Levande Pty Ltd v Brady [2023] NSWCATAP 193

Levande Pty Ltd v Brady [2023] NSWCATAP 193

The Appeal Panel held that the serviced apartment building is a ‘facility’ within the meaning of the Retirement Villages Act 1999 (NSW); the operator breached s 93 by failing to maintain or repair the building; the variation or withdrawal of that building as a facility without consent was unlawful; the Tribunal did not err in its application of statutory interpretation or allocation of the onus of proof; but the order varying Mr Brady’s contract was made in error, as that relief was not sought nor necessary, and conflicted with the Act or regulations was not established.

Jurisdiction
Australia
Judgment Date
18 July 2023
Procedural Posture
Appeal / Decision on Appeal From the Consumer and Commercial Division of the Tribunal
Outcome
Appeal allowed in part
Legal Topics
['retirement Villages' 'obligations to Maintain Capital Items' 'variation or Withdrawal of Facility or Service' 'statutory Interpretation' 'tribunal Powers on Breach']
['administrative Law' 'tenancy Law' 'elder Law'] ['retirement Villages' 'obligations to Maintain Capital Items' 'variation or Withdrawal of Facility or Service' 'statutory Interpretation' 'tribunal Powers on Breach']

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Procedural Posture

Appeal / Decision on Appeal From the Consumer and Commercial Division of the Tribunal

Legal Issues

  1. 1 ['Whether the operator breached its obligation under s 93 of the Retirement Villages Act 1999 (NSW) to repair or replace the serviced apartment building' 'Whether the closure of the serviced apartment building constituted a variation or withdrawal of a facility under ss 60–62 of the Retirement Villages Act 1999 (NSW)' 'Whether the Tribunal erred in its interpretation and application of statutory obligations and contract terms']

Ratio Decidendi

The Appeal Panel held that the serviced apartment building is a ‘facility’ within the meaning of the Retirement Villages Act 1999 (NSW); the operator breached s 93 by failing to maintain or repair the building; the variation or withdrawal of that building as a facility without consent was unlawful; the Tribunal did not err in its application of statutory interpretation or allocation of the onus of proof; but the order varying Mr Brady’s contract was made in error, as that relief was not sought nor necessary, and conflicted with the Act or regulations was not established.

Court Disposition

Appeal allowed in part

Orders

  • ['Order 5 of the Tribunal dated 7 November 2022 is set-aside' "Order 4 of the Tribunal dated 7 November 2022 is amended to change the date of '31 January 2023' to '17 November 2023'" 'Appeal otherwise dismissed' 'If either party seeks to make a costs application, they are to inform the Tribunal and the other party...