QCAT – THE IMPORTANCE OF TRIBUNAL TRANSCRIPTS

If there is no relevant legislation applicable to an issue then case law can be used to find a solution.  Tribunal transcripts of retirement village disputes constitute an important area of case law for residents in retirement villages.

 

Pre-QCAT (Queensland Civil and Administrative Tribunal) Tribunal decisions are considered as if they were QCAT decisions.  Similar disputes settled by previous Tribunals can be important precedents to support one’s arguments before a current Mediation or Tribunal.

 
In the list of pre-QCAT cases below a red asterisk has been placed beside the more important transcripts, and the brief Case Outlines for these transcripts will take priority over the other disputes in the completion of this project.
The brief outlines have been prepared to help ARQRV members find relevant cases to support their own arguments at Mediation or at the Tribunal if they choose to represent themselves.
These outlines will refer readers to the FULL transcript in each case because it would be too simplistic or misleading to ignore the arguments of the Applicant and / or the Respondent, and the detailed reasons for the decision(s) by the Tribunal Members.
The list of abbreviations below includes legal abbreviations and is used to make the summaries more concise.
CCTAct   Commercial and Consumer Tribunal Act 2003 (Qld)
CPI         Consumer Price Index
GSC       General Service Charge
GSF       General Services Fund
MRF       Maintenance Reserve Fund
ORs       Others
RVAct     Retirement Villages Act 1999 (Qld)
S            Section (s)
SO       Scheme Operator
Links to Tribunal Transcripts
Links to Transcripts of Retirement Village Tribunal Cases Prior to QCAT
 
The Tribunal cases from 2001-2009 listed below are important since many current and future disputes by residents can use the pertinent and relevant Tribunal decisions from specific cases to support their case at Mediation or at the Tribunal.
  Case Outlines and the sections of the RVAct involved will be added regularly until this project is completed.  The transcripts will also help residents how to present their case before the Tribunal. (SEE ‘The Importance of Tribunal Transcripts’ above.)
QUEENSLAND RETIREMENT VILLAGES TRIBUNAL DECISIONS
 
September 2001

Representation:     Applicant (Self), and Respondent (represented by a solicitor).

Catchwords:               False or misleading documents, and Budget layout.
Act(s) and Section(s):  RVAct              S 86 False or Misleading Documents
                                                            S 113 Annual Financial Statements
                                                            S 131 Annual Meeting
S 170 Resident may apply for order if given false or misleading documents
S 193 Tribunal orders under section 170
Issues :       False or misleading documents, and the resident is materially affected by the various contraventions (S 193) including outgoing contributions.
Orders (abridged):     Residence contract set aside, and ingoing contribution of $95, 882.00 to be repaid to the Applicant. Damages to be agreed or assessed.
SEE THE FULL TRANSCRIPT FOR MORE DETAILS.
The full transcript of 22 pages can be read by clicking on the case title above.
June 2002
August 2002
September 2002
QUEENSLAND CONSUMER AND COMMERCIAL TRIBUNAL – RETIREMENT VILLAGES LIST DECISIONS
December 2003
January 2004
February 2004
March 2004
Representation:  Applicant (self), and Respondent (Mr Horton – Operator)
Catchwords:  Retirement village dispute, Jurisdiction of Tribunal
Act(s) and Section(s):  RVAct             S 6 What is retirement village land
                                                             S 21 What is a retirement village dispute
                                                             S 22 What is a retirement village issue
                                                             S 27 Application for registration of a retirement
                                                                     village scheme
                                                             S 106 Increasing charges for general services
                                                             S 108 New services to be approved by majority of
                                                                       residents
                                                             S 210 Tribunal’s jurisdiction
District Court of Queensland Act 1967  S 68 Civil jurisdiction
Land Act 1944
Issues:  Respondent wished to expand the village by building more units on adjoining land.  The Applicant stated this is a retirement village dispute while the Respondent claims that the value of the land puts it outside the jurisdiction of the Tribunal.  The Applicant relied on his PID which stated the proposed size of the village.
Orders (abridged):  The Applicant’s dispute was beyond the jurisdiction of the Tribunal and was dismissed.
SEE THE FULL TRANSCRIPT FOR MORE DETAILS
The full transcript of 10 pages can be read by clicking on the case title above.
April 2004
May 2004
 
Representation: Applicants (self-represented), and Respondent (Mr Lemass, solicitor)
Catchwords:                                         Retirement village dispute, jurisdiction of tribunal, compliance with Act of village financial accounts, and new services.
Act(s) and Section(s):                          Commercial and Consumer Tribunal Act 2003, S 8 Tribunal Jurisdictions
            RVAct                            S 10 (2) What is a residence contract
                                                  S 21 What is a retirement village dispute
                                                  S 91 CRF
                                                  S 97 MRF
                                          S 108 New services to be approved by majority of residents
                                          S 129 Committee’s function
                                          S 167 Application for reference of dispute
                                          S 170 Resident may apply for order if given false or misleading documents
                                          S 191 Tribunal orders generally
                                          S 193 Tribunal orders under S 170
                                          S 222 Act’s remedies not exclusive
                                          S 230 Existing exempt organisations and retirement villages
                                          S 234 Apportionment of balance where single fund maintained for capital replacement and maintenance and repairs
Issues:                    The residents agreed to have Mr Leech and Mr Van Drimmelen to be their spokespersons at the hearing.
The financial accounts were not transparent with insufficient detail; membership of the WCVA was an essential term of the residence contract; operation of the village to be revenue neutral rather than profit making; substantial breaches of the residence contract have occurred.
The issues to be determined by the tribunal have been grouped under the headings below:-
·         Effect of Order-in-Council January 1991
·         Requirement under residence contracts to be member of WCVA
·         The Tribunal’s jurisdiction to consider the operation and procedures of WCVA
·         Interpretation of clauses 1 and 2 of the residence contracts
·         Failure to set up Maintenance Reserve Fund (MRF) and Capital Reserve Fund (CRF)
·         Validity of proposed budget for 2003/2004
·         Provision for new services in proposed budget
·         Validity of General Services Charges (GSC)
SEE THE FULL TRANSCRIPT FOR MORE DETAILS REGARDING THE ABOVE ISSUES.
Orders (abridged):    1. Respondent to pay for the services of a qualified accountant to review all financial operations and accounts of the village, and advise how the accounts for WCV and the WCVA can be equitably split.
                                    2. Respondent to pay for a new Quantity Surveyor’s report.
                                    3. The Respondent is to prepare new financial statements for the 2002/2003 financial year, and have them audited by an independent auditor.
                                    4. The Respondent is to prepare a new budget for 2003/2004.
                                    5. Until the fresh budget is prepared and approved by the residents committee General Services fees shall be set as at 31 March 2003 with adjustments for rates etc.
                                    6. Respondent to convene a budget liaison committee including representatives of the residents committee to discuss all matters of relevance to residents pertaining to the village budget.
                                    7. The parties to file and exchange submissions with regard to costs. (See QCCT case 14 with regard to costs.)
The full transcript of 26 pages can be read by clicking on the case title above.
July 2004
September 2004
Representation: Applicants (self-represented), and Respondent (Lemass Solicitors)
Catchwords:         Determination of costs
Act(s) and Section(s):                          Commercial and Consumer Tribunal Act 2003
                                                                S 70 Purposes of Div 7
                                                                S 71 Costs
Submissions (abridged) regarding costs:         Both parties filed and exchanged written submissions in relation to costs. Both parties agreed that the determination of costs should be made on the papers. The Applicants wanted their costs of $2, 741.65 for a solicitor to prepare documentation for their submission to be met by the Respondent. (This case is connected to case 10.)
The Respondent wanted no order for costs.
Findings on costs:                The Applicants case for costs was moderate and their case was substantially supported by the Tribunal, and also their response to the Respondent’s counterclaim. The Tribunal agreed that the Respondent had acted unreasonably, and failed to comply with the statutory obligations of the RVAct.
Orders:                                 The Respondent was required to pay the Applicants by way of costs and incidentals to the proceedings of $3, 169.35 within 28 days from today’s date (hearing date).
December 2004
Representation:                  Applicants (Mr Boyce, solicitor), and Respondent (Mr Garrick of Counsel – instructed by Munro Thompson – Solicitors)
Catchwords:                         Retirement village issues – Jurisdiction of Tribunal – Separate maintenance reserve fund (MRF) for serviced apartments – Initial repairs – Applicability of tax ruling 97/23 – Whether contravention of section 97 (4) of the Act
Act(s) and Section(s): Commercial and Consumer Tribunal Act 2003, S 8 Tribunal Jurisdictions
RVAct:                                   S 86 False or misleading documents
                                               S 91 CRF
                                               S 97 MRF
                                               S 111 Financial accounts and statements
                                               S 112 Quarterly financial statements
                                               S 113 Annual Financial statements
                                               S 170 Resident may apply for order if given false or misleading documents
                                               S 191 Tribunal orders generally
Issues (abridged):               “There are two major areas of dispute in this matter.” The first area concerns issues involving Sandringham Lodge (15 low care apartments). Should separate accounts and a separate MRF be kept for the Lodge?
                                               “The second area of dispute concerns whether excess charges have been levied against residents as maintenance costs which were in fact capital improvement costs which should have been borne solely by the Respondent, and whether further excess charges have been levied wrongly as general service charges.” (The main village contains 385 homes made up of one and two bedroom units and one, two and three bedroom houses.)
                                               Sandringham Lodge Issues
Applicants
·         Respondent (new operator in 2000) combined the previous separate accounts for Sandringham Lodge and the main village into one set of accounts.
·         Are the main village residents subsidising Sandringham Lodge with regards to CPI, GST, electricity, gas, catering, staffing, cleaning, medical supplies and laundering costs etc. when everything is lumped into one account?
Respondent
·         Advice from the Respondent’s accountant, lawyers and the Office of Fair Trading indicated the RVAct allowed a set of accounts including a sole MRF etc.
Applicants’ solicitor
·         Applicants’ solicitor disagreed with the Respondent’s one account argument pointing out that the residents’ leases and PIDs indicated separate accounts would be kept for Sandringham Lodge and the main village. One set of accounts did not provide transparent accounts for the Lodge and the main village. Separate leases for the Lodge and the main village required separate accounting processes.
Respondent’s Counsel
·         Counsel presented a detailed analysis of the RVAct to support the argument that one set of accounts is only required for a retirement village.
·         The PIDs and the residents’ contracts do not preclude the Respondent from maintaining one set of accounts for the whole village.
·         The majority of residents supported the Respondent’s single set of accounts, and the apportionment of the CRF and the MRF using quantity surveyor reports.
The Tribunal considered that the old and new leases and PIDs “provide for Sandringham Lodge to be treated separately from the rest of the village.” The Respondent and his professional advisers in consultation with the Residents Committee should determine how a separate MRF for the Lodge should be constructed.
The excess charges outlined in 63 dispute invoices “as maintenance or repair expenses are, in fact, “initial repairs” as defined in tax ruling 97/23.” The Tribunal finds the initial repairs to fix defects, damage and deterioration within the village, and within the twelve months of purchase, comes under the tax ruling 97/23.
SEE THE FULL TRANSCRIPT FOR MORE DETAILS REGARDING THE ABOVE ISSUES.
Orders (abridged):              1. Two separate MRF(s) to be set up fair and equitable to all residents.
2. The Respondent will refund the village MRF $100, 075.67 which was used for capital improvements in contravention of S97 (4) of the RVAct.
3. The Respondent will refund the GSF $2, 340.00 paid for a new blue care service not approved under S108 of the RVAct, and $5, 266.00 paid for the Respondent’s membership of Aged Care Queensland.
4. The parties to file and exchange submissions in relation to costs within 14 days of the date of this order, and to state if a decision is to be made on the papers or at a costs hearing. (See case 20 for the costs hearing decided on the papers.)
The full transcript of 42 pages can be read by clicking on the case title above.
Representation: Applicant (self-represented), and Respondents (Minter Ellison Lawyers –
Ms Kindermann)
Catchwords: RVAct S 106 – Increasing charges for general services -Restriction on increase above percentage increase in CPI – Meaning and application of section.
Act(s) and Section(s): Commercial and Consumer Tribunal Act 2003, S 8 Jurisdiction of Tribunal
RVAct S 106 Increasing charges for general services
S 107 Resident’s responsibility for paying increased general services charge
S 113 Annual financial statements
S 131 Annual meeting
Issues (abridged): The issues filed on February 2004 were replaced on 23 March by the ones outlined below:-
1. That the increase in general service fees imposed upon residents from 1 October 2003 is unlawful.
2. That increases paid by residents from that date be refunded.
3. That annual financial statements for the year to 30 June 2004 and for subsequent years be made available to the applicant in accordance with his contract.
At the 17 June hearing after submissions and discussions the Tribunal decided new figures and calculations would be required. Also the parties could then possibly resolve the issues themselves. Both parties were allowed to be relisted upon appropriate notice.
The Applicant Phillips (self-represented) sought to have the matter relisted for hearing on September 2004 with the Respondents (O’Connor for Prime and Geary for Eden Lea).
The hearing on October involved the Applicant and the Respondent (Eden Lea) only, and dealt with the correct interpretation of S 106 of the Act. The transcript outlines the relevant legislation used at the hearing, and details the submissions from the Applicant and the Respondent.
Terminology in the Act for ‘service charge’ has made it difficult for interpreting the relevant sections. Careful reading of the transcript shows why the Tribunal accepted the Applicant’s submission.
The increase for R & M gardens in the general services charge was invalid, and the residents are to be refunded this amount.
The Applicant argued that each service increase in section 106 was limited by the CPI.
The Respondent’s submission stated the general service charge was a bundle of expenses including sections 106 and 107, and the SO did not require the residents’ approval. The aggregate general service charge should not exceed the CPI.
Discussion and findings: “The changes in terminology in the Act do not make it an easy task to interpret the relevant sections.” See the Transcript paragraphs 34-52 for a detailed discussion.
R & M Gardens was the only item in section 106 not approved by the residents. This item if paid by the residents has to be refunded to the residents.
January 2005
March 2005
Representation:         Applicant (self-represented) and Respondent (Ms Geary)
Catchwords:               RVAct              S 106 Increasing charges for general services; invalid increase; order for refund to residents; how refund to be paid; whether interest payable
Background:               Previous hearings took place on 17th June, 28th October, and 16th December 2004. The current hearing deals with how the refund of $9, 982.00 is to be repaid to the residents.
Issues:                         Submissions from both parties were presented, and the Tribunal decided that the Respondent refund to the GSF $9, 982.00. The residents who lived in the village on 20th October 2003 were to be repaid $79.22 from the GSF. Residents who had left the village since 1st October 2003, and new residents since 1st October 2003 to be refunded pro rata $6.60 per month.
                                    The Applicants out of pocket expenses were to be paid by the Respondent.
Representation: Applicants (Butler, McDermott & Egan), and Respondent (Munro Thompson)
Catchwords:                         Jurisdiction to award costs – Application commenced under RVAct 1999 – costs determination
Act(s) and Section(s):                          Commercial and Consumer Tribunal Act 2003
                                                                S 70 Purposes of Div 7
                 &

One Reply to “QCAT – THE IMPORTANCE OF TRIBUNAL TRANSCRIPTS”

  1. I now hold the exalted title of Chairman of the Residents Committee of the Southern Cross Retirement Village at Edens Landing.
    I expressed a disagreement with the CEO at he Company’s AGM that votes for a Special Resolution to increase the general Services Charge are to be carried out at ” one vote per unit”. That is the specific voting rules in the Retirement Villages Amendment Act 2006. That is NOT the rules in Contracts signed prior to the Amendment Act 2006.
    My research tells me that to apply that ruling to Resident Contracts signed prior to the Amendment Act of 2006 is invalid; to do so would be to apply retrospective ruling which I understand the High Court has declared invalid. I have unsuccessfully requested a copy of the ” advice” stated to have been received that to apply the Amendment Act voting regime is valid. The case stated to have been referred by Mullins Lawyers is ” Phillips v Edenlea Retirement Village Pty Ltd, a Decision of the Queensland and Consumer Tribunal, December 22, 2005.
    Do you have any information on the matter?
    I have read the full transcript in this Site and I can find no such Ruling or Advice to support the statement.

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