Retirement Villages Act 1999 No 81

An Act to set out particular rights and obligations of residents and operators of retirement villages; to establish mechanisms for the resolution of certain disputes between residents and operators of retirement villages; to repeal the Retirement Villages Act 1989; and for other purposes.

Part 1 Preliminary

1 Name of Act

This Act is the Retirement Villages Act 1999.

2 Commencement

(1)  This Act commences on a day or days to be appointed by proclamation, except as provided by this section.

(2)  Clause 14 of Schedule 4 commences on the date of assent to this Act.

3 Objects of Act

The objects of this Act are:

(a)  to set out particular rights and obligations of residents and operators of retirement villages, and

(b)  to facilitate the disclosure of information to prospective residents of retirement villages, and

(c)  to require contracts between residents and operators of retirement villages to contain full details of the rights and obligations of the parties, and

(d)  to facilitate resident input, where desired by residents, into the management of retirement villages, and

(e)  to establish appropriate mechanisms for the resolution of certain disputes between residents and operators of retirement villages, and

(f)  to encourage the retirement village industry to adopt best practice management standards.

s 3: Am 2008 No 121, Sch 1 [1].

4 Definitions

(1)  In this Act:

accounts of a retirement village means the accounts referred to in Division 6 of Part 7.

annual management meeting means the meeting referred to in section 72A.

approved annual budget means a budget taken to be an approved annual budget under section 116.

association and association property have the same meanings as they have in the Community Land Management Act 1989.

capital maintenance means works carried out for the purpose of repairing or maintaining an item of capital and includes works prescribed by the regulations as being capital maintenance, but does not include works that are prescribed by the regulations as not being capital maintenance.

capital replacement means works carried out for the purpose of replacing an item of capital, but does not include capital maintenance.

capital works fund means a fund established under section 99.

close associate of an operator of a retirement village means:

(a)  if the operator is a natural person:

(i)  the spouse, de facto partner, parent, child or sibling of the operator, or

(ii)  the parent, child or sibling by marriage of the operator, or

(iii)  a body corporate of which the operator (or the operator’s spouse, de facto partner, parent, child or sibling, or the operator’s parent, child or sibling by marriage) is a director or secretary, and

(b)  if the operator is a body corporate:

(i)  a director or secretary of the body corporate or of a related body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth), or

(ii)  the spouse, de facto partner, parent, child or sibling (or the parent, child or sibling by marriage) of such a director or secretary, or

(iii)  a related body corporate, and

(c)  in either case—an agent or employee of the operator.

Note—

“De facto partner” is defined in section 21C of the Interpretation Act 1987.

community land scheme means a scheme (other than a strata scheme) within the meaning of the Community Land Management Act 1989.

company title scheme means a scheme under which a group of adjoining or adjacent premises (including residential premises) is owned or leased by a corporation each of whose shareholders has, by virtue of his or her shares, an exclusive right (under a lease or otherwise) to occupy one or more of the residential premises.

condition report means a report referred to in section 38.

Consumer Price Index means the Consumer Price Index (All Groups) for Sydney as published by the Australian Statistician.

de facto relationship has the same meaning as it has in the Property (Relationships) Act 1984.

departure fee—see section 156.

development and development consent have the same meanings as they have in the Environmental Planning and Assessment Act 1979.

disclosure statement means a statement referred to in section 18 (3A).

exercise a function includes perform a duty.

financial year of a retirement village is the period determined under section 91.

former occupant of a retirement village means a resident, or a former resident, of the village:

(a)  who has permanently vacated any residential premises in the village, and

(b)  whose residence contract has been terminated (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the residential premises concerned), and

(c)  who continues to have rights or liabilities under a village contract relating to the village,

and includes the executor or administrator of the estate of such a person.

function includes a power, authority or duty.

general inquiry document means a document referred to in section 18 (2).

general services means services provided, or made available, by or on behalf of the operator, to all residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition.

Note—

Examples of general services are management and administration services and gardening and general maintenance.

holding deposit means money paid to the operator of a retirement village in consideration for not offering particular residential premises in the village to any other person pending a prospective resident’s entering into a residence contract with the operator.

ingoing contribution—see section 6.

investigator means an investigator appointed under the Fair Trading Act 1987.

item of capital means:

(a)  any building or structure in a retirement village, and

(b)  any plant, machinery or equipment used in the operation of the village, and

(c)  any part of the infrastructure of the village, and

(d)  any other item prescribed by the regulations,

but does not include any item excluded from this definition by the regulations.

licensed conveyancer means the holder of a licence in force under the Conveyancers Licensing Act 2003.

operator of a retirement village means the person who manages or controls the retirement village, and includes:

(a)  a person (other than a resident or other person referred to in subsection (2)) who owns land in the village, and

(b)  any other person or class of persons prescribed by the regulations for the purposes of this definition,

but does not include:

(c)  the relevant association of a community land scheme or the owners corporation of a strata scheme, or

(d)  the managing agent of such a scheme, or

(e)  any person or class of persons excluded from this definition by the regulations.

optional services means optional services made available, by or on behalf of the operator, to individual residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition.

Note—

Examples of optional services are the provision of meals, laundry services and the cleaning of the residents’ residential premises.

proposed annual budget means a proposed annual budget referred to in section 112.

prospective resident of a retirement village means a person who indicates (or on whose behalf it is indicated) to the operator of the village that he or she is (or might be) interested in becoming a resident of the village.

proxy of a resident of a retirement village means a person appointed by the resident for the purpose of voting on the resident’s behalf at meetings of residents.

recurrent charge means any amount (including rent) payable under a village contract, on a recurrent basis, by a resident of a retirement village.

Note—

Levies payable under a community land scheme or strata scheme are not recurrent charges (because they are not payable under a village contract).

Register means:

(a)  in relation to land under the Real Property Act 1900—the Register kept under that Act, and

(b)  in relation to any other land—the General Register of Deeds kept under the Conveyancing Act 1919.

relative of a person means:

(a)  the person’s grandparent, parent, sibling or child, and

(b)  the person’s grandparent, parent, sibling or child by marriage, and

(c)  the person’s step-grandparent, step-parent, step-brother, step-sister or step-child, and

(d)  the person’s aunts and uncles.

rescission notice means a notice under section 32 or 33.

residence contract means a contract that gives rise to a residence right.

residence right of a person means the person’s right to occupy residential premises in a retirement village, being a right arising from a contract:

(a)  under which the person purchased the residential premises, or

(b)  under which the person purchased shares entitling the person to occupy the residential premises, or

(c)  in the form of a lease, licence, arrangement or agreement of any kind, other than a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010:

(i)  that is entered into under Division 5 of Part 10, or

(ii)  that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, or

(d)  in the form of any other contract of a kind prescribed by the regulations,

or any other right of a kind prescribed by the regulations.

Note—

See also subsection (2).

resident of a retirement village means a retired person who has a residence right in respect of residential premises in the village and includes the following persons (each of whom is taken also to have a residence right in respect of the residential premises concerned):

(a)  the spouse of the retired person, if the spouse occupies the residential premises with the retired person,

(b)  if the retired person is in a de facto relationship—the other party to that relationship, if the other party occupies the residential premises with the retired person,

(c)  any person or class of persons prescribed by the regulations for the purpose of this definition,

(d)  in Parts 6, 7 and 8 and Division 5 of Part 10—a former occupant of the retirement village.

residential aged care facility means any residential accommodation for retired people that includes:

(a)  meals and cleaning services, and

(b)  personal care or nursing care, or both, and

(c)  appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care.

residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence.

residential tenancy agreement has the same meaning as it has in the Residential Tenancies Act 2010.

Residents Committee means a committee established under section 70.

retired person means a person who has reached the age of 55 years or has retired from full-time employment.

retirement village—see section 5.

Secretary means:

(a)  the Commissioner for Fair Trading, Department of Finance, Services and Innovation, or

(b)  if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Finance, Services and Innovation.

service contract means a contract under which a resident of a retirement village is provided with general services or optional services in the village.

special resolution means a resolution described in Part 3 of Schedule 1.

strata scheme has the same meaning as it has in the Strata Schemes Management Act 2015.

tenant means a person who has the right to occupy residential premises under a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010:

(a)  that is entered into under Division 5 of Part 10, or

(b)  that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement.

Note—

A tenant is not a resident.

Tribunal means the Civil and Administrative Tribunal.

village contract means:

(a)  a residence contract, or

(b)  a service contract, or

(c)  a contract under which a resident of a retirement village obtains the right to use a garage or parking space, or a storage room, in the village, or

(d)  any other contract of a kind prescribed by the regulations for the purpose of this definition.

Note—

A residence contract, a service contract and any other village contract may be contained in a single document.

village rules means the rules made and in force from time to time under Division 1 of Part 6.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2)  For the purposes of the definition of residence right in subsection (1), it does not matter that the person who obtains the right:

(a)  is a corporation, if the premises concerned are intended for use as a residence by a natural person, or

(b)  obtains it for the purpose of allowing another person to live in the residential premises (instead of the person who obtained the right),

and in those cases, a retired person who lives in the premises with the consent of the corporation or of the person (as the case may be) is taken to have the residence right.

Note—

Subsection (2) would apply in the case, for example, of a person who buys a strata-titled unit in a retirement village for the person’s parent to live in.

(3)  In this Act, a reference to the sale, the sale price, or a contract for the sale, of residential premises in a retirement village that were or are to be occupied under a company title scheme is taken to be a reference to the sale, the sale price, or a contract for the sale, of the residence right in respect of the premises.

(4)  It is sufficient compliance with the requirements of this Act if:

(a)  an agent of the operator of a retirement village exercises the functions of the operator under this Act or the regulations, and

(b)  any notice or other document required to be given to the operator under this Act or the regulations is given to an agent of the operator.

(5)  If there is more than one operator for a retirement village, it is sufficient compliance with the requirements of this Act if:

(a)  any of the operators exercises the functions of an operator under this Act or the regulations, and

(b)  any notice or other document required to be given to the operator under this Act or the regulations is given to any of the operators.

(6)  A reference in this Act to an operator of a retirement village extends to the operator for the time being.

s 4: Am 2001 No 34, Sch 4.54 [1]; 2001 No 82, Sch 7.18 [1] [2]; 2003 No 3, Sch 2.11; 2008 No 121, Sch 1 [2]–[8]; 2010 No 19, Sch 3.91 [1]–[4]; 2010 No 42, Sch 3.15 [1]–[4]; 2013 No 95, Sch 4.36 [1]; 2013 No 111, Sch 1.9; 2015 No 7, Sch 2.38 [1]; 2015 No 50, Sch 4.22 [1]; 2016 No 27, Sch 2.42 [2].

5 Meaning of “retirement village”

(1)  For the purposes of this Act, a retirement village is a complex containing residential premises that are:

(a)  predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex, or

(b)  prescribed by the regulations for the purposes of this definition.

(2)  It does not matter that some residential premises in the complex may be occupied by employees of the operator or under residential tenancy agreements containing a term to the effect that this Act does not apply to the premises the subject of the agreement (instead of being occupied under residence contracts), or that those premises do not form part of the retirement village.

(3)  However, a retirement village does not include any of the following:

(a)  any building or any part of a building used or intended to be used for the provision of residential care, within the meaning of the Aged Care Act 1997 of the Commonwealth, by an approved provider under that Act,

Note—

Paragraph (a) excludes from the definition of retirement village buildings that are commonly known as Commonwealth-subsidised hostels and nursing homes.

(b)  a nursing home within the meaning of the Public Health Act 2010,

(c)  any building or part of a building intended to be used for the provision of respite care (within the meaning of Aged Care Act 1997 of the Commonwealth),

(d)  a community within the meaning of the Residential (Land Lease) Communities Act 2013,

(e)  any residential premises the subject of a residential tenancy agreement to which the NSW Aboriginal Housing Office or the New South Wales Land and Housing Corporation is a party,

(f)  a boarding-house or lodging house,

(g)  any accommodation provided in a complex for employees of the complex who are not residents of the retirement village,

(h)  any residential premises the subject of a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010 to which the operator of a retirement village is a party and that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement,

(i)  any other place or part of a place excluded from this definition by the regulations.

s 5: Am 2004 No 87, Sch 6.20 [1]; 2008 No 121, Sch 1 [9]; 2010 No 42, Sch 3.15 [5]; 2010 No 127, Sch 4.20; 2013 No 97, Sch 3.14.

6 Meaning of “ingoing contribution”

(1)  For the purposes of this Act, an ingoing contribution is:

(a)  any money payable to the operator under a residence contract, or

(b)  any other money, regardless of how it is described, that is paid to the operator of a retirement village in consideration for, or in contemplation of, the person by whom (or on whose behalf) the payment was made becoming a resident of the village, regardless of whether the payment is made in a lump sum or by instalments.

(2)  Despite subsection (1), an ingoing contribution does not include any of the following:

(a)  a waiting list fee referred to in section 21,

(b)  recurrent charges,

(c)  if the resident is the registered proprietor of land, the owner of a lot in a strata scheme or the proprietor of a lot in a community land scheme on which the residential premises are located—the purchase price of the land or lot,

(c1)  if the person is the owner of shares in a company title scheme that give rise to a residence right in respect of the premises—the purchase price of the shares,

(d)  any other payment of a kind prescribed by the regulations.

s 6: Am 2008 No 121, Sch 1 [10].

7 Meaning of “registered interest holder”

(1)  For the purposes of this Act, a person is the registered interest holder with respect to residential premises in a retirement village if:

(a)  the person is:

(i)  the registered proprietor of land, or

(ii)  the owner of a lot in a strata scheme, or

(iii)  the proprietor of a lot in a community land scheme,

within a retirement village and as such has a residence right in respect of residential premises within the retirement village, or

(b)  the person is the owner of shares in a company title scheme that give rise to a residence right in respect of residential premises within a retirement village, or

(c)  the person’s residence contract is in the form of a registered long-term lease that includes a provision that entitles the person to at least 50% of any capital gain.

(2)  In this section:

registered long-term lease means a lease registered under the Real Property Act 1900 that:

(a)  has a term of at least 50 years (including any option to renew), or

(b)  is for the life of the lessee.

s 7: Subst 2008 No 121, Sch 1 [11].

7A Meaning of “capital gain”

(1)  In this Act, capital gain, in relation to a resident’s entitlement under a residence contract or the sharing of a capital gain under a village contract between the operator and a resident, means any increase between the amount that the resident paid for the residence right for the relevant premises and the amount that the next resident pays for a residence right for the same premises, less any costs associated with the subsequent sale or lease of the premises.

(2)  Fees and charges payable under a village contract are not to be included in the calculation of the capital gain.

s 7A: Ins 2008 No 121, Sch 1 [11].

8 “Permanent vacation” of residential premises

For the purposes of this Act, a person is taken to have permanently vacated residential premises in a retirement village when:

(a)  the person (or another person on behalf of the person) delivers up vacant possession of the person’s residential premises to the operator of the village following the person’s vacation of the premises, or

(b)  the executor or administrator of the person’s estate delivers up vacant possession of the person’s residential premises to the operator of the village following the person’s death, or

(c)  the Tribunal makes an order under section 143 declaring that the person’s residential premises were abandoned by the person (and the person is taken to have permanently vacated the premises on the day specified in the order), or

(d)  if the person is a registered interest holder in relation to residential premises or is taken to be a resident of the premises by the operation of section 4 (2)—the person dies or moves out of the premises.

s 8: Am 2004 No 14, Sch 1 [1]; 2008 No 121, Sch 1 [12].

9 “Consent” of residents

(1)  Schedule 1 provides for the way in which the residents of a retirement village give their consent to a proposed measure or action relating to the village for the purposes of this Act or the regulations.

(2)  If a resident or the operator of a retirement village considers that:

(a)  the residents’ consent to a particular measure or action has been obtained otherwise than as provided for by Schedule 1, or

(b)  the votes of the residents were inaccurately counted,

the resident or operator concerned may apply to the Tribunal for an order as to the validity of the consent.

(3)  On an application made to it under this section, the Tribunal may make an order:

(a)  declaring the consent to have been validly obtained, or

(b)  voiding the purported consent and directing that the residents vote again on the proposed measure or action.

10 Notes

Notes included in this Act are explanatory notes and do not form part of this Act.

Part 2 Application of Act

11 Application of Act

(1)  This Act applies to all retirement villages (whether established before or after the commencement of this section) and so applies despite the terms of any contract, agreement, scheme or arrangement (whether made or entered into before or after the commencement of this section).

(2)  This Act extends to apply to and in respect of:

(a)  a retired person who continues to occupy residential premises in a former retirement village that was a retirement village when the retired person took up residence in the premises, and

(b)  a retired person who has a right to occupy residential premises in a former retirement village that was a retirement village when the right was obtained, and

(c)  a former resident of a former retirement village who continues to have rights or liabilities under the contract, agreement or arrangement under which he or she occupied (or had the right to occupy) the residential premises in the former retirement village when it was a retirement village, and

(d)  the person who is the other party to the contract, agreement or arrangement under which the retired person occupies or occupied (or has or had the right to occupy) the residential premises in the former retirement village,

even though the former retirement village is no longer a retirement village.

(3)  However, this Act does not so apply in respect of any place or part of a place referred to in section 5 (3).

(4)  The regulations may prescribe other modifications to the application of this Act for the purposes of this section.

(5)  For the purposes of this Act:

(a)  a reference in this Act to a resident of a retirement village includes a reference to a person described in subsection (2) (a), (b) or (c), and

(b)  a reference in this Act to the operator of a retirement village includes a reference to the person referred to in subsection (2) (d).

(6)  In this section, former retirement village means a complex that was previously, but is no longer, a retirement village within the meaning of this Act (even if it ceased to be such a retirement village before the commencement of this Act).

12 Act to bind Crown

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

13 Effect of Act on other legislation

(1)  This Act is to be construed as being in addition to, and not in derogation of, any other law of the State, except as otherwise provided by this Act.

(2)  The Landlord and Tenant Act 1899, the Landlord and Tenant (Amendment) Act 1948 and Part 8 of the Residential Tenancies Act 2010 do not apply to or in respect of residential premises the subject of a residence contract under this Act.

s 13: Am 2010 No 42, Sch 3.15 [6].

Part 3 Representations and information about retirement villages

14 Development consent

If development consent is required before development for the purposes of a retirement village can be carried out, a person must not:

(a)  advertise, or otherwise promote, the proposed village, or

(b)  advertise the sale of residential premises (or the right to occupy residential premises) in the proposed village,

before the consent has been obtained.

Maximum penalty: 100 penalty units.

15 Approvals for certain facilities

The operator of a retirement village (or a person intending to carry out development for the purposes of such a village) must not advertise or otherwise represent that a residential aged care facility is (or will be) associated with the village or the proposed village unless all authorisations required by law for the residential aged care facility concerned have been obtained.

Maximum penalty: 100 penalty units.

s 15: Am 2004 No 87, Sch 6.20 [2]; 2008 No 121, Sch 1 [13].

16 Exceptions to prohibitions on advertising

A person is not guilty of an offence under section 14 or 15 merely because the person:

(a)  carries out market surveys in relation to a proposed retirement village before the relevant development consent is obtained, or

(b)  carries out market surveys in relation to a proposed residential aged care facility in connection with a retirement village before obtaining the requisite authorisations, or

(c)  gives public notice of, or otherwise advertises, a development application relating to a proposed retirement village or a proposed residential aged care facility in accordance with the requirements of the Environmental Planning and Assessment Act 1979.

s 16: Am 2008 No 121, Sch 1 [14].

17 Representations about retirement villages

(1)  A person who manages or controls a complex containing residential premises must not knowingly represent that the complex is a retirement village unless the complex is a retirement village within the meaning of this Act.

Maximum penalty: 50 penalty units.

(2)  The operator of a retirement village must not make a representation to a prospective resident knowing that it is inconsistent with the information contained in the disclosure statement provided to the prospective resident.

Maximum penalty: 50 penalty units.

(3)  The operator of a retirement village must not knowingly represent to a prospective resident that a particular service or facility is provided to or available at the village or to the residents, or is associated with the village, unless the service or facility is so provided or made available or associated.

Maximum penalty: 50 penalty units.

(4)  If the operator of a retirement village represents to a prospective resident of the village that a service or facility is to be provided to or made available by the operator at the village or to the residents in the future, the operator must ensure that a village contract entered into by that person and the operator specifies the service or facility concerned and the date by which it is to be provided or made available.

Maximum penalty: 50 penalty units.

(5)  The resident concerned may apply to the Tribunal for (and the Tribunal may make) an order that the operator pay compensation to the resident if the service or facility concerned is not provided or made available:

(a)  by the date specified in the village contract, or

(b)  if the village contract (in contravention of subclause (4)) does not specify the date—within a reasonable time.

(5A)  The operator of a retirement village must not publish or distribute written promotional material that makes a representation in relation to the retirement village of a kind prescribed by the regulations.

Maximum penalty: 50 penalty units.

(6)  For the purposes of this section, a representation made by an agent or employee of the operator of a retirement village is taken to be a representation of the operator unless the operator establishes, to the satisfaction of the Tribunal or court, that, in making the representation, the agent or employee was acting otherwise than in his or her capacity as the operator’s agent or employee.

Note—

Any advertising, and promotional and sales material, relating to a retirement village must also comply with the Fair Trading Act 1987 and the Competition and Consumer Act 2010 of the Commonwealth.

s 17: Am 2008 No 121, Sch 1 [15]; 2012 No 95, Sch 2.29.

18 General inquiry document and disclosure statement concerning retirement village

(1)  The operator of a retirement village must provide a person with a general inquiry document within 14 days after becoming aware that the person is a prospective resident or is acting on behalf of a prospective resident.

(2)  A general inquiry document is to give a basic explanation of the residential premises, services and facilities that are available within a retirement village, and must:

(a)  be in the form prescribed by the regulations, and

(b)  contain the information prescribed by the regulations.

(3)  The operator of a retirement village must provide a disclosure statement to a prospective resident, or person acting on behalf of a prospective resident, who:

(a)  requests a copy, or

(b)  expresses an interest in particular premises within the retirement village,

within 14 days after the request is received or the expression of interest is made.

Maximum penalty: 20 penalty units.

(3A)  A disclosure statement is to give specific details of particular residential premises in a retirement village (including details of the fees and charges that will be payable by the resident of the premises) and must:

(a)  be in the form prescribed by the regulations, and

(b)  contain the information prescribed by the regulations, and

(c)  be signed and dated by the operator of the retirement village.

(3B)  The regulations may prescribe different forms for, or information to be contained in, general inquiry documents or disclosure statements in respect of different classes of general inquiry documents or disclosure statements or different circumstances in which they are provided.

(4)  The operator of the retirement village must annex a copy of the disclosure statement (or the disclosure statement as amended in writing and endorsed with the consent of the other party to the village contract) to the first village contract that the other party enters into with the operator.

Maximum penalty: 10 penalty units.

(5)  The operator of a retirement village must not enter into a village contract with a person earlier than 14 days after the person (or another person acting on behalf of that person) has been provided with a disclosure statement by the operator.

Maximum penalty: 100 penalty units.

(6)  If the operator of a retirement village fails to provide a general inquiry document or disclosure statement in accordance with this section, the prospective resident, or person acting on behalf of the prospective resident, to whom the document or statement should have been provided may apply to the Tribunal for (and the Tribunal may make) an order requiring the operator to provide the general inquiry document or disclosure statement.

s 18: Am 2008 No 121, Sch 1 [16]–[18].

19 Information to be provided to prospective residents

(1)  The Secretary may approve the content and form of information that the operator of a retirement village must provide to a prospective resident of the retirement village.

(2)  An operator of a retirement village must not, without reasonable excuse, fail to provide the approved information in the approved form at or before the time the general inquiry document is provided to the prospective resident or person acting on behalf of the prospective resident.

Maximum penalty: 10 penalty units.

(3)  Without limiting subsection (1), the approved information may relate to any of the following:

(a)  the retirement village industry generally,

(b)  the rights and responsibilities of residents of retirement villages,

(c)  living within a strata scheme.

s 19: Am 2004 No 9, Sch 2.2. Subst 2008 No 121, Sch 1 [19]. Am 2010 No 119, Sch 1.29 [1]–[3].

20 Copies of certain documents to be available

(1)  The operator of a retirement village must have available at the village or at a place of business in New South Wales, for inspection at all reasonable times by a prospective resident or a person acting on behalf of a prospective resident, copies of the following:

(a)  a site plan for the village,

(b)  plans showing the location, floor plan and significant dimensions of residential premises available in the village,

(c)  the proposed annual budgets (if any) and the approved annual budgets for:

(i)  each of the last 3 financial years of the village, and

(ii)  the current financial year, and

(iii)  the next financial year (if budgets in respect of that year are available),

(d)  the accounts for the village, audited if so required under Division 6 of Part 7, for the last 3 financial years (excluding, during the first 4 months of a financial year, the immediately preceding financial year if the accounts for that year are not available),

(e)  examples of all village contracts that an incoming resident may be required to enter into,

(f)  the trust deed for any trust fund into which money paid by the residents is deposited,

(g)  the village rules,

(h)  the terms of the development consent, if any, for the village, but only if:

(i)  construction of the village is not complete, or

(ii)  it is a condition of the development consent that a particular service or facility be provided for the life of the village,

(i)  if there is a capital works fund established for the village—statements of the balance in the fund as at the end of:

(i)  each of the last 3 financial years of the village, and

(ii)  the most recent quarter,

(j)  if the operator is required to provide the residents with quarterly accounts—the most recent quarterly accounts of the income and expenditure of the village,

(k)  such other documents relating to the village, and to retirement villages generally, as the regulations may prescribe.

Maximum penalty: 50 penalty units.

Note—

Section 197 prohibits an operator of a retirement village from charging for the provision of these documents.

(2)  If the village has been in operation for 3 years or less, the documents referred to in subsection (1) (c), (d) and (i) must relate to each financial year that the village has been in operation.

(3)  The operator must give (or, if requested to do so, send by post) a copy of any document referred to in subsection (1) (a)–(j) to any prospective resident (or a person acting on behalf of a prospective resident) who requests it. The operator must give or send the document no later than 7 days after receiving the request.

Maximum penalty: 50 penalty units.

(4)  If the operator of a retirement village:

(a)  fails to have the documents referred to in subsection (1) available for inspection as required by that subsection, or

(b)  fails to comply with a request under subsection (3),

a prospective resident (or a person acting on behalf of a prospective resident) who wishes to inspect the documents, or who made the request under subsection (3) (as the case may be), may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to comply with the relevant requirement of this section.

s 20: Am 2000 No 53, Sch 1.26 [1]; 2008 No 121, Sch 1 [20]–[25].

Part 4 Entry into retirement villages

21 Waiting list fee

(1)  The operator of a retirement village must not require or accept any waiting list fee unless:

(a)  the fee does not exceed $200 (or such other amount as may be prescribed by the regulations), and

(b)  the operator has a written policy setting out the way in which the waiting list operates, and

(c)  the operator gives to the person who pays the fee, at the time payment is made, a copy of the policy and a receipt for the payment.

Maximum penalty: 100 penalty units.

(2)  If a waiting list fee is paid by or on behalf of any person, the operator must deduct the amount of the fee from any ingoing contribution payable by the person concerned (unless the fee is refunded in accordance with this section). If no ingoing contribution is payable, the waiting list fee must be refunded no later than at the time the person concerned first enters into a village contract with the operator.

(3)  A waiting list fee must be refunded in full no later than 14 days after the operator receives a written request for a refund from the person (or from the executor or administrator of the person’s estate) by or on whose behalf the fee was paid.

(4)  If a waiting list fee is not refunded as required by this section, the person to whom the refund is payable may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to refund the fee.

(5)  In this section, waiting list fee means any payment made to the operator other than:

(a)  an ingoing contribution, or

(b)  a holding deposit, or

(c)  a payment under a village contract.

22 Holding deposit

(1)  The operator of a retirement village must not require or accept a holding deposit in respect of any residential premises in the village that are occupied by a resident.

Maximum penalty: 50 penalty units.

(2)  Subsection (1) does not apply if the resident has given the operator written notice of intention to vacate the premises.

23 Deposits to be kept in trust

(1)    (Repealed)

(2)  The operator of a retirement village must ensure that any money paid to the operator:

(a)  as a holding deposit, or

(b)  as a deposit under a village contract,

is held in trust in accordance with this section.

Maximum penalty: 50 penalty units.

(3)  The money may be held:

(a)  in an Australian legal practitioner’s trust account, or

(b)  in the trust account of a person licensed as a real estate agent under the Property, Stock and Business Agents Act 2002, or

(c)  in a licensed conveyancer’s trust account, or

(d)  by a trustee company (within the meaning of the Trustee Companies Act 1964), or

(e)  in such other manner as the regulations may prescribe.

(3A)  Subsection (3) does not apply to or in respect of money held by an operator of a retirement village if the operator is:

(a)  a body constituted or established by an Act, or

(b)  a body constituted or established for any benevolent, philanthropic or patriotic purpose.

(4)  Money paid to the operator as a holding deposit or ingoing contribution is to be held in trust until:

(a)  the prospective resident enters into a residence contract with the operator (whether in relation to the premises concerned or to other premises in the same village or in another village), in which case the money may, if both parties so agree, be taken to form part of the deposit under the contract, or

(b)  the operator is notified in writing that the prospective resident:

(i)  does not intend to enter into such a contract, or

(ii)  has died,

in which case the money is to be refunded in full (to the prospective resident or to the executor or administrator of the prospective resident’s estate, as the case may be) no later than 14 days after the operator receives the notification.

(5)  If the operator of a retirement village does not make any refund required by subsection (4), the prospective resident concerned (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the repayment.

(6)  Money paid to the operator as a deposit under a village contract is to be held in trust until final payment is made under the contract.

(7)  Subsections (2) (b) and (6) do not apply in respect of a contract for the sale of residential premises if the contract provides for the manner in which the deposit is to be held.

s 23: Am 2002 No 66, Sch 2.9 [1]; 2008 No 121, Sch 1 [26]–[28]; 2015 No 7, Sch 2.38 [2].

Part 5 Village contracts

Division 1 General

pt 5, div 1, hdg: Ins 2008 No 121, Sch 1 [29].

24 Resident to enter village contract

(1)  The operator of a retirement village must not permit a prospective resident of the village to occupy residential premises in the village before the prospective resident enters into at least one of the following contracts with the operator in writing:

(a)  a residence contract,

(b)  a service contract.

Maximum penalty: 50 penalty units.

Note—

A residence contract, a service contract and any other village contract may be contained in a single document.

(2)  However, a prospective resident may occupy residential premises in the village without entering into a contract referred to in subsection (1) if:

(a)  the prospective resident occupies the premises with a person who has entered into such a contract with the operator, or

(b)  the prospective resident and the operator enter into a residential tenancy agreement to which this Act does not apply in relation to the premises.

(3)  If the operator contravenes subsection (1), then (despite the provisions of Part 10):

(a)  the former occupant (if any) of the residential premises concerned has no liability to pay any recurrent charges or departure fees relating to the premises in respect of any period after the date on which the prospective resident occupies the premises, and

(b)  the operator must, no later than one month after that date, make any refund of the former occupant’s ingoing contribution, and make any other payment that is required, under a village contract, to be made to the former occupant.

(4)  If a refund, in whole or in part, is not made to a former occupant within the period required by subsection (3) (b):

(a)  the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment, and

(b)  interest is payable, at the rate prescribed by the regulations, on and from the date that the refund becomes overdue.

s 24: Am 2008 No 121, Sch 1 [30] [31].

24A Retirement village land to be recorded on Register

(1)  The operator of a retirement village must, in accordance with this section, notify the Registrar-General in writing that the land comprising the retirement village (or land that is part of the retirement village) is used as a retirement village.

Maximum penalty: 100 penalty units.

(2)  Any such notice is to be provided:

(a)  in the case of land that, immediately before the commencement of this section, was used as a retirement village—within 3 months after the commencement of this section, or

(b)  in any other case—before entering into a residence contract with respect to residential premises on that land.

(3)  Nothing in this section requires the operator of a retirement village to notify the Registrar-General before entering into a residence contract regarding residential premises on land that is already the subject of a recording under this section.

(4) Form of notice for recording The notice referred to in subsection (1) must be:

(a)  in the form approved by the Registrar-General, and

(b)  in the case of a notice relating to land under the Real Property Act 1900—accompanied by the fee prescribed under that Act, and

(c)  in the case of a notice relating to land not under the Real Property Act 1900—accompanied by the fee prescribed under the Conveyancing Act 1919.

(5) Registrar-General to record retirement village on Register On receipt of a notice under subsection (1), the Registrar-General is to make a recording on the relevant Register indicating that the land to which the notice relates comprises, or is part of, a retirement village.

(6) Operator to notify of recording being made As soon as practicable after the Registrar-General makes a recording under this section, the operator of the retirement village is to notify, in writing:

(a)  the holder of any other registered interest in the land to which the recording relates, and

(b)  the Residents Committee (if any) of the retirement village,

that the recording has been made.

(7) Operator to notify Registrar-General of certain changes The operator of a retirement village must notify the Registrar-General if any of the information contained in a notice lodged under subsection (1) ceases to be accurate by submitting a new notice under that subsection.

(8) Use of recording on Register Information that is recorded under this section may be used to establish a publicly available list of retirement villages.

(9) Application to remove recording A person may apply in writing to the Registrar-General for the removal of a recording made under this section.

(10) Form of application for removal of recording The application referred to in subsection (9) must be:

(a)  in the form approved by the Registrar-General, and

(b)  in the case of an application relating to land under the Real Property Act 1900—accompanied by the fee prescribed under that Act, and

(c)  in the case of an application relating to land not under the Real Property Act 1900—accompanied by the fee prescribed under the Conveyancing Act 1919.

(11) Registrar-General may remove recording If the Registrar-General receives an application referred to in subsection (9), the Registrar-General may, if satisfied that:

(a)  there are no residential premises located on the land to which the recording relates that are the subject of a village contract, and

(b)  there are no amounts outstanding that are payable under a village contract relating to residential premises located on the land to which the recording relates,

remove the recording to which the application relates.

s 24A: Ins 2008 No 121, Sch 1 [32]. Am 2010 No 119, Sch 1.29 [4]; 2011 No 62, Sch 1.15.

25 Inconsistency between village contract and disclosure statement

(1)  To the extent that any term in a village contract is inconsistent, to the detriment of the resident, with the information contained in the disclosure statement provided to the resident concerned, the contract is to be construed (as far as is practicable) as if it contained the information in the statement instead of the inconsistent term, unless the inconsistent term is a term of a standard contract prescribed under section 43.

(2)  If there is a dispute between a resident of a retirement village and the operator of the village as to whether there is an inconsistency referred to in subsection (1), the resident concerned may apply to the Tribunal for (and the Tribunal may make) an order determining the dispute.

(3)  Any such order is to specify the way in which the contract concerned is to be construed.

26 Village contracts to be in writing

Despite the provisions of any other Act or law, a village contract entered into after the commencement of this section is not enforceable by the operator of a retirement village against a resident of the village unless the contract is in writing.

27 Operator to allow time for examination of village contracts

The operator of a retirement village must not enter into a village contract with a person earlier than 14 days after the person (or another person acting on behalf of that person) has been provided with a copy of each village contract that the person is to enter into.

Maximum penalty: 100 penalty units.

28 No restriction on right to seek independent advice

(1)  An operator of a retirement village must not restrict any person’s right to seek independent advice before entering into a village contract with the operator.

Maximum penalty: 10 penalty units.

(2)  An operator of a retirement village must not require a resident or a prospective resident to use the services of an Australian legal practitioner, licensed conveyancer or other adviser nominated by the operator.

Maximum penalty: 10 penalty units.

(3)  If a resident or a prospective resident is required to use the services of an Australian legal practitioner, licensed conveyancer or other adviser in contravention of this section, the operator of the village concerned is liable to pay to the resident or prospective resident the amount of any fees paid by the resident or prospective resident to that Australian legal practitioner, licensed conveyancer or other adviser for those services.

(4)  If the operator of a retirement village does not, on request, pay the amount due to a resident or prospective resident under subsection (3), the resident or prospective resident concerned (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment.

s 28: Am 2015 No 7, Sch 2.38 [3] [4].

29 Variation or replacement of village contracts

(1)  A purported variation of a village contract, and a purported termination of a village contract and entry into a new village contract by the same parties in relation to the same residential premises, is of no effect (and the contract continues as in force before the purported variation or termination) unless the resident who is a party to the contract obtains a written certificate in accordance with this section.

(1A)  An operator must not purport:

(a)  to vary a village contract, or

(b)  to terminate a village contract and enter into a new village contract in relation to the same residential premises,

unless the resident who is a party to the contract has obtained a certificate in accordance with this section.

Maximum penalty: 100 penalty units.

(2)  The certificate:

(a)  must be signed by an Australian legal practitioner of the resident’s choosing, and

(b)  must contain a statement to the effect that:

(i)  the Australian legal practitioner explained to the resident the effect of the proposed variation of the contract (or the proposed new contract, as the case may be), and

(ii)  the resident appeared to understand the explanation and to consent to the variation (or to the new contract).

(3)  Sections 27 and 28 apply in respect of a variation of contract as if the variation were a new contract.

(4)  This section does not apply if the resident requested the variation or new contract.

(5)  A resident is not obliged to agree to a variation or replacement of his or her village contract because of the enactment of this Act (or for any other reason).

s 29: Am 2008 No 121, Sch 1 [33]; 2015 No 7, Sch 2.38 [3] [5].

30 Costs of obtaining certificate

(1)  The reasonable costs of obtaining a certificate required by section 29 are payable by the operator of the retirement village as if the operator, and not the resident, were the client of the Australian legal practitioner concerned.

(2)  The resident must provide the operator with a copy of any account presented to the resident in respect of those costs and the operator is not required to make any payment in respect of the costs until the resident has done so.

(3)  If the operator does not pay all the costs within 28 days after being provided with a copy of the relevant account, the resident (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment.

(4)  On application to it under this section, the Tribunal:

(a)  may make the order sought, or

(b)  may order the operator and the resident to pay the costs in such proportion as the Tribunal considers just in the circumstances.

s 30: Am 2015 No 7, Sch 2.38 [5].

31 Costs of preparation of village contracts

(1)  Legal and other expenses incurred by the operator of a retirement village in connection with the preparation of a village contract are payable by the operator and the resident concerned in equal shares (except as provided by section 30).

(2)  The operator must provide the resident with a copy of any account presented to the operator in respect of those expenses and the resident is not required to make any such payment until the operator has done so.

(3)  The regulations may prescribe a maximum amount payable by a resident for legal and other expenses incurred by the operator in connection with the preparation of a village contract.

(4)  If the regulations prescribe such a maximum amount, any difference between the resident’s share of the amount incurred by the operator and the maximum amount prescribed is payable by the operator.

(5)  If a residence contract is in the form of a lease:

(a)  duty (if any) payable on the lease, and

(b)  the registration fee (if the lease is to be registered under the Real Property Act 1900),

is payable by the resident.

(6)  This section does not apply in respect of a contract for the sale of residential premises that are subject to a community land scheme, company title scheme or strata scheme.

s 31: Am 2010 No 46, Sch 13.2.

32 Cooling-off period

(1)  A resident or prospective resident may, within the period (the cooling-off period) of 7 business days after entering into a village contract, serve a written notice on:

(a)  the other party to the contract, and

(b)  the operator of the retirement village concerned (if the operator is not the other party),

to the effect that the resident or prospective resident rescinds the contract.

(2)  For this purpose, a contract is taken to have been entered into at midnight on the day on which a copy of the contract signed by the resident is given to the other party to the contract. The cooling-off period ends at midnight 7 business days after that day.

(3)  A contract must not be completed until after the cooling-off period has expired.

(4)  The cooling-off period under a residence contract is waived if the resident commences to live in the residential premises to which the contract relates.

(5)  This provision has effect despite the provisions of any other Act or law.

33 Rescission of village contract on grounds relating to disclosure statement

(1)  If a disclosure statement is not provided in accordance with this Act, or if the information in it is false or misleading in a material particular, the person to whom (or on whose behalf) it was provided may, within 3 months after occupying residential premises in the village, apply to the Tribunal for an order allowing the person to rescind any village contract to which the person and the operator of the village are parties.

(2)  The Tribunal is not to make an order referred to in subsection (1) if it is of the opinion that:

(a)  the disclosure statement was provided in accordance with this Act, or

(b)  the information in the disclosure statement is not false or misleading in a material particular, or

(c)  the operator acted reasonably and honestly and ought to be excused for the failure to provide accurate information, or to provide the disclosure statement in accordance with this Act, or

(d)  the person to whom (or on whose behalf) the disclosure statement was provided is in substantially as good a position as he or she would have been had the failure not occurred.

(3)  If the Tribunal makes the order sought:

(a)  it may also make an order as to compensation payable to the person by the operator of the village, and

(b)  the person may, by notice in writing to the operator, rescind the contract.

34 Effect of rescission notice

(1)  A rescission notice takes effect on service of the notice.

(2)  A village contract that is rescinded under this Part is taken to be void.

(3)  However, subsection (2) does not affect the rights and obligations set out in sections 35–37.

35 Consequences of resident’s rescission of service contract

(1)  If a resident of a retirement village serves a rescission notice in relation to the resident’s service contract but does not serve a rescission notice in relation to the residence contract, the resident and the operator of the village are to attempt to renegotiate the service contract.

(2)  If the operator of the village and the resident cannot agree on the terms of the new contract, the operator or the resident may apply to the Tribunal for an order setting out the terms of the new contract.

(3)  On application to it under this section, the Tribunal may:

(a)  make the order sought, and

(b)  if the Tribunal considers it advisable, order the operator and the resident to enter into a new contract in the terms set out in the order.

(4)  Section 27 does not apply to a new service contract arising out of an order of the Tribunal under this section.

36 Consequences of resident’s rescission of residence contract

(1)  A rescission notice in relation to a residence contract is taken also to apply to the service contract and any other village contract entered into by the resident concerned, and each of those contracts is taken to be void.

(2)  As soon as is reasonably practicable (and no later than one month) after a rescission notice that applies to a residence contract takes effect:

(a)  the rescinding party is to be repaid all money paid by or on behalf of the party under the residence contract, and

(b)  if the residence contract related to residential premises that are subject to a community land scheme, company title scheme or strata scheme and was rescinded under section 33, the rescinding party must:

(i)  execute such instruments as may be necessary to enable re-registration of the shares (in the case of premises that are subject to a company title scheme) or title (in any other case) in the name of the operator under the rescinded contract, and

(ii)  deliver up to the operator the relevant share documents or certificate of title.

(3)  The Tribunal may do either or both of the following:

(a)  on the application of the rescinding party—order the other party to the contract to comply with subsection (2) (a),

(b)  on the application of the operator—order the rescinding party to comply with subsection (2) (b).

(4)  Any fees or costs associated with a rescission during the cooling-off period are to be paid by the party incurring them.

(5)  Any fees or costs associated with a rescission at any other time (including registration fees) are payable by the operator, and the Tribunal may, on the application of the rescinding party, order the operator to make the relevant payment.

(6)  The rescinding party is not liable to make any payment to the operator in relation to the rescinded contract unless ordered to do so by the Tribunal.

(7)  Any order under subsection (5) is subject, in the case of a rescinding party to whom subsection (2) (b) applies, to his or her compliance with that paragraph.

(8)  Either party to a rescinded residence contract is entitled to make a claim to the Tribunal for:

(a)  such compensation, adjustment or accounting as is just and equitable between the parties if the rescinding party has received the benefit of possession of the residential premises concerned, or

(b)  the payment of damages, costs, or expenses arising out of a breach of any term, condition or warranty contained or implied in the contract (other than a term, condition or warranty referred to in section 52A of the Conveyancing Act 1919),

but not so as to affect rights and obligations under this section.

Note—

Section 52A of the Conveyancing Act 1919 provides (among other things) that a vendor under a contract for the sale of land is taken to have included in the contract such terms, conditions and warranties as may be prescribed. The remedies and relief available to a purchaser under such a contract (and the penalties that may be incurred by a vendor) for a breach of a prescribed term, condition or warranty are specified in the regulations made under that Act.

(9)  This section has effect despite the provisions of Division 8 of Part 4 of the Conveyancing Act 1919.

Note—

Division 8 of Part 4 of the Conveyancing Act 1919 provides (among other things) for a cooling off period in relation to a contract for the sale of residential property (within the meaning of that Division) and allows such a contract to be rescinded during that period. However, the rights and obligations of the parties under that Division differ from those under this section. Division 8 of Part 4 does not allow rescission after completion of the contract, and the purchaser under the rescinded contract forfeits 0.25% of the purchase price to the vendor.

See section 50 of the Duties Act 1997 for refund of duty paid on a rescinded agreement for the sale or transfer of dutiable property.

37 Consequence of resident’s rescission of other village contract

(1)  As soon as is reasonably practicable (and no later than one month) after a rescission notice that applies to a village contract other than a residence contract or a service contract takes effect, the rescinding party is to be repaid all money paid by or on behalf of the party under the rescinded contract.

(2)  The Tribunal may, on the application of the rescinding party, order the other party to the rescinded contract to comply with subsection (1).

(3)  Either party to a rescinded contract referred to in this section is entitled to make a claim to the Tribunal for such compensation, adjustment or accounting as is just and equitable between the parties having regard to any benefits that the rescinding party received under the contract before its rescission, but not so as to affect rights and obligations under this section.

38 Condition report for certain residential premises

(1)  The operator of a retirement village must not permit a prospective resident of the village to occupy residential premises in the village unless the operator prepares, and gives to the prospective resident, a report relating to the condition of the premises at the commencement of the prospective resident’s occupation of the premises (a condition report).

(2)  A condition report must take the form prescribed by, and must be completed in accordance with, the regulations.

(2A)  Without limiting subsection (2), the regulations may make provision for, or with respect to, the following:

(a)  the time within which the condition report must be completed,

(b)  the time within which the condition report must be provided to a prospective resident.

(3)  The operator of the retirement village must annex a copy of the condition report to the first village contract that the prospective resident enters into with the operator.

(4)  If, after the commencement of this section, the operator permits a prospective resident to occupy residential premises in contravention of this section, the operator is prohibited from recovering any payment or other compensation for any alleged damage occurring to the premises during their occupancy by the prospective resident concerned.

(5)  This section does not apply if:

(a)  the prospective resident is to occupy the residential premises together with a resident who is already in occupation of the premises, or

(b)  the prospective resident is, or will be, a registered interest holder in respect of the residential premises that the prospective resident intends to occupy.

s 38: Am 2008 No 121, Sch 1 [34] [35].

39 Operator to give residents and prospective residents copies of village contracts

(1)  As soon as is reasonably practicable (and no later than 14 days) after entering into a village contract, the operator of the retirement village concerned must ensure that the other party to the contract has a copy of the contract that is signed by the operator.

Maximum penalty: 50 penalty units.

(2)  If a resident or a prospective resident of a retirement village signs a village contract and gives it to the operator before the contract is entered into, the operator must give the resident or prospective resident a copy of the contract signed by the resident or prospective resident as soon as is reasonably practicable (and no later than 14 days) after receiving it.

Maximum penalty: 50 penalty units.

(3)  If a residence contract is in the form of a lease that is to be registered under the Real Property Act 1900, the operator must:

(a)  lodge the lease for registration within one month after the lease is given to the operator in registrable form, and

(b)  provide the resident with a copy of the fully-executed lease within 14 days after the lease is returned to the operator following its registration.

Maximum penalty: 50 penalty units.

40 Contractual rights of residents against new operator

(1)  A village contract between a resident and a former operator of a retirement village may be enforced against any operator for the time being of the village.

(2)  However, proceedings do not lie against the owner of land in a retirement village (not being a person involved in the management or control of the village) for the enforcement of rights under subsection (1) unless:

(a)  the owner is a party to the contract, or

(b)  the owner is a close associate of an operator involved in the management or control of the village, and

an operator other than the owner has failed to satisfy a judgment given for the enforcement of those rights.

41 New operator to convene meeting of residents

(1)  A person who proposes to become an operator of an existing retirement village (and who proposes to manage or control the village) must, at least 28 days before the person becomes the operator, report on:

(a)  his or her financial ability to operate the village, and

(b)  his or her plans for the future management and operation of the village (including any changes that he or she proposes to make),

at a meeting of the residents and former occupants of the village convened for that purpose in accordance with this section.

Maximum penalty: 50 penalty units.

(2)  The person must convene the meeting by sending to each resident and former occupant, at least 7 days before the date of the meeting, a written notice setting out:

(a)  the time and place of the meeting (which is to be held in the village if practicable, or at a venue near the village), and

(b)  the reason for the meeting.

41A Renovations and alteration of fixtures or fittings

(1)  A resident of a retirement village may:

(a)  add, remove or alter any fixtures or fittings on or within the resident’s residential premises, or

(b)  make renovations to the resident’s residential premises,

but only with the written consent of the operator of the retirement village.

(2)  The consent of the operator may be subject to such reasonable conditions as the operator may include in, or attach to, the written consent.

(3)  Without limiting subsection (2), the operator may consent to any addition, removal or alteration of fixtures or fittings, or to any renovations, referred to in subsection (1) subject to the condition that, on the termination of the resident’s village contract, the premises will be returned to the same condition as they were in immediately before the consent was given.

(4)  The operator of a retirement village must not unreasonably withhold consent to any addition, removal or alteration of any fixtures or fittings, or to any renovations, referred to in subsection (1).

(5)  A resident of a retirement village may apply to the Tribunal for (and the Tribunal may make) an order:

(a)  permitting the addition, removal or alteration of specified fixtures or fittings on or within the resident’s residential premises, or

(b)  permitting the making of specified renovations to the resident’s residential premises, or

(c)  varying the conditions to which the operator’s consent is subject.

(6)  If the Tribunal is satisfied that the operator of the retirement village has unreasonably withheld consent under this section, or that the conditions to which such consent is subject are unreasonable in the circumstances, the Tribunal may make the order sought and the operator is taken to have given consent in accordance with the terms of the order.

(7)  Despite subsection (1), the consent of the operator of the retirement village is not required:

(a)  to remove or alter any fixtures or fittings that were added by a resident (including fixtures or fittings that were added before the commencement of this section) unless the removal or alteration of the fixtures or fittings is likely to cause significant damage to the residential premises, or

(b)  to make renovations, or to add, remove or alter any fixtures or fittings, prescribed by the regulations for the purposes of this section.

(8)  Nothing in this section authorises a person to add, remove or alter any fixtures or fittings in, or renovate any residential premises within, a retirement village if consent to do so is required under any Act and the consent has not been obtained.

(9)  Without limiting subsection (8), nothing in this section authorises a person to carry out development (within the meaning of the Environmental Planning and Assessment Act 1979) in contravention of that Act.

s 41A: Ins 2008 No 121, Sch 1 [36].

42 Regulations concerning village contracts

(1)  The regulations may make provision for or with respect to matter that is to be included in (and matter that is to be excluded from) village contracts or a class of village contracts.

(2)  If the regulations require a village contract to contain a clause in prescribed terms, a village contract of the kind to which the prescription relates is taken to include the clause in the terms prescribed.

(3)  If the regulations provide that any matter is to be excluded from village contracts or a class of village contracts, any village contract that contains that matter is void to the extent of that matter.

43 Standard form of village contract

(1)  The regulations may prescribe a standard form of village contract.

(2)  The regulations may provide for:

(a)  more than one standard form of village contract, or

(b)  the addition of clauses to, or the omission or variation of clauses contained in, the standard form or forms,

for use in relation to different classes of village contracts (including different classes of residence contracts) or different classes of residential premises.

(3)  A village contract for which a standard form is prescribed, and that is entered into after the day on which the form is prescribed, is void to the extent to which it is not in or to the effect of the standard form.

(4)  Any such contract that does not include a term of the form of contract that is the standard form at the time the contract is entered into is taken to include that term.

(5)  The terms contained in a prescribed standard form of village contract are not to be varied by the parties to a village contract for which the form is prescribed, and, to the extent that they are so varied, are taken not to have been varied.

(6)  However:

(a)  nothing in subsection (3) or (5) voids any residence right conferred by the village contract concerned, and

(b)  despite those subsections, the parties to a village contract for which a standard form is prescribed may insert additional terms in the contract, but only if the terms:

(i)  do not contravene this or any other Act or law, and

(ii)  are not inconsistent with a term of the prescribed village contract.

(7)  An additional term is void if the Tribunal so orders, on application by a resident, on being satisfied that the additional term does not comply with subsection (6) (b) (i) and (ii).

(8)  A village contract that provides for the payment of an ingoing contribution may also provide:

(a)  that any such contribution is to be paid by way of instalments at such intervals as may be specified in the contract, and

(b)  if any such contribution is to be paid by instalments, for interest on the unpaid portion of any such contribution to be payable, as calculated at the rate prescribed by the regulations.

s 43: Am 2008 No 121, Sch 1 [37].

44 Parties to minimise loss from breach of village contract

The rules of law relating to mitigation of loss or damage on breach of a contract apply to a breach of a village contract.

Division 2 Settling-in period for residents

pt 5, div 2 (ss 44A–44E): Ins 2008 No 121, Sch 1 [38].

44A Termination of village contract during settling-in period

(1)  A resident of a retirement village may terminate a village contract to which the resident is a party:

(a)  by permanently vacating the residential premises within the village, or

(b)  in the case of a contract other than a residence contract—by notice in writing to the operator of the retirement village indicating an intention to terminate the contract,

before the end of the settling-in period.

(2)  For the purposes of this Division, the end of the settling-in period means the later of:

(a)  the day that is 90 days after the date on which the resident is entitled to occupy the residential premises concerned under the residence contract for the premises, or

(b)  if the resident occupies the premises before the day specified in paragraph (a), the day that is 90 days after the resident first occupies the residential premises, or

(c)  such date as may be agreed to by the operator and the resident.

(3)  Nothing in this section requires a resident to occupy the residential premises before terminating a village contract under this section.

(4)  The termination of a village contract in accordance with this Division is not to be regarded as a breach of contract or otherwise as a civil wrong.

pt 5, div 2 (ss 44A–44E): Ins 2008 No 121, Sch 1 [38].

44B Liability of former occupant if village contract terminated during settling-in period

(1)  If a village contract is terminated in accordance with this Division, the former occupant is only liable to pay:

(a)  fair market rent for the period (if any) that the former occupant occupied the residential premises under the contract, and

(b)  in the case of a village contract that is a residence contract, the cost of any repairs for damage to the residential premises in excess of fair wear and tear, and

(c)  a reasonable administration fee, and

(d)  such other amount as may be prescribed by the regulations.

(2)  Despite subsection (1), if the former occupant has not occupied the residential premises prior to terminating a village contract in accordance with this Division, the occupant is only liable to pay the cost of any repairs for damage to the residential premises in excess of fair wear and tear and a reasonable administration fee.

(3)  The amount that the former occupant is liable to pay under this section may be offset against any amounts that are to be refunded to the former occupant under section 44C.

(4)  An administration fee referred to in this section must not exceed the amount prescribed by the regulations.

pt 5, div 2 (ss 44A–44E): Ins 2008 No 121, Sch 1 [38].

44C Operator to refund certain payments made by resident

If a village contract is terminated in accordance with this Division, the operator of the retirement village is to refund or pay to the former occupant:

(a)  in the case of a former occupant who is a registered interest holder (other than a person referred to in section 7 (1) (c))—the proceeds from the sale of the residential premises to which the resident is entitled under the village contract, and

(b)  in the case of any other former occupant—any ingoing contribution paid to the operator under the village contract, and

(c)  any recurrent charges paid to the operator under the village contract, and

(d)  such other amounts as may be prescribed by the regulations.

pt 5, div 2 (ss 44A–44E): Ins 2008 No 121, Sch 1 [38].

44D Time for making of payments

(1)  Except as provided by subsection (2), a refund or payment under this Division is to be made within 14 days after the termination of the village contract or within such other period as the Tribunal may order.

(2)  A payment referred to in section 44C (a) or (b) that is to be made to a former occupant who was a registered interest holder is to be made within the period after the termination that is the same period as that required for a payment under section 180 (2) to a former occupant following the sale of premises.

(3)  If a payment that is required to be made under this Division is not paid within the time required by this section, the operator or former occupant may apply to the Tribunal for (and the Tribunal may make) an order requiring the amount to be paid within a specified time.

(4)  If the operator of a retirement village and a former occupant are unable to agree on an amount required to be paid under this Division, the operator or former occupant may apply to the Tribunal for (and the Tribunal may make) an order with respect to:

(a)  the amount of fair market rent (if any) required to be paid under section 44B (1) (a), or

(b)  what damage (if any) to the residential premises is in excess of fair wear and tear, and the amount (if any) required to be paid under section 44B (1) (b), or

(c)  the reasonable administration fee (if any) required to be paid under section 44B (1) (c).

(5)  The Tribunal may consider, but is not bound by, the rent (if any) specified in the village contract when determining the fair market rent for the purposes of making an order under subsection (4) (a).

(6)  The Tribunal may consider, but is not bound by, the administration fee (if any) specified in the village contract when determining a reasonable administration fee for the purposes of making an order under subsection (4) (c).

pt 5, div 2 (ss 44A–44E): Ins 2008 No 121, Sch 1 [38].

44E Former occupant not required to pay certain amounts

If a village contract is terminated in accordance with this Division, the former occupant is not required to pay any of the following amounts that would, but for this section, be payable by the former occupant under that contract:

(a)  any recurrent charges,

(b)  any departure fee,

(c)  the cost of refurbishment within the meaning of Division 4 of Part 10,

(d)  the costs of sale or letting of the premises,

(e)  any amount specified in the village contract as being payable for terminating the contract during the settling-in period,

(f)  any amount prescribed by the regulations for the purposes of this section.

pt 5, div 2 (ss 44A–44E): Ins 2008 No 121, Sch 1 [38].

Part 6 General management of retirement villages

Division 1 Village rules

45 Application of Division

This Division does not apply to or in respect of:

(a)  such part of a retirement village as is subject to a community land scheme or a strata scheme, or

(b)  the residents of that part of the village.

Note—

The by-laws under the Community Land Management Act 1989 or the Strata Schemes Management Act 2015 (as the case may be) apply to the part of a retirement village that is subject to such a scheme.

s 45: Am 2015 No 50, Sch 4.22 [2].

46 Subject-matter of village rules

(1)  Written rules relating to the use, enjoyment, control and management of a retirement village may be made in accordance with this Division.

(2)  The rules made under this Division may relate to (but are not limited to) any or all of the following:

(a)  persons other than residents or employees of the village living in the village,

(b)  visitors, including overnight or short-stay guests,

(c)  the making of noise,

(d)  the parking of motor vehicles,

(e)  the disposal of refuse,

(f)  the keeping of pets,

(g)  gardening and landscaping,

(h)  the use and operation of services or facilities (including restrictions on their use),

(i)  any other matter prescribed by the regulations.

47 Village rules to be consistent with other laws

A village rule is of no effect to the extent that it is inconsistent with this or any other Act or law.

48 Model village rules

The regulations may prescribe model village rules that may be adopted in respect of a retirement village.

49 Operator may make village rules for new villages

(1)  The operator (or proposed operator) of a proposed retirement village may make village rules in respect of the village.

(2)  The operator of a retirement village that is in existence on the commencement of this section may make village rules in respect of the village if, at the time the rules are made, the village has no residents.

50 Village rules for existing villages

If a retirement village that is in existence on the commencement of this section does not, on that commencement, have any village rules, rules may be made for the village in the same way as village rules may be amended under section 51.

51 Amendment of village rules

(1)  The operator of a retirement village must propose an amendment to the village rules if:

(a)  a minimum of 5 residents, or 10% of the residents, (whichever is the greater) of the village (or, if the village has fewer than 10 occupied residential premises, residents from a majority of the occupied residential premises), or

(b)  the Residents Committee of the village,

requests the operator in writing to do so.

(2)  The operator may propose an amendment to the village rules even if there has been no request under subsection (1).

(3)  A proposed amendment is not to be made unless the residents of the village, by a special resolution, consent to the amendment.

(3A)  The operator of a retirement village is to notify the residents of the village of the outcome of any vote taken to obtain the consent of the residents of the retirement village under this section within 7 days after the operator of the retirement village becomes aware of the outcome of the vote.

(4)  If consent is given, the amendment takes effect 7 days after the date on which the special resolution concerned is notified to the operator (or from such later date as the resolution may specify), unless the operator, within that period of 7 days:

(a)  makes an application to the Tribunal under section 52, or

(b)  seeks the residents’ consent to an amendment to the approved annual budget (if any) under section 53.

(5)  An operator who receives a request under subsection (1) must call a meeting of the residents of the village, to be held no later than 28 days after the receipt of the request, for the purpose of considering a special resolution concerning the proposed amendment.

(6)  Nothing in this section prevents the Tribunal from making an order under section 54 modifying or setting aside a village rule as amended.

(7)  For the purposes of this section, an amendment to the village rules includes the following:

(a)  a variation of a village rule,

(b)  the addition of a new rule to the village rules,

(c)  the omission of a village rule that is in force.

s 51: Am 2008 No 121, Sch 1 [39] [40].

52 Operator’s objection to proposed amendment of village rules

(1)  If the operator of a retirement village objects to a proposed amendment to the village rules requested by the residents and to which the residents have consented under section 51, the operator may apply to the Tribunal for an order prohibiting the proposed amendment.

(2)  On application under this section, the Tribunal may, after considering the circumstances of the case, make an order:

(a)  prohibiting the proposed amendment, or

(b)  directing that the proposed amendment (or the proposed amendment modified as specified in the order) is to take effect from the date specified in the order.

53 Operator’s concern that amendment will impose additional cost

(1)  If the operator of a retirement village considers that an amendment to the village rules to which the residents have consented under section 51 will impose a cost on the operator additional to that allowed for in the approved annual budget, the operator must seek the residents’ consent to an amendment to the approved annual budget.

Note—

Division 5 of Part 7 provides for proposed and approved annual budgets. Section 117 allows an operator to seek the residents’ consent to an amendment to the approved annual budget if unforeseen requirements for expenditure arise.

(2)  Section 115 does not apply to or in respect of a consent sought under this section.

(3)  If the residents refuse to consent to the amendment, the operator may apply to the Tribunal for an order in relation to the proposed amendment to the approved annual budget.

(4)  On application to it under this section, the Tribunal may, after considering the circumstances of the case, either:

(a)  order that the approved annual budget be amended as specified in the order, or

(b)  order that the approved annual budget not be amended.

(5)  On making an order under subsection (4), the Tribunal may also:

(a)  order that the proposed amendment to the village rules is not to take effect, or

(b)  order that the proposed amendment to the village rules (or the proposed amendment modified as specified in the order) is to take effect from the date specified in the order.

(6)  This section does not apply in respect of a retirement village where the residents have consented under section 112 (7) to not being supplied with a proposed annual budget.

s 53: Am 2008 No 121, Sch 1 [41]–[43].

54 Other applications to Tribunal concerning village rules

(1)  The operator of a retirement village or a resident of the village may, at any time, apply to the Tribunal for an order in relation to either or both of the following:

(a)  a dispute concerning the legal validity of a village rule in force in the village,

(b)  a village rule in force in the village that the operator or resident considers to be unjust, unconscionable, harsh or oppressive.

(2)  The Tribunal may determine an application made under subsection (1) by making an order:

(a)  setting aside the village rule concerned, or

(b)  modifying the operation of the rule in its application to a resident or to some or all of the residents of the village, or

(c)  upholding the rule.

55 Compliance with village rules

(1)  The operator and residents of a retirement village must comply with the village rules as in force from time to time.

Note—

The Tribunal can make various orders in relation to compliance with the village rules—see section 128. It can also terminate a resident’s residence contract for serious or persistent breaches of the village rules—see section 134.

(2)  If a village rule is inconsistent with a term of a village contract, the village rule prevails to the extent of the inconsistency. However, if the inconsistent term of the contract is a prescribed term, that term prevails over the rule.

56 Compliance with village rules by persons other than operator and residents

(1)  It is a term of every village contract that the resident or former occupant who is a party to the contract will use his or her best endeavours to ensure compliance with the village rules by:

(a)  a tenant or subtenant, under Division 5 of Part 10, of the resident or former occupant, and

(b)  any other person who is lawfully on the resident’s or former occupant’s residential premises (other than a person who has a right of entry to the premises without the resident’s or former occupant’s consent), and

(c)  any other person who is in the retirement village at the resident’s or former occupant’s invitation.

(2)  It is also a term of every village contract that the operator will use his or her best endeavours to ensure compliance with the village rules by:

(a)  tenants of the operator, and

(b)  employees of the operator, and

(c)  any other persons who are in the retirement village at the operator’s invitation.

Division 2 Certain obligations of operators

57 Certain persons not to be operators

(1)  A person to whom this section applies must not:

(a)  be an operator of a retirement village, or

(b)  be involved in the promotion or sale of residence rights in a retirement village, or

(c)  be in any way (whether directly or indirectly) concerned, or take part, in the management or control of a retirement village.

Maximum penalty: 100 penalty units.

(2)  This section applies to the following persons:

(a)  a person who is insolvent under administration,

(b)  a person who is a director of an externally-administered body corporate,

(c)  a person who was a director of a company that has been wound up (otherwise than voluntarily),

(d)  a person who has been convicted (in New South Wales or elsewhere) of an offence involving:

(i)  physical violence to another person, or

(ii)  fraud or dishonesty, being an offence punishable on conviction by imprisonment for a period of not less than 3 months.

(3)  However, this section applies:

(a)  to a person referred to in subsection (2) (c)—only for the period of 5 years immediately following the winding-up, and

(b)  to a person referred to in subsection (2) (d)—only for the period of 5 years following the conviction (or, if the person was sentenced to imprisonment, within the period of 5 years following the person’s release).

(4)  In this section, externally-administered body corporate and insolvent under administration have the same meanings as they have in the Corporations Act 2001 of the Commonwealth.

s 57: Am 2001 No 34, Sch 4.54 [2].

58 Operator to provide secure premises

(1)  The operator of a retirement village must ensure that the village generally is reasonably secure.

(2)  In particular, the operator must ensure that all residential premises in the village have such locks or other security devices, in good working order, as are necessary to make the premises reasonably secure.

(3)  Subsection (2) does not apply in respect of residential premises that are subject to a community land scheme, company title scheme or strata scheme unless the operator, or a close associate of the operator, is the owner of the premises.

(4)  Any resident who believes in good faith that the retirement village is not reasonably secure may apply to the Tribunal for any of the following:

(a)  an order directing the operator to comply with subsection (1) or (2),

(b)  any other order referred to in section 128 (1).

58A Operator to provide safe premises

(1)  The operator of a retirement village must ensure that the village generally is reasonably safe.

(2)  In particular, the operator must:

(a)  prepare written safety and emergency procedures, and

(b)  take reasonable steps to ensure that all residents and staff are familiar with such procedures, and

(c)  undertake a safety inspection at least once each year, and make a safety inspection report on the findings of any such inspection, and

(d)  make a copy of the inspection report available to the Residents Committee for the retirement village (if any) and place a copy of the report on the notice board in a communal area within the retirement village, and

(e)  take such other action as the regulations may require to ensure that the village generally is reasonably safe.

(3)  Without limiting subsection (2) (e), the regulations may make provision for, or with respect to, the following:

(a)  the form of the written safety and emergency procedures,

(b)  the conduct of safety inspections required under subsection (2) (c),

(c)  the manner and form of such a safety inspection report,

(d)  the period that the safety inspection report is to remain on the notice board as referred to in subsection (2) (d).

(4)  Any resident who believes in good faith that the retirement village is not reasonably safe may apply to the Tribunal for (and the Tribunal may make) any of the following:

(a)  an order directing the operator to comply with subsection (1) or (2),

(b)  any other order referred to in section 128 (1).

s 58A: Ins 2008 No 121, Sch 1 [44].

59 Operator to provide village emergency system on request

(1)  The residents of a retirement village may, by a special resolution, request the operator of the village to provide or arrange for a village emergency system of a specified kind in the village.

(2)  If such a request is made, the residents are taken to have consented to the inclusion, in the proposed annual budget relating to the financial year next following the date of the resolution, of the cost of providing or arranging for the village emergency system concerned.

(3)  If the operator fails to comply with a request referred to in this section, any resident of the village may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to provide or arrange for a village emergency system of the kind requested by the residents.

(4)  The operator must ensure that any village emergency system provided in the village (whether or not it was provided at the request of the residents) is regularly and adequately monitored and serviced.

(5)  Nothing in this section prevents a resident of a retirement village from arranging, at the resident’s expense, for the provision of a system that will enable the resident to summon assistance in an emergency. However, any such system is not a village emergency system.

(6)  In this section, village emergency system means a system (such as buttons in residential premises and common areas, or bracelets that can be worn by residents) that enables residents to summon assistance in an emergency.

s 59: Am 2008 No 121, Sch 1 [45].

59A Operator to provide emergency and home care service vehicles access to retirement village

The operator of a retirement village must take all reasonable steps to ensure that:

(a)  emergency and home care service personnel have unimpeded vehicular access to the residential premises in the village at all times, both by day and by night, and

(b)  the residents of the village, and local emergency and home care service agencies, are consulted and kept informed about any arrangements made to secure that access.

Maximum penalty: 20 penalty units.

s 59A: Ins 2008 No 121, Sch 1 [46].

60 Variation in services or facilities provided at village

(1)  The operator of a retirement village must propose a variation in the services and facilities provided at the village if:

(a)  a minimum of 5 residents, or 10% of the residents, (whichever is the greater) of the village (or, if the village has fewer than 10 occupied residential premises, residents from a majority of the occupied residential premises), or

(b)  the Residents Committee of the village,

requests the operator in writing to do so.

(2)  The operator may propose a variation in the services and facilities provided at the village even if there has been no request under subsection (1).

(3)  The services and facilities provided at the village are not to be varied as proposed unless the residents of the village, by a special resolution, consent to the variation. If consent is given, the operator may vary the service or facility in accordance with the consent as soon as is practicable (unless the resolution provides that the variation is to take effect on a specified later date).

(4)  An operator who receives a request under subsection (1) must call a meeting of the residents of the village, to be held no later than 28 days after the receipt of the request, for the purpose of considering a special resolution concerning the proposed variation.

(5)  A resident is not entitled to vote on the special resolution unless the service or facility concerned is (or is proposed to be) available to the resident.

(6)  Regardless of the terms of any village contract, the operator does not breach the contract by varying services or facilities in accordance with this section.

(7)  If the operator considers that a proposed variation in services or facilities under this section will impose a cost on the operator additional to that allowed for in the approved annual budget, the operator must seek the residents’ consent to an amendment to the approved annual budget.

(8)  Section 115 does not apply to or in respect of a consent sought under this section.

(9)  If the residents refuse to consent to the amendment, section 53 (3)–(5) applies to such a refusal in the same way that it applies to a refusal under that section.

(10)  In this section:

services and facilities means services and facilities provided by or on behalf of the operator.

variation in a service or facility includes the following:

(a)  a reduction in the service or facility,

(b)  the withdrawal of a service or facility,

(c)  an increase in a service or facility,

(d)  any other change in a service or facility,

(e)  the provision of a new service or facility.

s 60: Am 2008 No 121, Sch 1 [47].

61 Operator not to reduce or withdraw certain services and facilities

If a development consent for a retirement village requires that a particular service or facility be provided for the life of the village, the operator of the village must not reduce or withdraw that service or facility (despite any consent of the residents) unless the development consent is amended so as to omit or vary that requirement.

62 Consequence of unlawful variation in services or facilities

(1)  If an operator reduces or withdraws, or permits the reduction or withdrawal of, a service or facility otherwise than in accordance with section 60, a resident of the village concerned may apply to the Tribunal for an order for any one or more of the following:

(a)  the reinstatement of the service or facility concerned,

(b)  the payment of compensation in relation to the reduced or withdrawn service or facility,

(c)  a reduction in the recurrent charges payable by any one or more of the residents,

(d)  the payment of the whole or part of those recurrent charges to the Tribunal until the service or facility concerned is reinstated.

(2)  In determining an application made under this section, the Tribunal may make the order sought or any other order of a kind set out in subsection (1).

63 Operator not to require residents to patronise particular businesses

(1)  The operator of a retirement village must not restrict the right of a resident of the village to purchase goods and services from a person of the resident’s choice.

Maximum penalty: 10 penalty units.

Note—

For example, the operator must not prevent a resident from obtaining meals-on-wheels services or any other service known as a Home and Community Care service (HACC).

(2)  However, the operator may prohibit particular tradespersons and service providers from entry (or further entry) into the village if they have:

(a)  unduly disturbed the peace and quiet of the village, or

(b)  failed to observe reasonable rules of conduct established by the operator, or

(c)  contravened any village rules concerning motor vehicle traffic that are displayed in, or near the boundary of, the village.

64 Operator not to demand power of attorney

(1)  The operator of a retirement village must not require a resident or prospective resident of the village to give the operator a power of attorney in favour of the operator, a close associate of the operator or a person nominated by the operator.

Maximum penalty: 100 penalty units.

(2)  Any power of attorney given in favour of an operator of a retirement village (or a close associate of the operator or a person nominated by the operator) by a resident or prospective resident of the village:

(a)  if given before the commencement of this section—terminates on that commencement, and

(b)  if given on or after the commencement of this section—is void.

(3)  Subsection (2) does not apply if the resident or prospective resident who gave the power of attorney is a relative of the operator.

(4)  This section has effect despite the provisions of the Powers of Attorney Act 2003 and despite the terms of any instrument creating a power of attorney.

Note—

Part 3 of the Powers of Attorney Act 2003 deals with irrevocable powers of attorney. Division 2 of Part 4 of that Act deals with enduring powers of attorney that are given with the intention that they will continue to be effective even if the person who gave the power loses capacity through mental incapacity.

s 64: Am 2003 No 53, Sch 4.5.

65 (Repealed)

s 65: Rep 2008 No 121, Sch 1 [48].

Division 3 Certain rights of residents

66 Operator to respect rights of residents

(1)  The operator of a retirement village must respect the rights of residents of the village.

(2)  In particular, the operator:

(a)  must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of a resident, and

(b)  must take all reasonable steps to ensure that all residents meet their obligations under their village contracts, the village rules and this Act, so that a resident does not unreasonably interfere with the peace, comfort and quiet enjoyment of his or her fellow residents, and

(c)  must not interfere with the right of any resident to autonomy over his or her personal, financial and other matters and over his or her possessions, and

(d)  must not inhibit any resident from exercising self-reliance in matters relating to his or her personal, domestic and financial affairs, and

(e)  must use his or her best endeavours to ensure that each resident lives in an environment free from harassment and intimidation.

(3)  A resident of a retirement village who is of the opinion that the operator of the village has contravened any provision of this section in relation to the resident may apply to the Tribunal for an order for either or both of the following:

(a)  an order directing the operator to pay compensation to the resident,

(b)  an order directing the operator to comply with this section.

(4)  On an application made under this section, the Tribunal may make the order sought or any other order of a kind set out in subsection (3).

67 Restriction of operator’s access to residential premises

(1)  The operator of a retirement village and any person authorised by the operator must not, while a person has residence rights in relation to residential premises in the village, enter those residential premises except as permitted by this section.

Maximum penalty: 20 penalty units.

(2)  The operator or other person may enter residential premises in the village only in the following circumstances:

(a)  if the resident consents to the entry,

(b)  in an emergency, or if the operator has reasonable cause for concern about the health or safety of a person that the operator believes is on the premises,

(c)  in order to carry out urgent repairs,

(d)  in order to carry out general maintenance, but only if 7 days’ notice has been given to the resident,

(e)  in order to carry out a general inspection of the premises, but only if:

(i)  the resident is not a registered interest holder with respect to the premises, and

(ii)  7 days’ notice has been given to the resident, and

(iii)  a general inspection of the premises has not been carried out more than once in the immediately preceding 12 months,

(f)  in accordance with an order of the Tribunal,

(g)  in any other circumstances prescribed by the regulations.

(3)  The Tribunal may, on the application of the operator, make an order authorising the operator or any other person to enter residential premises in the village.

(4)  A resident of a retirement village who is of the opinion that the operator of the village has contravened any provision of this section in relation to the resident may apply to the Tribunal for an order for either or both of the following:

(a)  an order directing the operator to pay compensation to the resident,

(b)  an order directing the operator to comply with this section.

(5)  On an application made under subsection (4), the Tribunal may make the order sought or any other order of a kind set out in that subsection.

s 67: Am 2008 No 121, Sch 1 [49] [50].

68 Right to appoint agent

(1)  A resident of a retirement village may appoint a person as the resident’s agent for the purpose of receiving notices or other documents to be given to the resident under a village contract or under this Act.

Note—

A resident may wish to appoint an agent if the resident (for example) cannot read or write English, is sick, or is going to be away from his or her residential premises for some time.

(2)  An appointment of the operator of the retirement village (or a close associate of the operator or a person nominated by the operator) as an agent under this section is of no effect.

(3)  An appointment under this section:

(a)  may be made in a village contract or at any time after the contract commences, and

(b)  may be revoked at any time by the resident,

but any such appointment or revocation has no effect until it is notified in writing to the operator of the village.

(4)  The operator must give to the agent appointed by a resident, until such time as the appointment expires or is revoked, any notices or other documents that the operator is required to give to the resident under a village contract or this Act.

(5)  A notice or other document that is required by this section to be given to the agent appointed by the resident and that is not so given is taken not to have been given to the resident.

69 Residents to be given access to information about them

(1)  The operator of a retirement village:

(a)  must, on request at any reasonable time, give a resident access to any information about the resident that is held by the operator, and

(b)  must give the resident a copy of that information if the resident requests it, and

(c)  if the resident satisfies the operator that any of the information is incorrect—must correct the information, on request, in accordance with the resident’s instructions.

Note—

Section 197 prohibits an operator of a retirement village from charging the resident for giving access to the information or providing a copy of it.

(2)  If the operator fails to comply with a request made under this section, the resident concerned may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to comply.

70 Residents Committees and organisations

(1)  A Residents Committee may, with the consent of the residents of a retirement village, be established in the village for the purposes of this Act.

(2)  A Residents Committee is to be elected by the residents.

(3)  Only one Residents Committee may be established in a village, and only a resident of the village may be a member of the Committee.

(4)  If more than one body or committee (regardless of its name) purports to be the Residents Committee in a particular retirement village, the operator or a resident of the village may apply to the Tribunal for (and the Tribunal may make) an order determining which body or committee (if any) is the Residents Committee for the village.

(5)  A Residents Committee may, subject to the regulations:

(a)  determine its own procedure, and

(b)  form any one or more sub-committees and determine their procedure, and

(c)  call meetings of all the residents of the village for the purpose of considering and voting on matters referred to in section 74 (1).

(6)  The operator of a retirement village must not:

(a)  discourage or prevent the establishment of a Residents Committee, or

(b)  obstruct a Residents Committee in the exercise of its functions, or

(c)  attempt to prevent residents of the village from joining any organisation for residents of retirement villages.

Maximum penalty: 50 penalty units.

(7)  The operator must provide reasonable administrative assistance to the Residents Committee on request by the Committee, but only if an estimate of the cost of providing the assistance has been included in the approved annual budget for the financial year in which the assistance is requested.

Note—

Administrative assistance might involve such matters as photocopying or distributing notices.

(8)  Nothing in this section prevents the residents of a retirement village from establishing other committees of residents for other purposes.

s 70: Am 2008 No 121, Sch 1 [51].

70A Membership of Residents Committee

(1)  A person must not hold the same office, or hold an office performing the same (or substantially the same) functions, on the Residents Committee of a retirement village for more than 3 consecutive years, except as provided by the regulations.

(2)  The election of a person to an office in contravention of subsection (1) is void.

(3)  Any act, matter or thing done by a Residents Committee, in good faith, even though at the time that the act, matter or thing was done the election of a member of the Committee was void under subsection (2), is valid as if the election of the member was not void under that subsection.

s 70A: Ins 2008 No 121, Sch 1 [52].

71 Regulations concerning Residents Committees

(1)  The regulations may make provision for or with respect to the election, functions and procedure of Residents Committees and sub-committees.

(2)  The regulations may also prescribe model rules that may be adopted by a Residents Committee.

72 Meetings between Residents Committee and operator

(1)  An operator of a retirement village must, on the reasonable request of a Residents Committee, meet the Committee (or a representative of the Committee).

(2)  Subsection (1) does not apply to an operator who owns land in the village unless the operator is also involved in the management and control of the village.

(3)  A Residents Committee (or a representative of the Committee) must, on the reasonable request of the operator of the village concerned, meet the operator.

(4)  If a reasonable request under this section is not complied with, the operator or the Residents Committee that made the request may apply to the Tribunal for (and the Tribunal may make) an order directing compliance with the request.

72A Annual management meeting to be held by operator

(1)  The operator of a retirement village must hold, in each financial year of the retirement village, an annual management meeting of the residents of the retirement village in accordance with this section.

Maximum penalty: 20 penalty units.

(2)  The annual management meeting must be held not more than 4 months after the end of each financial year.

(3)  The annual management meeting must be chaired by:

(a)  the operator of the retirement village, or

(b)  a representative of the operator of the retirement village who is authorised to answer questions put at the meeting in accordance with this section.

(4)  The operator must notify the residents of the retirement village at least 14 days before the annual management meeting of:

(a)  the time and place of the meeting, and

(b)  the agenda for the meeting.

Maximum penalty: 20 penalty units.

(5)  The notice referred to in subsection (4) must also include an invitation to the residents of the retirement village to submit:

(a)  written questions to the operator at least 7 days before the meeting, and

(b)  other questions at the meeting.

(6)  The regulations may prescribe matters that must be included in the agenda for an annual management meeting.

(7)  If the operator of the retirement village is required, by section 75 (2B) to be absent from any part of the meeting, the meeting is to be chaired by a resident agreed upon by the residents at the meeting for that purpose.

(8)  Nothing in this section prevents the operator of a retirement village from calling a meeting of the residents of the retirement village at any other time.

(9)  For the avoidance of doubt, the annual management meeting is a meeting of the residents of a retirement village and, accordingly, the provisions of this Act applying to meetings of the residents also apply to an annual management meeting.

s 72A: Ins 2008 No 121, Sch 1 [53].

72B Questions to be answered at annual management meeting

(1)  The chair of the annual management meeting must ensure that the residents of a retirement village have a reasonable opportunity to put questions to the operator of the retirement village or a representative of the operator at the meeting.

(2)  The operator of a retirement village or representative of the operator must answer questions submitted in writing (under section 72A (5) (a)) or put to the operator or representative at the meeting:

(a)  if possible—in reasonable detail at the relevant meeting, and

(b)  to the extent that compliance with paragraph (a) is not possible—in reasonable detail, as soon as is practicable after the meeting, in a notice in writing given to all of the residents of the retirement village.

(3)  Nothing in this section requires the operator or a person representing the operator to:

(a)  answer an unreasonable question, or

(b)  answer a question relating to a matter that is prescribed by the regulations as an excluded matter for the purposes of this section.

s 72B: Ins 2008 No 121, Sch 1 [53].

73 Villages without Residents Committee

If there is no Residents Committee elected for a retirement village, the operator of the village must call a meeting of the residents (to be held in or near the village) if requested to do so by:

(a)  in the case of a retirement village with fewer than 10 occupied residential premises—residents from a majority of the occupied residential premises, or

(b)  in the case of a retirement village with 10 or more occupied residential premises—the greater of:

(i)  5 residents of the retirement village, or

(ii)  10% of the residents of the retirement village.

s 73: Subst 2008 No 121, Sch 1 [54].

74 Meetings of residents

(1)  The residents of a retirement village have the right to meet for the purpose of considering and voting on:

(a)  any matter in respect of which the consent of the residents is required under this Act, and

(b)  any other matter affecting the management and operation of the village, and

(c)  any matter prescribed by the regulations.

(2)  A vote of the residents on a matter referred to in subsection (1) (b) does not bind the operator of the village.

(3)  If 2 or more residents occupy the same residential premises in the village, each of them may vote on a matter referred to in subsection (1).

(4)  The operator of the retirement village must not interfere with a resident’s rights under this section.

Maximum penalty: 50 penalty units.

(5)  A meeting of residents must not be held simultaneously with a meeting that the residents, in another capacity, are required to hold or participate in under another Act.

Note—

An example of such a meeting is a meeting required by the Strata Schemes Management Act 2015 (if the retirement village is subject to a strata scheme).

s 74: Am 2015 No 50, Sch 4.22 [3].

75 Attendance at meetings of residents

(1)  A resident of a retirement village is not obliged to attend, or vote at, any meeting of the residents of the village.

(2)  A person (other than a duly-appointed proxy of a resident) who is not a resident of the village (including a person who occupies residential premises in the village otherwise than under a residence right) must not attend, or remain at, a meeting of the residents unless the residents at the meeting consent to the person’s presence at the meeting.

(2A)  Subsection (2) does not apply to the operator of a retirement village, or a person representing the operator of a retirement village, during the annual management meeting of the retirement village.

(2B)  The operator or operator’s representative must not be present at a meeting of residents during the casting of any vote that is to be taken by the residents at the meeting, but may return to the meeting after the vote has been cast.

(3)  Despite subsection (2), a person has a right to attend a meeting of the residents of a retirement village and to vote at the meeting on behalf of a resident of the village if the person:

(a)  is authorised to do so under a power of attorney given in favour of the person by the resident concerned, or

(b)  is a person appointed, under the Guardianship Act 1987 or the NSW Trustee and Guardian Act 2009, to manage the estate of the resident (or, if the management of the resident’s estate is committed to the NSW Trustee and Guardian, the person is the NSW Trustee and Guardian or a person authorised by the NSW Trustee and Guardian for the purposes of this section).

(4)  The operator of the retirement village must not prevent or hinder the attendance of an investigator at a meeting of the residents if the residents at the meeting consent to the investigator’s presence at the meeting.

Maximum penalty: 50 penalty units.

s 75: Am 2000 No 53, Sch 1.26 [2]; 2008 No 121, Sch 1 [55]; 2009 No 49, Sch 2.52 [1] [2].

76 No restrictions on voting

(1)  A village contract may explain the system under which, at the time the contract is entered into, the residents of the retirement village meet and consider and vote on matters referred to in section 74 (1), but any term of the contract that purports to bind a resident to a particular system is void to the extent that it does so.

(2)  Any covenant, and any contract or other arrangement between the operator of a retirement village and a resident of the village, under which a particular vote of the resident (or the resident’s failure to vote) on any matter relating to the village attracts a penalty, is void to the extent of that provision.

77 Proxies

(1)  A resident of a retirement village may, from time to time, appoint a person as the proxy of the resident.

(2)  Any such appointment is to be made in the form and manner prescribed by the regulations.

(3)  A person is not the proxy of a resident of a retirement village for the purposes of this Act unless the person is appointed under this section.

Note—

Certain other laws (such as the Strata Schemes Management Act 2015) provide for the appointment of proxies for various purposes. However, an appointment under another law is not effective for the purposes of this Act, and an appointment under this Act is not effective for the purposes of another law (unless the other law provides that it is).

(4)  An appointment of the operator of a retirement village or close associate of the operator of a retirement village as a proxy is of no effect.

(5)  A person appointed as the proxy of a resident of a retirement village cannot vote on the resident’s behalf if the resident personally votes on the matter concerned.

(6)  This section has effect despite any terms of the instrument appointing a person as the proxy of the resident.

s 77: Am 2008 No 121, Sch 1 [57] (am 2009 No 106, Sch 1.16 [2]) [58]; 2015 No 50, Sch 4.22 [4].

78 Certain limitations on proxies

(1)  If a person holds appointments as the proxy of 2 residents (or such other number of residents as may be prescribed by the regulations) in any one retirement village at any one time, any appointment of the person as proxy of another resident of the village, while the person continues to hold the other appointments, is void.

(2)  Any appointment of a person as the proxy of a resident of a retirement village after the commencement of this section:

(a)  may be revoked at any time by the appointor’s giving notice in writing to the person, and

(b)  if it is not revoked, terminates:

(i)  after the first meeting at which it is exercised, or

(ii)  if it is not exercised during the period of 6 months immediately following the date on which the appointment is made—on the expiry of that period.

(3)  Nothing in this section prevents a resident of a retirement village from reappointing a person as the resident’s proxy after the revocation or termination of such an appointment.

s 78: Am 2008 No 121, Sch 1 [59].

79 Effect of certain votes

Any vote or resolution of the residents of a retirement village that purports to oblige the operator of the village concerned:

(a)  to abandon or amend plans for development in the village, or

(b)  to cease to act as the operator of the village,

is not binding on the operator.

Note—

Submissions concerning proposed development in the village can be made under the Environmental Planning and Assessment Act 1979 at the time that the operator seeks development consent under that Act.

Retirement villages may contain residential premises that are subject to a company title scheme, to a community scheme, precinct scheme or neighbourhood scheme under the Community Land Management Act 1989, or to a strata scheme under the Strata Schemes Management Act 2015. Resolutions of directors or members of the companies, and votes of relevant associations (under the Community Land Management Act 1989) and owners corporations (under the Strata Schemes Management Act 2015) have no relevance to decisions of residents under this Act (and vice versa).

s 79: Am 2015 No 50, Sch 4.22 [5].

80 Notice of intention to vacate

The maximum notice of an intention to vacate residential premises in a retirement village that may be required of a resident of the premises (whether under a contract or otherwise) is one month’s notice in writing.

Division 4 Right of certain non-residents to become residents

81 Right to become resident

(1)  A relative of a resident of residential premises in a retirement village:

(a)  who is a retired person, and

(b)  who is occupying the residential premises concerned at the time that the resident dies or vacates the premises, and

(c)  who had been occupying those premises for at least 6 months (whether before or after the commencement of this Act) immediately before that time,

has the right to enter into a residence contract with the operator of the village in respect of the premises.

(2)  This section does not apply if:

(a)  the resident is, or was, a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the residential premises, or

(b)  the resident is taken to be a resident by operation of section 4 (2).

s 81: Am 2008 No 121, Sch 1 [60].

82 Application to Tribunal concerning non-resident

(1)  If the operator of a retirement village refuses to enter into a residence contract referred to in section 81, the relative of the resident may apply to the Tribunal for an order directing the operator of the village to enter into the contract within the time specified in the order.

(2)  If the relative of the resident:

(a)  refuses to enter into a residence contract with the operator of the village in respect of the residential premises concerned, and

(b)  refuses to deliver vacant possession of the residential premises to the operator,

the operator may apply to the Tribunal for an order directing the relative of the resident to deliver vacant possession of the premises to the operator within the time specified in the order.

(3)  On an application made to it under this section, the Tribunal may make the order sought or any other order of a kind referred to in this section, as the Tribunal considers appropriate.

(4)  If the Tribunal is satisfied that the relative of the resident refused to enter into a residence contract only because the terms of the proposed contract were unreasonable, the Tribunal may set the terms of the contract (having regard to the terms of other residence contracts in force in the village) and direct the operator and the relative of the resident to enter into the contract within the time specified in the order.

(5)  The operator of the village must not enter into a residence contract in respect of the residential premises with any person other than the relative of the resident unless:

(a)  the relative delivers vacant possession of the premises to the operator, or

(b)  the Tribunal orders the relative to do so.

(6)  A contract entered into in contravention of subsection (5) is void.

(7)  If:

(a)  a person who was occupying residential premises in the retirement village with a resident who has vacated the premises is not a person referred to in section 81 (1), and

(b)  the person refuses to deliver vacant possession of the premises to the operator,

the operator may apply to the Tribunal for (and the Tribunal may make) an order requiring the person to deliver vacant possession of the premises to the operator within the time specified in the order.

Division 5 Certain obligations of residents

83 Residents to respect rights of other persons

(1)  It is a term of every residence contract that the resident will respect the rights of other residents of, and other persons in, the village.

(2)  In particular, a resident:

(a)  must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of another resident, and

(b)  must respect the rights of the operator of the village, and agents and employees of the operator, to work in an environment free from harassment or intimidation, and

(c)  must not act in a manner that adversely affects the occupational health and safety of persons working in the village.

(3)  If the operator of the retirement village is of the opinion that a resident of the village has contravened any provision of this section, the operator may apply to the Tribunal for (and the Tribunal may make) an order directing the resident to comply with this section.

Division 6 Administrators, receivers and managers

84 Application for order appointing administrator

(1)  The Secretary may apply to the Supreme Court, in accordance with the rules of the Court, for an order appointing a specified person as an administrator of a retirement village:

(a)  to exercise all the functions of the operator of the retirement village, or

(b)  to exercise specified functions of the operator, or

(c)  to exercise all the functions other than specified functions of the operator.

(2)  The Secretary may apply for an order under this section only if:

(a)  the Secretary is of the opinion that the well-being or financial security of the residents of the retirement village concerned has been, or is likely to be, seriously affected by the continued operation of the retirement village by the operator, or

(b)  the Secretary is of the opinion that the operator of the retirement village concerned is wilfully and repeatedly acting in contravention of an order made by the Tribunal or a court in relation to the retirement village, or

(c)  the retirement village concerned is the subject of an existing order under this section.

(3)  For the purposes of determining whether an application for an order under this section should be made, the Secretary may appoint a person to inquire into, and report to the Secretary on, the well-being and financial security of the residents of a retirement village.

s 84: Am 2008 No 121, Sch 1 [61].

85 No application without consent

The Secretary is not to apply for an order appointing a person as an administrator under this Division unless the person has consented in writing to the appointment.

86 Terms and conditions of appointment

Without limiting the terms and conditions of the order of appointment of an administrator under this Division, the terms and conditions may exempt the administrator from the requirement to comply with such obligations of the operator as are specified or described in the order of appointment.

87 Effect of appointment

(1)  The operator of a retirement village must not, while an order under this Division is in force in respect of the village, exercise any of the functions of the operator that the administrator is authorised to exercise.

(2)  However, the appointment of an administrator does not relieve the operator of any of his or her liabilities under a village contract.

(3)  Subject to the terms of the appointment, a person appointed as an administrator of a retirement village must comply with all the obligations of the operator in relation to the functions that the person is authorised to exercise (including functions under a village contract) and is, in the exercise of those functions, taken to be the operator.

87A Expenses of administration

(1)  The expenses incurred by an administrator appointed under this Division in exercising the functions of the operator of a retirement village are payable from recurrent charges and such other funds as would be available to the operator for such expenses if the administrator had not been appointed.

(2)  Neither the Crown, the Minister nor the Secretary is liable for:

(a)  any expenses incurred by an administrator appointed under this Division to exercise the functions of the operator of a retirement village, or

(b)  any liability of an operator of a retirement village in respect of which an administrator is appointed.

s 87A: Ins 2008 No 121, Sch 1 [62].

87B Administrator may vary village contract

(1)  Despite any other provision of this Act, an administrator appointed under this Division may, with the consent of the Secretary:

(a)  amend or revoke an approved annual budget, or

(b)  vary the recurrent charges payable by the residents of the retirement village, or

(c)  vary the services offered by the retirement village.

(2)  The Secretary may give consent under subsection (1) only if, in the opinion of the Secretary, the proposed revocation, variation or amendment is done for the purpose of:

(a)  assisting in the process of finding a new operator for the retirement village, or

(b)  ensuring the financial viability of the retirement village.

(3)  Nothing done by the administrator in accordance with this section is to be regarded as a breach of contract or otherwise as a civil wrong.

(4)  No compensation is payable to any person because of the operation of this section or anything done under this section.

s 87B: Ins 2008 No 121, Sch 1 [62].

88 Revocation of appointment

(1)  An order made under this Division may be revoked or varied by the Supreme Court (whether or not on the application of the Secretary) and, unless sooner revoked, ceases to have effect at the expiration of such period after its making as may be specified in the order.

(2)  More than one order may be made under this Division in respect of the same retirement village.

89 Receivers and managers

(1)  If a receiver, or a receiver and manager, is appointed in respect of an operator of a retirement village, the person so appointed must (subject to the terms of the appointment) comply with the operator’s obligations under this Act as if that person were the operator.

(2)  The terms and conditions of appointment of a receiver, or a receiver and manager, may exempt the appointee from the requirement to comply with such obligations of the operator as are specified or described in the order of appointment.

(3)  This section does not apply to the extent that it is inconsistent with the Corporations Act 2001 of the Commonwealth.

s 89: Am 2001 No 34, Sch 4.54 [3].

90 No personal liability of administrator, receiver or receiver and manager

A matter or thing done or omitted to be done by an administrator, a receiver or a receiver and manager (or any person acting under the direction of the administrator, receiver or receiver and manager) does not, if the matter or thing was done or omitted in good faith for the purpose of executing this or any other Act, subject the administrator, receiver, receiver and manager or person so acting personally to any action, liability, claim or demand.

Part 7 Financial management of retirement villages

Division 1 Preliminary

91 Financial year of retirement village

(1)  The operator of a retirement village is to determine a financial year for the village.

(2)  The financial year must be a period of 12 months commencing and ending on dates determined by the operator.

Division 2 Capital maintenance and replacement

pt 7, div 2: Subst 2008 No 121, Sch 1 [63].

92 Interpretation

(1)  In this Division, an item of capital for which an operator of a retirement village is responsible means any item of capital within the retirement village other than an item of capital:

(a)  that is owned by a resident of the retirement village, or

(b)  that is association property under a community land scheme or common property under a strata scheme, or

(c)  that is of a class prescribed by the regulations for the purposes of this section.

(2)  For the purposes of this Division, maintenance or replacement of an item of capital is urgent if it is for the purpose of rectifying any of the following:

(a)  a burst water service,

(b)  a blocked or broken lavatory service,

(c)  a serious roof leak,

(d)  a gas leak,

(e)  a dangerous electrical fault,

(f)  flooding or serious flood damage,

(g)  serious storm or fire damage,

(h)  a failure or breakdown of the gas, electricity or water supply to residential premises within the retirement village,

(i)  a failure or breakdown of any essential service on the residential premises for hot water, cooking, heating or laundering,

(j)  any fault or damage that causes the retirement village to be unsafe or insecure,

(k)  any other matter prescribed by the regulations.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

93 Obligations of operator with respect to certain capital maintenance or replacement

(1)  The operator of a retirement village is to maintain each item of capital for which the operator is responsible in a reasonable condition having regard to the following:

(a)  the age of the item,

(b)  the prospective life of the item,

(c)  the money paid to the operator by the residents under a village contract (including ingoing contributions).

(2)  If it is not practical to maintain an item of capital in accordance with this section, the operator may replace the item.

(3)  The operator of a retirement village must carry out the maintenance of, or replace, an item of capital for which the operator is responsible within a reasonable time after becoming aware of the need for the maintenance or replacement of the item.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

94 Obligations of residents with respect to capital maintenance or replacement

(1)  A resident of a retirement village is to notify the operator of the retirement village of the need for maintenance to be carried out on, or the replacement of, an item of capital for which the operator is responsible and that is located within the resident’s residential premises as soon as the resident becomes aware of the need for the maintenance or replacement of the item.

(2)  A resident of a retirement village must reimburse the operator of the village in respect of any damage (other than fair wear and tear) caused by the resident to an item of capital for which the operator is responsible.

(3)  A resident of a retirement village must not hinder or obstruct the operator of the retirement village or a person authorised by the operator, from carrying out capital maintenance or capital replacement in respect of an item of capital for which the operator is responsible.

Note—

Section 67 sets out the circumstances in which an operator of a retirement village or a person authorised by the operator may enter residential premises in respect of which a person has a residence right.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

95 Resident may carry out urgent capital maintenance or replacement

(1)  A resident of a retirement village may carry out capital maintenance or capital replacement in respect of an item of capital for which the operator of the retirement village is responsible if:

(a)  the maintenance or replacement of the item is urgent, and

(b)  the resident first gives the operator a reasonable opportunity to carry out the maintenance or replace the item.

(2)  A resident of a retirement village who carries out the maintenance of or replaces an item of capital in accordance with this section is entitled to be reimbursed by the operator of the retirement village for the reasonable costs incurred by the resident in doing so.

(3)  If the operator of a retirement village fails or refuses to reimburse a resident for costs in accordance with this section, the resident may apply to the Tribunal for (and the Tribunal may make) an order requiring the operator to reimburse the resident for those costs.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

96 Tribunal may make orders for capital maintenance and replacement

(1)  If a resident of a retirement village is of the opinion that the operator of the retirement village is not maintaining or replacing items of capital for which the operator is responsible when necessary, the resident may apply to the Tribunal for (and the Tribunal may make) an order directing the operator:

(a)  to carry out specified maintenance of an item of capital within the time specified in the order, or

(b)  to replace a specified item of capital within the time specified in the order.

(2)  If the operator of a retirement village is of the opinion that a resident of the retirement village has caused damage to an item of capital for which the operator is responsible, the operator may apply to the Tribunal for (and the Tribunal may make) an order directing the resident to reimburse the operator for the cost of the maintenance or replacement of the item of capital as a result of the damage.

(3)  Subsection (2) does not apply to damage caused by fair wear and tear.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

97 Funding of certain capital maintenance and capital replacement

(1)  The operator of a retirement village may fund the cost of capital maintenance in respect of which the operator is responsible from the following sources:

(a)  the capital works fund for the retirement village (if any),

(b)  recurrent charges.

(2)  The operator of a retirement village must bear the cost of capital replacement in respect of an item of capital for which the operator is responsible.

(3)  This section does not authorise the funding of any of the following from the capital works fund or recurrent charges for the retirement village:

(a)  the construction of a new building or a new stage of the retirement village,

(b)  any work arising from the breach of a statutory warranty (within the meaning of the Home Building Act 1989) in respect of which proceedings may be commenced under Part 2C of that Act,

(c)  the depreciation of items of capital,

(d)  the refurbishment of vacant residential premises within the retirement village,

(e)  such other things as may be prescribed by the regulations.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

98 Capital maintenance to be included in proposed annual budget

(1)  This section applies only if:

(a)  the operator of the retirement village is required to supply the residents of the retirement village with a proposed annual budget, and

(b)  the operator proposes to use any recurrent charges or any part of the capital works fund (if any) for the retirement village to fund capital maintenance.

(2)  The operator of a retirement village must, in the proposed annual budget:

(a)  list each item of capital maintenance that is proposed to be carried out, and

(b)  specify, in respect of each item, the expected cost, and

(c)  include, in respect of each item, any quotes that the operator has obtained, and

(d)  include provision for urgent capital maintenance.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

99 Capital works fund

(1)  If an approved annual budget provides for the setting aside of any part of the recurrent charges for the purpose of funding capital maintenance in a period that extends beyond the end of the financial year to which the budget relates, the operator of the retirement village must establish and maintain a capital works fund.

(2)  However, this section does not require that a separate fund be established in respect of each financial year.

(3)  A capital works fund must be held in an account with an authorised deposit-taking institution or as otherwise prescribed by the regulations.

(4)  The operator of a retirement village is to pay into the capital works fund:

(a)  such portion of the recurrent charges as may be required under an approved annual budget, and

(b)  any interest received from the investment of the whole, or any part of, the capital works fund.

(5)  The operator of a retirement village must not use money from the capital works fund except:

(a)  to meet the cost of capital maintenance, or

(b)  if the residents of the village consent to a proposal that the operator of the village distribute the whole, or any part, of the capital works fund that is not required to fund capital maintenance to the residents of the retirement village in equal shares—in accordance with that proposal, or

(c)  as prescribed by the regulations.

Maximum penalty: 100 penalty units.

(6)  A proposal under subsection (5) (b) may be made by the operator of the retirement village or the Residents Committee (if any).

(7)  If the residents consent under subsection (5) (b) to a proposal made by the Residents Committee, the operator may apply to the Tribunal for (and the Tribunal may make) an order that:

(a)  the distribution is not to be made, or

(b)  approves or varies the proposed distribution.

(8)  In making an order under subsection (7) the Tribunal may consider the following:

(a)  the proportion of the capital works fund that is proposed to be distributed,

(b)  whether the proportion of the capital works fund that is proposed to be distributed is reasonably likely to be required to fund capital maintenance,

(c)  any other matter that the Tribunal considers appropriate.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

100 Retirement village to be insured

(1)  The operator of a retirement village must cause the retirement village to be insured (and remain insured) in accordance with this section.

Maximum penalty: 100 penalty units.

(2)  The village must have insurance that:

(a)  covers the following:

(i)  damage,

(ii)  costs incidental to the reinstatement or replacement of insured buildings,

(iii)  public liability, and

(b)  provides for the reinstatement of property to its condition when new.

(3)  The regulations may prescribe a minimum amount of public liability insurance that is required under this section.

(4)  Insurance for damage and costs incidental to the reinstatement or replacement of insured buildings must cover the full replacement value of the retirement village.

(5)  Nothing in this section requires the operator of a retirement village to insure an item of capital other than an item of capital for which the operator is responsible.

(6)  The operator of a retirement village may fund insurance required under this section from recurrent charges if the cost of any such insurance is included in the approved annual budget.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

101 Operator not to sell items of capital to residents

(1)  The operator of a retirement village must not sell any item of capital for which the operator is responsible, or pass responsibility for any such item of capital (whether directly or indirectly), to a resident or prospective resident of the retirement village under a village contract or otherwise except as provided by the regulations.

Maximum penalty: 20 penalty units.

(2)  Any contract, agreement or scheme is unenforceable to the extent that it purports to sell or pass responsibility for the maintenance or replacement of items of capital in contravention of subsection (1).

(3)  This section does not apply to the sale of residential premises within a retirement village, including fixtures in any such premises.

ss 92–101: Subst 2008 No 121, Sch 1 [63].

Division 3

102  (Repealed)

pt 7, div 3: Rep 2008 No 121, Sch 1 [63].

s 102: Rep 2008 No 121, Sch 1 [63].

Division 4 Recurrent charges

102A Meaning of “prescribed CPI variation”

(1)  In relation to a proposed variation in recurrent charges that is the first variation under a village contract, the prescribed CPI variation is, for the purposes of this Division, the variation that would result from the recurrent charges being increased in proportion to the difference between:

(a)  the Consumer Price Index published most recently before the village contract was entered into, and

(b)  the Consumer Price Index published most recently before the written notice of the proposed variation is given,

rounded to the nearest dollar.

(2)  In relation to a proposed variation in recurrent charges that is not the first variation under a village contract, the prescribed CPI variation is, for the purposes of this Division, the variation that would result from the recurrent charges being increased in proportion to the difference between:

(a)  the Consumer Price Index published most recently before those charges were last varied, and

(b)  the Consumer Price Index published most recently before the written notice of the proposed variation is given,

rounded to the nearest dollar.

s 102A: Ins 2013 No 47, Sch 1.27 [1].

103 Operator to pay certain recurrent charges

(1)  The operator of a retirement village must pay, in relation to any new residential premises in the village, an amount equivalent to the recurrent charges for general services payable under a village contract in respect of comparable (or the most nearly comparable) premises in the village.

(2)  In this section, new residential premises means residential premises that are not and have never been the subject of a village contract.

104 Variation of recurrent charges

(1)  A village contract may provide that any recurrent charges payable under it:

(a)  are to be varied at specified intervals (or on specified dates) according to a fixed formula (for example, in proportion to variations in the Consumer Price Index), or

(b)  may be varied otherwise than according to a fixed formula.

(2)  If a village contract provides for any recurrent charges payable under it to be varied otherwise than according to a fixed formula, the recurrent charges must not be varied more than once in any 12 month period. Any second or subsequent purported variation within that 12 month period is of no effect.

(3)  A village contract must not provide for more than one method of variation of the recurrent charges payable under it.

(4)  If a village contract provides for more than one method of variation of recurrent charges in contravention of subsection (3), the method that results in the lowest increase in recurrent charges is the applicable method.

s 104: Am 2008 No 121, Sch 1 [64] [65].

105 Recurrent charges varied by fixed formula

(1)  If a village contract provides that recurrent charges are to be varied according to a fixed formula, the operator of the village must give at least 14 days’ written notice of the variation to the resident concerned.

(2)  The notice must specify:

(a)  the amount of the new recurrent charges, and

(b)  the date from which the new recurrent charges are payable, and

(c)  such other information as may be prescribed by the regulations.

(3)  A resident of the retirement village who is a party to a village contract referred to in subsection (1) is not required to pay any increase in his or her recurrent charges until notice of the increase is given as required by this section.

(4)  The operator of a retirement village must not increase (or attempt to increase) recurrent charges that are to be varied according to a fixed formula otherwise than in accordance with that formula and this section.

Maximum penalty: 50 penalty units.

105A Recurrent charges varied otherwise than by fixed formula—not exceeding variation in CPI

(1)  This section applies to the variation of recurrent charges payable under a village contract if:

(a)  the contract provides that recurrent charges are to be varied otherwise than in accordance with a fixed formula, and

(b)  the variation does not exceed the prescribed CPI variation.

(2)    (Repealed)

(3)  The operator of a retirement village must give at least 14 days’ written notice of any proposed variation to the recurrent charges.

(4)  The notice must specify:

(a)  the amount of the new recurrent charges, and

(b)  the date from which the new recurrent charges are payable, and

(c)  such other information as may be prescribed by the regulations.

(5)  A resident of a retirement village is not required to pay any increase in his or her recurrent charges to which this section applies until notice of the increase is given as required by this section.

(6)  A notice given under this section may be cancelled by a later notice or a later notice may provide for a lesser increase than the increase specified in the earlier notice.

s 105A: Ins 2008 No 121, Sch 1 [66]. Am 2013 No 47, Sch 1.27 [2] [3].

106 Recurrent charges varied otherwise than by fixed formula—exceeding variation in CPI

(1)  This section applies to a variation of recurrent charges payable under a village contract if:

(a)  the contract provides that recurrent charges are to be varied otherwise than in accordance with a fixed formula, and

(b)  the variation exceeds the prescribed CPI variation.

Note—

A provision to the effect that recurrent charges may be varied by “up to” a certain percentage is an example of such a provision.

(1A)    (Repealed)

(1B)  The operator of a retirement village must give the resident concerned notice in accordance with this section at least 60 days before any proposed variation.

(2)  The notice must:

(a)  specify the amount of the proposed recurrent charges, and

(b)  specify the date from which it is intended that the proposed recurrent charges are to be payable, and

(c)  contain a brief explanation of the reasons for the proposed variation exceeding the prescribed CPI variation or the prescribed rate or amount (if any), and

(c1)  include details of any action taken to minimise the proposed variation in recurrent charges, and

(d)  state that the variation will not take effect unless the residents concerned consent to the variation or the Tribunal orders that it take effect, and

(e)  contain such other information as may be prescribed by the regulations.

(3)  A notice given under this section may be cancelled by a later notice or a later notice may provide for a lesser increase than the increase specified in the earlier notice.

(4)  For the purposes of the date from which the proposed variation is to take effect, a later notice is taken to have been given on the date on which the earlier notice was given.

(5)  However, the period of 30 days specified in section 107 (2) commences, in relation to a later notice, on the date on which the later notice is actually given.

(6)  An operator who is the operator of more than one retirement village must deal with each village separately under this section.

(7)    (Repealed)

Maximum penalty: 50 penalty units.

s 106: Am 2008 No 121, Sch 1 [67]–[70]; 2013 No 47, Sch 1.27 [4]–[6].

106A Recurrent charges varied otherwise than by fixed formula to be increased in accordance with Act

The operator of a retirement village must not increase (or attempt to increase) recurrent charges that are to be varied otherwise than according to a fixed formula if the increase would be:

(a)  beyond any upper limit specified in the relevant village contract, or

(b)  otherwise than in accordance with section 105A or 106.

Maximum penalty: 50 penalty units.

s 106A: Ins 2008 No 121, Sch 1 [71].

107 Residents’ consent to variation

(1)  A variation does not take effect under section 106 unless:

(a)  the residents whose recurrent charges will be affected by the variation consent to the variation, or

(b)  the Tribunal orders under section 108 that the variation take effect.

(2)  The residents concerned must, within 30 days after receiving a notice under section 106:

(a)  meet, consider and vote on the proposed variation, and

(b)  advise the operator that they consent, or do not consent (as the case may be) to the variation.

(3)  If the operator is not advised as required by subsection (2) (b), the residents are taken to have refused consent to the variation.

(4)  The operator must provide such information in relation to the proposed variation as the Residents Committee (or, if there is no Residents Committee elected for the village, any resident) reasonably requests for the purpose of deciding whether consent should be given to the variation.

(5)  If the operator of a retirement village fails to provide information requested under subsection (4) within the time prescribed by the regulations, the Residents Committee (or a resident of the retirement village) may apply to the Tribunal for (and the Tribunal may make) an order requiring the operator to provide the residents with the information specified in the order.

(6)  The regulations may prescribe:

(a)  the period within which information requested under subsection (4) must be provided, and

(b)  information that the operator of a retirement village is not required to provide despite a request under subsection (4).

s 107: Am 2008 No 121, Sch 1 [72].

108 Determination by Tribunal

(1)  An operator of a retirement village may apply to the Tribunal for (and the Tribunal may make) an order in respect of a proposed variation of recurrent charges if:

(a)  the consent of the residents of the retirement village is required before the proposed variation can take effect, and

(b)  the residents do not consent to the proposed variation under section 107.

(2)  The Tribunal may, on application by the operator:

(a)  order that the proposed variation is to take effect, with or without modification, or

(b)  order that the proposed variation is not to take effect.

(3)  An order under subsection (2) (a) may:

(a)  specify the date from which the variation is to take effect (which may be a date other than the date specified by the operator in the notice given under section 106), and

(b)  order that the recurrent charges are not to be further varied for a specified period, being a period that does not exceed 12 months.

(4)  In determining an application made under this section, the Tribunal may have regard to the following:

(a)  the general market level of recurrent charges paid at similar retirement villages in the locality of the retirement village concerned or a similar locality,

(b)  the level and cost of services and facilities provided for in the proposed annual budget or approved annual budget (as the case may be),

(c)  any proposed variations (including additions) to those services and facilities, being variations to which the residents have consented,

(d)  the cost of general services required to be provided by the operator,

(e)  the frequency and amount of past variations of the recurrent charges,

(f)  if the retirement village is subject to a community land scheme or strata scheme—the amounts of levies and other contributions payable by the residents under the Community Land Management Act 1989 or the Strata Schemes Management Act 2015,

(g)  any other relevant matter.

s 108: Am 2008 No 121, Sch 1 [73] [74]; 2015 No 50, Sch 4.22 [6].

109 Tribunal may order refund of recurrent charges in certain circumstances

(1)  A resident of a retirement village may apply to the Tribunal for an order directing the refund of overpaid recurrent charges on any grounds, including the ground that an increase in the charges came into effect otherwise than in accordance with this Division.

(2)  The Tribunal may make an order directing a refund of all such overpaid recurrent charges.

(3)  An application under this section must be lodged no later than 12 months after the increase in the charges came into effect.

110 Receipts for recurrent charges

(1)  If payment of recurrent charges in a retirement village is made in person, any person who receives the payment must, without delay, give to the person making the payment a receipt for the payment.

Maximum penalty: 5 penalty units.

(2)  If the payment is not made in person, the operator of the village must, as soon as practicable after receipt of the payment, prepare or cause to be prepared a receipt for the payment and make the receipt available for collection by the resident concerned or give it to the resident.

Maximum penalty: 5 penalty units.

(3)  A receipt for payment of recurrent charges is not a receipt for the purposes of this section unless it includes the following particulars:

(a)  the name of the operator,

(b)  the name of the resident paying the recurrent charges (or on whose behalf they are paid),

(c)  the address of the residential premises concerned,

(d)  the period for which the recurrent charge is paid,

(e)  the date on which the payment is received,

(f)  the amount of the payment.

(4)  This section does not apply to recurrent charges paid in accordance with an agreement between the resident and the operator into an account at an authorised deposit-taking institution nominated by the operator.

111 Abatement of recurrent charges

(1)  If residential premises in a retirement village are, otherwise than as a result of a breach of a village contract, destroyed or rendered wholly or partly uninhabitable or cease to be lawfully usable for the purpose of a residence or are appropriated or acquired by any authority by compulsory process, the recurrent charges payable by the resident of the premises abate accordingly.

Note—

The operator or the resident may also seek to terminate the residence contract in these circumstances (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the residential premises concerned)—see section 132.

(2)  If the operator and the resident do not agree that the recurrent charges should abate under this section (or do not agree on the extent to which they should abate), either party may apply to the Tribunal for (and the Tribunal may make) an order declaring that the recurrent charges:

(a)  are not to abate, or

(b)  are to abate to the extent specified in the order from the date so specified.

s 111: Am 2008 No 121, Sch 1 [75].

Division 5 Proposed and approved annual budgets

pt 7, div 5, hdg: Subst 2008 No 121, Sch 1 [76].

112 Proposed annual budget

(1)  At least 60 days before the commencement of each financial year of a retirement village, or such other time as may be prescribed by the regulations, the operator of the village must supply each resident of the village with a proposed annual budget itemising the way in which the operator proposes to expend the money to be received by way of recurrent charges from the residents of the village during the financial year.

Maximum penalty: 100 penalty units.

(2)  A person who is the operator of more than one retirement village may provide a consolidated budget in relation to any 2 or more of the villages concerned, but, when providing the budget to the residents and former occupants of a particular village, must include a separate budget for that village.

(3)  The regulations may make provision for or with respect to:

(a)  matters that must be dealt with in a proposed annual budget, and

(b)  matters that must not be financed by way of recurrent charges, and

(c)  the form that the budget is to take.

(4)  The budget is to be accompanied by a notice:

(a)  stating that the operator of the village is required to obtain the consent of the residents before expending the money as itemised in the budget, and

(b)  stating further that, if the residents do not give their consent, the operator may expend the money in accordance with an order of the Tribunal, and

(c)  briefly explaining the reasons for any changes in expenditure from the previous financial year, and

(d)  stating that if any change in expenditure arises from a variation in the services or facilities provided at the village by the operator, consent to that variation must be by way of a special resolution of the residents, and

(e)  containing such other information as may be prescribed.

(5)  The notice may (but need not) further state that the notice operates as the operator’s formal request for the consent of the residents to the expenditure of the money as itemised in the budget.

(6)  Nothing in this section prevents an operator of a retirement village from cancelling a proposed annual budget and replacing it with an amended budget at any time.

(7)  The residents of a retirement village may consent to not being supplied with a proposed annual budget if, in the year in which the consent is given, the total amount of the recurrent charges that are to be collected for the year does not exceed $50,000 or such other amount as may be prescribed by the regulations.

(8)  If the residents of a retirement village consent to not being supplied with a proposed annual budget under this section, subsections (1)–(6) and sections 113–117 do not apply in respect of the retirement village while the consent remains in force.

(9)  Consent given under subsection (7) remains in force until such time as:

(a)  the consent is revoked by a resolution of the residents of the village, or

(b)  the total of the recurrent charges to be collected for a financial year to which the consent relates exceeds $50,000 or such other amount as may be prescribed by the regulations.

(10)  The operator is required to notify the residents of the name of the auditor of the accounts at the annual management meeting if:

(a)  consent given under subsection (7) is in force, and

(b)  the operator of the village is required to have the accounts of the village audited under section 118.

(11)  The operator of a retirement village does not commit an offence under subsection (1) if consent given under subsection (7) is in force at the time that the operator is required to supply the proposed annual budget.

s 112: Am 2008 No 121, Sch 1 [77]–[81].

113 Order for proposed annual budget

If the operator of a retirement village does not supply a proposed annual budget as required by section 112, a resident of the village may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to supply the budget.

s 113: Am 2008 No 121, Sch 1 [82] [83].

114 Residents’ consent to expenditure

(1)  The operator of a retirement village must (whether by way of a notice referred to in section 112 or otherwise) seek the consent of the residents of the village to the expenditure itemised in the proposed annual budget.

Maximum penalty: 100 penalty units.

(2)  The operator must provide such information in relation to the proposed expenditure as the Residents Committee (or, if there is no Residents Committee elected for the village, any resident) reasonably requests for the purpose of deciding whether consent should be given to the budget.

(3)  Without limiting subsection (2), it is reasonable for the Residents Committee or a resident to request to see quotations for any work proposed to be carried out or for any service or facility proposed to be provided.

(4)  The residents concerned must, within 30 days after receiving a request for consent to a proposed annual budget (or an amended budget):

(a)  meet, consider and vote on the budget, and

(b)  advise the operator that they consent, or do not consent (as the case may be) to the budget, and

(c)  if they do not consent to the budget—specify the item or items in the budget to which they object.

(5)  If the operator is not advised as required by subsection (4) (b), the residents are taken to have refused consent to the budget.

(6)  If the operator fails to seek the consent of the residents, the residents are taken to have refused consent to the budget.

(7)  An operator who is the operator of more than one retirement village must deal with each village separately under this section.

(8)  Subsections (1)–(6) do not apply, and the residents are taken to have consented to the proposed annual budget, if the recurrent charges payable by the residents:

(a)  have not been varied, or

(b)  have been varied in accordance with section 104 (1) (a) or 105A.

s 114: Am 2008 No 121, Sch 1 [84]–[87].

115 Determination of expenditure by Tribunal

(1)  If the residents of a retirement village refuse consent to the expenditure itemised in the proposed annual budget, the operator or a resident may apply to the Tribunal for an order in respect of the expenditure proposed for the financial year concerned.

(2)  If an application is made under this section, the Tribunal may do one or more of the following:

(a)  make interim orders allowing expenditure on all items in the proposed annual budget other than those specified under section 114 (4) (c),

(b)  give procedural directions to the parties to facilitate agreement between the parties concerning the proposed expenditure (including directions to prepare new costings for services and to meet and discuss disputed matters),

(c)  make recommendations to the parties about the proposed expenditure (including recommendations about the cost and type of the services to be provided),

(d)  order that the expenditure is to be as itemised in the proposed annual budget,

(e)  order that there is to be no expenditure, or reduced or increased expenditure, on any particular item in the proposed annual budget,

(f)  order that there is to be expenditure in a specified amount on an item that does not appear in the proposed annual budget,

(g)  order that the expenditure is to be as specified in the order,

(h)  determine liability for expenses (if any) incurred from the commencement of the financial year to which the proposed annual budget relates until the date on which an order under paragraph (d), (e), (f) or (g) is made,

(i)  make any other order prescribed by the regulations for the purpose of this section.

(3)  If:

(a)  the operator makes an application under this section, and

(b)  the Tribunal does not, before the commencement of the financial year to which the proposed annual budget relates, make an order that gives rise to an approved annual budget,

the operator may, until the Tribunal makes the relevant order, expend money received by way of recurrent charges to meet the reasonable and necessary costs of operating the village.

(4)  In determining an application made by the operator under this section, the Tribunal may review any expenditure made under subsection (3) and may order that the operator is liable for so much of that expenditure as it considers was not reasonable or necessary.

(5)  If the Tribunal gives directions or makes recommendations for further action under subsection (2), it may adjourn the proceedings for a report from the parties and, if necessary, take further action under subsection (2) when proceedings resume.

(6)  In determining an application made under this section, the Tribunal may have regard to the following:

(a)  the reasonable cost of services provided (or proposed to be provided) in the village,

(b)  the need for the services to be provided in the village,

(c)  any other relevant matter.

(7)  If the Tribunal receives an application under this section at the same time as (or while there is before it) an application under section 108 in relation to recurrent charges payable at the same retirement village, it must make a determination under this section before making a determination under section 108.

s 115: Am 2008 No 121, Sch 1 [88] [89].

115A Proposed annual budget may provide for contingencies

The regulations may limit the amount that a proposed annual budget may allocate for contingencies.

s 115A: Ins 2008 No 121, Sch 1 [90].

116 Expenditure to be in accordance with approved annual budget

(1)  A proposed annual budget is taken to be an approved annual budget if:

(a)  the residents of a retirement village consent to expenditure in accordance with the proposed annual budget, or

(b)  the Tribunal orders that the expenditure of the operator is to be as itemised in the proposed annual budget.

(2)  However, if the Tribunal makes any other order in relation to the proposed annual budget, the approved annual budget is taken to be that budget modified to accord with the order.

(3)  The operator must not expend money received by way of recurrent charges otherwise than in accordance (apart from minor variations) with the approved annual budget or any amendment authorised under section 117.

Maximum penalty: 100 penalty units.

(3A)  An operator does not contravene subsection (3) if the expenditure that was otherwise than in accordance with the budget:

(a)  was a variation in expenditure between items in the approved annual budget, and

(b)  does not reduce the level of services provided by the retirement village, and

(c)  does not cause the total expenditure provided for by the approved annual budget to be exceeded.

(4)  If the operator:

(a)  contravenes subsection (3), or

(b)  did not (despite any order of the Tribunal under section 113) supply a proposed annual budget in respect of a current financial year,

a resident may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to refund the recurrent charges paid by the resident during so much of the financial year as has passed at the time the order is made.

s 116: Am 2004 No 14, Sch 1 [2]; 2008 No 121, Sch 1 [91]–[95].

117 Amendment of approved annual budget

(1)  The operator of a retirement village may seek the consent of the residents to amend an approved annual budget except if:

(a)  the budget is taken to be an approved annual budget because of section 116 (1) (b), or

(b)  the budget is a proposed annual budget modified in accordance with an order of the Tribunal as referred to in section 116 (2).

(2)  If the residents consent to the amendment, the operator is authorised to expend money in accordance with the approved annual budget as amended.

(3)  If the residents do not consent to the amendment, the operator may apply to the Tribunal for an order approving the amendment. If the Tribunal makes such an order, the operator is authorised to expend money in accordance with the approved annual budget as amended.

(4)  In the case of an amendment that relates to further expenditure, the Tribunal is not to make an order under subsection (3) unless the Tribunal is satisfied that:

(a)  there is an urgent need for the further expenditure, and

(b)  the further expenditure was not reasonably foreseeable when the proposed annual budget was approved under section 116.

s 117: Subst 2004 No 14, Sch 1 [3]. Am 2008 No 121, Sch 1 [96]–[98].

Division 6 Annual accounts

118 Auditing of accounts

(1)  The operator of a retirement village must ensure that the accounts for the village are audited annually by a person qualified to audit accounts for the purposes of the Corporations Act 2001 of the Commonwealth.

Maximum penalty: 50 penalty units.

(2)  If the audit fees are to be paid by the residents of the village:

(a)  the fees must be itemised in the proposed annual budget (if any), and

(b)  the item must include the name of the auditor to be appointed, and

(c)  the residents’ consent to that appointment is required in the same way that it is required under section 114 (1)–(7) for the expenditure of the fees concerned, but only if the auditor to be appointed did not audit the accounts for the previous financial year.

(3)  Within 28 days after the end of the quarter to which the quarterly accounts relate, or such other period as may be prescribed by the regulations, the operator of a retirement village must provide the Residents Committee (if any) with a copy of the quarterly accounts of the income and expenditure of the village.

Maximum penalty: 20 penalty units.

(4)  If, more than 28 days after the end of the quarter to which the quarterly accounts relate, a resident of the retirement village requests that the operator of the retirement village provide a copy of the quarterly accounts of the income and expenditure for the retirement village, the operator must provide a copy of the accounts to the resident within 7 days after receiving the request.

(5)  The quarterly accounts are not required to be audited.

s 118: Am 2001 No 34, Sch 4.54 [4]; 2008 No 121, Sch 1 [99]–[101]; 2010 No 59, Sch 1.23.

119 Copies of annual accounts to be provided to residents

(1)  Within 4 months, or such other period as may be prescribed by the regulations, after the end of a financial year of a retirement village, the operator of the village must provide the residents of the village with copies of the audited accounts for that financial year in accordance with this section.

Maximum penalty: 50 penalty units.

(2)  The audited accounts must include (but are not limited to):

(a)  the following particulars:

(i)  details of the income and expenditure of the village during the financial year, including income and expenditure of the capital works fund (if any),

(ii)  details of the balance of the capital works fund (if any),

(iii)  details of amounts received for insurance claims made in respect of any matter referred to in section 100 (2) (a) (i) or (ii) relating to the village during the financial year,

(iv)  details of any interests, mortgages and other charges affecting the property of, or forming part of, the village (other than property or premises owned by residents of the village) as at the end of the financial year, and

(b)  a statement that:

(i)  specifies whether or not money payable by the village operator to former residents during the financial year concerned was paid in full and on time, and,

(ii)  specifies, if any money so payable has not been paid, the amount concerned, details of the delay and the reasons for the delay, and

(iii)  contains the matters required to be included by subsection (3), and

(iv)  gives details of any matters that may prevent the village operator from meeting those liabilities, and

(c)  such other matters as may be prescribed by the regulations.

(3)  If the auditor is not satisfied that the operator has the capacity, during the financial year immediately following, to meet the liabilities relating to the village as and when they fall due, or if the auditor believes that there is considerable uncertainty regarding the ability of the operator to meet the liabilities of the village as and when they fall due during the financial year immediately following, a statement to that effect must appear in the audited accounts.

(4)  The format of the accounts must correspond as closely as possible with the layout of the proposed annual budget.

(5)  A person who is the operator of more than one retirement village may provide audited consolidated accounts in relation to any 2 or more of the villages concerned, but, when providing the accounts to the residents of a particular village, must include a separate statement of income and expenditure for that village.

(6)  It is sufficient compliance with this section if the copies of the accounts are provided to the Residents Committee for the retirement village to which they relate and to any individual resident who asks the operator for one.

(7)  If there is no Residents Committee for the village concerned, a copy of the accounts is to be:

(a)  displayed on the common property of the village in accordance with the regulations, and

(b)  provided to any individual resident of the village who requests a copy.

s 119: Am 2008 No 121, Sch 1 [102]–[105]; 2010 No 59, Sch 2.82.

119A Accounts not required to be audited in certain cases

(1)  Despite section 118 (1), the operator of a retirement village is not required to have the accounts of the retirement village audited if:

(a)  the total of the recurrent charges collected in respect of the village in the financial year to which the accounts relate does not exceed $50,000 or such other amount as may be prescribed by the regulations, and

(b)  the residents have consented to the operator not having the accounts of the village audited and that consent is in force.

(2)  If the operator of a retirement village is not required to have the accounts of the village audited:

(a)  the provisions of section 119 (section 119 (3) excepted) apply to the accounts of the retirement village in the same way as they apply to audited accounts, and

(b)  the operator of the village must include a statement as to whether or not the operator will be able to meet the liabilities relating to the village as and when they fall due during the financial year immediately following.

(3)  The operator of a retirement village must not make a statement under subsection (2) (b) knowing that it is false or misleading in a material particular.

Maximum penalty: 100 penalty units.

(4)  The residents of a retirement village may revoke any consent given under this section at any time.

(5)  Consent given under this section remains in force until:

(a)  the total of the recurrent charges to be collected by the village in a financial year exceeds $50,000 or such other amount as may be prescribed by the regulations, or

(b)  the consent is revoked by the residents of the village,

whichever happens first.

s 119A: Ins 2008 No 121, Sch 1 [106].

119B Quarterly accounts not required to be given to residents in certain circumstances

(1)  Despite section 118 (3), the operator of a retirement village is not required to give the Residents Committee a copy of the quarterly accounts for a retirement village if:

(a)  the total of the recurrent charges collected in respect of the village in the financial year to which the accounts relate does not exceed $50,000 or such other amount as may be prescribed by the regulations, and

(b)  the residents have consented to the operator not giving them copies of the quarterly accounts and that consent is in force.

(2)  The residents of a retirement village may revoke any consent given under this section at any time.

(3)  Consent given under this section remains in force until:

(a)  the total of the recurrent charges to be collected by the village in a financial year exceeds $50,000 or such other amount as may be prescribed by the regulations, or

(b)  the consent is revoked by the residents of the village,

whichever happens first.

s 119B: Ins 2008 No 121, Sch 1 [106].

120 (Repealed)

s 120: Rep 2008 No 121, Sch 1 [107].

Division 7 Surplus or deficit of accounts

pt 7, div 7 (ss 120A–120C): Ins 2008 No 121, Sch 1 [108].

120A Definitions

In this Division:

deficit means a deficit in the annual accounts of a retirement village for any financial year ending on or after 23 November 2006.

surplus means a surplus in the annual accounts of a retirement village for any year.

pt 7, div 7 (ss 120A–120C): Ins 2008 No 121, Sch 1 [108].

120B Any surplus to be carried over

(1)  Any surplus in the annual accounts of a retirement village is to be carried forward to the accounts for the next financial year unless:

(a)  the residents of the village consent to a proposal for the expenditure of the whole or any part of the surplus, or

(b)  the residents of the village consent to a proposal that the operator distribute the whole or any part of the surplus to the existing residents of the village in equal shares.

(2)  A proposal under subsection (1) may be made by the operator of the retirement village or the Residents Committee (if any).

(3)  If the residents consent under subsection (1) (b) to a proposal made by the Residents Committee, the operator may apply to the Tribunal for (and the Tribunal may make) an order that:

(a)  the distribution is not to be made, or

(b)  approves or varies the proposed distribution.

(4)  In making an order under subsection (3), the Tribunal may consider the following:

(a)  the proportion of the surplus that is proposed to be distributed,

(b)  any other matter that the Tribunal considers appropriate.

pt 7, div 7 (ss 120A–120C): Ins 2008 No 121, Sch 1 [108].

120C Making good of deficit

(1)  A deficit is to be made good by the operator of the retirement village.

(2)  Except as provided by the regulations referred to in subsection (3), an operator of a retirement village must not:

(a)  carry forward a deficit to a subsequent financial year, or

(b)  request or receive from the residents of the retirement village any special additional payments for the purpose of making good a deficit, or

(c)  increase or purport to increase recurrent charges payable by the residents of a retirement village in any financial year for the purpose of making good a deficit, or

(d)  use the whole or any part of the recurrent charges collected by the operator in a financial year to make good a deficit, or

(e)  use the whole or any part of the capital works fund for the retirement village to make good a deficit.

(3)  The regulations may prescribe circumstances in which the operator of a retirement village may:

(a)  increase the recurrent charges payable by the residents of a retirement village for the purpose of making good a deficit, or

(b)  use the whole or any part of the recurrent charges collected by the operator for the purpose of making good a deficit, or

(c)  carry forward a deficit to a subsequent financial year.

(4)  The operator of a retirement village must not charge the residents of a retirement village interest in respect of a deficit.

pt 7, div 7 (ss 120A–120C): Ins 2008 No 121, Sch 1 [108].

Part 8 Disputes

Division 1 Preliminary

121 Application of Part

This Part has effect despite anything else in this or any other Act or law.

Division 2 Dispute resolution

pt 8, div 2, note: Rep 2001 No 82, Sch 7.18 [3].

122 Disputes between operator and resident

(1)  If a resident (or residents) or the operator of a retirement village claims that a dispute (including a dispute as to whether the operator is discharging his or her obligations under section 66 (2) (b)) has arisen between the resident and the operator or the operator and one or more residents, the resident (or residents) or operator may apply to the Tribunal for (and the Tribunal may make) an order in respect of the dispute.

Note—

Section 128 specifies some of the kinds of orders that the Tribunal can make.

(2)  Two or more residents who claim that a dispute, as referred to in subsection (1), has arisen may nominate, in accordance with the regulations, any resident as their representative in the dispute.

(3)  The nominated representative may apply to the Tribunal for an order in respect of the dispute, and the Tribunal may make an order that applies to the residents who are represented by the nominated representative.

s 122: Am 2001 No 82, Sch 7.18 [4].

123 Jurisdiction of Tribunal

(1)  A resident of a retirement village may apply directly to the Tribunal for an order in relation to any village contract (being a contract to which the resident is a party) that the resident considers to be harsh, oppressive, unconscionable or unjust.

(2)  The Tribunal has, and may exercise:

(a)  jurisdiction to determine any application made to it under this section, and

(b)    (Repealed)

(c)  the same jurisdiction as the Supreme Court, and all the powers and authority of the Supreme Court, in proceedings in which relief under the Contracts Review Act 1980 is sought in relation to a contract between an operator of a retirement village and a resident of the village.

Note—

Under the Contracts Review Act 1980, the Supreme Court may (among other things) refuse to enforce any or all of the provisions of the contract concerned or make an order declaring the contract void (in whole or in part) or varying (in whole or in part) any provision of the contract. It may also make orders with respect to any consequential or related matter, such as orders for the payment of money (whether or not by way of compensation) to a party to the contract and orders for the supply of services.

(3)  This section does not authorise the Tribunal to exercise the powers conferred by section 10 of the Contracts Review Act 1980.

Note—

Section 10 of the Contracts Review Act 1980 allows the Supreme Court, in certain circumstances, to prescribe or otherwise restrict the terms on which certain persons may enter into contracts of a specified class.

(4)  This section does not affect any jurisdiction of the Supreme Court under the Contracts Review Act 1980 in relation to contracts between operators and residents of retirement villages.

s 123: Am 2001 No 82, Sch 7.18 [5]; 2011 No 62, Sch 2.28.

124 (Repealed)

s 124: Rep 2001 No 82, Sch 7.18 [6].

125 Informal resolution of disputes

(1)  Nothing in this Division prevents the operator and residents of a retirement village from establishing mechanisms in the village for the purpose of attempting to resolve disputes in the village.

(2)  However, any term of any village contract that provides that the parties to the contract must attempt to resolve disputes between them by any process other than the process provided for under this Act is void.

Note—

Section 37 of the Civil and Administrative Tribunal Act 2013 enables the Tribunal, when it considers it appropriate to do so, to use resolution processes to assist the parties to proceedings in the Tribunal to resolve or narrow issues between them in the proceedings.

s 125: Am 2001 No 82, Sch 7.18 [7]; 2013 No 95, Sch 4.36 [2].

Division 3 Civil and Administrative Tribunal

pt 8, div 3, hdg: Am 2001 No 82, Sch 7.18 [8]. Subst 2013 No 95, Sch 4.36 [3].

126 Ancillary orders

(1)    (Repealed)

(2)  The power to make orders conferred on the Tribunal by or under this Act includes the power to make orders ancillary to those orders.

s 126: Am 2001 No 82, Sch 7.18 [9]; 2013 No 95, Sch 4.36 [4].

127 No monetary limit on jurisdiction of Tribunal

Despite any other law, the Tribunal is not, in exercising the jurisdiction conferred on it by this Act, limited in the amount of money that it may order to be paid.

s 127: Am 2013 No 95, Sch 4.36 [5].

128 Order of Tribunal

(1)  The Tribunal may, on application by a resident (or residents) or an operator under this Act, make one or more of the following orders:

(a)  an order directing the resident (or residents) or operator to comply with a requirement of this Act or the regulations,

(b)  an order that varies or sets aside a provision of a village contract that conflicts with this Act or the regulations,

(c)  an order that:

(i)  restrains any action in breach of any village contract or village rule, or

(ii)  requires the performance of any village contract or village rule,

(d)  an order directing the resident (or residents) or operator to perform such work or take such other steps as the order specifies to remedy a breach of a village contract or village rule,

(e)  an order for the payment of an amount of money,

(f)  an order for compensation,

(g)  an order that requires payment to the Tribunal of all or part of any recurrent charges payable by a resident (or residents) to the operator until the whole or part of any village contract has been performed or any application for compensation has been determined,

(h)  an order that requires payment (out of recurrent charges paid to the Tribunal) towards the cost of remedying a breach of a contract or towards the cost of any compensation,

(i), (j)    (Repealed)

(k)  in the case of an application in relation to any other dispute made by a resident (or residents) or an operator of a retirement village that is subject to a community land scheme and with the concurrence of the other party to the dispute—any order that the Tribunal may make under the Community Land Management Act 1989 to determine the dispute,

(k1)  in the case of an application in relation to any other dispute made by a resident (or residents) or an operator of a retirement village that is subject to a strata scheme and with the concurrence of the other party to the dispute—any order that the Tribunal may make under the Strata Schemes Management Act 2015 to determine the dispute,

(l)  any other order prescribed by the regulations for the purposes of this section.

(2)  Nothing in this section limits the orders that the Tribunal may make under this Act.

s 128: Am 2000 No 93, Sch 2.42; 2001 No 82, Sch 7.18 [10]; 2015 No 50, Sch 4.22 [7].

Part 9 Termination of residence contract

Division 1 General principles as to termination of residence contract

129 How and when residence right or contract is terminated

(1)  A residence right arising from a contract relating to residential premises in respect of which the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) terminates only on the completion of the sale of the premises.

(1A)  A residence right arising from a residence contract that is in the form of an assignable lease terminates on the assignment of the lease.

(2)  A residence contract (other than a contract referred to in subsection (1) or (1A)) and the residence right under the contract, terminate:

(a)  on the date on which the resident permanently vacates the premises, being a date that is (except as otherwise provided under this Part) at least one month after the date on which the resident gives the operator written notice of intention to vacate the premises (or such earlier date as the residence contract may allow), or

(b)  on the date on which the resident permanently vacates the premises, or

(c)  on the date on which the resident permanently vacates the premises after receiving notice of the operator’s intention to apply to the Tribunal for an order terminating the resident’s residence contract, or

(d)  on disclaimer (for example, on renunciation by the resident accepted by the operator), or

(e)  on the death of the last surviving resident under the contract, or

(f)  on the date specified by the Tribunal in an order under section 143 declaring that the resident has abandoned the premises, or

(g)  on the date on which the contract is terminated by the Tribunal, or

(h)  if the contract is frustrated:

(i)  on the eighth day after the date specified in the notice of termination given under section 132, unless application is made to the Tribunal within the time allowed by that section (or the notice of termination is withdrawn within that time), or

(ii)  on the date specified by the Tribunal, if the Tribunal determines that the contract is frustrated.

(3)  Termination of a residence contract does not affect any other right or obligation of the parties under a village contract.

s 129: Am 2004 No 14, Sch 1 [4] [5]; 2008 No 121, Sch 1 [109]–[112]; 2015 No 15, Sch 2.48.

130 Tribunal cannot terminate certain residence contracts

The Tribunal does not have jurisdiction under this Act:

(a)  to terminate a residence contract if the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the premises concerned, or

(b)  to determine any question as to the title to any land.

s 130: Am 2008 No 121, Sch 1 [113].

131 Notice of intention to seek termination

(1)  If the operator or a resident of a retirement village intends to apply to the Tribunal for an order terminating a residence contract, the intending applicant must give the other party to the contract written notice of that intention, except as otherwise provided by this Act.

(2)  The notice is to be given in the form, and within the time, prescribed by the regulations.

(3)  The Tribunal is not to make an order terminating a residence contract unless it is satisfied that the notice (if required) has been duly given.

132 Termination if residence contract frustrated

(1)  If residential premises in a retirement village are, otherwise than as a result of a breach of a village contract, destroyed or rendered wholly or partly uninhabitable or cease to be lawfully usable for the purpose of a residence or are appropriated or acquired by any authority by compulsory process, the resident or the operator of the village may give immediate notice of termination to the other party to the residence contract relating to the premises concerned (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the premises).

Note—

The operator and the resident may choose not to terminate the contract. However, recurrent charges payable in respect of the premises abate according to the degree to which the premises are uninhabitable—see section 111.

(2)  A notice of termination under this section may specify any date as the date on which the resident is to vacate the residential premises.

(3)  If the operator advises the resident (or the resident advises the operator) no later than 7 days after receiving a notice of termination under this section that he or she considers that the premises have not been rendered wholly or partly uninhabitable (as the case may be), either party may apply to the Tribunal for (and the Tribunal may make) an order determining the condition of the premises for the purposes of this section.

(4)  If an application is made to the Tribunal under this section, any notice of termination given under subsection (1) is suspended pending the determination of the Tribunal.

(5)  An application to the Tribunal under this section also operates as an application under section 111.

(6)  A notice of termination under this section may be withdrawn with the consent of both parties at any time before the termination of contract takes effect.

s 132: Am 2008 No 121, Sch 1 [114].

Division 2 Termination by Tribunal on application of either operator or resident

133 Termination on medical grounds

(1)  The operator of a retirement village or a resident of the village may apply to the Tribunal for an order terminating the residence contract of the resident if the operator or resident concerned is of the opinion that residential premises occupied by the resident are unsuitable for occupation by that resident because of his or her physical or mental incapacity.

(2)  The Tribunal may, on application under this section, make an order terminating the residence contract, but only if:

(a)  it is of the opinion that the residential premises occupied by the resident are unsuitable for occupation by the resident because of the resident’s physical or mental incapacity, and

(b)  having considered the circumstances of the case, it is of the opinion that it is otherwise appropriate to make an order terminating the residence contract.

(3)  The Tribunal must not form an opinion under subsection (2) (a) unless it has considered a medical report with respect to the resident prepared by a medical practitioner nominated by the resident or, if such a report is not supplied or a nomination is not made, has given the resident a reasonable opportunity to supply such a report or make such a nomination.

(4)  The Tribunal is entitled to form an opinion under subsection (2) regardless of who made the application for the order to terminate the residence contract.

(5)  In determining whether to terminate a residence contract under this section, the Tribunal may:

(a)  with the consent of the resident, request the Secretary of the Ministry of Health or any other person or any body to prepare a report with respect to the resident’s physical or mental capacity, and

(b)  have regard to any such report and any other report prepared on behalf of the resident or the operator, and

(c)  have regard to any terms of the residence contract relating to the transfer of the resident to other residential premises.

Note—

A report referred to in paragraph (a) might be requested, for example, from a body known as an Aged Care Assessment Team.

(6)  If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned.

s 133: Am 2016 No 27, Sch 2.42 [3].

134 Termination on grounds of breach of village contract or rules

(1)  The operator of a retirement village may apply to the Tribunal for an order terminating the residence contract of a resident of the village who breaches any village contract between the resident and the operator or breaches a village rule.

(2)  A resident of a retirement village may apply to the Tribunal for an order terminating his or her residence contract if the operator breaches any village contract between the resident and the operator or breaches a village rule.

(3)  The Tribunal may, on application made under this section, make an order terminating the residence contract, but only if it is satisfied that:

(a)  the breach, in the circumstances of the case, is such as to justify termination of the contract, or

(b)  persistent breaches by the resident or operator concerned are, in the circumstances of the case, such as to justify termination of the contract.

(4)  If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned.

(5)  If the Tribunal forms the opinion, in the course of proceedings under this section, that a village rule is unjust, unconscionable, harsh or oppressive, it may make an order:

(a)  setting aside the rule, or

(b)  modifying the operation of the rule, either in its application to the operator or to a resident (or to some or all of the residents) of the retirement village concerned.

Division 3 Termination by Tribunal on application of operator

135 Termination on grounds of resident’s causing serious damage or injury

(1)  The Tribunal may, on application by the operator of a retirement village, make an order terminating a residence contract if it is satisfied that the resident has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit:

(a)  serious damage to any part of the village, or

(b)  injury to the operator or an employee of the operator or any other resident.

(2)  If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned.

(3)  An application under this section may be made whether or not the operator has given notice of his or her intention to apply to the Tribunal under this section for an order terminating the residence contract.

136 Termination on grounds of upgrade or change of use

(1)  The Tribunal may, on application by the operator of a retirement village, make an order terminating a residence contract if it is satisfied that:

(a)  for the purpose of improving the village, the operator intends to carry out such substantial works in the village as require vacant possession of the residential premises concerned, or

(b)  it is appropriate that the land on which the village is situated should be used for a purpose other than a retirement village.

(2)  However, the Tribunal is not to make an order terminating a residence contract under this section unless it is also satisfied that:

(a)  the operator has given the resident at least 12 months’ written notice of the operator’s intention to make an application under this section, and

(b)  development consent and any other necessary approvals to carry out the works or use the land for the other purpose have been obtained, and

(c)  the operator has obtained (or made available) for the resident alternative accommodation:

(i)  that is of approximately the same standard as, and requires no greater financial outlay on the part of the resident than, the residential premises the subject of the residence contract, and

(ii)  that is acceptable to the resident or reasonably ought to be acceptable to the resident.

(3)  If the Tribunal makes an order terminating a residence contract under this section, the Tribunal:

(a)  must fix in the order a date by which the resident must vacate the residential premises concerned, and

(b)  must specify in the order the penalty that the operator will incur if the works are not substantially commenced, or action to facilitate the use of the land for the other purpose not taken, within 6 months after the date fixed under paragraph (a), and

(c)  may order the operator to allow the resident to return to the residential premises, under a contract identical to the contract being terminated, on completion of the works, and

(d)  may make such other orders (including an order that the operator pay to the resident compensation for the resident’s loss of rights under the residence contract) as it thinks fit.

Division 3A Termination by Supreme Court on application of administrator

pt 9, div 3A (s 136A): Ins 2008 No 121, Sch 1 [115].

136A Termination on grounds of retirement village ceasing to operate

(1)  The Supreme Court may, on application by the administrator of a retirement village appointed under Division 6 of Part 6, make an order terminating the village contracts with respect to the retirement village if the Court is satisfied there is no reasonable prospect of finding a new operator for the retirement village.

(2)  If the Court makes an order under this section, the Court:

(a)  must, insofar as the order relates to residence contracts, fix in the order a date by which the residents who are affected by the order must vacate their residential premises in the village, and

(b)  may order an operator or former operator (other than an administrator appointed under Division 6 of Part 6) to pay compensation to each resident affected by the order for the resident’s loss of rights under a village contract, and

(c)  may make such other orders as it thinks fit.

pt 9, div 3A (s 136A): Ins 2008 No 121, Sch 1 [115].

Division 4 Suspension or refusal of orders for termination

137 Tribunal may suspend or refuse order for termination

(1)  The Tribunal may suspend the operation of an order fixing a date by which a resident of a retirement village must vacate residential premises if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused by the order to:

(a)  the resident, or

(b)  other residents or the operator of the retirement village.

(2)  The Tribunal may, as a condition of the suspension of the operation of an order for possession, require the resident to pay to the operator an occupation fee specified by the Tribunal for the period for which the order for possession is suspended.

(3)  The Tribunal may refuse to make an order terminating a residence contract if it is satisfied that:

(a)  the operator was wholly or partly motivated to terminate the contract by the fact that:

(i)  the resident had applied or proposed to apply to the Tribunal for an order, or

(ii)  the resident had complained to a governmental authority or had taken some other action to secure or enforce his or her rights as a resident, or

(iii)  an order of the Tribunal was in force in relation to the resident and the operator, or

(b)  in the case of an application under section 134—the resident or operator who had breached the village contract or village rule remedied the breach concerned.

Division 5 Recovery of possession of premises

138 Prohibition on certain recovery proceedings in courts

An operator of a retirement village does not have standing to commence proceedings in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises in the village (except as mortgagee of the premises).

s 138: Am 2007 No 94, Sch 2.

139 Operator not to recover possession of premises except by order

(1)  A person must not (whether acting on his or her own behalf or on behalf of another):

(a)  enter, or attempt to enter, residential premises within a retirement village, or

(b)  remove, or attempt to remove, a resident from residential premises within a retirement village, or

(c)  take any other action that is intended, or is likely, to cause a resident to vacate residential premises within a retirement village,

for the purpose of recovering possession of the residential premises otherwise than in accordance with this or any other Act or law.

Maximum penalty: 200 penalty units.

(2)    (Repealed)

(3)  A court before which proceedings for an offence under this section are brought may (in addition to any other penalty) order the person who committed the offence or any person on whose behalf that person acted to pay to the person entitled (or formerly entitled) to occupy the premises concerned such compensation as it thinks fit.

s 139: Am 2008 No 121, Sch 1 [116].

140 Enforcement of orders for possession

(1)  If the Tribunal makes an order fixing a date for vacation of residential premises in a retirement village and the order (or a condition of suspension of the order) is not complied with, the operator of the village may apply to the Tribunal for (and the Tribunal may issue) a warrant authorising a sheriff’s officer to enter the residential premises and to give possession to the operator.

(2)  An order for possession of residential premises in a retirement village made by the Tribunal is not to be enforced otherwise than under the authority of a warrant issued under this section.

(3)–(7)    (Repealed)

s 140: Am 2010 No 42, Sch 3.15 [7].

141 Liability of resident remaining in possession

(1)  If a resident of a retirement village fails to comply with an order made by the Tribunal fixing a date for vacation of residential premises, the resident is liable to pay compensation to the operator of the retirement village for any loss caused to the operator by that failure.

(2)  The operator must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by the taking of those steps.

(3)  The Tribunal may, on application by the operator, order the resident to pay to the operator such compensation (including compensation for loss of recurrent charges) as it thinks fit.

Division 6 Abandonment of premises

142 Application of Division

(1)  This Division applies only in respect of residential premises in a retirement village that are the subject of a residence contract under which the resident is not entitled to any repayment of his or her ingoing contribution, or other payment, on termination of the contract.

(2)  However, this Division does not apply in respect of residential premises that are occupied by a resident who is a registered interest holder in respect of the premises.

s 142: Am 2008 No 121, Sch 1 [117].

143 Abandoned premises

(1)  The Tribunal may, on application by the operator of a retirement village, make an order that declares that residential premises occupied by a resident of the retirement village were abandoned by the resident on a day specified in the order.

(2)  However, the Tribunal is not entitled to make an order under this section merely because the resident has died.

(3)  The resident is taken to have abandoned the residential premises on the specified day.

144 Right of operator to compensation where resident abandons premises

(1)  If a resident of a retirement village abandons his or her residential premises, the resident is liable to pay compensation to the operator of the retirement village for any loss (including loss of recurrent charges) caused to the operator by the abandonment.

(2)  The operator must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by the taking of those steps.

(3)  The Tribunal may, on application by the operator, order the resident to pay to the operator such compensation (including compensation for loss of recurrent charges) as it thinks fit.

Division 7 Uncollected goods

145 Application of Division

This Division does not apply to or in respect of residential premises that are occupied by a resident who is a registered interest holder in respect of the premises.

s 145: Am 2008 No 121, Sch 1 [117].

146 Delivery of uncollected goods

(1)  If a residence contract is terminated and goods are left on the residential premises by a former resident of a retirement village:

(a)  the former resident, or

(b)  any other person having an interest in the goods,

may apply to the Tribunal for an order for the delivery of the goods into the former resident’s or the other person’s possession.

(2)  The Tribunal may, on application under subsection (1), make any one or more of the following orders:

(a)  an order for the delivery of the goods into the former resident’s or the other person’s possession,

(b)  an order directing the former resident or the other person to pay any reasonable costs incurred by the operator of the retirement village in connection with the removal, storage or delivery of the goods.

147 Disposal of uncollected goods

(1)  If a residence contract is terminated and goods are left on the residential premises concerned by the former resident, the operator of the retirement village may:

(a)  apply to the Tribunal for an order under this section, or

(b)  sell or dispose of the goods in accordance with the regulations.

(2)  Before making such an application, or selling or disposing of the goods, the operator must, if he or she has a forwarding address for the former resident of the premises, send notice of his or her intention to the former resident (or to the executor or administrator of the estate of the former resident).

(3)  The Tribunal may, on application by an operator under this section, make any one or more of the following orders (but only if it is satisfied that the operator has given, or was not able to give, the notice required by subsection (2)):

(a)  an order authorising the removal, destruction or disposal of the goods,

(b)  an order authorising the sale of the goods,

(c)  an order as to the manner of the sale of the goods,

(d)  an order as to the proceeds of the sale of the goods.

(4)  A purchaser of goods sold by an operator in accordance with an order of the Tribunal or the regulations acquires a good title to the goods in defeasance of the interest of the former resident or any other person who has an interest in the goods.

(5)  An operator of a retirement village must not sell, remove, destroy or dispose of goods referred to in subsection (1) otherwise than as provided by this section.

Maximum penalty (subsection (5)): 20 penalty units.

s 147: Am 2008 No 121, Sch 1 [118].

148 Liability of operator

(1)  An operator does not incur any liability in respect of the delivery, removal, destruction, disposal or sale of goods in accordance with an order of the Tribunal under this Division or in accordance with the regulations.

(2)  However, if the operator deals with the goods otherwise than in accordance with such an order or the regulations, any person who has an interest in the goods may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to pay compensation to the applicant.

Part 10 Matters relating to vacation of premises

Division 1 Preliminary

149 Application of Part

(1)  This Part extends to apply in respect of a former occupant of a retirement village whose residence contract was in force immediately before the commencement of this Part, except as otherwise provided by this Part.

(2)  For the purposes of this Part, a former occupant referred to in Division 4 of Part 6 is taken to have permanently vacated his or her residential premises in the retirement village on the date on which he or she died or moved out of the village, and nothing in that Division affects any rights or obligations of the resident under this Part.

(3)  This Part has effect despite the provisions of any village contract.

150 References to sale of “residential premises”

(1)    (Repealed)

(2)  In this Part, a reference to the sale of residential premises occupied under a residence contract referred to in section 7 (1) (c) is taken to include a reference to the sale of the residence right in respect of the premises.

(3)    (Repealed)

s 150: Am 2000 No 53, Sch 1.26 [3]; 2004 No 14, Sch 1 [6] [7]; 2008 No 121, Sch 1 [119] [120].

Division 2 Recurrent charges

151 Recurrent charges in respect of optional services

(1)  A resident of a retirement village who is temporarily absent from the village for a period of at least 28 days is not liable to pay, in respect of the remainder of that period of absence, recurrent charges for optional services.

(1A)  In the case where the resident concerned has moved out or died, the liability to pay recurrent charges for optional services ceases as from the date the resident moved out or the date on which the operator is notified of the resident’s death, as the case may be. However, any such liability does not cease in relation to services provided before that date.

(2)  If the operator and the resident or former occupant cannot agree on the proportion of recurrent charges that are payable for optional services, either of them may apply to the Tribunal for (and the Tribunal may make) an order apportioning the resident’s or former occupant’s recurrent charges between optional services and general services.

(3)    (Repealed)

s 151: Am 2004 No 14, Sch 1 [8] [9]; 2008 No 121, Sch 1 [121].

152 Recurrent charges in respect of general services: registered interest holders

(1)  This section applies to a former occupant of residential premises in a retirement village who is a registered interest holder in respect of the premises.

(2)  Subject to subsection (3), the former occupant’s liability to pay recurrent charges (being recurrent charges in respect of general services) that arise after the former occupant permanently vacated the residential premises ceases on:

(a)  the date on which the operator of the retirement village enters into:

(i)  a village contract with an incoming resident, or

(ii)  a residential tenancy agreement with an incoming tenant,

in relation to the premises, or

(b)  the date on which a person takes up residence in the premises with the consent of the operator, or

(c)  if the operator buys the premises from the former occupant—the date on which contracts for the purchase are exchanged, or

(d)  if the former occupant is a person referred to in section 7 (1) (c):

(i)  if the Tribunal terminated the residence contract—the date on which the former occupant permanently vacated the premises, or

(ii)  if the former occupant permanently vacated the premises after receiving notice of the operator’s intention to apply to the Tribunal for an order terminating the residence contract—the date on which the former occupant permanently vacated the premises,

whichever date occurs first, unless the contract between the former occupant and the operator provides for an earlier cessation of that liability.

(3)  The former occupant’s liability to pay recurrent charges (being recurrent charges in respect of general services) that arise after the former occupant has permanently vacated the residential premises is to be met:

(a)  in respect of a liability arising during the 42 days immediately after the former occupant permanently vacated the premises—by the former occupant, and

(b)  in respect of a liability arising after the period referred to in paragraph (a)—by the former occupant and the operator of the retirement village in the same proportions as the former occupant and the operator of the retirement village would share any capital gain under the village contract.

s 152: Am 2008 No 121, Sch 1 [122]–[127].

153 Recurrent charges in respect of general services: generally

(1)  This section applies to a former occupant of residential premises in a retirement village who is not a registered interest holder in respect of the premises.

(2)  The former occupant’s liability to pay recurrent charges (being recurrent charges in respect of general services) that arise after the former occupant permanently vacated the residential premises ceases (unless the contract between the former occupant and the operator provides for an earlier cessation of that liability) on:

(a)  the date on which the operator of the retirement village enters into:

(i)  a village contract with an incoming resident, or

(ii)  a residential tenancy agreement with an incoming tenant,

in relation to the premises, or

(b)  the date on which a person takes up residence in the premises with the consent of the operator, or

(c)  if the Tribunal terminated the residence contract—the date on which the former occupant permanently vacated the premises, or

(d)  if the former occupant permanently vacated the premises after receiving notice of the operator’s intention to apply to the Tribunal for an order terminating the residence contract—the date on which the former occupant permanently vacated the premises, or

(e)  the date that is 42 days after the date on which the former occupant otherwise permanently vacated the premises,

whichever date occurs first, or such earlier date as the operator and the former occupant may agree.

(3)  On and from the date that the former occupant’s liability to pay recurrent charges (being recurrent charges in respect of general services) ceases under subsection (2), the operator of the retirement village must pay the recurrent charges payable in relation to those residential premises until the date on which the operator of the village enters into a village contract with an incoming resident.

s 153: Am 2008 No 121, Sch 1 [125] [126] [128]–[130].

154 Time of payment of recurrent charges

(1)  A former occupant may, at his or her option, either:

(a)  discharge (either wholly or in part) as the liability arises his or her liability for recurrent charges that arise after the former occupant permanently vacated the residential premises, or

(b)  discharge that liability (either wholly or in part):

(i)  in the case of a former occupant who is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the residential premises concerned—from the proceeds of the sale of the premises, or

(ii)  in any other case—from the money payable to the former occupant by the operator of the retirement village under any village contract.

(2)  The former occupant must notify the operator of the retirement village in writing of the option chosen as soon as practicable after permanently vacating the premises.

s 154: Am 2008 No 121, Sch 1 [131].

155 Interest on recurrent charges

(1)  The operator of a retirement village may charge interest on so much of the recurrent charges as are not paid by a former occupant of the village as the liability to pay those charges arises.

(2)  Subsection (1) does not apply if a contract between the operator and the former occupant specifies that interest is not payable on the recurrent charges.

(3)  The regulations may prescribe a maximum rate of interest for the purposes of this section.

(4)  However, if the operator and the former occupant agree to a lower rate of interest, or if a contract between the operator and the former occupant specifies a lower rate of interest for the purposes of this section, the interest is payable by the former occupant at that lower rate.

Division 3 Departure fees

156 What is a “departure fee”?

(1)  A departure fee is:

(a)  any amount of money payable under a village contract by a former occupant of a retirement village that is calculated in relation to:

(i)  the period, or part of the period, during which the former occupant has or had a residence right in the village, and

(ii)  such period after the termination of the former occupant’s residence right as is specified in section 160 (2), or

(b)  any other money payable by a former occupant of a retirement village that is declared by the regulations to be a departure fee.

Note—

Departure fees include the fees known as deferred fees under the 1995 Retirement Village Industry Code of Practice and deferred management fees under the 1989 Retirement Village Industry Code of Practice.

(2)  However, a departure fee does not include recurrent charges.

(3)  A departure fee must be calculated on a daily basis.

(4)  If a resident or former occupant of a retirement village moves to other residential premises in the village (or in another retirement village that is managed or controlled by the same operator or a close associate of that operator), the resident or former occupant is taken to have a continuous residence right for the purpose of the calculation of the departure fee.

157 Payment of departure fee

(1)  Any departure fee is payable to the operator of the retirement village.

(2)  A departure fee is payable out of the former occupant’s ingoing contribution.

(3)  However, if the former occupant is, or was, a registered interest holder in respect of his or her residential premises in the retirement village, the departure fee is payable out of the proceeds of the sale of the residential premises concerned.

(4)  A departure fee is to be deducted from the amount of the refund of the ingoing contribution, or the proceeds of the sale, payable to the former occupant as specified in the relevant village contract.

s 157: Am 2008 No 121, Sch 1 [132].

158 Period for which departure fee may be charged after permanent vacation of premises: new contracts

(1)  This section applies only in the case of a former occupant whose village contract providing for payment of a departure fee was entered into on or after the commencement of this section.

(2)  A departure fee is not payable to the extent that it is calculated in respect of a period after the former occupant permanently vacated the residential premises concerned.

159 Period for which departure fee may be charged after permanent vacation of premises: old contracts—registered interest holders

(1)  This section applies only in the case of a former occupant:

(a)  who is a registered interest holder in respect of his or her residential premises in the retirement village, and

(b)  whose village contract providing for payment of a departure fee was in force before the commencement of this section.

(2)  A departure fee is not payable to the extent that it is calculated in respect of a period after:

(a)  the date on which the operator of the retirement village enters into:

(i)  a village contract with an incoming resident, or

(ii)  a residential tenancy agreement with an incoming tenant,

in relation to the premises, or

(b)  the date on which a person takes up residence in the premises with the consent of the operator, or

(c)  if the operator buys the premises from the former occupant—the date on which contracts for the purchase are exchanged, or

(d)  if the former occupant is a person referred to in section 7 (1) (c):

(i)  if the Tribunal terminated the residence contract—the date on which the former occupant permanently vacated the premises, or

(ii)  if the former occupant permanently vacated the premises after receiving notice of the operator’s intention to apply to the Tribunal for an order terminating the residence contract—the date on which the former occupant permanently vacated the premises,

whichever date occurs first, or such earlier date as the operator and the former occupant may agree.

(3)  Despite the other provisions of this Act, subsection (2) does not affect any provision of a village contract that provides that the departure fee is not calculable in respect of a period before a date referred to in that subsection.

s 159: Am 2008 No 121, Sch 1 [125] [126] [133] [134].

160 Period for which departure fee may be charged after permanent vacation of premises: old contracts—generally

(1)  This section applies only in the case of a former occupant:

(a)  who is not a registered interest holder in respect of his or her residential premises in the retirement village, and

(b)  whose village contract providing for payment of a departure fee was in force before the commencement of this section.

(2)  A departure fee may be calculated in respect of the period that ends on:

(a)  the date on which the operator of the retirement village enters into:

(i)  a village contract with an incoming resident, or

(ii)  a residential tenancy agreement with an incoming tenant,

in relation to the premises, or

(b)  the date on which a person takes up residence in the premises with the consent of the operator, or

(c)  if the Tribunal terminated the residence contract—the date on which the former occupant permanently vacated the premises, or

(d)  if the former occupant permanently vacated the premises after receiving notice of the operator’s intention to apply to the Tribunal for an order terminating the residence contract—the date on which the former occupant permanently vacated the premises, or

(e)  the date that is 6 months after the date on which the former occupant otherwise permanently vacated the premises,

whichever date occurs first, or such earlier date as the operator and the former occupant may agree.

(3)  Despite the other provisions of this Act, subsection (2) does not affect any provision of a village contract that provides that the departure fee is not calculable in respect of a period before a date referred to in that subsection.

s 160: Am 2008 No 121, Sch 1 [125] [126] [135].

161 Reduction or waiver of departure fee

(1)  The Tribunal may, on the application of a former occupant whose village contract providing for payment of a departure fee was in force before the commencement of this section, make an order reducing or waiving the former occupant’s liability for such part of the departure fee as is calculated in respect of a period after the former occupant has permanently vacated the residential premises concerned.

(2)  However, the Tribunal may make such an order only if the Tribunal is of the opinion that any delay in the operator’s entering into a village contract with another person in respect of the premises is attributable to any action (including a failure to market or promote the premises) of the operator.

s 161: Am 2008 No 121, Sch 1 [136].

Division 4 Repair and refurbishment of residential premises

162 Definition

In this Division, refurbishment of residential premises the subject of a residence contract means any improvement of the premises in excess of that required to reinstate the premises to the condition they were in (fair wear and tear excepted) at the commencement of their occupation by the resident under the contract.

163 Condition of premises on termination

(1)  This section does not apply to or in respect of a former occupant who is, or was, a registered interest holder in respect of his or her residential premises.

(2)  A former occupant of a retirement village must, allowing for any renovations or alterations to fixtures or fittings made with the consent of the operator under section 41A, leave his or her residential premises as nearly as possible in the same condition (fair wear and tear excepted) as the premises were in at the beginning of the residence contract.

(3)  In particular, the premises must be left as nearly as possible in the same condition (fair wear and tear excepted) as set out in the condition report.

(4)  Subsection (3) does not apply in respect of premises the subject of a residence contract entered into before the commencement of section 38 unless a condition report relating to the premises was given to the resident in connection with the contract.

(5)  The operator of the village may require a former occupant to bear the cost of any repairs to the former occupant’s residential premises that are necessary because the former occupant did not leave the premises in the condition required by this section.

(6)  However, a former occupant:

(a)  who disagrees with a claim by the operator of the retirement village that such repairs are necessary because the premises were not left in the condition required by this section, or

(b)  who is of the opinion that the cost of the repairs, as claimed by the operator, is excessive,

may apply to the Tribunal for an order in relation to the claim.

(7)  In any proceedings before the Tribunal under this section:

(a)  the operator bears the onus of substantiating his or her claim, and

(b)  the Tribunal may:

(i)  if it considers that the operator has not substantiated his or her claim—order the operator to withdraw the claim, or

(ii)  if it considers that the operator has substantiated his or her claim, wholly or in part—order the former occupant to pay such amount to the operator as it considers necessary to defray the cost of the repairs.

s 163: Am 2008 No 121, Sch 1 [137].

164 No refurbishment required under contracts entered into after commencement of section

A former occupant of residential premises in a retirement village who entered into his or her residence contract in respect of those premises on or after the commencement of this section is not liable to refurbish (or pay for the cost of the refurbishment of) the premises.

165 Refurbishment under contract in force before commencement of section

(1)  If a former occupant whose contract was in force before the commencement of this section is required under the contract to pay for the cost of refurbishment of the residential premises concerned on permanently vacating those premises, the operator of the retirement village:

(a)  must, before commencing the refurbishment, supply the former occupant with a work schedule for the refurbishment together with at least 3 quotations of costs for carrying out the refurbishment, and

(b)  must negotiate with the former occupant and attempt to come to an agreement as to which quotation should be accepted, and

(c)  if agreement cannot be reached, must allow the former occupant to obtain other quotations in an attempt to find a quotation that is acceptable to both the operator and the former occupant, and

(d)  must ensure that the former occupant receives a fully-itemised account for the carrying out of the refurbishment, and

(e)  must not accept or demand any payment for the carrying out of the refurbishment until the refurbishment is complete.

Maximum penalty: 50 penalty units.

(2)  If the operator and the former occupant cannot find a quotation that is acceptable to both of them (as referred to in subsection (1) (c)), either of them may apply to the Tribunal for (and the Tribunal may make) an order directing acceptance of one of the quotations.

(3)  Despite subsection (1), the operator is not obliged to obtain quotations of costs for carrying out the refurbishment if the former occupant agrees that the refurbishment is to be carried out by tradespersons who ordinarily carry out maintenance of the village.

(4)  If a former occupant whose contract was in force before the commencement of this section is required under the contract to pay a specified amount for the cost of refurbishment of the residential premises concerned on permanently vacating those premises, the former occupant:

(a)  is not required to pay an amount in excess of the specified amount (regardless of the actual cost of the refurbishment), and

(b)  if the actual cost of the refurbishment is less than the specified amount—is required to pay only the lesser amount.

Division 5 Sale or letting of premises by certain residents

166 Application of Division

This Division applies only to a resident of a retirement village who is a registered interest holder in respect of his or her residential premises in the village.

s 166: Am 2008 No 121, Sch 1 [138].

167 Options

(1)  An operator of a retirement village who holds an option to purchase any residential premises from a resident of the village must decide whether or not to exercise the option, and must give the resident written notification of that decision, no later than 28 days after the resident permanently vacates the premises (or, if the resident has not lived in the premises, 28 days after the resident notifies the operator in writing that the premises are for sale).

(2)  If the operator does not give the notification required by subsection (1) within the time allowed by that subsection, the option lapses.

(3)  This section has effect despite any term of the option.

168 Sale of premises

(1)  A resident of a retirement village may:

(a)  set the sale price of his or her residential premises in the village, and

(b)  appoint a selling agent of the resident’s choice (who may be the operator of the village if the operator is eligible to be appointed).

Note—

In accordance with the Property, Stock and Business Agents Act 2002, the selling agent must be licensed as a real estate agent under that Act. Matters such as the form of the agency agreement (which must be in writing), the termination of the selling agent’s appointment and the payment of commission are dealt with under that Act.

(2)  If the operator is appointed under subsection (1), the resident may also (but is not obliged to) allow the operator to set the sale price of the premises.

(3)  Any appointment of the operator of a retirement village, or a person chosen by the operator, as:

(a)  a selling agent of residential premises in the village, or

(b)  the person who sets the sale price of the premises,

being an appointment made as part of the consideration for the resident’s entering the village, or otherwise at the operator’s request, terminates on the commencement of this section.

(4)  Any such appointment made on or after the commencement of this section is void.

(5)  An operator, or a person chosen by the operator, who is appointed as a selling agent under subsection (1):

(a)  must notify the resident of all offers to purchase the premises, and

(b)  must, if the resident so requests, provide the former occupant at the end of each named month with a report:

(i)  detailing the marketing program (including details of all advertising of the premises or the village), and

(ii)  listing all inquiries received about the sale, and

(iii)  providing the names and telephone numbers (or other contact details) of the persons who made the inquiries (in so far as these are known to the operator), and

(iv)  providing details (including the asking price) of all other residential premises for sale in the village,

during that month.

(6)  If a person other than the operator is appointed as selling agent, the resident must notify the operator in writing of:

(a)  the name and contact details of the person appointed, and

(b)  the asking price for the premises, and

(c)  any changes to:

(i)  the appointment or contact details of the agent, and

(ii)  the asking price for the premises.

s 168: Am 2002 No 66, Sch 2.9 [2].

169 Operator not to interfere in sale

(1)  An operator of a retirement village who is not appointed a selling agent for residential premises in the village must not interfere with the sale of the premises.

Maximum penalty: 50 penalty units.

(2)  Without limiting subsection (1), an operator interferes with the sale of the premises if the operator interferes with any “For Sale” sign relating to the premises.

(3)  Subsection (2) does not apply if the sign has been erected contrary to the village rules (or the by-laws, if the village is subject to a community land scheme or strata scheme) or in such a way as to interfere with the peace, comfort and quiet enjoyment of another resident of the village.

170 Costs of sale

(1)  A resident of a retirement village who sells residential premises in the village and the operator of the village are to share the costs of the sale in the same proportion (if any) as they are to share any capital gains on the sale in accordance with a village contract.

(2)  However, if the resident appointed a person other than the operator or a person chosen by the operator as a selling agent, the resident is liable to pay the selling agent’s commission.

(3)  The resident is not liable to pay commission to the operator or a person chosen by the operator if the premises are sold otherwise than as a result of the operator’s (or person’s) acting as the selling agent.

(4)  In this section, costs of sale includes (without limiting the ordinary meaning of that term) such costs relating to the sale of residential premises in a retirement village as may be prescribed by the regulations, but does not include such other costs relating to the sale of residential premises as may be prescribed by the regulations.

s 170: Am 2008 No 121, Sch 1 [139].

171 Purchaser and operator to enter contract

(1)  If a vendor for the sale of residential premises in a retirement village is not the operator of the village, the vendor must give the operator of the village sufficient notice of the proposed sale to enable the operator to provide the purchaser with a disclosure statement (and the information required under section 19) at least 14 days before the contract is entered into.

(2)  Such a contract is taken to include a provision to the effect that the contract is conditional on the purchaser’s entering into a service contract with the operator of the village on or before completion of the purchase.

(3)  As soon as practicable after the contract for the sale of the premises is entered into, the vendor must notify the operator in writing of that fact.

(4)  If the operator decides not to enter into a service contract with the purchaser, the operator must, not later than 14 days after being notified under subsection (3):

(a)  advise the vendor of that decision and of the reasons for it, and

(b)  apply to the Tribunal for an order declaring that the operator is not obliged to enter into the service contract.

172 Vendor’s application to Tribunal concerning proposed purchaser

(1)  If the operator of the retirement village does not, within 14 days after being given notification under section 171 (3), either:

(a)  enter into a service contract with the purchaser, or

(b)  apply to the Tribunal under section 171 (4),

the vendor may apply to the Tribunal for an order directing the operator to enter into a service contract with the purchaser.

(2)  If the operator offers the purchaser a service contract containing terms and conditions substantially different, to the detriment of the purchaser, from the terms and conditions of the sample contracts available for inspection under section 20, the vendor may apply to the Tribunal for an order directing the operator to enter into a service contract with the purchaser that is substantially in accordance with the sample contract.

s 172: Am 2000 No 53, Sch 1.26 [4].

173 Tribunal’s determination in relation to proposed purchaser

(1)  On application under section 171 (4) or 172 (1), the Tribunal is to determine whether the operator’s decision not to enter into a service contract concerned is reasonable in the circumstances, having regard to:

(a)  whether the residential premises concerned are suitable for occupation by the purchaser (or another person the purchaser intends to allow to live in the premises), having regard to his or her physical and mental capacity, and

(b)  any other factor that the Tribunal considers relevant.

(2)  For the purposes of subsection (1) (b), the age of the purchaser (or another person the purchaser intends to allow to live in the premises) is not relevant if the purchaser (or the other person) is a retired person.

(3)  On making its determination under subsection (1), the Tribunal may make an order of the kind referred to in section 171 (4) or 172 (1), as appropriate, regardless of whether that is the order sought.

(4)  An order referred to in section 172 (1) or (2) may also, if the Tribunal considers it appropriate, set the terms of the service contract to be entered into, having regard to the service contracts in force in the village and the sample contract available for inspection under section 20.

(5)  If the Tribunal makes the order referred to in section 172 (2), the Tribunal may also order the operator to pay such compensation to the vendor or the purchaser (or both) for delay and inconvenience as it considers just in the circumstances.

174 Letting or subletting of premises

(1)  A resident of residential premises in a retirement village may let (or, in the case of a resident referred to in section 7 (1) (c), sublet) the premises under a residential tenancy agreement in accordance with this Division.

Note—

As a consequence of section 8 (d), a resident or former occupant may retain possession of residential premises (ie they are not required to hand over the keys to the operator) in order to enable the premises to be let or sublet.

(2)  Any residential tenancy agreement under this Division:

(a)  must be in the form prescribed under the Residential Tenancies Act 2010, and

(b)  must not be for a term that, together with any option to renew, exceeds 3 years.

Note—

A residential tenancy agreement under this Division is subject to the Residential Tenancies Act 2010. The tenant is not a resident of the retirement village.

(3)  The tenant or subtenant under the residential tenancy agreement must be a retired person.

(4)  A resident of residential premises in a retirement village must not let or sublet the premises unless he or she has given the operator of the village written particulars of:

(a)  the name and age of the proposed tenant or subtenant, and

(b)  the term of the proposed residential tenancy agreement, and

(c)  such other matters in relation to the proposed agreement as the operator may reasonably require,

and the operator has consented in writing to the agreement.

(5)  The operator may refuse to consent to a second or subsequent residential tenancy agreement if the proposed term of the agreement, when added to the term of any preceding agreement relating to the premises and to which the same resident was a party, would exceed 3 years.

(6)  If the operator decides not to consent to the residential tenancy agreement (otherwise than as allowed by subsection (5)), the operator must, no later than 7 days after receiving the written particulars required by subsection (4):

(a)  advise the resident of that decision (and of the reasons for it), and

(b)  apply to the Tribunal for an order declaring that the operator is not obliged to consent to the agreement.

(7)  If the operator does not apply for such an order within the time allowed by this section, the operator is taken to have consented to the residential tenancy agreement.

s 174: Am 2004 No 14, Sch 1 [10]; 2008 No 121, Sch 1 [140]; 2010 No 42, Sch 3.15 [8].

175 Determination by Tribunal concerning proposed tenant or subtenant

(1)  On application under section 174, the Tribunal is to determine whether the operator’s decision not to consent to the residential tenancy agreement concerned is reasonable in the circumstances, having regard to:

(a)  whether the residential premises concerned are suitable for occupation by the proposed tenant or subtenant, having regard to his or her physical and mental capacity, and

(b)  any other factor that the Tribunal considers relevant.

(2)  For the purposes of subsection (1) (b), the age of the proposed tenant or subtenant is not relevant if the proposed tenant or subtenant is a retired person.

(3)  On making its determination under subsection (1), the Tribunal may make an order:

(a)  directing the operator to consent to the residential tenancy agreement concerned and pay such compensation (if any) as is specified in the order, or

(b)  declaring that the operator is not obliged to consent to the agreement.

(4)  The operator is taken to have consented to the residential tenancy agreement concerned on the making of an order under subsection (3) (a).

s 175: Am 2008 No 121, Sch 1 [141] [142].

176 Effect of granting of residential tenancy agreement under this Division

(1)  Services under the service contract between the operator of a retirement village and the resident of residential premises in the village are to be provided to a tenant or subtenant of the resident as if the tenant or subtenant were the resident, and the contract may be enforced accordingly.

(2)  The letting or subletting of residential premises in accordance with this Division does not affect any right or obligation of the resident and the operator under a village contract.

177 Operator not to interfere in letting

(1)  The operator of a retirement village must not interfere with a resident’s attempt to let his or her residential premises in the village (except as provided by section 174 (5)).

Maximum penalty: 50 penalty units.

(2)  Without limiting subsection (1), an operator interferes with the resident’s attempt to let the premises if the operator interferes with any “For Lease” sign relating to the premises.

(3)  Subsection (2) does not apply if the sign has been erected contrary to the village rules (or the by-laws, if the village is subject to a community land scheme or strata scheme) or in such a way as to interfere with the peace, comfort and quiet enjoyment of another resident of the village.

178 No assignment or subletting

(1)  A tenant or subtenant under a residential tenancy agreement under this Division must not:

(a)  assign his or her interest under the agreement, or

(b)  sublet the premises the subject of the agreement.

(2)  This section has effect despite any term of the agreement concerned and despite the Residential Tenancies Act 2010.

s 178: Am 2010 No 42, Sch 3.15 [9].

179 Legal ability to sublet

(1)  For the purposes of this Division and despite the termination of the resident’s residence contract, a resident referred to in section 7 (1) (c) is taken to possess a legal estate in his or her residential premises in the village such as to enable the resident to lease the premises to another person under a residential tenancy agreement.

(2)  The resident ceases to possess that estate on completion of the sale of the premises.

s 179: Am 2008 No 121, Sch 1 [143].

Division 6 Payments to former occupants

180 Payments to former occupants who were registered interest holders

Note—

This section deals with payments to such former occupants of residential premises following the sale of the premises. The sale of premises includes:

(a)  in the case where the former occupant was the registered proprietor of land, the owner of a lot in a strata scheme or the proprietor of a lot in a community land scheme and as such had a residence right in respect of residential premises—the sale of that land or interest in that land, and

(b)  in the case where the former occupant was the owner of shares in a company title scheme that gave rise to a residence right in respect of residential premises— the sale of that residence right (see section 4 (3)), and

(c)  in the case where the former occupant’s residence contract was in the form of a registered long term lease that included a provision that entitled the former occupant to at least 50% of any capital gain—the sale of that residence right (see section 150).

(1)  This section applies to a former occupant of residential premises in a retirement village who is, or was, a registered interest holder in respect of the premises.

(2)  The operator of a retirement village must make any payment required to be made to the former occupant following the sale of the premises within 14 days after the earliest of the following:

(a)  the date on which the operator receives full payment under a residence contract with an incoming resident of the premises,

(b)  the date on which the operator enters into a village contract with an incoming resident of the premises,

(c)  the date on which the operator enters into a residential tenancy agreement with an incoming tenant of the premises,

(d)  the date on which a person takes up residence in the premises with the consent of the operator,

(e)  if the operator buys the premises from the former occupant—the date on which the operator completes the purchase,

unless the contract between the operator and the former occupant provides for earlier payment.

Maximum penalty: 50 penalty units.

(3)  At the same time as the payment is made, the operator must give the former occupant a statement setting out the following and showing how the amounts were calculated:

(a)  the departure fee, if any, payable by the former occupant,

(b)  accrued or outstanding recurrent charges, if any, payable by the former occupant,

(c)  any amount payable by the former occupant in relation to the sale of the residential premises concerned,

(d)  any other amount payable by the former occupant under a village contract,

(e)  in the case of a former occupant referred to in section 7 (1) (c)—the sale price of the premises,

(f)  in the case of a former occupant who is required to pay for the cost of the refurbishment of his or her residential premises (as referred to in section 165)—the cost of that refurbishment,

(g)  the amount of the payment to the former occupant.

Maximum penalty: 10 penalty units.

(4)  If a payment is not made to the former occupant within the time required by subsection (2):

(a)  the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment, and

(b)  interest is payable, at the rate prescribed by the regulations, on that unpaid amount on and from the date that the amount becomes overdue.

(5)  If, in the opinion of the former occupant, the amount of a payment made under this section was not calculated in accordance with this Act or any relevant village contract, or the conduct of the operator has unfairly had a negative financial impact on the former occupant:

(a)  the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to recalculate the amount in accordance with the directions of the Tribunal and pay any additional amount due to the former occupant as a result of the recalculation, and

(b)  if the Tribunal considers it appropriate, the Tribunal may order the payment of interest on that additional amount at the rate prescribed by the regulations.

(6)  Without limiting subsection (5), conduct of the operator that may unfairly have a negative impact on a former occupant includes entering into a village contract with a subsequent resident that contains terms that:

(a)  are substantially different from those contained in the village contract to which the former occupant was a party, and

(b)  will have a negative financial impact on the former occupant to the benefit of the operator.

s 180: Am 2008 No 121, Sch 1 [144]–[146]; 2013 No 47, Sch 1.27 [7].

181 Payments to former occupants who were not registered interest holders

(1)  This section applies to a former occupant of residential premises in a retirement village who is not, or was not, a registered interest holder in respect of the residential premises concerned.

(2)  The date on which the operator of a retirement village must make any refund of the former occupant’s ingoing contribution that is required, under a village contract, to be made is:

(a)  the date that is 14 days after the date on which the operator receives full payment under the residence contract of an incoming resident of the premises, or

(b)  the date that is 14 days after the date on which the operator enters into a residential tenancy agreement with an incoming tenant of the premises, or

(c)  the date that is 14 days after the date on which a person takes up residence in the premises with the consent of the operator, or

(d)  if the Tribunal terminated the residence contract—the date that is one month after the date of the termination, or

(e)  if the former occupant delivered up vacant possession of the premises to the operator after receiving notice of the operator’s intention to apply to the Tribunal for an order terminating the residence contract—the date that is one month after the date on which vacant possession was delivered, or

(f)  the date that is 6 months after the date on which the former occupant otherwise delivered up vacant possession of the premises to the operator,

whichever date occurs first, or such earlier date as the operator and the former occupant may agree (unless the contract between the operator and the former occupant provides for earlier payment).

Maximum penalty: 50 penalty units.

(3)  Any other payment that is required, under a village contract, to be made to the former occupant, being an amount that is dependent on the amount of the ingoing contribution of the incoming resident of the premises, is to be paid to the former occupant within 14 days after the earlier of:

(a)  the payment, under a village contract, of any money to the operator, by that incoming resident, or

(b)  the incoming resident’s taking up residence in the premises.

Note—

A contract may provide that the resident, when he or she permanently vacates his or her residential premises in the village, is to receive a refund of a fixed amount of the resident’s ingoing contribution plus a share of any capital gains (that is, any greater amount of ingoing contribution payable by the incoming resident compared with the ingoing contribution paid by the former occupant). The refund of the ingoing contribution must be paid by the time specified in subsection (2), while the share of capital gains (if any) must be paid by the time specified in subsection (3).

(4)  At the same time as a payment is made under this section, the operator must give the former occupant a statement setting out the following and showing how the amounts were calculated:

(a)  the departure fee (if any) payable by the former occupant,

(b)  accrued or outstanding recurrent charges, if any, payable by the former occupant,

(c)  any amount payable by the former occupant in respect of repairs required to the residential premises concerned (as referred to in section 163),

(d)  in the case of a former occupant who is required to pay for the cost of the refurbishment of his or her residential premises (as referred to in section 165)—the cost of that refurbishment,

(e)  any other amount payable by the former occupant under a village contract,

(f)  in relation to the part of a refund referred to in subsection (3)—the amount of the ingoing contribution of the incoming resident of the premises,

(g)  the amount of the payment to the former occupant.

Maximum penalty: 10 penalty units.

(5)  If the operator is of the opinion that he or she will not be able to enter into a residence contract with another person in respect of the premises within the time specified in subsection (2) (f), the operator may apply to the Tribunal for an order:

(a)  extending the time allowed for payment under this section, or

(b)  allowing payment by instalments,

on the grounds that compliance with the time-frame specified in subsection (2) (f) would cause undue hardship to the operator.

(6)  In determining an application made under subsection (5), the Tribunal:

(a)  may have regard to the hardship to be caused to the former occupant if an order of the kind set out in subsection (5) is made, and

(b)  may make an order of that kind, and

(c)  may, if it sees fit to do so, make a further order for the payment of interest at a rate determined by the Tribunal.

(7)  If a payment is not made to the former occupant within the time required by this section:

(a)  the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment, and

(b)  interest is payable, at the rate prescribed by the regulations, on that unpaid amount on and from the date that the amount becomes overdue.

(8)  If, in the opinion of the former occupant, the amount of a payment made under this section was not calculated in accordance with this Act or any relevant village contract, or the conduct of the operator has unfairly had a negative financial impact on the former occupant:

(a)  the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to recalculate the amount in accordance with the directions of the Tribunal and pay any additional amount due to the former occupant as a result of the recalculation, and

(b)  if the Tribunal considers it appropriate, the Tribunal may order the payment of interest on that additional amount at the rate prescribed by the regulations.

(9)  Without limiting subsection (8), conduct of the operator that may unfairly have a negative impact on a former occupant includes entering into a village contract with a subsequent resident that contains terms that:

(a)  are substantially different from those contained in the village contract to which the former occupant was a party, and

(b)  will have a negative financial impact on the former occupant to the benefit of the operator.

s 181: Am 2008 No 121, Sch 1 [147] [148].

182 Payments to executors and administrators

(1)  If:

(a)  a payment under this Division is required to be made to the executor or administrator of a former occupant’s estate (because the former occupant has died), and

(b)  the operator of the retirement village is unable to ascertain the identity of the executor or administrator,

the operator may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to deal with the money as specified in the order.

(2)  An operator does not incur any liability in respect of the operator’s dealing with the money in accordance with the order.

Part 10A Protection of ingoing contributions paid by residents other than registered interest holders

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182A Application of Part

(1)  This Part applies to a village contract if:

(a)  there has been an ingoing contribution paid by a resident (other than a registered interest holder) under a village contract that includes a provision that entitles the resident to a refund of the whole, or any part, of that ingoing contribution, and

(b)  any such refund exceeds the amount prescribed by the regulations.

(2)  This Part extends to any such village contract that was in force immediately before the commencement of this section.

(3)  Despite subsections (1) and (2), this Part does not apply to a village contract with respect to residential premises in a retirement village that gives rise to the residence right of a registered interest holder.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182B Creation of charge

(1)  On the date on which a village contract to which this Part applies is entered into with respect to residential premises within a retirement village, there is created by virtue of this section a charge over all land within the retirement village that secures the entitlement to a refund under the contract.

(2)  In the case of a village contract in force immediately before the commencement of this section, any such charge is created on that commencement.

(3)  Nothing in this section creates a charge over land:

(a)  that is not recorded as a retirement village under section 24A, or

(b)  in respect of which a resident is a registered interest holder.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182C Disposal of land subject to charge

(1)  A person must not dispose of land in respect of which a charge is in force under this Part except pursuant to an order under section 182F.

Maximum penalty: 100 penalty units.

(2)  Subsection (1) does not apply in respect of the disposal of any such land in the course of the sale of a retirement village as a going concern.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182D Effect of charge on successors in title

A charge that is created over land under this Part is binding on, and is enforceable against, the owner of the land from time to time while the charge is in force.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182E Application for enforcement of charge

(1)  A person may apply to the Supreme Court for an order under section 182F in relation to land within a retirement village in respect of which the person is a resident or former occupant if:

(a)  the operator of the retirement village has become insolvent or an administrator has been appointed under Division 6 of Part 6, and

(b)  the person is of the opinion that it is unlikely that the operator will be able to refund the part of the ingoing contribution that the applicant is entitled to be refunded under a village contract relating to that retirement village.

(2)  A mortgagee, receiver or administrator of land within a retirement village may apply to the Supreme Court for an order under section 182F in relation to land within a retirement village if:

(a)  the operator of the retirement village has become insolvent or an administrator has been appointed under Division 6 of Part 6, and

(b)  the applicant is of the opinion that it is unlikely that the operator will be able to refund any part of an ingoing contribution that a resident or former resident is entitled to be refunded under a village contract relating to that retirement village.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182F Order for enforcement of charge

The Supreme Court may, on an application made under section 182E with respect to land within a retirement village:

(a)  order that land within the retirement village, in respect of which a charge is in force, is to be sold, and

(b)  appoint a person to act as the agent for the sale, and

(c)  make a determination as to the entitlements of each of the residents or former occupants of the retirement village, having regard to:

(i)  the refund entitlement of each resident or former occupant under their respective village contracts, and

(ii)  the dates on which charges were created under this Part with respect to those contracts, and

(d)  make such orders relating to the distribution of the proceeds of the sale as the Court thinks fit, having regard to the order that interests are to be satisfied in accordance with section 182G, and

(e)  make such other orders as the Court sees fit.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182G Priority of interests

For the purposes of any order made under this Part, interests in the land concerned are to be satisfied in the following order:

(a)  the costs of the sale of the land and the applicant’s costs in seeking the order,

(b)  any interest, mortgage, lien or other charge on or over the land created or registered before the creation of a charge under this Part, or otherwise taking priority over a charge over the land that has been created under this Part,

(c)  the entitlements of residents and former occupants of the retirement village arising from village contracts in respect of which a charge over the land has been created under this Part,

(d)  any interest, mortgage, lien or other charge on or over the land created or registered after the creation of a charge over the land under this Part,

(e)  the interest of the registered proprietor of the land immediately before the sale of the land.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182H Order not to disadvantage residents

The Supreme Court must not make an order under this Part unless satisfied that the order is in the best interests of the majority of the residents of the retirement village.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

182I Removal of charge

A charge over land created under this Part remains in force until:

(a)  the village contract that caused the charge to be created is terminated and all of the operator’s liabilities under that contract have been met, or

(b)  the land is sold in accordance with an order under this Part.

pt 10A (ss 182A–182I): Ins 2008 No 121, Sch 1 [149].

Part 11 Enforcement

183 Proceedings for offences

(1)  Proceedings for an offence under this Act or the regulations may be dealt with:

(a)  summarily before the Local Court, or

(b)  with the consent of the Minister—summarily before the Supreme Court in its summary jurisdiction.

(2)  If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose is 100 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.

(3)  Proceedings for an offence under this Act or the regulations may be brought within the period of 3 years after the commission of the offence or, with the consent of the Attorney General, at any time.

s 183: Am 2007 No 94, Schs 2, 4.

184 Penalty notices

(1)  An authorised officer may serve a penalty notice on a person if:

(a)  it appears to the authorised officer that the person has committed an offence against this Act or the regulations, and

(b)  the regulations prescribe that offence as an offence for which a penalty notice may be issued.

(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the penalty prescribed by the regulations for the offence if dealt with under this section.

(3)  A penalty notice may be served personally or by post.

(4)  If the amount of the penalty prescribed for the alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.

(5)  Payment under this section is not an admission of liability for the purposes of, and does not affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

(6)  The regulations may:

(a)  prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and

(b)  prescribe the amount of penalty for the offence if dealt with under this section, and

(c)  prescribe different amounts of penalty for different offences or classes of offences.

(7)  The amount of penalty prescribed under this section for an offence may not exceed the maximum amount of penalty that could be imposed for the offence by a court.

(8)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings which may be taken in respect of offences or any other matter under this Act.

(9)  In this section, authorised officer means:

(a)  the Secretary, or

(b)  a person appointed in writing by the Secretary as an authorised officer for the purposes of this section, or

(c)  an investigator.

185 Monetary penalties imposed on operator

The operator of a retirement village must not in any way charge to the operating costs of the village or to the residents of the village the amount of any monetary penalty imposed (whether by way of a penalty notice or otherwise) on the operator for an offence against this Act or the regulations.

Maximum penalty: 200 penalty units.

186 Offences by corporations

(1)  If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.

(1A)  Subsection (1) does not apply in respect of a contravention of section 110 (1) or (2).

(2)  A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or has been convicted under the provision.

(3)  Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

(4)  This section does not apply to or in respect of a person who is a director, or who is concerned in the management, of a statutory corporation.

s 186: Am 2011 No 2, Sch 1.31.

187 Offences by persons other than principal offenders

A person who:

(a)  aids, abets, counsels or procures a person to contravene, or

(b)  induces, or attempts to induce, a person, whether by threats or promises or otherwise, to contravene, or

(c)  is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of, or

(d)  conspires with others to contravene,

a provision of this Act or the regulations is guilty of an offence against this Act or the regulations and liable to the same penalty as a person who contravenes the provision.

Part 12 Administration

188 Definition

In this Part, judicial body means:

(a)  the Tribunal, or

(b)    (Repealed)

(c)  a court.

s 188: Am 2001 No 82, Sch 7.18 [11].

189 Functions of Secretary

(1)  The Secretary has, in addition to any other functions conferred or imposed on the Secretary, the following functions:

(a)  the functions of investigating and carrying out research into matters relating to or affecting retirement villages,

(b)  the functions of investigating and attempting to resolve complaints by residents and operators of retirement villages and of taking such action as the Secretary thinks appropriate,

(bi)  the function of prosecuting any offence under this Act or the regulations,

(c)  the functions of distributing information about the services provided by the Secretary and the Tribunal in relation to residents of retirement villages and of promoting awareness of the rights and responsibilities of residents and persons involved in the retirement village industry,

(d)  the functions of investigating and reporting on any matters, or making inquiries in relation to any matters, referred to the Secretary by the Minister or by the Tribunal in connection with this Act.

(2)  The Secretary may delegate to a person any of the Secretary’s functions under this Act, other than this power of delegation.

s 189: Am 2008 No 121, Sch 1 [150] [151].

189A Secretary may issue warning notices

(1)  The Secretary may authorise publication of a notice warning persons of particular risks involved in dealing with a specified operator of a retirement village or with a person who appears to be the operator of a retirement village.

(2)  For example, a notice may relate to the risks involved in dealing with an operator or person who has a history of unconscionable conduct in the operator’s or person’s dealings with consumers.

(3)  The Secretary may authorise the publication of such a notice in any one or more of the following ways:

(a)  to any persons making inquiries to the Secretary about the person concerned,

(b)  by advertisement by the use of any medium,

(c)  to any media representatives.

(4)  Publication of such a notice may not be authorised unless an investigation has been conducted by the Secretary (whether or not the investigation is in relation to a complaint).

(5)  Before authorising the publishing of such a notice, the Secretary must give the person concerned an opportunity, for a period of not less than 48 hours, to make representations to the Secretary about the proposed notice unless the Secretary is not able, after making reasonable efforts to do so, to contact the person promptly and advise the person of the opportunity to make representations.

(6)  The opportunity to make representations is not required to be given if, in the opinion of the Secretary, there is an immediate risk to the public.

(7)  No liability is incurred by any person for publishing in good faith:

(a)  a notice under this section, or

(b)  a fair report or summary of such a notice.

s 189A: Ins 2008 No 121, Sch 1 [152].

190 Secretary may take or defend proceedings

(1)  The Secretary may take or defend proceedings before a judicial body on behalf of a resident of a retirement village if:

(a)  the resident has made a complaint to the Secretary, and

(b)  after investigating the complaint, the Secretary is satisfied that the resident may have a right to take or defend the proceedings, and

(c)  the resident consents to the Secretary’s taking the proceedings.

(2)  The Secretary must take or defend proceedings before a judicial body on behalf of a resident of a retirement village if:

(a)  the Minister directs the Secretary to do so, and

(b)  the resident consents to the Secretary’s taking the proceedings.

(3)  This section applies despite anything to the contrary in the Civil and Administrative Tribunal Act 2013 or any other law.

s 190: Am 2008 No 121, Sch 1 [153]; 2013 No 95, Sch 4.36 [6].

191 Conduct of proceedings by Secretary

(1)  If the Secretary takes or defends proceedings before a judicial body on behalf of a resident of a retirement village, the Secretary:

(a)  is to have the conduct of those proceedings on behalf of the resident, and

(b)  may appear personally or by an Australian legal practitioner or an agent, and

(c)  may do all such things as are necessary or expedient to give effect to an order or a decision of the judicial body, and

(d)  is liable to pay the costs (if any) of the resident.

(2)  The resident is liable to pay any other amount that the judicial body orders the resident to pay.

(3)  This section applies despite anything to the contrary in the Civil and Administrative Tribunal Act 2013 or any other law.

s 191: Am 2013 No 95, Sch 4.36 [7]; 2015 No 7, Sch 2.38 [3].

192 Intervention by Secretary

(1)  Without limiting section 191 or section 44 of the Civil and Administrative Tribunal Act 2013, the Secretary may, if he or she is of the opinion that it would be in the public interest to do so, intervene in any proceedings arising under this Act.

(2)  The Secretary must intervene in such proceedings if directed to do so by the Minister.

(3)  On intervening in any proceedings, the Secretary:

(a)  becomes a party to the proceedings and has all the rights of such a party, and

(b)  has a right to be heard personally or by an Australian legal practitioner or agent.

s 192: Am 2013 No 95, Sch 4.36 [8]; 2015 No 7, Sch 2.38 [3].

193–195 (Repealed)

ss 193–195: Rep 2008 No 121, Sch 1 [154].

196 Exclusion of personal liability

A matter or thing done or omitted to be done by the Secretary, the Registrar-General, an investigator, other authorised officer or any person acting under the direction of the Secretary or Registrar-General does not, if the matter or thing was done or omitted in good faith for the purpose of executing this or any other Act, subject the Secretary, the Registrar-General, investigator, other authorised officer or person so acting personally to any action, liability, claim or demand.

s 196: Am 2008 No 121, Sch 1 [155]–[157].

Part 12A Powers of investigation

pt 12A (ss 196A–196E): Ins 2008 No 121, Sch 1 [158].

196A Powers of entry, inspection etc

(1)  An investigator may exercise the powers conferred by this section for the purposes of:

(a)  ascertaining whether the provisions of this Act or the regulations are being complied with or have been contravened, or

(b)  investigating a complaint made under this Act, or

(c)  obtaining evidence, documents or information in relation to a matter that constitutes or may constitute a contravention of this Act or the regulations.

(2)  An investigator may enter and inspect at any reasonable time any premises that the investigator believes on reasonable grounds are used for the management of or carrying on of the business of a retirement village.

(3)  While on premises entered under this section, an investigator may do any one or more of the following:

(a)  require any person on those premises to produce any documents in the possession or under the control of that person relating to the carrying on of the business of a retirement village and, in the case of documents stored electronically, to produce any such documents in written form,

(b)  inspect, take copies of or extracts from, or make notes from, any such documents and, for that purpose, take temporary possession of any such documents,

(c)  take possession of such documents if the investigator considers it necessary to do so for the purpose of obtaining evidence or protecting evidence from destruction,

(d)  take such photographs, films and audio, video and other recordings as the investigator considers necessary,

(e)  require any person on those premises to answer questions or otherwise furnish information in relation to the carrying on of the business of a retirement village or a contravention of a provision of this Act,

(f)  require the owner or occupier (including a resident) of those premises to provide the investigator with such assistance and facilities as is or are reasonably necessary to enable the investigator to exercise the functions of an investigator under this Part.

(4)  An investigator is not entitled to enter a part of premises used for residential purposes except:

(a)  with the consent of the occupier, or

(b)  under the authority of a search warrant.

(5)  An investigator may not exercise in any premises a function conferred by this Part unless the investigator produces a certificate of identification if requested to do so by a person apparently in charge of those premises or apparently in charge of any work being performed on those premises.

pt 12A (ss 196A–196E): Ins 2008 No 121, Sch 1 [158].

196B Power of investigator to obtain information, documents and evidence

If an investigator believes on reasonable grounds that a person is capable of giving information, producing documents, or giving evidence in relation to a matter that constitutes, or may constitute, an offence under this Act or the regulations, the investigator may, by notice in writing given to the person, require the person:

(a)  to provide an investigator, by writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation) and given to the investigator within the time and in the manner specified in the notice, with any such information, or

(b)  to produce to an investigator, in accordance with the notice, any such documents, or

(c)  to appear before an investigator at a time and place specified in the notice and give any such evidence, either orally or in writing, and produce any such documents.

pt 12A (ss 196A–196E): Ins 2008 No 121, Sch 1 [158].

196C Obstruction etc of investigator

(1)  A person must not:

(a)  without reasonable excuse, refuse or fail to comply with any notice given or requirement made, or to answer any question asked, by an investigator under this Part, or

(b)  provide information or give evidence in purported compliance with a requirement made or question asked by an investigator under this Part knowing the information or evidence to be false or misleading in a material particular, or

(c)  wilfully delay, hinder or obstruct an investigator in the exercise of the investigator’s functions under this Part.

Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.

(2)  Despite any other provision of this Part, a natural person is excused from answering any question, providing any information, giving evidence or producing or permitting the inspection of a document in accordance with this Part on the ground that the answer, information, evidence or document may tend to incriminate the person.

pt 12A (ss 196A–196E): Ins 2008 No 121, Sch 1 [158].

196D Taking possession of documents to be used as evidence

(1)  If an investigator takes possession of any documents under this Part for the purpose of obtaining evidence or protecting evidence from destruction, they may be retained by the investigator until the completion of proceedings (including proceedings on appeal) in which they may be evidence.

(2)  The person from whom the documents are taken must be provided, within a reasonable time after the documents are taken, with a copy of the documents certified by an investigator as a true copy.

(3)  A copy of documents provided under this section is, as evidence, of equal validity to the documents of which it is certified to be a true copy.

pt 12A (ss 196A–196E): Ins 2008 No 121, Sch 1 [158].

196E Search warrants

(1)  An investigator may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant for premises if the investigator believes on reasonable grounds:

(a)  that a provision of this Act or the regulations is being contravened on the premises, or

(b)  that there is on the premises evidence of a contravention of this Act or the regulations.

(2)  An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an investigator named in the warrant:

(a)  to enter and inspect premises, and

(b)  to exercise on the premises any function of an investigator under this Part.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

pt 12A (ss 196A–196E): Ins 2008 No 121, Sch 1 [158].

Part 13 Miscellaneous

197 No charge for information

The operator of a retirement village must not charge a person for giving the person access to, or for providing, or for making available, to the person any information or document that the operator is required by or under this Act to give the person access to, or to provide or have available.

Maximum penalty: 50 penalty units.

197A False or misleading information

An operator of a retirement village must not, in purported compliance with any requirement of this Act, give to any resident or prospective resident any information that the operator knows to be false or misleading in a material particular.

Maximum penalty: 20 penalty units.

s 197A: Ins 2008 No 121, Sch 1 [159].

198 Costs of operator’s legal advice or proceedings

(1)  The residents of a retirement village are not liable to pay any costs incurred by the operator (or that the operator expects to incur) in obtaining legal advice, or undertaking legal proceedings, in relation to the village unless:

(a)  the costs appear in the approved annual budget, or

(b)  in the case of legal advice obtained—section 31 applies.

(2)  If the residents refuse to consent to the inclusion of such costs as an item in a proposed annual budget, the Tribunal, on an application by the operator under section 115, may order expenditure on those costs only if the Tribunal determines that:

(a)  the legal advice was (or is to be) obtained, or the proceedings undertaken, wholly in the interest of the residents, and

(b)  the costs are reasonable in the circumstances.

(3)  This section has effect despite the provisions of any village contract.

(4)  However, this section does not apply in respect of any costs awarded in favour of the operator and against a resident (or the residents) of a retirement village in legal proceedings.

s 198: Am 2008 No 121, Sch [160] [161].

199 Contracting out prohibited

(1)  The provisions of this Act and the regulations have effect despite any stipulation to the contrary in any agreement, contract or arrangement, and no agreement, contract or arrangement, whether oral or wholly or partly in writing, and whether made or entered into before or after the commencement of this section, operates to annul, vary or exclude any of the provisions of this Act or the regulations.

(2)  Subsection (1) applies in relation to the constitution of a corporation in the same way as it applies in relation to an agreement, contract or arrangement.

(3)  A person must not enter into any agreement, contract or arrangement with the intention, either directly or indirectly, of defeating, evading or preventing the operation of this Act.

Maximum penalty: 100 penalty units.

(4)  However, the operator of a retirement village may enter into a residential tenancy agreement, in the form prescribed under the Residential Tenancies Act 2010, that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, and, in entering into the agreement, the operator and the tenant under the agreement are taken not to contravene this section.

s 199: Am 2010 No 42, Sch 3.15 [10].

200 Disclosure of information

A person must not disclose any information obtained in connection with the administration or execution of this Act unless the disclosure is made:

(a)  with the consent of the person from whom the information was obtained, or

(b)  in connection with the administration or execution of this Act, or

(c)  for the purposes of any legal proceedings arising out of this Act (or any other Act) or of any report of any such proceedings, or

(d)  in accordance with a requirement imposed under the Ombudsman Act 1974, the Government Information (Public Access) Act 2009 or the Independent Commission Against Corruption Act 1988, or

(e)  as permitted by the regulations, or

(f)  with other lawful excuse.

Maximum penalty: 5 penalty units.

s 200: Am 2009 No 54, Sch 2.45.

201 Service of documents

(1)  A notice or other document required to be given under this Act or the regulations to a resident of a retirement village may be given:

(a)  by delivering it personally to the resident, or

(b)  by sending it by post to the residential premises occupied by the resident and addressed to the resident, or

(c)  in such other manner as may be prescribed for the purposes of this section or approved by the Tribunal.

(2)  A notice or other document required to be given to the operator of a retirement village under this Act or the regulations may be given:

(a)  by delivering it personally to the operator, or

(b)  by sending it by post to the operator’s usual place of business, or

(c)  in such other manner as may be prescribed for the purposes of this section or approved by the Tribunal.

(3)  If a notice or other document referred to in this section is sent by post, it is taken to have been received (unless evidence sufficient to raise doubt is adduced to the contrary) on the second working day after it was posted.

202 Costs of administration

(1)  Contributions are to be made to meet the costs of the administration of this Act from the Property Services Statutory Interest Account established under the Property, Stock and Business Agents Act 2002, in accordance with section 190 of that Act.

(2)  In the course of the administration of this Act, the Minister may fund the provision of advisory and advocacy services to residents and prospective residents of retirement villages.

s 202: Am 2000 No 53, Sch 1.26 [5]; 2002 No 66, Sch 2.9 [3]; 2008 No 121, Sch 1 [162]; 2010 No 42, Sch 3.15 [11].

203 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)  Without limiting subsection (1), the regulations may make provision for or with respect to:

(a)  the manner in which, and the time within which, an application may be made to the Tribunal, and

(b)  applications to the Tribunal by the Residents Committee of a retirement village on behalf of one or more residents of the village, and

(c)  the other party or parties to applications to the Tribunal made by the operator of a retirement village.

(3)  The regulations may create an offence punishable by a penalty not exceeding 50 penalty units.

(4)  The regulations may exempt specified village contracts or a specified class of village contracts from any provision of this Act.

s 203: Am 2008 No 121, Sch 1 [163].

204, 205 (Repealed)

s 204: Rep 2003 No 82, Sch 3.

s 205: Rep 2003 No 82, Sch 3.

206 Repeals

The following Act and regulations are repealed:

(a)  Retirement Villages Act 1989

(b)  Retirement Villages Regulation 1995

(c)  Retirement Village Industry Code of Practice Regulation 1995

207 Savings, transitional and other provisions

Schedule 4 has effect.

208 Review of Act

(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2)  The review is to be undertaken as soon as possible after the commencement of the Retirement Villages Amendment Act 2004.

(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the commencement of the Retirement Villages Amendment Act 2004.

s 208: Am 2004 No 14, Sch 1 [11].

Schedule 1 Consent of residents

(Section 9)

Part 1 Preliminary

1 Entitlement to vote

A former occupant of a retirement village may vote on a measure or action relating to the village if the former occupant is, or would have been, entitled to vote on the measure or action as a resident.

Part 2 Consent generally

2 Vote to be taken

(1)  If this Act provides that a particular measure or action is of no effect unless it is consented to by the residents of a retirement village, or otherwise requires the consent of the residents, the residents of the village concerned are taken to have given their consent if more than 50% of the residents who vote (whether personally or by proxy) on the measure or action (being residents who are entitled to vote) consent to it.

(2)  Subclause (1) does not apply to a measure or action that requires a special resolution.

3 Method of voting

(1)  A vote in relation to a measure or action other than a measure or action that requires a special resolution may be taken by means of:

(a)  a show of hands, or

(b)  a written ballot conducted in accordance with the regulations.

(2)  The regulations may require a vote in relation to a measure or action of a particular class or kind to be taken by means of a written ballot.

4 Result of vote

(1)  The operator of a retirement village must accept as the residents’ decision in relation to a measure or action that requires their consent the decision that is reported to the operator by:

(a)  an officer of the Residents Committee, or

(b)  if there is no Residents Committee established for the village, a resident elected by the means referred to in clause 3 (1) of this Schedule as the representative of the residents of the village in relation to the measure or action concerned.

(2)  Regulations may be made for or with respect to the election of a representative of residents for the purposes of subclause (1).

Part 3 Consent requiring special resolution

5 Notice of special resolution

If a measure or action requires a special resolution, a ballot must be conducted in accordance with the regulations.

6 How special resolution is carried

A special resolution is carried only if it is passed by at least 75% of the number of residents who participate in the ballot.

7 (Repealed)

sch 1: Am 2008 No 121, Sch 1 [164]; 2013 No 47, Sch 1.27 [8].

Schedules 2, 3 (Repealed)

sch 2: Rep 2003 No 82, Sch 3.

sch 3: Rep 2003 No 82, Sch 3.

Schedule 4 Savings, transitional and other provisions

(Section 207)

Part 1 Preliminary

1 Regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

this Act

Retirement Villages Amendment Act 2004

Retirement Villages Amendment Act 2008

(1A)  For the avoidance of doubt, any such provision may, if the regulations so provide, have effect despite any specified provision of this Act (including a provision of this Schedule).

(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

1A References to Tribunal before establishment of NCAT

A reference to the Tribunal in a provision of this Schedule that was inserted before the establishment day (within the meaning of the Civil and Administrative Tribunal Act 2013) is a reference to the former Consumer, Trader and Tenancy Tribunal.

Part 2 Provisions consequent on enactment of this Act

2 Definitions

In this Part:

Code of Practice means the Retirement Village Industry Code of Practice prescribed by the Retirement Village Industry Code of Practice Regulation 1995, as in force immediately before the repeal of that regulation.

existing contract means:

(a)  a residence contract under the former Act, or

(b)  any other contract, agreement, scheme or arrangement by which a person obtained, before the commencement of the former Act, the right to occupy residential premises in a complex that was, at the time the right was obtained, a retirement village within the meaning of this Act (even if it ceased to be such a retirement village before the commencement of this Act or the former Act).

former Act means the Retirement Villages Act 1989.

3 Continuation of contracts

(1)  An existing contract in respect of a retirement village within the meaning of this Act that is in force on the commencement of this clause is taken to be a residence contract.

(2)  Any other contract, agreement, scheme or arrangement in force on the commencement of this clause under which, under the former Act, the administering authority of a retirement village provides services to a resident of the village is taken to be a service contract.

(3)  A contract that, by operation of this clause, is taken to be a village contract continues in force until it is terminated in accordance with this Act.

4 Continuation of village rules

A village rule that was in force in a retirement village under the Code of Practice immediately before the repeal of the Retirement Village Industry Code of Practice Regulation 1995 is taken to be a village rule made under this Act.

5 Budgets and audited accounts given under Code of Practice

(1)  For the purposes of section 20 of this Act:

(a)  audited accounts provided in accordance with clause 40 of the Code of Practice are taken to be accounts audited as referred to in Division 6 of Part 7 of this Act, and

(b)  draft budgets provided, and the final budgets developed, under clause 41 of the Code of Practice are taken to be statements of proposed expenditure and statements of approved expenditure, respectively.

(2)  The draft budget provided, and final budget developed, under clause 41 of the Code of Practice for the financial year that is current on the commencement of Part 7 of this Act are also taken to be statements of proposed expenditure and statements of approved expenditure, respectively, for the purposes of that Part.

6 Disclosure statements

For the purposes of sections 25 and 33 of this Act, the document required to be provided under clause 20 of the Code of Practice is taken to be a disclosure statement.

7 Informal resolution of disputes

A disputes committee convened under clause 44 of the Code of Practice that is in existence on the commencement of section 125 of this Act is taken to be a mechanism established for the purpose of attempting to resolve disputes as referred to in that section.

8 Termination of right of occupation

Any proceedings to terminate the right of occupation of a resident of a retirement village that were instituted under the former Act and not determined before the repeal of that Act are to be determined as if this Act had not been enacted.

9 Vacation of residential premises

A resident of a retirement village under the former Act who permanently left his or her residential premises before the commencement of this Act is taken to have permanently vacated the premises for the purposes of this Act.

10 Goods left before commencement of clause

Division 7 of Part 9 applies to goods left in a retirement village by a resident under a residence contract terminated before the commencement of this clause, and not finally dealt with before that commencement, in the same way as it applies to goods left in a retirement village by a resident under a residence contract terminated after that commencement.

11 Departure fees

A reference in an existing contract to the payment of:

(a)  a deferred management fee, or

(b)  a deferred fee,

is taken to be a reference to the payment of a departure fee.

12 Delegation

A delegation in force under section 11 of the former Act immediately before the commencement of section 189 continues in force on and after that commencement and is taken to be a delegation of the Director-General under that section.

13 Date of permanent vacation of residential premises in retirement village

For the purposes of Part 10, a former occupant who permanently vacated his or her residential premises in a retirement village before the commencement of this clause is taken to have permanently vacated the premises on that commencement.

14 Operator’s legal costs

(1)  Section 198 (3) extends to a village contract entered into before the commencement of that subsection.

(2)  If, before the commencement of this clause, any legal proceedings in relation to a retirement village had been commenced but were not finally determined (being proceedings to which the operator and a resident or residents of the village are parties), the resident or residents concerned are not liable to pay such part of the operator’s costs in relation to the proceedings as are incurred, or may reasonably be apportioned to such of the proceedings as take place, after that commencement.

(3)  Subclause (2) has effect despite the provisions of any village contract, whether entered into before or after the commencement of this clause.

(4)  However, subclause (2) does not apply in respect of any costs awarded in favour of the operator and against a resident or residents of the retirement village in legal proceedings.

Part 3 Provisions consequent on enactment of Retirement Villages Amendment Act 2008

Division 1 General

15 Definition

In this Part:

2008 amending Act means the Retirement Villages Amendment Act 2008.

16 Amendments extend to existing contracts

Except as otherwise provided by this Part or the regulations, an amendment made by the 2008 amending Act extends to a village contract that was in force immediately before the commencement of that amendment.

Division 2 Recurrent charges

17 Liability of former occupant of residential premises for recurrent charges where former occupant is registered interest holder

(1)  This clause applies to a former occupant of residential premises in a retirement village who is the registered interest holder in relation to those premises and who had vacated the premises before the commencement of section 152 (3) (as inserted by the 2008 amending Act).

(2)  If a former occupant of residential premises in a retirement village was still liable to pay recurrent charges in respect of those premises immediately before the commencement of section 152 (3) (as inserted by the 2008 amending Act), a reference in section 152 (3) (a) to 42 days immediately after the former occupant permanently vacated the premises is to be read as a reference to 42 days after that commencement.

(3)  In this clause, a reference to recurrent charges is a reference to recurrent charges in respect of general services.

18 Liability of former occupant of residential premises for recurrent charges where former occupant is not registered interest holder

(1)  This clause applies to a former occupant of residential premises in a retirement village who is not a registered interest holder in relation to those premises and who had vacated the premises before the amendment of section 153 (2) (e) by the 2008 amending Act.

(2)  If a former occupant of residential premises in a retirement village was still liable to pay recurrent charges in respect of those premises immediately before the amendment of section 153 (2) (e) by the 2008 amending Act, a reference in that paragraph to the date that is 42 days after the date on which the former occupant otherwise permanently vacated the premises is to be read as a reference to:

(a)  the date that is 42 days after the commencement of this clause, or

(b)  the date that is 6 months after the former occupant delivered up vacant possession of those premises to the operator,

whichever date occurs first.

(3)  In this clause, a reference to recurrent charges is a reference to recurrent charges in respect of general services.

Division 3 Making good of outstanding deficits

19 Definition

In this Division, outstanding deficit means the total deficit in the annual accounts of a retirement village that accrued on or before the end of a financial year of the retirement village occurring most recently before 23 November 2006.

20 Making good of deficit

(1)  The operator of a retirement village may:

(a)  make good the whole, or any part, of any outstanding deficit from any funds, other than recurrent charges, available to the operator, or

(b)  propose that the residents of the village make good the whole, or any part, of any outstanding deficit:

(i)  by making special additional payments, or

(ii)  from any surplus in the annual accounts of the retirement village in any financial year.

(2)  The residents of a retirement village may, by special resolution, consent to a proposal under subclause (1) (b) (i) or (ii).

(3)  A proposal under subclause (1) (b) may only be put to the residents of the retirement village once.

(4)  Despite section 120B (as inserted by the 2008 amending Act), if the residents of a retirement village consent to a proposal under subclause (1) (b) (ii), the operator of the retirement village may make good the whole, or any part, of that outstanding deficit from a surplus in the annual accounts of the village in accordance with the proposal.

(5)  The regulations may prescribe expenditure or circumstances resulting in, or contributing to, the outstanding deficit in respect of which the operator is prevented from making a proposal under subclause (1) (b) (i) or (ii).

(6)  Nothing in this clause authorises the making good of the whole or any part of an outstanding deficit by using money from the capital works fund.

21 Tribunal may make orders for making good of deficit

(1)  If a retirement village has an outstanding deficit on or after 23 November 2011 or such later date as may be prescribed by the regulations, the operator may apply to the Tribunal for (and the Tribunal may make) an order specifying:

(a)  the amount of any such deficit that is to be made good by the operator of the retirement village, and

(b)  the amount of any such deficit that is to be made good by the residents of the retirement village, and

(c)  the date by which any such deficit is to be made good.

(2)  In making an order under this clause, the Tribunal must give consideration to such matters as may be prescribed by the regulations.

(3)  If the operator of the retirement village does not apply to the Tribunal for an order under this clause within 30 days after 23 November 2011, or such later date as may be prescribed by the regulations, the operator must make good the whole of the outstanding deficit.

Division 4 Capital replacement and maintenance

22 Definitions

In this Division:

capital replacement fund means a capital replacement fund established under section 95 (as in force immediately before its substitution by the 2008 amending Act).

capital works fund means a capital works fund established under section 99 (as substituted by the 2008 amending Act).

maintenance fund means a maintenance fund established under section 100 (as in force immediately before its substitution by the 2008 amending Act).

23 Reimbursement for urgent capital replacement or maintenance carried out by resident

Section 95 (as substituted by the 2008 amending Act) does not apply in respect of any capital replacement or maintenance carried out, or caused to be carried out, by a resident of a retirement village before the commencement of that amendment.

24 Existing capital replacement funds and maintenance funds

(1)  On the substitution of Division 2 of Part 7 by the 2008 amending Act, any capital replacement fund existing immediately before that substitution is dissolved.

(2)  Any funds held in a capital replacement fund for a retirement village that is dissolved by subclause (1) are to be paid to the operator of the retirement village.

(3)  Any maintenance fund for a retirement village existing immediately before the repeal of Division 3 of Part 7 by the 2008 amending Act is taken, on that repeal, to be a capital works fund.

25 Sale of items of capital to residents

(1)  Except as provided by this clause, section 101, as substituted by the 2008 amending Act, does not apply in respect of the sale of an item of capital before the substitution of that section.

(2)  A resident of a retirement village may, by notice in writing to the operator of the village, advise that this clause applies to a specified item of capital owned by the resident if:

(a)  the item was purchased from the operator of the village on or after 23 November 2006, and

(b)  but for the purchase of the item, it is an item for which the operator would be responsible (within the meaning of section 92, as substituted by the 2008 amending Act).

(3)  On the giving of such a notice to the operator of a retirement village:

(a)  ownership of the item of capital referred to in the notice is transferred to the operator, and

(b)  the resident is entitled to receive a payment equal to the amount the resident paid for the item.

(4)  A payment that a resident is entitled to receive under this clause is required to be made at the same time as the operator is required to make a payment to the resident under section 44D (2), 180 (2) or 181 (2) as the case may be.

(5)  The operator of a retirement village may apply to the Tribunal for (and the Tribunal may make) an order, reducing the amount to which a resident is entitled under subclause (3) (b), having regard to the condition of the item of capital concerned.

(6)  An application made by an operator under subclause (5) may relate to more than one item of capital or more than one notice under this clause.

26 Contract, agreement or scheme for the replacement or maintenance of items of capital

(1)  This clause applies to any contract, agreement or scheme between the operator of a retirement village and a resident of the retirement village that:

(a)  purports to pass responsibility for the maintenance or replacement of an item of capital for which the operator is responsible (within the meaning of section 92) to the resident, and

(b)  was entered into before the substitution of section 101.

(2)  Except as provided by this clause, section 101 does not apply in respect of a contract, agreement or scheme to which this clause applies.

(3)  A resident who is a party to a contract, agreement or scheme to which this clause applies may give notice in writing to the operator who is a party to the contract, agreement or scheme that the resident intends section 101 (2) to apply to the contract, agreement or scheme.

(4)  On the giving of the notice, section 101 (2) and (3) are taken to extend to the contract, agreement or scheme, but only in relation to anything required to be done under the contract, agreement or scheme after the giving of the notice.

(5)  A notice may only be given under this clause within the period of 3 months immediately after the commencement of section 101.

(6)  A reference in this clause to section 101 is a reference to that section as substituted by the 2008 amending Act.

Division 5 Miscellaneous

27 Amendments relating to annual budgets

(1)  A statement of proposed expenditure or a statement of approved expenditure under this Act (as in force immediately before the repeal of the definition of statement of approved expenditure in section 4 (1)) is taken, on that repeal, to be a proposed annual budget or approved annual budget respectively.

(2)  An amendment made by the 2008 amending Act does not affect expenditure from recurrent charges of a retirement village that was approved, in accordance with this Act, by the residents of the retirement village before the commencement of that amendment. Any such expenditure may be made after that commencement from the recurrent charges of the retirement village.

28 General inquiry document and disclosure statement concerning a village

(1)  An amendment made to section 18 (1) by the 2008 amending Act does not apply to or in respect of a person if the operator of a retirement village was aware, before the commencement of that amendment, that the person was a prospective resident or was acting on behalf of a prospective resident.

(2)  However, the operator of a retirement village must provide any such person with a general inquiry document within 14 days after the commencement of that amendment.

(3)  An amendment made to section 18 (3) by the 2008 amending Act does not apply to a request or expression of interest made before the commencement of that amendment.

29 Amendment relating to residents entering village contract

An amendment made to section 24 (1) by the 2008 amending Act does not extend to an agreement entered into before the commencement of that amendment.

30 Amendment relating to renovations and alteration of fixtures or fittings

Section 41A (as inserted by the 2008 amending Act) does not apply to any renovations or alterations of fixtures or fittings that were commenced, but not completed, before the insertion of that section.

31 Settling-in period provisions

(1)  Division 2 of Part 5 (as inserted by the 2008 amending Act) extends to a village contract entered into before the insertion of that Division.

(2)  For the avoidance of doubt, the end of the settling-in period with respect to a village contract to which Division 2 of Part 5 applies because of subclause (1) is the later of:

(a)  the day that is 90 days after the date on which the resident is entitled to occupy the residential premises concerned under the residence contract for the premises, or

(b)  if the resident occupies the premises before the day specified in paragraph (a), the day that is 90 days after the resident first occupies the residential premises, or

(c)  such date as may be agreed to by the operator and the resident.

32 Membership of Residents Committee

For the purposes of section 70A (as inserted by the 2008 amending Act), any term of office concluded before the commencement of that section is disregarded.

33 Holding of first annual management meeting

Section 72A (as inserted by the 2008 amending Act) applies to each financial year for a retirement village ending after the insertion of that section and extends to a financial year of a retirement village that ended within the 2 months occurring immediately before that insertion.

34 Existing proxies

(1)  An amendment made to this Act by the 2008 amending Act does not affect the casting of a vote by means of a proxy in force immediately before the commencement of the amendment.

(2)  However, any such proxy expires at the end of the financial year of the retirement village commencing after the commencement of the amendment.

35 Variation of recurrent charges

Section 104 (2) (as substituted by the 2008 amending Act) applies to a village contract that is referred to in that subsection and was in existence before that substitution on and from the date that the village contract was last varied before that substitution.

36 Amendments relating to quarterly accounts

An amendment made to section 118 by the 2008 amending Act does not apply to the quarterly accounts for a retirement village in respect of a quarter that had ended before the commencement of the amendment.

sch 4: Am 2004 No 14, Sch 1 [12]; 2008 No 121, Sch 1 [165]–[167]; 2013 No 95, Sch 4.36 [9].