Disputes panel decisions
2022-May- Resident-A v Operator-1
This is a dispute between the Applicant (resident) and Respondent (operator). The applicant issued a dispute notice dated 10 December 2021 under the Retirement Villages Act 2003 (the Act). The notice states that the village has been, and continues to be developed without due regard to good practice for safe pedestrian and vehicular movement. The resident identified five areas in the retirement village where the operator considered the roads and pathways did not cater for disabled or elderly persons, especially in relation to gradient. The resident seeks an order under section 69(1)(b) of the Act.
The panelist noted that an order pursuant to section 69(1)(b) of the Act can only be made based on the occupation right agreement (ORA), the code of practice or the code of resident’s rights. Therefore, before a substantive hearing could take place the panelist considered whether obligations or rights under the ORA or two codes could be identified that required the operator to improve the roads and pathways. The panelist corresponded with the resident several times via email and a zoom meeting between the panelist, the operator, and the resident was held to ascertain whether obligations or rights could be identified.
The outcome: The panelist declined to make an order under 69(1)(b). He concluded there is no provision contained in the applicant’s ORA or the code of practice which obliges the respondent to ensure that the standards applying to access by disabled people in the five areas identified by the applicant are met, nor likewise is there a right in the code of residents’ rights which may be given effect to in order to ensure that the standards are met. Therefore, the panelist concluded that he had no power to make any order about the roads and pathways, and so to continue the dispute resolution process would be pointless.
The panelist commented that he did not know whether improvements to the roads and pathways were justified but it may be that ongoing discussion about the five areas between the resident and the operator would be helpful.
Costs: The panelist did not award costs. Costs were therefore paid in full by the respondent.
2021-1 Residents 2021-A&B v Operator 2021-I
The respondent village operator had issued the applicants with a notice of intention to terminate their occupation right agreement (ORA) after one of the applicants created an incident in the village manager’s office where, according to the respondent, the applicant’s manner and behaviour were aggressive and disturbing to those present. The notice gave the applicants 7 days to remedy the harm and distress which the respondent said their actions had caused. There were 5 required remedial steps. The respondent accepted that the applicants undertook 4 of the remedial steps but did not consider that the 5th required remedial step was completed. This step required that the applicant give a written full and unreserved apology for their actions. Although the applicant gave a written apology, the respondent said its content fell short of what was required. Given the alleged failure of the applicants to satisfy this remedial requirement, the respondent proceeded through its solicitors to issue the applicants with a notice of termination of ORA.
The applicants said that they completed all 5 of the required remedial steps, and hence the notice of termination was invalid. Faced with what they say was an invalid notice of termination, the applicants issued a dispute notice under the Act with a view to a disputes panel overturning the notice of termination. The parties asked the disputes panel to decide whether the apology satisfied the respondent’s remedial requirement.
After hearing the evidence, the disputes panel noted that the fundamental issue was whether or not there had been compliance with clause 48.5 of the Code. The clear intent of clause 48.5 of the Code is that terminations should not automatically follow from material breaches. Terminations should only occur following material breaches if the resident is given proper opportunity to remedy the breach and has failed to do so.
The notice of termination should only be upheld if all applicable procedural requirements were followed. The fundamental difficulty with the respondent’s case, was the inherent difficulty in gauging the meaning and intent of apologies. Given the problematic nature of apologies, the applicant could not be sure what they needed to say in their apology in order to meet the remedial requirement imposed by the respondent. It lay with the respondent to determine whether or not the apology was sufficient, but that determination lacked clear, specific, and objective criteria made known to the applicants.
The disputes panel holds that clause 48.5 of the Code requires that residents must be told with a high degree of clarity and precision as to what is required of them in order to remedy the material breach. The open-ended request for an apology in this case did not achieve the required clarity and precision. The applicants should have been able gauge in advance with confidence, by reference to identified objective criteria, that the apology they were about to give was acceptable to the respondent, and hence constituted the required remedy. They were not able to do that.
There was therefore no need for the disputes panel to decide whether or not the apology was acceptable, because of his finding that the process was flawed having regard to the requirements of clause 48.5 of the Code. It follows from the finding that clause 48.5 of the Code was not fully observed, and hence that the termination process was flawed, that the respondent was not permitted to action the notice of termination. This case was not, in the end, about the adequacy of the apology after all. It was about due process.
The outcome: The disputes panel ordered, pursuant to section 69 (1)(b) of the Act, that the respondent comply with its obligations under the applicant’s occupation right agreement by continuing to give effect to that agreement, and disregarding the notice of termination.
Costs: Although section 74(2)(a) of the Act gives the disputes panel power to make an award of costs against the respondent, given that the Decision was in favour of the applicants, he was not prepared to do so. The disputes panel noted that it was understandable that the respondent issued the notice of intention to terminate, albeit that it was technically flawed in one respect. Overall justice demands that the respondent not incur more expense than it already had as a result of the incident and its aftermath.
2021-2 Phillips v Stonehaven Retirement Village
This is a dispute between the Applicant (resident) and Respondent (operator). The applicant and respondent signed an Occupation Rights Agreement (ORA) dated 26 February 2013. The applicant’s ORA required payment of a dwelling cost of $105,000 and a site fee of $20,000. The mechanics of this are set out in clause 3.4 of the applicant’s ORA. If the applicant chooses, or needs to terminate occupation of the unit, or the respondent terminates it, then the respondent will generally find another occupier for the unit. The new occupier will pay a site fee and dwelling fee according to the new occupier’s ORA.
In the Dispute Notice the applicant raised the following issues (summary of decision in bold italics after each issue).
Issue 1) Does the Applicant’s ORA enable the Operator to increase her site payment?
Panel Decision: The requirements in the RV Act in respect to varying ORA’s are set out in Schedule 2 of the Act. At para 3(b) of the Schedule, it states that an ORA must include; “whether the operator or resident can vary an occupation rights agreement and if so in what circumstances.”
There is no clause in the applicant’s ORA to suggest the site fee may be varied or increased except by mutual agreement.
The Panel’s decision is that neither the law nor the applicant’s ORA enables the respondent to increase the applicant’s site payment. The respondent accepts that position.
Issue 2) Has the Operator increased, or is it intending to increase the Applicant’s site payment?
Panel Decision: The law is the same as for Issue 1. The requirements in the RV Act in respect to varying ORA’s are set out in Schedule 2 of the Act. At para 3(b) of the Schedule, it states that an ORA must include; “whether the operator or resident can vary an occupation rights agreement and if so in what circumstances.”
The Panel finds that the respondent has not increased the applicant’s site fee, and there is no current evidence to show it intends to do so.
Issue 3) Does the Applicant’s ORA enable the Operator to decrease the Applicant’s dwelling payment on exit, by increasing any future occupier’s site payment?
Panel Decision: The Panel finds that the detail and placing of the information in respect to the exit payment in the applicant’s ORA is insufficient. The Panel’s finding is that for transparency and to comply with the RV Act, particularly Schedule 3, clause 3.4 of the ORA should have included an explanation after the current clause.
The Panel finds that the use of the endorsement by the applicant on the respondent’s website encouraging application for occupation of units, is in breach of s 26 RV Act, which places obligations on the respondent to advertise accurately on all aspects including the amount of exit fees.
The Panel finds that pursuant to the Code of Residents’ Rights number 2 as to provision of information on matters affecting terms or conditions of residency, the applicant was not provided with sufficient information on the exit payment.
Further in respect to the Code of Residents’ Right number 8 the Panel finds that the applicant has been “exploited” by the respondent by not explaining in clear concise language in the ORA that the exit payment to the applicant may be reduced by the amount that the site fee for the next occupier is increased.
Accordingly pursuant to s 69 (b) of the RV Act the Panel directs that the respondent complies with its obligations under the RV Act, ORA and Code of Residents Rights and does not make a deduction from any exit payment to the applicant, for any increase in the site payment for any new occupier for her unit.
Issue 4) Who is paying, and who should pay mediation and dispute panel costs?
Panel Decision: Section 74 of the RV Act sets out that the operator is liable for the costs of the Panel. The Panel costs are required to be met by the respondent. The Panel has no authority to require which resources are used by the respondent to make the payment.
It is noted both parties agreed to a hearing “on the papers” to reduce costs. The applicant has not been legally represented in this matter. It is noted that the respondent’s staff have assisted in providing material directly to and from the applicant. Accordingly there is no grant in respect to party costs.
Interim decision (22 April 2021)
The applicant also raised the following issues that were ruled on as part of an interim decision dated 22 April 2021 (summary of decision in bold italics after each issue).
Interim Decision Issue 1) Can the Applicant claim that the Applicant’s sibling be reimbursed $5000 in respect to her exit/site and exit/dwelling payments?
Panel Decision: Section 53 allows for a variety of disputes to be raised by resident or operator. However, in each case where the resident is referred to it refers to “the resident” indicating the intention of the section is for a particular resident to take a dispute on matters which impact on that resident directly.
The intention to restrict a resident to taking claims only on their own behalf is strengthened by section 49 of the Act, which requires that anyone bringing a claim for a resident must be properly appointed to do so. The claim must also be in the affected resident’s name.
The Panel therefore finds that the applicant cannot bring a claim on behalf of the applicant’s sibling in the manner the applicant currently has.
Accordingly Issue 1 is dismissed.
Interim Decision Issue 2) Can the Applicant claim that previous and current residents be reimbursed in respect to their exit/site and exit/dwelling payments?
Panel Decision: The Panel decision is that the applicant, even with the best of intentions cannot bring a dispute on behalf of un-named other current or past residents. The proper procedure needs to be followed in every case, with either a personal dispute being filed, or through a personal representative in the individual residents name who is a party to an ORA with the respondent.
This is not disputing that in some cases individual disputes can result in more widespread implications such as in an interpretation issue. That however is beyond the determination on these interim issues.
Accordingly Issue 2 is dismissed.
Interim Decision Issue 3) Can the Applicant claim that restrictions be placed on exit/site and exit/dwelling payments be applied to all future contracts?
Panel Decision: The law that applies to Issue 3 is Sections 49, 53, and 69 of the Act. Once again sections 53 and 69 both restrict what decisions the Panel can make. All of the sections refer to the ORA of the applicant. For instance, in Section 69 it refers to “an occupation rights agreement” rather than all ORA’s. As noted in the earlier issues section 49 also restricts how disputes can be raised, they must be raised by the individual effected or by a personal representative.
The Panel therefore dismisses Issue 3 accordingly.
2021-3 Teviotdale v Settlers Albany Limited
The Dispute related to storage that had been withdrawn following a change brought about following the advice and recommendations of Fire and Emergency New Zealand.
The Dispute Panel found that there was no contractual obligation under the Occupation Right Agreement nor a binding promise to provide continued access to the storage cupboard. The Dispute Panel found in favour of the respondents.
A cost decision was also made in favour of the respondents.
2021-4 Residents 2021-A&B v Operator 2021-I
The respondent had issued a notice to terminate the applicants’ ORA.
The applicants filed 22 claims that alleged Harassment / Intimidation / Obstruction / Breaches of the Code of Residents Rights / Breaches of Contract.
All claims for Harassment, Intimidation, Obstruction, Breaches of the Code of Residents Rights and Breaches of Contract by the Retirement Village to the Applicants were dismissed.
The Respondent relied on two grounds to terminate the ORA: the breach of the undertaking signed by the Applicants which bound them to treat everyone at the Village with courtesy and respect, and that they would refrain from using raised voices and insults towards anyone who visits, works or lives at the Village; alternatively, that the Residents had caused injury and distress to the Operator, staff and other residents in breach their ORA and cl 48(7)(b) Retirement Village Code of Practice.
The Respondent’s claim for termination was allowed.
2020-1 McCarthy v Te Awa Lifecare
The residents complained about litter and other effects from a large Cottonwood Tree adjacent to their villa. The residents had to clean their furniture and patio continuously. They asked the operator to remove the tree. The operator reduced the tree’s height and span but the residents said this had not eliminated the nuisance.
The residents alleged the operator breached maintenance provisions in their occupation right agreement and in the Code of Practice.
The Panel found partly in favour of the residents.
The Panel found the operator had not breached clause 40 of the Code of Practice, noting the Code’s emphasis on clean and safe working order of the building as a whole (para 67).
However, the operator had not fulfilled its duties under the occupation right agreement for maintaining common areas and the building, inclusive of the residents’ patio but excluding the residents’ furniture, to a sufficient degree during a period between September 2018 to December 2019.(para 65 - 71).
The Panel said the residents were entitled to have litter from the tree cleaned on a reasonably regular basis to maintain the appearance and cleanliness of the villa exterior(para 76). It said there was no further relief to be ordered other than to order the operator to continue to comply with its maintenance obligations. The tree was not required to be removed.
The Panel granted the parties opportunity to apply for costs.
2019-1 Williams v Metlifecare
The resident was relocated to another unit in the village pending remediation work to her original unit and the part of the village it was in.
The resident then refused to move back to her original unit claiming issues with remediation design adopted by the operator to do with enclosed walkways, fire cells, fixed windows and ventilation. The resident claimed loss of benefits she previously had, such as the ability to sit in an open walkway, loss of light and ventilation (para 90 – 93).
The resident said she was not consulted about those aspects of remediation work. The Panel found the operator had not met the consultation requirements of clause 28 of the Code of Practice. But the operator had waived its rights to insist the resident followed due process for parts of her disputes relating to her receiving notices to terminate her occupancy of the different units she had occupied. The Panel concluded (para77) that the remedial design solution would not have been different even if the desired consultation occurred.
The Panel found the remediation works resulted in a standard at least equal to the pre-existing situation , which is what the Occupation Right Agreement required (para 95).
The notice to the resident terminating her temporary accommodation was made validly by the operator (para 100) and the resident had to vacate that temporary unit within 14 days of the decision. However the notice of intention to terminate the licence of the original unit was found to be invalidly made by the operator (para 106) and had to be withdrawn within 7 days of the decision.
The decision outlines how the operator had challenged the jurisdiction of the Panel unsuccessfully (para 55 – 57, 99).
2018-3 Gatley and others v Metlifecare Poynton Ltd
A group of residents filed a dispute notice claiming the Operator wrongfully, without consultation, made.
a) A unilateral increase in the minimum entry age for new residents at the village by the operator; and
b) A unilateral reduction of the health standard for entry for new residents to the village by the Operator; and
c) An unofficial change in the character of the village, to the Applicants’ detriment; as a result of (a) and (b) above.
The Panel considered the types of dispute for which a resident may give a disputes notice under section 53(1) of the Retirement Villages Act. The panel found it was other residents that were interrupting and disturbing the applicants rights to occupy their units, not the operator. However there might have been some disturbance to rights in common areas and the Panel could hear disputes regarding those.
The applicant was found to have filed a dispute notice within the six month time limit. The Panel said even if the residents had been ‘de minimis’ out of time filing of a dispute notice, the purpose of section 3 of the Act is to protect the interests and rights of residents (para 47).
The operator claimed it was not required to consult and that it needed to only inform residents of the particular changes it was making, which it did. It said a change in entry age is not a change in a rule requiring consultation (para 54).
The Panel reviewed the information requirement provisions of section 34 of the Act and said the correct legal interpretation only required residents to be ‘promptly informed’ of information relevant to occupation rights and quiet enjoyment rights (para 67). Section 34 did not require consultation with the applicants. The operator had therefore complied with its obligations.
The Applicants then asserted Clause 28 (2) of the Code of Practice required the operator to consult about changes to rights under the Code or ORA.
The Panel found the age of entry or medical requirements of residents were not a service or benefit for the purposes of Right 3 Code of Residents rights and therefore did not require consultation in order to change (para 75). There was also no evidence that there had been a rule about increase in age of medical fitness to enter the village in the first place, so the operator was not required to consult under clause 28 of the Code of Practice (para 83).
The Applicants alleged the minimum medical standard for new residents entering the village had been decreased, enabling greater transition of residents from the village into supported living and potentially paying a transfer fee. Clause 5.9 of the Occupation Right Agreement gave the operator control over what medical information it was entitled to ask prospective residents for. There was no evidence for any link to be made between the behaviours observed by the applicants and the alleged reduced medical standards (para 98).
Overall the Panel preferred the evidence of the Applicants regarding incidents of distasteful behaviour from some new residents but concluded there was insufficient evidence for it to be able to attribute that behaviour to the policy increase in age of entry or any reduced medical standards (para 116).
There was no issue raised regarding costs.
2018-2 Free v. Summerset Villages (Warkworth) Limited
A hearing-impaired resident complained there needed to be more hearing loops installed in village public areas. The resident referred to various grounds for the dispute including compliance with building regulations and the rights to be treated with respect and not to be exploited as set out in the Code of Residents’ Rights.
The operator said the Panel had no jurisdiction to hear the types of issue raised by the resident as a dispute under the Retirement Villages Act (‘the Act’), and even if it did the remedies available under section 69 of the Act would not assist.
The Panel found it had no jurisdiction to determine the dispute. The issues were not within the types of dispute referred to in section 53 of the Act (para 29 – 46). The Panel also said none of the remedies in section 69 of the Act would enable the Panel to order more hearing loops to be provided in the village (paras 51-52).
2018-1 I.M. Pivac v Summerset Villages (Warkworth) Ltd
A resident subscribed to a double-glazing scheme offered to all residents in the village. The operator offered to meet half the glazing costs while the remaining cost was met by residents.
The resident later claimed the scheme was unfair and that he was exploited by being introduced to a scheme he contributed to but received no ultimate financial benefit from. He said when the unit is sold by the operator on termination of his Occupation Right Agreement (ORA), its value will have been enhanced by the double-glazing and so he should get a 50% share of the enhanced value portion. Because there was no provision in the ORA for that share to occur, he said the ORA should be amended to take account of his investment contribution (para 7).
The Panel said the scheme was not unfair to the resident even if the operator eventually benefits from it in a way the resident does not (para 14). The resident had made a voluntary and informed decision to enter into the scheme and now sought to argue that agreement was unfair. The resident was achieving the benefits of double glazing for an indefinite period for half the cost (para 15).
The Panel went on to say that if the saleability of the unit was enhanced by the double glazing, as claimed by the resident, then both resident and operator may benefit as that unit becomes more saleable (para 17).
The impact of the double glazing on an eventual sale price of the unit was directly relevant to the issue of exploitation. The Panel said it would be difficult to know what impact if any the double glazing would have on sale price, and there is no assurance the operator would achieve any benefit on sale price from the glazing. The Panel concluded it was difficult to argue the operator had set out to exploit the resident to achieve a benefit (para 21).
A pre-hearing Minute was also released by the Panel dated 21 February 2018. The operator had asked the Panel to refuse to hear the dispute. The Minute is useful as the Panel discusses the types of dispute for which retirement village residents may give dispute notices.
The Panel decided the resident’s dispute notice did fall under section 53(1)(d) because it related to an alleged breach of the residents rights in the Code of Resident Rights (para 17).
2017-2 Applicant names withheld v Metlifecare Limited on behalf of Waitakere Group Limited
In this decision the dispute panel sets out what it took into account when refusing to hear the dispute under section 66 of the Retirement Villages Act 2003.
A group of residents were represented by a member of the public. The panel formed a view that continuing the dispute process was not in the interests of those residents, firstly because it could not achieve anything for them, and secondly because it could create and compound riffs between the parties (para 50). The panel concluded the dispute should not be heard because it had become an abuse of process (para 54).
The panel said expressly that it did not make any findings on any infringement of rights, if any.
It also declined to make an order for costs in favour of the applicants. The panel said the applicants had not acted reasonably in applying for the dispute resolution. By the time they had applied to the panel, the remediation works that were subject of the application had been suspended so no remedial orders would be available (paras 55-56).
The decision also reviews the panel’s available remedies and powers under sections 69, 70 and 74 of the Retirement Villages Act 2003 (para 18 – 29).
2017-1 J.Hughes v Belmont Lifestyle Village Limited
The Applicant resident was represented by her siblings who were also her Attorneys. They disputed the operator’s entitlement to deduct two ‘amenity fees’. The terms of the ORA were express about amenity fees and when they became payable (para 43 – 44, 50 - 57 of decision), and the representatives had clear advice about all fees during pre-purchase inquiries.
The representatives chose the village for their mother as she needed an existing level of care and had a dementia condition. Her dementia escalated while she was at the village. There were ongoing meetings between the operator and the representatives about their mother’s condition.
The representatives sought to rely on alleged oral commitments made to them about services. They alleged there was substandard service at the village which contributed to their mother’s decline. They lost trust in the operator’s ability to provide care, moved their mother to another facility and terminated the ORA.
The Panel said… “ the essential complaint by the applicant’s attorneys is that with hindsight they were expecting dementia care from the the Operator and that has not been provided, which has necessitated moving the applicant to another village” (para 122).
The resident was at the village for 13 months. The Panel held the two amenity fees totaling 24% of the original capital sum of $380,000 were payable by the resident without deduction. The panel was not concerned with the fairness of that contractually agreed calculation.
The Panel said the Applicant was confusing a claim for a reduction in amenity fees with a claim that various services had not been provided (para 112). The Applicant acknowledged services fees were a distinct charge under the ORA and properly payable. The Panel found the operator had provided the services referred to under the ORA and there was no breach of the ORA, so the Applicant could not be entitled to relief in the form a reduction of the amenity fee.
The decision indicates how any lay applicant, be they resident or representative, should seek prior legal advice before filing a dispute notice. The Applicant sought to make amendments to its dispute notice at the hearing despite pre-hearing conferences between the panel and the parties.
The Panel also explained (para 66 – 67, 73 - 74) how it might exercise its power under section 69(1)(c) to grant an order that ‘an operator pay or refund all or part of the amount in dispute’. Where a resident gives a dispute notice under section 53(1)(c), generally relating to money due to the resident or charges or deductions imposed when the ORA comes to an end, it said a Panel does not have jurisdiction to consider granting relief under the Contractual Remedies Act as a Court might do under the Contractual Remedies Act or Fair Trading Act.
The Panel said it had no jurisdiction to order any refund of money or other payment under section 43 of the Fair Trading Act because that Act expressly refers to an order of a Court or Disputes Tribunal. The Panel also found there had been no breach of the Consumer Guarantees Act as there was no evidence that the services supplied had not been provided without reasonable skill and care.
The Panel considered, even if it did have jurisdiction, whether it would have been able to grant damages or relief under the Contractual Remedies Act or Fair Trading Act based on the facts. It believed there were no pre-contractual representations amounting to misrepresentations that induced the resident, via her representatives, to enter into the ORA. Nor was there evidence of any misleading or deceptive conduct by the operator.
The Panel set out in detail how it applied the criteria it takes into account under section 74 of the Retirement Villages Act to determine whether to award costs and expenses, and then what amount to award. The Panel reviewed other panel decisions involving cost applications.
The Panel stated the applicant’s resistance to the deduction of the amenity fees from the outset formed the basis of the dispute, was without merit and against basic contract law. The applicant pursued its claims in face of clear indications from the respondent that it would rely on contractual terms.
The Panel said the costs of dispute panel should be borne equally, and that 60% of the respondents costs should be reimbursed by the applicant.
2016-1 J. & J. Lever v Bethlehem Country Club
This dispute concerned the applicants’ dissatisfaction with the height of hedging the operator planted on their boundary with an adjacent unit. The applicants’ also alleged they were exploited by the manager acting for the operator during various hedge dispute negotiations. The operator challenged the validity of the applicants’ notice.
The dispute panel said the dispute notice was validly issued under Section 53 of the Retirement Villages Act. Using a broad interpretation approach, the applicants’ occupation rights included their dwelling and the facilities, and improvements on the land such as the hedge, in a similar manner.
The applicants had withdrawn an earlier dispute notice as it had been filed out of time. The applicants filed a second complaint form under the operator’s complaint facility touching on similar issues and subsequently filed a further dispute notice. The dispute panel considered the second dispute notice did comply with time limits set out in Section 57 of the Retirement Villages Act saying there was no apparent impediment to filing a second dispute notice under the Act or occupation right agreement. The dispute panel noted filing a second dispute notice when no prior dispute notice had been heard, even to correct a timing issue, was not of itself an abuse of process.
In assessing what rights the applicants had regarding the height and maintenance of the hedge, the dispute panel concluded their rights under the Code of Residents’ Rights and Code of Practice and Act did not override a specific right and obligation expressed in the occupation right agreement. The manager of the operator had unfettered decision-making rights regarding trees and shrubs. The applicants’ could therefore do no more than give their views to the manager to consider along with all other competing views.
The dispute panel concluded the applicants had not been exploited by the manager not accepting their preferred option regarding the planting or height of the hedge.
The dispute panel made orders enabling the parties to exchange submissions on any costs sought by the operator. No submissions were received and the panel ordered costs to lie where they fell.
2014-3 P Devadatta, G Duindam, and E Malloy v Summer Homes (Acre Court Retirement Village)
The disputes panel ruled on a number of matters:
The disputes panel found that the residents were entitled to see the invoice and other documents relating to insurance premiums payable, invoices for items included in calculations of the weekly fee, and an itemisaton of what is included in each item in budget figures as far as reasonably practicable.
The disputes panel dismissed claims over insurance costs included in payments made by the residents and over aligning the insurance and the village financial years.
The panel also dismissed a claim concerning a breach of the operator’s obligation to make the communal area available to residents, but ordered the operator to consult with the applicants about its decision to place a mini gym and additional television with SKY TV in the communal lounge/dining area.
The disputes panel found no basis on which to make any orders concerning the time taken to repair a hot water system, as neither a lack of long-term maintenance nor a lack of a process to deal with repairs was identified.
2014-2 E H Maddocks v Epsom Village Partnership
This dispute concerned the correct deduction for the village operator to make from the proceeds of sale of the unit in relation to its refurbishment. The disputes panel found that the village operator was entitled to deduct the full amount and ordered the applicant to pay toward the village operator's legal costs.
2014-1 W J M Killian v Stonehaven Village Trust
This dispute concerned the validity of the trustees in terminating the licence to occupy (LTO) agreement of the applicant and the validity of the service charges the trustees claimed were owed by the applicant.
The disputes panel found that:
The applicant was a valid applicant to file a dispute notice
The trust validly terminated the LTO
The applicant needed to pay the unpaid service charges claimed by the trust; interest charges, legal fees and documentation service fees on enforcement matters but not on other trust expenditure; and charges for storage and for changing locks. However, the trust was not entitled to make a monthly administration charge for the general extra work undertaken by staff.
The applicant was not entitled to any compensation beyond the sale price of the unit
The applicant should pay a contribution to costs.
2013-1 A F and C Barnes Family Trust v Anglican Care (Waiapu) Ltd
The dispute concerned the interpretation of an occupation rights agreement as to what should be valued for the purposes of calculating the exit payment due. The correct method of arriving at the valuation was also in dispute. The decision was in favour of the valuation criteria and method used by the operator.
This decision also covered whether the retirement villages disputes panel had jurisdiction to determine the dispute notice. The disputes panel determined that there was jurisdiction to determine the dispute notice lodged by the applicant.
2013-2 Perry Foundation v J Waters Estate and H Murray
Two dispute notices were given by the trustees of the Operator. Both dispute notices were on similar terms concerning a dispute over the amount properly payable to the respondents from the proceeds of sale of units.
The disputes panel found partly in favour of the applicants and made orders on various specific amounts that made up the amounts payable to the two respondents.
2013 High Court decision: NZHC 576
Acting in a representative capacity on behalf of two former residents, the plaintiffs brought proceedings to the High Court.
The Court looked at whether or not the parties were bound by the dispute resolution provisions contained in their site agreements. The Court also looked at whether or not these provisions amounted to a consumer arbitration agreement.
The Court held that the dispute resolution procedure set out in the site agreement applied and ordered the proceedings brought by the plaintiffs to the High Court be stayed.
2011-2a CIV-2011-004-002618: Jacqueline Robinson, Stephanie Loveday v Oceania Village Company Limited
This was a successful appeal against the decision of the disputes panel below (2011-2).
Personal representatives of the Resident (now deceased) filed an appeal with the District Court claiming that the decision of the disputes panel was incorrect in fact and law and that the panel was not entitled to set aside the valuation of an expert valuer witness who had been duly appointed under the terms of a formal licence to occupy.
The Court allowed the appeal and ordered that the matter be remitted back to the disputes panel in its entirety so that a full hearing could be conducted.
In 2013 the Operator and the estate reached a settlement and the dispute was withdrawn prior to a rehearing taking place.
2011-2 Oceania Village Company (No 2) Ltd v M Parker
The dispute between the parties was whether or not a valuation obtained in relation to a cottage binds the parties. The parties differed over what was being valued – the valuer valued the licence to occupy the cottage, whereas the operator contended that the physical cottage should have been valued.
The disputes panel ordered that the parties engage a registered valuer on the basis that the object of the valuation was the physical cottage.
This dispute was withdrawn
2010-1 Upton v Oceania Village Company (No 2) Ltd
The dispute was over the calculation of the amount that the resident was entitled to receive from the operator on termination of her licence to occupy.
The panel determined the statutory interpretation of ‘current market value’ and calculated the amount owing to the resident on termination accordingly.
2009-3 S & A Oliver, C & E Fenn, C & J Smith, J Sheahen, J Benson, J Laidlaw v Oceania Village Co
The residents claimed that the services and facilities they were promised at the time they purchased their units had not all been provided by the operator and so they should not be held to the condition to pay the deferred management fee.
The operator submitted that the dispute notice did not disclose a cause of action capable of determination or remedy. Alternatively it submitted that if there was a cause of action the remedy was only capable of being awarded by the District Court and for that reason the dispute should be transferred there.
The panel concluded that it had jurisdiction to hear and determine the claims, and would not transfer the dispute to the District Court at that stage of the dispute. The dispute was heard but an adjournment given to allow the parties to negotiate a solution. A solution was reached resolving the dispute so the dispute decision was not required.
2009-2 J Knight and C Knight v Perry Foundation
The dispute was over whether the operator was responsible for delays in marketing and selling a unit to the disadvantage of the resident, and whether the operator should therefore purchase the unit.
The disputes panel found the operator had not breached its site agreement or obligations to take all reasonable steps to sell the unit. The panel therefore declined to order that the operator purchase the unit or to award loss of opportunity costs.
2009-1 Knebel and Kenward v Metlifecare Kapiti Ltd
The dispute was over the response by the village operator to complaints from a number of residents that a nuisance had been created by the use of a fish smoker by another resident. The applicants were not willing to postpone the complaints and disputes process until the user of the fish-smoker returned from overseas.
The panel member concluded that that the issue was fundamentally about the smoker and that the dispute notice should have been with the user of the fish-smoker (who was not a party to the hearing) rather than with the operator. As a disputes panel does not have the power to order a non-party to comply with their obligations under an occupation right agreement, the panel member declined to provide a remedy.
2008-1 Morrell v Selwyn Foundation
This dispute concerned notifications given to a resident, initially that a hospital was to be rebuilt on a specific site, but subsequently that the hospital would be sited elsewhere. The remedies sought by the resident were that the operator build a hospital at the site initially notified and return the temporary hospital to a rest home.
The dispute panel member concluded that the dispute was outside the scope of section 53(a) of the Act and that the panel did not have the power to provide the remedies sought.
2007-4 Perry, Emery, Maunder v Waitakere Group Ltd
The dispute notice from three residents claimed the operator had failed to comply with regulations requiring the operator to keep one or more financial institutions’ accounts in the name of the village and failed to pay into any such account money received by the respondent as operator in connection with the village.
The disputes panel member found that the operator was complying with the regulations and the deed of supervision.
2007-3 Van der Hulst v Dutch Village Trust
This dispute concerned a number of matters including the village manager and contractors entering the resident’s unit without consent or agreement, and replacing the bench top, hob and sink without consultation about the type to be installed. A number of remedies were sought, including a claim for damages, which the disputes panel declined.
2007-2 Catley v Summerset Management Group
This dispute related to the internal transfer of a retirement village resident from independent accommodation to more supported accommodation – from a villa to a serviced apartment. The applicant sought a refund of most of the charges plus interest and compensation.
The disputes panel did not uphold the complaints.
2007-1 Brown v Metlifecare Kapiti Ltd
The resident claimed that the operator was dictating procedures applicable to the refurbishment requirements on termination of a licence to occupy, which were not in accordance with the resident’s contractual rights and obligations.
The panel found in favour of the applicant and ordered that the operator could not impose its preferred procedure for refurbishment.