Disputes panel decisions
Read a summary of disputes heard by panels and their decisions, or download the panels’ full reports.
McCarthy v Te Awa Lifecare
Date of decision: 16 March 2020
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.
Williams v Metlifecare
7 August 2019
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).
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.
Read the full decision: October 2018 - Decision of Disputes Panel
Free v. Summerset Villages (Warkworth) Limited
Decision dated 13 July 2018
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).
Read the full decision: 13 July 2018 - RVA Decision
I.M. Pivac v Summerset Villages (Warkworth) Ltd
Decision dated 8 March 2018
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 made by the Panel dated 21 February 2018 is also attached below. 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).
Read the full decision: 8 March 2018 - Decision of panel
Read the pre-hearing minutes: 21 February 2018 - Pre-Hearing Minute Made by the Panel
Applicant names withheld v Metlifecare Limited on behalf of Waitakere Group Limited
Decision dated 5 December 2017
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).
Read the full decision: December 2017 - Dispute Waitakere Gardens Redacted Decision
J.Hughes v Belmont Lifestyle Village Limited
Decision dated 2 February 2017
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 Belmont Retirement Village 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 decision is released as an interim one because costs in this case have been reserved with a timetable for the parties to make submissions. If there is no application for costs the decision becomes the final order of the Panel.
J.Hughes v Belmont Lifestyle Village Limited
Costs decision dated 24 March 2017
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.
Read the final decision: March 2017 - Final Decision of the Panel: Hughes v Belmont Lifestyle Village
J. & J. Lever v Bethlehem Country Club
Decision dated 11 October 2016
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.
Read the full decision: October 2016 - Decision of Panel: J & J Lever v Bethlehem Country Club
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.
Read the full decision: August 2014 - Decision of Panel: Devatta, Duindam, and Malloy v Summer Homes
Read the full decision with additions: September 2014 - Decision with Addition of Dates for Compliance Orders
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.
Read the full decision: September 2014 - Decision of Panel: Maddocks v Epsom Village
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.
Read the full decision: June 2014 - Decision of Panel: Killian v Stonehaven Village Trust
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 Perry Foundation, the operator of the the Perrinpark retirement village. 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 at Perrinpark.
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 of Perrinpark Retirement Village, 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.
Read the full decision: February 2013 - High court decision: NZHC 576
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 Mrs Parker (now deceased) filed an appeal with the District Court in Auckland 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 Oceania and the estate reached a settlement and the dispute was withdrawn prior to a rehearing taking place.
Read the full decision: March 2013 - Decision of Panel: Robinson, Loveday, v Oceania Village Company Ltd.
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.
Read the full decision: November 2011 - Decision of Panel: Oceania Village Company (No 2) Ltd v M Parker
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.
Read the full decision: October 2010 - Decision of Panel: Upton v Oceania Village Company (No 2) Ltd.
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.
Read the full decision: 2009 - Decision of Panel: Oliver, Fenn, Smith, Sheahen, Benson, Laidlaw v Oceania Village
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.
Read the full decision: June 2009 - Decision of Panel: J Knight and C Knight v Perry Foundation
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.
Read the full decision: January 2009 - Decision of Panel: Knebel and Kenward v Metlifecare Kapiti Ltd
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.
Read the full decision: 2008 - Decision of Panel: Morrell v Selwyn Foundation
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.
Read the full decision: August 2007 - Decision of Panel: Perry, Emery, Maunder v Waitakere Group Ltd
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 Bentley 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.
Read the full decision: June 2007 - Decision of Panel: Bentley v Summerset Management Group
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.
Read the full decision: March 2007 - Decision of Panel: Brown v Metlifecare Kapiti Ltd