Retirement village dispute: Race, gender prejudice cited, residents lost

• Retirement village residents displayed prejudice against an owner’s race and gender, a ruling says.
• A disputes panel dismissed their claims against her.
• They showed a sense of entitlement and prejudice given differences in race and gender.

Retirement village residents displayed race and gender prejudices against a female owner, according to a decision rejecting claims against weekly fee rises.

The unidentified residents, who live in a 17-unit village, also unnamed, complained about the actions of the unidentified female owner.

But it was the residents who ended up being the parties found wanting, not the owner.

“They were critical and dismissive of the village’s systems and the operator herself during the hearing in ways that some might think arose from a sense of entitlement or prejudice given the differences in race and gender of the parties,” said a decision of a disputes panel published by the Retirement Commission.

The residents had objected to her raising weekly fees based on council rate increases, which they said did not escalate to the extent expected so they sought repayment of money they say is owed to them.

They were dissatisfied, so a statutory supervisor was brought in.

He rejected their claim that the weekly fee could only be increased according to actual expenditure and nor did he accept the residents were entitled to refunds for overpaid rates.

Unhappy with his ruling, the residents took matters further, in a case that cited gender and ethnic prejudice of the complainants against the village owner.

The decision in the case TW and others (applicants) v W Ltd (respondent) gave the background to the fight.

“The residents object to the way that the weekly fee has been calculated for the 2024/25 financial year. The chief focus of their objection is the rates component of the fee. They claim it was raised by 28% in the initial forecast statement of outgoings but that the rates actually charged were less than that. They further claim that in the previous financial year the estimate was based on a 10% increase but the actual increase was 6.2%,” the decision said.

The residents wanted refunds of money they calculated were overpaid.

The operator accepted there was a high increase in the rates component of the charge but that it arose from circumstances beyond their control: a revaluation of the property and problems with the timing of the council’s rating calculation process.

The panel dismissed the residents’ case, ruled for the operator and noted that the lead claimant resident was advised to seek legal advice about his concerns which had he taken that advice, would have shown how wrong he was.

Panel criticised the residents over their sense of entitlement and prejudice displayed in their complaint against the female owner-operator of the village.

“Had he done so the futility of this claim would have been made clear and the risk of incurring liability for the operator’s costs explained. The operator is entitled to claim recompense in full for any costs incurred and may apply for an order once those costs are clear. If she does so the residents are entitled to be heard about whether and in what terms an order should be made,” the panel said.

The issue of who has the decision-making function in setting weekly fees lies at the heart of the claim.

Accepting the operator is the sole arbiter of this, as well as related accounting functions of the business, has proved to be insurmountably difficult for two of the residents who advanced the claim.

They regarded their way of performing this type of function to be superior to those of the operator so they believed she should adopt them, the decision said.

They were not insensitive to their own feelings though and expressed deep offence when, following a refusal to pay the changed fee until their demands were met, the operator sent a message describing the consequences of a failure to pay in terms mandated by the occupation rights agreement.

The hearing revealed relationships within the village had clearly been affected by the complaints and that the community was anxious to change that.

“Change will occur once all members of the community acknowledge and accept they have responsibility for the quality of the relationships within it and that fault-finding missions are not the way to proceed,” the panel found.

The ruling said village owner/operators were entitled to set fees and charge them.

Residents must pay those weekly fees.

The decision criticised the complainants on many fronts.

“These misunderstandings or misconceptions have unfortunately morphed into something else. What may have begun as a query of an, apparently, sudden and dramatic rate rise has become a fault-finding quest par excellence.

“The reasons for the rate rise are now clear and have been the subject of accounting advice and recommendations by the statutory supervisor that were implemented by the operator, none of which is sufficiently acceptable to the claimant residents.

“The consequence has been an obsessive search for other examples of the operator’s shortcomings,” the decision said.

The residents did not have a valid claim and not only was the case dismissed but they might well have to pay the village owner’s costs for bringing it to the panel. That is yet to be decided.

Nigel Matthews of the Retirement Village Residents Association said that entity had been kept informed about the case.

“The resident who volunteered to take on the case — as it must be an individual — was representing 100% of the residents in this village. I understand every resident signed the initial formal complaint. I think you’ll find that there’s another side to the story.”

If a resident disagrees with the decision or the way in which the panellist handles a dispute notice, they have to go to court, Matthews said.

There appears to be no way for them to appeal it under the legislation if there’s potentially been a breach of process, he said.

Last month, the Herald reported on a disputes panel ruling after a complaint by a couple living at a Waikato retirement village managed by NZX-listed Radius Residential Care.

The complaint came from two people at Ōhaupō‘s Windsor Court Retirement Village and centred on what jurisdiction Radius had over the property in which they live.

Ron and Claudia Currie have been at loggerheads with Radius over their place at the 22-unit village, established in the 1980s.

But in 2004, Radius bought management rights to the village and in 2007 had it registered as a retirement village under the law. Radius did not buy the units, just the management rights over them.

The Curries said they were not living in a retirement village under the standard retirement village rules of an occupation rights agreement. They said they were there under the Unit Titles Act, therefore they were not subject to the rules others in the village were.

But the panel found they were subject to an occupation rights agreement.

Anne Gibson has been the Herald’s property editor for 24 years, written books and covered property extensively here and overseas.