contract by use of a loud whistle which was audible in other villas and interfered with the hearing aids of other residents, causing them discomfort and compromising the safety of at least one other resident (12/09/2020), Term 10.1 (a) of the village contract by: Yelling at other residents in an abusive manner (for example "the bitch is home!" 9/7/2020 Yelling at other residents in an intimidating manner (for example, "I am taking out a personal AVO against you" 29/08/2020 Yelling at a child who was a guest of another resident and who had approached your villa 41 to hear the words to the music "Bessie the Cow" which was being played loudly in breach of rule 3 of the village rules (28/08/2020) Making derogatory posts to Facebook Page "Wispurin Gums Retyrement Village" about residents and family members Filming other residents in an intimidating manner (4/8/2020, 6/8/2020, 4/9/2020) Verbal abuse directed at other residents (4/8/2020, 6/8/2020, 8/9/2020 and 12/9/2020) Verbal intimidation directed at another resident (For example, "Why don't you drop dead" 26/8/2020) Mimicking the behaviour of another resident in a mocking manner (26/08/2020) Term 10 (b) of the village contract by yelling at the Village Manager both in person (1/7/2020, 4/8/2020) and on the telephone (1/8/2020) Term 25.8 (b) of your village contract by putting up a sign which is visible from outside your villa. The sign reads :"SECURITY CAMERA BECAUSE OF 6 MONTHS INTIMIDATION AND HARRASSMENT" Term 28.1 (b), 28.7 of your village contract by installation of security cameras on your villa without consent. Term 27.2 (c) of your village contract by driving in excess of the speed limit Village Rule number 3 by: use of a loud whistle which was audible in other villas and interfered with the hearing aids of other residents, causing them discomfort and compromising the safety of at least one other resident (12/09/2020 playing loud music when other residents are nearby, particularly "Bessie the Cow" (27/8/2020 & 28/8/2020) and whistling music (6/8/2020 & 27/8/2020) and loud yelling (For example, "Bessie the Heffer, Bessie Queen of all the cosw" (1/8/2020) You have intentionally or recklessly caused or permitted, or are likely to intentionally or recklessly cause or permit: (c) injury to an employee of the operator or (d) injury to any other resident."
Teman relied on evidence from Ms Connors, the village manager, and Mr Sterland, Teman's managing director. Teman also relied upon copies of the various complaints which it had received from other residents in the village. It did not provide statements from any of them, and did not call any of them to give evidence.
The complaints themselves are evidence that the complaints were received, but they cannot be used to prove the content of the complaints. That is, the complaints do not prove that the incident complained of occurred in the manner alleged. Furthermore, some of the complaints themselves appear to recite what the complainant has been told by others, rather than what the complainant has observed himself. Some of the documents do not identify the author. The weight that can be given to these documents and complaints is limited by these matters.
In respect of each of the alleged breaches:

Breach of term 10.1 (a) & (c) of the village contract by use of a loud whistle which was audible in other villas and interfered with the hearing aids of other residents, causing them discomfort and compromising the safety of at least one other resident (12/09/2020),

This incident is referred to in: 1. the diary complaint annexed "G" to the affidavit of Tania Connor. The author of the complaint is not identified. The details of what is said to have happened on 12 September appears to be a record of what the author of the record has been told by others. 2. the feedback complaint of Gail Bohatko (who may have been the author of the diary note, but that is not clear). Again, the record appears to be a record of what Ms Bohatko has been told by others. 3. the complaint made by Rosemary Gill. She said that she was walking around the village with some other residents and heard a whistling noise "which was most annoying especially if you have hearing aids" coming from Mr and Mrs Tindall's place. She says that Betty Mead asked Mark to turn it off, "and he came out shouting about distancing and recording." She says that she cannot be sure exactly what he said because she didn't have her hearing aids in. Thus the observation that the whistling sound was annoying if you have hearing aids appears to be something Ms Gill has concluded by reference to someone else's experience. 4. The complaint made by Louise McClelland, Betty and Norm Mead's daughter, on her parents' behalf. She does not say that she witnessed the incident herself, and appears to be relaying what she has been told by her parents. She said that the noise affected her mother's hearing aids and caused pain in her head. She says that her parents were very shaken by the incident.
Mr and Mrs Tindall say they do not own a whistle. They deny the incident on this basis.
To the extent that there is an allegation that Mr and Mrs Tindall used a whistle, that allegation is not supported by the evidence. However, on the balance of probabilities, taking into account that the incident was complained of by more than one complainant, I am satisfied that a whistling sound was heard by both Mrs Betty Mead and Ms Rosemary Gill. The noise was a loud noise which interfered with their peace and quiet enjoyment. It interfered with Mrs Mead's hearing aids.
I am satisfied that the whistling noise disturbed the peace and comfort of other residents and was a breach of clause 10.1 (a) of the agreement and the village rules. I am not satisfied on the evidence that the noise adversely affected the health or safety of persons working in the village (clause 10.1 (c), and this alleged breach is not made out.
There is no evidence that Mr Tindall acted to remedy the breach when it was brought to his attention by Mrs Mead. In these proceedings Mr Tindall has sought to argue in respect of the technicality (as to whether he owns a whistle) rather than addressing the substance of the complaint (the whistling noise). He did acknowledge that the noise may have been related to his recording equipment.

Yelling at other residents in an abusive manner (for example "the bitch is home!" 9/7/2020

The evidence to support this claimed breach appears to be a complaint made on 9 September 2020 by Di Wade. She says that an incident occurred on 8 September 2020. She alleges that Mark "came speeding around the corner" and both Mr and Mrs Tindall called out "The bitch is home." Mr and Mrs Tindall say that they do not recall the incident.
The evidence is insufficient to support a finding that this incident occurred in the way it was described by Ms Wade, as the complaint cannot be used to prove the substance of the complaint.

Yelling at other residents in an intimidating manner (for example, "I am taking out a personal AVO against you" 29/08/2020

The evidence in support of this allegation appears to be a note in the complaints journal: "Di and Paul my verandah. He yelled at both. Told Di in front of boys taking out a PAVO. The 6 year old asked what that meant."
The author of the note is not identified. The weight which can be given to the evidence does not support a finding that the incident occurred in the way complained of.
Mr and Mrs Tindall say they do not recall this incident.

Yelling at a child who was a guest of another resident and who had approached your villa 41 to hear the words to the music "Bessie the Cow" which was being played loudly in breach of rule 3 of the village rules (28/08/2020)

This incident was recorded by Mr and Mrs Tindall's doorbell camera, but without sound. I will examine this incident separately.

Making derogatory posts to Facebook Page "Wispurin Gums Retyrement Village" about residents and family members

Mr and Mrs Tindall claim that the Facebook page is satire. That may well be the case but I am satisfied that, where the link between the fictitious page and the Village can readily be made, the page is inflammatory and provocative. There are posts in which Ms Wade and her son can be identified by person who know them. In one post, a photo of Ms Wade with her face obscured is headed: "Spy the Whistlin Honka clutchin her pearls. No pearls. Oh well. She gorgeous coz she can larf, coff sneez and pee all at the same time."
Another post features a picture of a cow in a stall. The text reads inter alia: "She likes to hear the cowboy song Bessie the Heifer by Little Jimmy Dickens so we plays it all the time for her".
Yet another post shows a photo of Ms Wade's son's car with the words: "Oh! Look at Spy the Whislin Honkas son who gotted a car that can go BRRRRRM BRRRRM!!!!!! He goes BRRRRM BRRRRM 4 times today coz he a brain dead rev head. Spy the Whislin Honka has gotted a familee of brain dead peeple. So sad but gorgeous! El Duce Grub approves coz he brain dead as well."
The posts to this page are provocative. They are offensive to those mentioned in them. They are not conducive to harmonious community living. They may even be defamatory. [I note that there can be occasions when visual art is used to deprecate or make fun of persons (see the articles by Mandy van den Elshout and Vincent Floo "From Pantsdown to Kenny - Satire Still at Large ", Arts Law centre of Australia, and Christina Moloney "Defamation and Satire, Drawing the Line, Communication Law Bulletin No 24 2006 p 7)].
I am satisfied that in making these posts, Mr Tindall has interfered with the reasonable peace and privacy of those residents who are targeted in them. I am satisfied that the making of the posts is a breach of clause 10.1 (a) of the agreement.

Filming other residents in an intimidating manner (4/8/2020, 6/8/2020, 4/9/2020)

I have been unable to identify the evidence relied upon in respect of all of these allegations. There is a complaint lodged by Ms Di Wade. She says that on 6 August 2020 she was whistling as she took rubbish to the bins. She alleges that Mr Tindall began yelling "intimidation" and then Mrs Tindall called her a "fat arse". She responded by saying "I may have a fat arse but you need to do something about your teeth". She alleges that Mr Tindall filmed her "from leaving my villa to returning". She also alleges that Mr Tindall played whistling music, loudly from his villa.
The weight which I can give to this evidence is limited. However, on the balance of probabilities Mr Tindall did film Ms Wade in the context of an exchange of insults between them.
I have been unable to locate the evidence supporting the complaints on 4 August 2020 or 4 September 2020. However, I accept that from at least the time of the installation of the doorbell camera, Mr and Mrs Tindall have filmed other residents on common property and in some cases within the precincts of their own units.

Verbal abuse directed at other residents (4/8/2020, 6/8/2020, 8/9/2020 and 12/9/2020)

The incident on 4 August is apparently that referred to above. I am satisfied that on the balance of probabilities verbal abuse was directed towards Ms Wade by Mr and Mrs Tindall. There is also evidence in that complaint of abuse being directed by Ms Wade towards Mr and Mrs Tindall.
I have been unable to locate the evidence relied upon to support the other incidents. In any event, there is insufficient detail of the allegations to enable any finding to be made in respect of them.

Verbal intimidation directed at another resident (For example, "Why don't you drop dead" 26/8/2020) and

Mimicking the behaviour of another resident in a mocking manner (26/08/2020)

These allegations apparently arise out of a complaint dated 26 August 2020 by Ms Gloria Bundy. She alleges that she was walking past villa 41 and Mr Tindall mimicked her coughing. Mrs Tindall said "Why don't you drop dead?" She replied "I wish I could - it would be better than putting up with you bloody lot".
Mr and Mrs Tindall do not respond to the allegation.
The weight which I can give to this evidence is limited. However, on the basis that it is not denied by Mr and Mrs Tindall, I find that there was an incident as alleged.

Term 10 (b) of the village contract by yelling at the Village Manager both in person (1/7/2020, 4/8/2020) and on the telephone (1/8/2020)

Ms Connor gave evidence that Mr Tindall had yelled at her when he invited her into his unit after reading the electricity meter on 1 July 2020. She asked him not to yell at her. When he continued to do so she left the unit. Mrs Tindall followed her out And said that Mr Tindall was very stressed.
Ms Connor also gave evidence that Mr Tindall yelled at her in the office on 3 August 2020, and over the phone on 4 August 2020.
I can find no evidence to support a finding that Mr Tindall yelled at Ms Connor on 1 August 2020.
Mr and Mrs Tindall deny that either of them has ever yelled, except they say when they were yelling over the sound of Ms Wade's son revving his car.
I prefer the evidence of Ms Connor. I take into account that she alleges that the yelling happened in the context of Mr Tindall expressing his frustration at what he saw as Teman's failure to act on his various complaints. I find on the balance of probabilities that Mr Tindall did raise his voice whilst forcefully arguing his position.
I am satisfied that in yelling at Ms Connors Mr Tindall breached the terms of his village contract.

Term 25.8 (b) of your village contract by putting up a sign which is visible from outside your villa. The sign reads "SECURITY CAMERA BECAUSE OF 6 MONTHS INTIMIDATION AND HARRASSMENT"

Mr and Mrs Tindall do not deny putting up the sign. They say they took it down when asked. Clause 25.8 of the agreement states that a resident must not put up any signs which are visible outside the unit. I am satisfied that Mr and Mrs Tindall have breached this term of the agreement.

Term 28.1 (b), 28.7 of your village contract by installation of security cameras on your villa without consent.

Mr and Mrs Tindall say they did not have a camera without consent, but rather they placed a guitar tuner in the blind and told other residents that it was a camera. They then obtained consent to have the doorbell camera.
I am not satisfied that this breach has been made out.

Term 27.2 (c) of your village contract by driving in excess of the speed limit

I can make no finding in respect of this alleged breach as it is not particularised as to date or time.

Use of a loud whistle which was audible in other villas and interfered with the hearing aids of other residents, causing them discomfort and compromising the safety of at least one other resident (12/09/2020

This has been dealt with above.

Playing loud music when other residents are nearby, particularly "Bessie the Cow" (27/8/2020 & 28/8/2020) and whistling music (6/8/2020 & 27/8/2020)

The incident on 28 August is referred to in a complaint received from Louise McClelland, Mr and Mrs Mead's daughter. Ms Connor also gave evidence that she heard the music being played on that day. Mr and Mrs Tindall have provided a video of a child coming to their front patio to record. Other complainants say that "Bessie the Cow" music was being played on that occasion.
Mr and Mrs Tindall say that there is no such music as "Bessie the Cow". Mr Tindall said during the hearing" "Bessie the Heifer is not the same as Bessie the Cow".
I asked Mr Tindall if the music referred to would have been "Bessie the Heifer", as that is the song referred to on the Wispurin Gums Facebook page. Mr Tindall was evasive in his answer. He said that the Facebook page is fictional and unrelated to the Village. He said that he has lots of music, and he "may have" played that particular song. He said "I reject that I play the song to annoy the neighbour". When I asked whether he played the song "all the time" he said "We don't play it daily, on a daily basis. It's not a regular thing we do". He was not open in the evidence he gave, and sought to rely on the technicality as to the name of the song. He showed no contrition for any disturbance complained of by his neighbours.
I also note that Mr Tindall provided video of an incident which occurred on 29 August 2020 when a child came to his verandah with an Ipad. The video had no sound. Mr Tindall said that was because he hadn't worked out how the camera worked. Other complainants said that Bessie music was being played at that time.
I am satisfied that Mr and Mrs Tindall played the song "Bessie the Heifer" and that the playing of that music, which could be heard outside their unit, interfered with the reasonable quiet enjoyment of other resident's premises.
I have been unable to identify the evidence relied upon in respect of the allegation of whistling music.

Loud yelling (For example, "Bessie the Heffer, Bessie Queen of all the cows" (1/8/2020)

Di Wade lodged a complaint that on 1 August Mark and Bev on verandah, then "Bessie the heffer" "Bessie Queen of all the cows" The unnamed complainant records that the incident involved "Bessie the Cow" Bessie the Big Fat Cow" It is unclear whether the unnamed complainant actually observed the incident. The workds alleged are different in each report.
The evidence is insufficient to support a finding that the incident took place as alleged, as the complaint does not prove the content of the complaint.

Conclusion - have Mr and Mrs Tindall breached the agreement and the village rules?

Taking all of the evidence into account I am satisfied that Mr and Mrs Tindall have breached the agreement and the village rules. However, many of the allegations made against them are not supported by the evidence. You have intentionally or recklessly caused or permitted, or are likely to intentionally or recklessly cause or permit: (c) injury to an employee of the operator or (d) injury to any other resident."
There is no evidence that Mr and Mrs Tindall have caused injury to anyone. Teman says however that the fact that Mr Tindall has indicated that his mental health is being impacted by what he perceives as bullying and harassment represents a risk that injury may be caused.
I am not satisfied that the evidence supports this claim. There is no evidence of any intentional or reckless action by Mr or Mrs Tindall which would support a finding that it is likely that either of them will cause injury to any person.

What orders should the Tribunal make?

The Tribunal may make an order terminating a residence agreement but only if satisfied that the breach, in the circumstances of the case, is such as to justify termination of the contract, or persistent breaches are, in the circumstances of the case, such as to justify termination of the contract.
I am not satisfied that this is the case. I note that there have been many complaints made against Mr and Mrs Tindall, and in the absence of direct evidence from those complainants, I have been unable to make findings that the incidents complained of took place in the way alleged. However, I am satisfied that Mr and Mrs Tindall have engaged in behaviour towards the Ms Connor which breached the agreement. In addition, the playing of loud music, and particularly music which carries an imputation of ridicule towards another resident, breaches the agreement. The ridicule of residents on a satirical Facebook page is a breach of the agreement.
Mrs Tindall said during the hearing that they had modified their behaviour but Mr Tindall took a legalistic approach towards the complaints. At no time did he acknowledge the behaviour complained of or take any responsibility for any effect which his behaviour may be having on other residents.
On the other hand I am satisfied that other residents have contributed to the disharmony. I listed some examples above.
In addition I note that Mr and Mrs Tindall were not afforded procedural fairness in respect of some of the complaints made against them. Many of the complainants asked that Mr Tindall be spoken to, but that does not seem to have occurred. Many of the complaints were only brought to their attention in these proceedings.
At this time I am not satisfied that the proven breaches of the agreement warrant termination of the agreement and for this reason I do not need to determine whether the notice of termination is rendered invalid because the grounds were bolded rather than ticked. Without determining the matter I think it likely that the instruction as to completion does not form part of the form, and thus the notice remains valid. However Teman would be advised to follow the instructions in any future notice.
The application for termination is dismissed. I will make an order requiring Mr and Mrs Tindall to comply with the terms of their agreement and the village rules, Any further breaches may result in the termination of the agreement.
On Mr and Mrs Tindall's application, I am satisfied that Teman has not properly investigated some of the complaints made by them. I will make an order requiring Teman to comply with s 66 of the Act.

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: 16 August 2021

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

Legislation Cited (1)

Cited By (1)