Retirement upheaval

On 31 December 2019, His Honour Justice Rothman finally handed down his decision in the case of Commissioner for Fair Trading v Jonval Builders Pty Ltd, Hacienda Caravan Park Pty Ltd and John Allan Willmott [2019] NSWSC 1893.

This Supreme Court of NSW decision is the culmination of nearly 5 years of legal proceedings and some 8 years since the home owners first sought assistance through their residents associations from NSW Fair Trading. The proceedings were brought by NSW Fair Trading Legal Services.

Gilbert of Tweed Residential Park Home-Owners Association (TRPHA Inc.) attended each day of the Court formal hearings in the Supreme Court sitting in Lismore and Sydney during May and June 2018 as well as attending directions hearings.

Sandy said “These home owners have really been through the mill. They purchased the homes so they could live peacefully on the banks of the Tweed River in their retirement, only to later discover significant issues with the approvals. They brought the problems to the attention of the regulator and then had to wait  years for the matters to get to Court. When they bought their dream homes, none of the home owners expected to end up in a battle with the operator in the Supreme Court of NSW.”

The Supreme Court found that the three defendants were jointly and severally liable to compensate each of the affected home owners of the Marina Villas. The Court found that the residential land lease community operator and their building company Jonval trading as Tweed Relocatable Homes was under the control and management of John Willmott and had breached the Australian Consumer Law and the Fair Trading Act (NSW). The Supreme Court made findings of misleading or deceptive conduct and unconscionable conduct (in connection with goods or services) against the defendants relating to the sale of dwellings (known as the marina villas at Hacienda).

The homes were purchased mostly during 2010 after representations made as to “permanent living” for retirees. Only one of the affected home owners was a genuine longterm casual occupant (i.e. not a permanent resident) at Hacienda and he and his wife had purchased the home in advance of their later intended retirement.

Non disclosure

What was also not disclosed to the home owners was the nature of the agreements they were offered and asked to sign with Hacienda (long-term casual occupation agreements). Copies could not be taken away to be scrutinised, and some were discouraged from ‘wasting time and money’ on getting legal advice. Nor was any disclosure made by the defendants of the fact that Tweed Shire Council had not granted any requisite approval for the homes located on the ‘marina villa sites’.

Orders were made by the Supreme Court for very substantial compensation to be paid to each affected home owner.

The lengthy and complex judgment in this case can be read on the NSW Caselaw site: caselaw.nsw.gov.au

Jonval, Hacienda and John Willmott appealed the decision of the Supreme Court to the NSW Court of Appeal. The Appeal was heard on 10 August 2020 and was dismissed with costs on 25 September 2020.

This article was originally published in Outasite magazine, issue 6, August 2020.