Resident Complaints & Dispute Resolution Sonia Bolzon, Partner 08 82367688 sbolzon@lynchmeyer.com.au

New RV Act requirements for dispute resolution – summary RV Act 2016 introduced in November 2016 commenced 1 January 2018 Section 45 and Regulation 18 requires RV Operator to develop a written Dispute Resolution Policy for the village Dispute Resolution Policy and process must be provided to a resident

New RV Act requirements for dispute resolution- summary – cont. Dispute Resolution Policy must include right for a resident to be accompanied by a person Internal dispute resolution process does not diminish resident’s right to subsequently lodge complaint with SACAT Section 46- Application to SACAT should not be made unless parties have made reasonably attempts to resolve the dispute in accordance with the Policy and such attempts have failed

What should the dispute resolution policy include? – cont. Regulation 18 Dispute resolution policy must include or at least address the following;- The name of the person representing the Operator of the village that a resident may contact in the event of a dispute; The manner in which a complaint may be made by a resident;

What should the dispute resolution policy include? – cont. How a dispute will be handled, including the timeframe for a response that must be specified in the dispute resolution policy, The manner in which a resident may resolve a dispute with another resident; The persons/bodies from whom a resident may seek advice in the event of a dispute; That a resident may apply to SACAT if a resident is not satisfied with a response to the complaint;

What should the dispute resolution policy include? – cont. A requirement that the Operator must keep a written record of: The complaint made by the resident; and Any response to the complaint provided by the Operator; and Any resolution of the dispute agreed by the Operator and the resident; and Any other correspondence received or sent by the Operator relating to the dispute.

What should the dispute resolution policy include? – cont. The manner in which the Operator will communicate with a resident in response to a complaint; That the resident has the right to be accompanied by a person chosen by the resident at any meeting held to resolve the dispute; Procedures for variation of the dispute resolution policy which provide that variation will only occur with the agreement of a majority of the residents in the village.

SACAT Role SACAT can hear disputes concerning; Breaches of the resident’s contract Breaches of the Act Harsh or unconscionable conduct by the Operator Full or part payment of an exit entitlement Cannot hear disputes between residents Cannot hear any dispute not related to the RV Act/Regulations or the resident contract

SACAT Role – cont. Can decline to hear a dispute for reasons including;- That the matter could more adequately dealt with under the RV Dispute Resolution Policy The matter is more appropriately dealt with by another Court/Tribunal The matter is frivolous or involves a trivial issue or amount Or for some other reason, it is not appropriate to proceed with the matter

SACAT Role – cont. Lawyers require leave of SACAT to represent a party- Schedule 1 Clause 3 (3) If one party is granted leave, the other party is automatically granted the same opportunity A resident can have a person of their choosing to accompany them to any meeting held to reserve the dispute

SACAT Process SACAT is not bound by the rules of evidence- informal

SACAT- Types of Orders Section 46 of the Act restraining the breach or requiring action and performance of the contract Order the payment of an amount payable under the contract Order payment of compensation for loss or injury, other than personal injury caused by a breach of the contract, or a failure to comply with the contract

SACAT- Types of Orders – cont. Require the Operator to vary or reverse a decision or the effect of an Act Order a party to a dispute to refrain from future action of a kind complained of Modify the terms or conditions of an agreement between the Operator and the resident

SACAT- Types of Orders – cont. Require the Operator to repay the resident any amount paid pursuant to the contract If the dispute relates to the payment of an exit entitlement, may determine the amount that is payable and make orders as to payment Any “ancillary or incidental orders”

What is a Dispute? Disputes can arise: Dispute between a RV operator & resident About the parties’ rights & obligations under the residence contract or the RV Act Resident includes a former resident (S46 RV Act)

Common (Real Life) Problems Visitors Cars, car parking, Caravans/boats Additions & alterations to units Pets Gardens & garden ornaments Wildlife Social activities Health problems

Prevention Make sure prospective residents have advice Deliver on your promises Customer service Feedback opportunities Be responsive Know your residents well Communication

Internal Complaints Procedure Have one Educate residents about it Have appropriate staff to respond quickly and train them Monitor response times Follow up

Termination of Right of Occupancy Glengowrie Estate Pty Ltd v Bonwell Concerns about resident’s erratic behaviour – night wandering, aggressive to other residents. Tribunal confirmed right of operator to terminate licence on basis unit was unsuitable due to resident’s mental incapacity.

Failure to Properly Market Unit Cutts v Australian Retirement Homes Ltd Claim by executor of deceased resident. Failure to properly market unit; unreasonable delays in sale of unit; failure to properly present unit for sale; residents car had caused damage to unit. Tribunal dismissed application. Operator acted appropriately. Insufficient communication.

Mediation Make use of mediation, if appropriate Does require a willingness of both parties to participate Use a skilled mediator

Residents Committee Established by residents Function – deal with operator on behalf of residents about: Running of village Complaints & proposals Meaningful engagement Give them opportunities for involvement in decision making

By-Laws Day to day things that happen: Rubbish, parking, plats, noise etc Residence contract prevails if there is inconsistency between the two

Residence Contract Underpins the relationship between resident & operator Crucial in formal dispute resolution

Possible Alternatives Retirement Housing Ombudsman. Retirement Housing Complaints Commissioner. Mandatory industry standards.