A recent case before the Commercial and Consumer Tribunal
involving residents and the operator of a Mackay retirement village
emphasises the inability of the Tribunal in retirement village
disputes to exercise equitable remedies.
In the February case of Galletly v. Carlyle Villages Pty Ltd,
Moray and Augusta Galletly (Mr and Mrs Galletly), who are residents
of Mackay's Carlyle Gardens, sought orders to have their
registered lease amended to change the commencement date to 1 June
2002 and to change the preference of the capital gain lease
The operator of Carlyle Gardens is Carlyle Village Pty Ltd
(Carlyle Village) who opposed the orders principally on the ground
that the Tribunal lacked jurisdiction to amend a registered lease,
as to do so would constitute the granting of the equitable remedy
of rectification. Despite this objection, Carlyle Village
didn't dispute that the Tribunal had the jurisdiction to make
findings as to the proper construction of a residence contract.
Issues considered by the Tribunal
At the time that Mr and Mrs Galletly signed an Agreement to
Lease on 28 November 2001, the unit that they were to occupy had
not been constructed. The commencement date of the lease was to be
the day that a certificate of classification was issued for the
unit. The draft lease attached to the Agreement for Lease was not
signed at that time.
The registered lease contained the signatures of Mr and Mrs
Galletly on 1 July 2002 and was subsequently signed by Carlyle
Village on 15 July 2002. In the registered lease the preference as
to non-capital appreciation lease had been selected.
Mr and Mrs Galletly, who were 85 and 82 respectively, gave
evidence at the hearing. Statements were provided by a former
director of Carlyle Village and also by the operations manager and
project manager for the village at the relevant times. A former
manager of the village also gave evidence on behalf of Carlyle
Mr and Mrs Galletly argued that they did not reach an agreement
with the scheme operator as to the lease option and that the
selection in the registered lease must have been placed there by
some other person without their consent after they signed the final
The Tribunal had to make a finding as to the credibility of Mr
Galletly. The Tribunal took the view that his evidence was full of
inconsistencies and at times he contradicted himself. Mr Galletly
also refused to answer questions where he thought the answer would
not advance his case.
The witnesses and statements provided by Carlyle Village were
accepted by the Tribunal.
Findings of the Tribunal
The Tribunal found that the registered lease was signed by Mr
and Mrs Galletly on 1 July 2002 and that both signatures indicated
a conclusive agreement to the non-capital appreciation lease option
marked in the lease, despite Mr and Mrs Galletly having claimed
that they did not read the document before they signed it. The
Tribunal referred to High Court authority to confirm the
significance to which the law attaches to the signature on a
contractual despite the document not having been read before it was
The Tribunal also held that Mr and Mrs Galletly's signatures
were conclusive of their agreement that the commencement date of
the final lease was 1 July 2002.
The Tribunal decided in considering the argument by Carlyle
Village that it did not have jurisdiction to rectify a residence
contract on equitable grounds that:
The application by Mr and Mrs Galletly to amend the registered
lease did not constitute a retirement village dispute under the
Commercial and Consumer Tribunal Act 2003 (CCT Act) as it was not a
dispute about the parties' rights and obligations under the
Retirement Villages Act (RV Act) or a dispute about rights and
obligations under the residence contract.
A claim to amend the registered lease goes behind the residence
The message for retirement village
Whilst the Tribunal has wide powers in hearing retirement
village disputes, those powers do not extend to equitable
Operators will be better placed to refute any claims that a
residence contract does not reflect what a resident may have agreed
to where they are able to easily refer to the relevant signing
practices and procedures adopted by a village at the time a
particular residence contract is entered into.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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