Elliot Tuthill Nominees Pty Ltd v Boele [2010] NSWSC 103

Elliot Tuthill Nominees Pty Ltd v Boele [2010] NSWSC 103

Section 129(2) of the Retirement Villages Act 1999 was construed as a comprehensive scheme for termination of the relevant residence contract, allowing termination only in the circumstances specified in s 129(2)(a)-(e) or by Tribunal determination. ETN could not rely on s 129(2)(d) because Mr Boele had not disclaimed the lease by renouncing or disavowing it. Accordingly, valid termination had to be determined by the Tribunal, and because the issues and evidence had largely already been canvassed, it was appropriate to transfer the proceedings to the Tribunal under s 23(2)(a) and s 23(2)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001.

Jurisdiction
Australia
Judgment Date
12 February 2010
Procedural Posture
Landlord and Tenant; Retirement Village Residence Contract Termination Proceedings / Principal Judgment (ex Tempore)
Outcome
Proceedings transferred to the Consumer, Trader and Tenancy Tribunal; leave granted to ETN to amend its pleadings and file the second further amended Statement of Cross-Claim.
Legal Topics
['termination of Residence Contract' 'retirement Villages Act 1999 S 129' 'disclaimer of Lease' 'transfer of Proceedings to Consumer, Trader and Tenancy Tribunal']
['landlord and Tenant' 'retirement Villages' 'civil Procedure'] ['termination of Residence Contract' 'retirement Villages Act 1999 S 129' 'disclaimer of Lease' 'transfer of Proceedings to Consumer, Trader and Tenancy Tribunal']

Case Brief

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Procedural Posture

Landlord and Tenant; Retirement Village Residence Contract Termination Proceedings / Principal Judgment (ex Tempore)

Legal Issues

  1. 1 ['Whether s 129 of the Retirement Villages Act 1999 exhaustively governed termination of the residence contract so that termination required one of the listed circumstances or a determination by the Tribunal.' 'Whether ETN could rely on s 129(2)(d) of the Retirement Villages Act 1999 on the basis that Mr Boele had disclaimed the lease.' 'Whether the Supreme Court should transfer the proceedings to the Consumer, Trader and Tenancy Tribunal under s 23(2)(a) and s 23(2)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001.']

Ratio Decidendi

Section 129(2) of the Retirement Villages Act 1999 was construed as a comprehensive scheme for termination of the relevant residence contract, allowing termination only in the circumstances specified in s 129(2)(a)-(e) or by Tribunal determination. ETN could not rely on s 129(2)(d) because Mr Boele had not disclaimed the lease by renouncing or disavowing it. Accordingly, valid termination had to be determined by the Tribunal, and because the issues and evidence had largely already been canvassed, it was appropriate to transfer the proceedings to the Tribunal under s 23(2)(a) and s 23(2)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001.

Court Disposition

Proceedings transferred to the Consumer, Trader and Tenancy Tribunal; leave granted to ETN to amend its pleadings and file the second further amended Statement of Cross-Claim.

Orders

  • ['Pursuant to s 23(2)(a) of the Consumer, Trader and Tenancy Tribunal Act 2001, proceedings 289611 of 2009 be transferred to the Consumer, Trader and Tenancy Tribunal.' 'Pursuant to s 23(2)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001, proceedings 289611 of 2009 are to continue in the Tribunal as if they...