Wei v Croydon Park Apartments Pty Ltd [2016] NSWCATAP 175

This recent NCAT case may be of interest to residents. The full report will be found on the NSW Caselaw website HERE.

The following comments are by Peter Hill, Honorary Solicitor to RVRA:

“This case involved an application to the Tribunal by an operator of an apartment block retirement village to terminate a residential tenancy agreement of a resident who refused to sign a new lease and would not leave the premises. The operator of the village was re-contracting with all the residents and changing the underlying legal structure by which residents occupied their apartments at the site.

Normally, residential tenancy agreements under the Residential Tenancies Act 2010 are excluded from the provisions of the Retirement Villages Act 1999. In this case, the operator did not seek to rely on the exclusion and otherwise legally avoid the operation of the retirement villages legislation, presumably because the tenancy agreement was not drafted in such a way to take advantage of the exclusion.

At first instance, the NCAT member upheld the notice to vacate served by the operator and required the resident to leave. On appeal, the Appeal Panel thought differently, because it found that an operator cannot terminate a resident contract under the retirement villages legislation simply by a resident not complying with a notice to vacate, but only on defined grounds that were not made out in this case. Generally those grounds only existed where there was a breach of contract, medical grounds, resident causing serious damage or injury to property or person or a change in use by the operator. None of these existed here and the Tribunal also found that the operator could not contract out of the provisions of the retirement villages legislation where a resident had a resident right under the Retirement Villages Act 1999.

This case is an interesting one. It is authority for the proposition that the Retirement Villages Act 1999 clearly defines the circumstances of when a resident contract can be terminated. The case should not be held  out as principle where someone is placed on a residential tenancy agreement that the retirement villages legislation will always apply. It will only apply  if the residential tenancy agreement is not made in accordance  with  the Residential Tenancies Act 2010 as in this case. That being said, the wider exemption for residential tenancy agreements needs to be reviewed in the writer’s view as it is too open to be abused by retirement village operators who seek to avoid the resident protections under the retirement villages legislation by placing residents on residential tenancy agreements.”