A decision of the Commercial and Consumer Tribunal handed down
in March reinforces the monetary limit of the Tribunal in hearing
applications and also confirms the inability of the Tribunal to
grant injunctive relief.
In the recent case of Filmer & Ors v Carlyle Gardens
Retirement Village Pty Ltd, James and Patricia Filmer and a
number of other residents of Carlyle Gardens Retirement Village,
Bargara who collectively leased nine units at the village sought
orders that the current operator provide a 60 bed aged care
facility, and until that facility was operational, that their exit
fees be reduced to 0% each. This was to provide compensation for
the inflated ingoing contribution paid by the applicants in the
belief that the village would contain such a facility. The
applicants alleged that representations were made to all of them
before they entered into their respective residence contracts, and
that the facility was to be constructed within the village in
The current operator of Carlyle Gardens Retirement Village is
AMP Capital Meridien Lifestyle (ACML) who opposed the orders
principally on the ground that the Tribunal did not have
jurisdiction to make the orders sought.
ACML at the direction of the Tribunal filed written submissions
on the jurisdiction issue and both parties consented to the issue
of jurisdiction being determined as a preliminary issue.
Issues Considered By The Tribunal
The Tribunal considered the relevant provisions in both the
Commercial and Consumer Tribunal Act 2003 (CCT Act) and the
Retirement Villages Act 1999 (RV Act) in determining
whether it had jurisdiction to hear the application.
Under the RV Act, the Tribunal's jurisdiction is limited to
less than the monetary limit of the District Court of Queensland,
which limit is $250,000.00.
In response to the orders sought for ACML to construct the
facility, ACML submitted that such an order is effectively a
mandatory injunction and outside the jurisdiction of the Tribunal.
Of the nine applicants, four had public information documents (PID)
that made no reference to a proposed facility and were in effect
seeking a mandatory injunction. The remaining five applicants that
held PIDs that referred to a proposed aged care facility were
seeking in effect, specific performance of that term, which was
part of their residence contract.
Findings Of The Tribunal
Whilst considering the relevant provisions under the RV Act, the
Tribunal commented that the inference from such provisions is that
the Tribunal has no general power to grant an injunction when
determining a retirement village issue.
In considering the applicants' claim that misrepresentations
had been made about the facility before they entered into their
residence contracts, the Tribunal held that:
"a claim based upon misrepresentation in the course of
pre-contractual negotiations is not a dispute about 'the
parties' rights and obligations under the residence
contract'. It is a claim relating to, or involving, a residence
contract but not a claim 'under' the residence contract,
and is thus not within the definition of 'retirement village
The Tribunal determined that it did not have jurisdiction to
grant either the orders sought by the applicants on the grounds
in respect of the order to construct the facility, the Tribunal
had no power to make the order and even if it did the order would
be in excess of its monetary jurisdiction; and
in respect of the order that the applicants' exit fee in
their residence contracts be reduced to 0% until the facility was
constructed, there existed no power in the RV Act to vary a
residence contract to reduce the amount of an exit fee, and there
was no power to do so in the general and specific grants of
jurisdiction under the RV Act.
Message For Retirement Village Operators
The powers of the Tribunal in hearing retirement village
applications are limited and specific and will always be subject to
the monetary limit of its jurisdiction.
In considering any applicants made by residents, operators
should always bear in mind the scope of the Tribunal's
jurisdiction and its monetary-limited jurisdiction.
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