Information sheet
General
Resolution of a retirement village dispute between a resident and a scheme operator, in relation to a residence contract is available under the provisions of the Retirement Villages Act 1999 (RV Act) and the Commercial and Consumer Tribunal Act 2003 (CCT Act).
This dispute resolution process does not apply to disputes between residents or to disputes relating to the operation of a body corporate in a retirement village.
The RV Act has established a three step dispute resolution process as follows:
- Preliminary negotiation within the village.
- If the dispute is not resolved by preliminary negotiation, one of the parties can make an application (Dispute Notice) to the Commercial and Consumer Tribunal (the Tribunal) for mediation.
- If mediation is not successful a party can apply for a Tribunal hearing.
Step 1 - Preliminary negotiation
This first step is an internal negotiation process within the village. The parties must first try to resolve the dispute by either party giving the other party a notice stating the matters in dispute and nominating a day for a meeting. The day nominated must be at least 14 days from the date of giving the notice.
The party receiving the notice must give a written response within 7 days of receiving the notice. The parties must then meet in the village and attempt to resolve the dispute.
This step may use any dispute resolution process established within the village and described in the Public Information Document.
Step 2 - Mediation
If the dispute cannot be resolved through negotiation, a Dispute Notice (Mediation) accompanied by the prescribed fee may be lodged with the Tribunal. This mediation process can only be used if the parties have attempted to resolve the dispute using the internal negotiation process first.
Within 14 days of receiving the Dispute Notice, a mediator is notified of appointment. A notice is sent to the parties to the dispute advising the name of the mediator. This notice will be given at least 7 days before the mediation conference. The mediator will contact the parties to arrange a suitable time and place for the parties to meet.
The mediator will assist the parties to resolve the dispute. This is an informal process and legal representation at mediation is at the discretion of the mediator. The mediation conference is held in private and no record is kept.
A party to the dispute cannot be compelled to attend mediation. Other persons may take part in the mediation if the mediator thinks the person has a sufficient interest in the dispute.
Any type of dispute between an operator and resident can be mediated under the RV Act other than disputes that are:
- subject to arbitration
- subject to an arbitration award
- either before a court or that have been decided by a court
- between residents
- related to the operation of a body corporate.
If an agreement is reached between the parties resolving the issues in dispute, the mediator must record the agreement in writing and it must be signed by the parties. A copy of the agreement must then be provided to the Tribunal.
Step 3 - Tribunal hearing
A party can apply to the Commercial and Consumer Tribunal (Retirement Village List) for hearing if:
- the parties cannot reach agreement
- one party does not attend mediation
- the dispute is not settled within four months
- a party claims another party to a mediation agreement has not complied with the agreement within the specified time or within 2 months of the agreement if no time is specified in the agreement.
To commence proceedings, the application for Tribunal hearing must be completed in triplicate and filed in the Tribunal registry together with the prescribed fee.
The Tribunal may decide to hold a directions hearing with the parties involved appearing before the Tribunal member either in person or by telephone. At a directions hearing the Tribunal may consider preliminary matters and usually issues a timetable of directions for the parties to prepare their statements and documents for the final hearing. The Tribunal registry will advise the parties of the date, time and place for the directions hearing.
The Tribunal operates with a degree of informality and parties may represent themselves to avoid legal costs. The Tribunal may permit legal representation after considering circumstances such as:
- the cost of representation
- complexities of the case
- a party's ability to represent himself/herself (section 76(2)(e) of the CCT Act).
In accordance with the CCT Act, the Tribunal is not bound by the rules of evidence but is required to observe the rules of natural justice. The Rribunal will consider the evidence presented by the parties to the dispute before making its decision. The Tribunal may issue an attendance notice requiring a person to attend a hearing to give evidence or produce specified documents and parties and their witnesses may be required to give evidence on oath. The Tribunal has the power to proceed in a party's absence.
The Tribunal may make orders:
- requiring a party to the dispute to pay, or not pay, a specified person an amount (including an amount of compensation)
- setting aside a requirement for a party to the dispute to pay an amount to a specified person
- requiring a party to do, or not do, anything, and
- requiring the operator to pay out an exit entitlement in certain circumstances.
The Tribunal cannot hear a dispute that is, or has been, the subject of arbitration or court action.
After the hearing, each party to the dispute will be notified in writing of the outcome of the hearing and any orders and reasons for the decision.
Orders that are given by the Tribunal are binding on all parties to the dispute and can be filed with the District Court registry, or other appropriate Court registry, for enforcement. The Tribunal has the power to correct a clerical mistake or miscalculation of figures in the decision. A party may seek leave of the District Court to appeal the decision only on an error of law or a jurisdictional point.
Urgent Tribunal applications
A resident may also make an application to the Tribunal without internal negotiation or mediation first occurring where circumstances under section 169, 170 or 171 of the RV Act have occurred.
An order can be sought under section 169 if the resident is threatened with:
- removal or is removed from the retirement village
- deprivation or is deprived of the right to reside
- restriction or is restricted in the use of the retirement village land under the residence contract.
An order can be sought under section 170 to have the residence contract set aside if the scheme operator gives the resident false or misleading documents and the resident is materially prejudiced by it.
An order can be sought under section 171 to have the scheme operator pay the former resident's exit entitlement if the operator does not comply with provisions under sections 58(2), 60(2), 65 or 67(2) (which relate to the resale of the accommodation unit), and the resident is materially prejudiced by the failure to comply.
Details about the conduct of a hearing
A Tribunal hearing may be conducted by one, two or three members of the Tribunal.
For further information regarding preparing for a hearing and how a hearing is conducted, see Guidelines for Preparation of Statements and Conduct of a hearing or contact the Tribunal registry for this guidelines to be mailed to you.
Hearings are usually conducted at the premises of the Tribunal in Brisbane. The Tribunal may travel to regional areas or conduct hearings by video-conference, if appropriate.
Time limitations
Where a resident has left the village, a Dispute Notice must be lodged within 4 months after the payment of the former resident's exit entitlement.
Forms and contact details
While the details provided on both occasions may be similar, it is anticipated that, following mediation, it will be possible to more clearly specify the facts of the dispute and the orders being sought when completing the Form 1VH: Application for Tribunal Hearing form.
The address for sending the Dispute Notice form or Application for Tribunal Hearing form is:
Physical address
Commercial and Consumer Tribunal
Level 11, 259 Queen Street
Brisbane QLD 4000
ABN No: 13 846 673 994
Postal address
Commercial and Consumer Tribunal
GPO Box 2469
Brisbane QLD 4001
Contact numbers
Phone: (07) 3247 3333
Fax: (07) 3247 3300
Email: cct@tribunals.qld.gov.au
Registry hours:
8:45am to 4:45pm Monday to Friday
The address of the Chief Executive of the Department of Justice and Attorney-General regarding general matters relating to retirement villages is:
Office of Fair Trading
GPO Box 3111
BRISBANE QLD 4001
Telephone: 1300 658 030 Facsimile: (07) 3119 0209
Last Updated 7 December 2007.
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