Retirement Villages (Amendment) Act 2005
i
Retirement Villages (Amendment) Act 2005
Act No. 4/2005
TABLE OF PROVISIONS
Section Page
1. Purpose 1
2. Commencement 2
3. Definitions 2
4. Retirement village notice 8
5. Substitution of section 19 9
19. Resident to be given certain documents 9
6. Requirements as to information given to residents 9
7. Insertion of new sections 21A and 21B 10
21A. Offence not to use a contract that complies with the
regulations 10
21B. Further matters relating to contracts 10
8. Application of section 26 11
9. Extinguishment of part of charge as to part of land 12
10. Insertion of new Part 5A 15
PART 5A—SALE OF PREMISES BY CERTAIN
RESIDENTS 15
32A. Options 15
32B. Sale of premises 15
32C. Manager not to interfere in sale 17
32D. Costs of sale 18
32E. Purchaser and manager to enter into contract 18
32F. Application by owner resident to Tribunal 19
32G. Tribunal's determinations on application of manager
or owner resident 19
11. Repeal of arbitration provision 20
12. Role of residents committee in disputes 21
13. Insertion of new section 36A 21
36A. Resident's right to act through representative 21
14. Insertion of new Part heading 21
PART 6A—OPERATION AND MANAGEMENT OF
RETIREMENT VILLAGES 21
Division 1—Maintenance and Other Charges 21
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15. Maintenance charges 21
16. Insertion of new sections 38A to 38H and Parts 6B and 6C 22
38A. Charges for personal services 22
38B. Maintenance charges—former non-owner residents 22
Division 2—Powers of Attorney and Proxies 23
38C. Manager not to demand power of attorney 23
38D. Manager not to demand appointment as proxy 24
Division 3—Dispute Mediation 26
38E. Procedure for dealing with management complaints 26
38F. Procedure for dealing with resident disputes 28
38G. Residents to be informed of complaints and disputes
mechanisms 31
38H. Recording and reporting requirements 31
PART 6B—MATTERS RELATING TO CESSATION OF
OCCUPATION OF PREMISES 32
38I. Payments to owner residents 32
PART 6C—REGISTER OF RETIREMENT VILLAGES 33
38J. Obligation to keep register 33
38K. Inspection of the register 34
38L. Requirement to notify Director 34
17. Cancellation of notices as to part of land 35
18. Insertion of new sections 40 to 41A 37
40. Application of Fair Trading Act 1999 37
41. Who may bring proceedings for offences? 38
41A. Offence to supply false or misleading information 39
19. Insertion of new section 42A 39
42A. Certain contractual provisions relating to arbitration
void 39
20. Further regulation making powers 39
21. Insertion of new Part 8 40
PART 8—TRANSITIONAL 40
45. Definitions 40
46. Transitional provision—residential care facilities—
2005 Amendment Act 40
47. Transitional provision—Extinguishment of charge
relating to residential care facilities—2005
Amendment Act 41
48. Transitional provision—Cancellation of notices
relating to residential care facilities—2005
Amendment Act 43
49. Transitional provision—contracts—2005 Amendment
Act 45
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iii
50. Transitional provision—appointment of agents—
2005 Amendment Act 45
51. Transitional provision—powers of attorney—2005
Amendment Act 46
52. Transitional provision—payments to owner residents—
2005 Amendment Act 46
53. Transitional provision—registration of retirement
villages—2005 Amendment Act 47
54. Transitional provision—contractual provisions
relating to arbitration—2005 Amendment Act 48
22. Repeal of form of retirement village notice 48
23. Repeal of form of disclosure statement 48
24. Repeal of form of check list 48
═══════════════
ENDNOTES 49
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1
Retirement Villages (Amendment) Act
2005 †
[Assented to 5 April 2005]
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the
Retirement Villages Act 1986—
(a) to make further provision in relation to the
sale of premises in retirement villages, the
operation and management of retirement
villages and the occupation of premises in
retirement villages;
(b) to establish a register of retirement villages;
Victoria
No. 4 of 2005
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(c) to make further provision for enforcement
powers;
(d) to provide for other matters in relation to
retirement villages.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 August 2006, it comes into
operation on that day.
3. Definitions
In section 3(1) of the Retirement Villages Act
1986—
(a) insert the following definitions—
' "close associate", in relation to a manager
of a retirement village, means—
(a) if the manager is a natural
person—
(i) the spouse, domestic partner,
parent, child or sibling of the
manager; or
(ii) the parent, child or sibling of
the spouse or domestic
partner of the manager; or
(iii) a body corporate of which
the manager (or the
manager's spouse, domestic
partner, parent, child or
sibling, or the parent, child
or sibling of the spouse or
domestic partner of the
manager) is a director or
secretary; and
s. 2
See:
Act No.
126/1986.
Reprint No. 4
as at
22 November
2001.
LawToday:
www.dms.
dpc.vic.
gov.au
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(b) if the manager 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); or
(ii) the spouse, domestic partner,
parent, child or sibling of
such a director or secretary;
or
(iii) the parent, child or sibling of
the spouse or domestic
partner of such a director or
secretary; or
(iv) a related body corporate; and
(c) in either case, an agent or
employee of the manager;
"maintenance charge" means a recurring
charge payable by a resident for the
provision of goods or services by a
manager;
"management complaint" means any
complaint that a resident has against the
manager of a retirement village about—
(a) the control, management or
administration of the retirement
village by the manager; or
(b) any action or failure to act by the
manager that affects residents' use
or enjoyment of the retirement
village land; or
s. 3
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(c) the provision of services or a
failure to provide services by the
manager to residents of the
retirement village;
"non-owner resident", in relation to a
retirement village, means a person who
is a resident of the village, who does
not own the land the person occupies as
a private residence in the village, and
"premises", in relation to any such
resident, means the land so occupied by
that resident;
"owner resident", in relation to a retirement
village, means a resident of the village
who owns the land that the resident
occupies as a private residence in the
village, and "premises", in relation to
any such resident, means the land so
owned and occupied by that resident;
"personal services", in relation to services
provided by a manager of a retirement
village, means those services provided
by the manager that a resident of the
village may choose to use but which it
is not necessary that the manager
provide for the purposes of the
maintenance of the village;
"register" means the register kept and
maintained by the Director under
section 38J;
"related body corporate" has the same
meaning as in the Corporations Act;
s. 3
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"residential care facility" means any
premises—
(a) in which—
(i) a residential care service; or
(ii) a multi purpose service—
within the meaning of the Aged
Care Act 1997 of the
Commonwealth, is operated by an
approved provider within the
meaning of that Act; and
(b) in respect of which an allocation
of residential care places or
flexible care places is in effect
under Division 15 of that Act;
"resident dispute" means a dispute between
residents in a retirement village about
any action or failure to act by residents
in the retirement village that affects—
(a) the use and enjoyment of the
retirement village land by other
residents in the retirement village;
or
(b) the use of services by other
residents in the retirement village,
being services provided to
residents in the retirement village
by the manager;
"Tribunal" means the Victorian Civil and
Administrative Tribunal established
under the Victorian Civil and
Administrative Tribunal Act 1998.';
(b) the definition of "arbitrator" is repealed;
s. 3
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(c) for the definition of "disclosure statement"
substitute—
' "disclosure statement", in relation to a
retirement village, means a statement,
in the prescribed form, setting out—
(a) the day on which the retirement
village notice for the retirement
village was lodged with the
Registrar of Titles under Part 2;
and
(b) particulars of any mortgage,
charge or other encumbrances
over the retirement village land
that take priority to the rights of
residents of the retirement village
under this Act; and
(c) particulars of any agreement
entered into in relation to the
retirement village land relating to
the priority of residence rights
over earlier encumbrances over
the land; and
(d) the day on which notification of
the charge created by Part 5 over
the retirement village land was
given to the Registrar of Titles;
and
(e) any other prescribed matters;';
s. 3
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(d) for the definition of "resident" substitute—
' "resident" means a retired person who
lives or proposes to live in a retirement
village and—
(a) in Part 5 (other than section 32)
and in section 34 includes—
(i) a person who was a resident
of, but has left, a retirement
village; and
(ii) if a person, who while a
resident of a retirement
village, has died, the person's
legal personal representative;
and
(b) in section 32 and section 39
includes a person to whom
paragraph (a) applies, if that
person's entitlements under a
residence contract have not yet
been paid;';
(e) in the definition of "residence documents"—
(i) for paragraph (f) substitute—
"(f) a list, in the prescribed form, of
important information that a
person should consider before
deciding to become a resident in a
retirement village;";
(ii) at the end of the definition insert—
"(h) any other document that is
prescribed for the purposes of this
definition;";
s. 3
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(f) in the definition of "residence right", after
"or other services provided for a retirement
village" insert "(not being a service provided
in a residential care facility)";
(g) in paragraph (a) of the definition of
"retirement village", after "accommodation
and services" insert "other than services that
are provided in a residential care facility";
(h) in the definition of "retirement village land",
after "a retirement village" insert ", other
than any part of any such land on which a
residential care facility is situated";
(i) for the definition of "retirement village
notice" substitute—
' "retirement village notice" means a notice
lodged with the Registrar of Titles
under section 9(1);'.
4. Retirement village notice
In section 9 of the Retirement Villages Act
1986—
(a) in sub-section (1), for "retirement village
notice" substitute "notice";
(b) in sub-section (3)—
(i) for "A retirement village notice"
substitute "A notice under sub-
section (1)";
(ii) for paragraph (a) substitute—
"(a) must contain the prescribed
information;".
s. 4
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5. Substitution of section 19
For section 19 of the Retirement Villages Act
1986 substitute—
"19. Resident to be given certain documents
(1) At least 21 days before a resident enters into
any residence contract, the owner or the
owner's agent must give a copy of the
contract to the resident.
Penalty: 200 penalty units.
(2) At least 21 days before a resident enters into
any management contract with the manager
of a retirement village, the manager must
give to the resident the following
documents—
(a) a copy of the management contract;
(b) the disclosure statement;
(c) the by-laws of the village;
(d) all other documents referred to in the
definition of residence documents.
Penalty: 200 penalty units.".
6. Requirements as to information given to residents
(1) In section 20(2) of the Retirement Villages Act
1986, for "a question in Part 2 of the check list"
substitute "a question in the document described
in paragraph (f) of the definition of residence
documents".
(2) In section 20(5) of the Retirement Villages Act
1986, after "sections 21" insert ", 21A".
s. 5
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7. Insertion of new sections 21A and 21B
After section 21 of the Retirement Villages Act
1986 insert—
"21A. Offence not to use a contract that complies
with the regulations
An owner must not enter into a contract with
a resident, which is required by the
regulations to comply with the regulations,
unless the contract so complies.
Penalty: 60 penalty units.
21B. Further matters relating to contracts
(1) If a matter is required by the regulations to
be excluded from a particular class of
contract and a contract of that class is
entered into that includes such a matter, that
contract is void to the extent of that matter.
(2) If a term is required by the regulations to be
in a class of contract, that term is deemed to
be in any contract of that class that is entered
into.
(3) If a contract that is of a particular class is
required by the regulations to be in a
prescribed form and a contract of that class is
entered into that is not in the prescribed
form, the contract is not enforceable against
a resident who has entered into it to the
extent that it is not in the prescribed form.
(4) If a contract is of a class to which the
regulations apply and the contract is varied
and the effect of the variation is such that the
contract does not comply with the
regulations, the contract is not enforceable
against a resident who has entered into it to
the extent of that variation.".
s. 7
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8. Application of section 26
For section 26(2) of the Retirement Villages Act
1986 substitute—
"(2) If there is included in a statement mentioned
in sub-section (1)(a) or (1)(b) a condition
which must be fulfilled before an amount
becomes refundable under sub-section (1),
the condition is deemed to be void unless the
condition is—
(a) in the case of a resident who is an
owner resident, in or to the effect that
the resident or the resident's legal
personal representative becomes
entitled to recover the amount—
(i) on a day not more than 14 days
after the day on which the
purchase of the premises from the
owner resident is completed; or
(ii) if a person takes up residence in
the premises in accordance with
the contract for the purchase of the
premises from the owner resident
before the purchase is completed,
on a day not more than 14 days
after the day on which the person
so takes up residence; or
(b) in the case of a resident who is a non-
owner resident, in or to the effect that
the resident or the resident's legal
personal representative is only entitled
to recover the amount—
(i) if payment is made by another
person under a residence contract
in respect of the premises of the
non-owner resident, that is the
equivalent of the amount owed to
s. 8
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the non-owner resident after the
non-owner resident has delivered
up vacant possession of the
premises, on a day not more than
14 days after the day on which the
payment is so made; or
(ii) on a day not more than 14 days
after the day on which another
person takes up residence in the
premises of the non-owner
resident after the non-owner
resident has delivered up vacant
possession of the premises; or
(iii) on a day which is not more than
6 months after the non-owner
resident has delivered up vacant
possession—
whichever is the earlier; or
(c) the condition is in accordance with the
regulations.".
9. Extinguishment of part of charge as to part of land
(1) In section 32(1) of the Retirement Villages Act
1986—
(a) in paragraph (c), for "this section."
substitute "this section; or";
(b) after paragraph (c) insert—
"(d) in accordance with section 47.".
(2) In section 32(2) of the Retirement Villages Act
1986, after "is extinguished" insert "whether as to
the whole or as to a part of the land that is the
subject of the charge".
s. 9
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(3) In section 32(3) of the Retirement Villages Act
1986—
(a) in paragraph (b)(i) for "retirement village
land" substitute "land to which the
application relates";
(b) in paragraph (c), for "(b)." substitute "(b);";
(c) after paragraph (c) insert—
"(d) if so required by the Director, must
include any information that is
reasonably necessary to establish the
boundaries of the land to which the
application relates and the use to which
that land is put.".
(4) In section 32(6)(a) of the Retirement Villages
Act 1986, for "the land charged" substitute "the
land to which the application relates".
(5) For section 32(7) of the Retirement Villages Act
1986 substitute—
"(7) If, in respect of land charged under this Part
there is produced to the Registrar of Titles—
(a) a copy of the Government Gazette in
which the Director has published a
declaration that the charge is
extinguished (to the extent that it
applies to the land that is the subject of
an application under sub-section (2)
that has been granted), the Registrar
may—
(i) delete any recordings of the
charge (to the extent that the
recordings apply to the land that is
the subject of an application that
has been granted) from the
Register; or
s. 9
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(ii) make a recording in the Register
of the extinguishment of the
charge (to the extent that the
recording applies to the land that
is the subject of an application that
has been granted)—
as the case requires; or
(b) an agreement in writing signed by all
the residents whose refundable in-going
contributions are secured by the charge
to the effect that the charge is
extinguished, the Registrar may—
(i) delete any recordings of the
charge from the Register; or
(ii) make a recording in the Register
of the extinguishment of the
charge—
as the case requires; or
(c) a copy of the order of the Supreme
Court to the effect that the charge is
extinguished, the Registrar may—
(i) delete any recordings of the
charge from the Register; or
(ii) make a recording in the Register
of the extinguishment of the
charge—
as the case requires.".
s. 9
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10. Insertion of new Part 5A
After section 32 of the Retirement Villages Act
1986 insert—
'PART 5A—SALE OF PREMISES BY CERTAIN
RESIDENTS
32A. Options
(1) A person who holds an option to purchase
from an owner resident of a retirement
village any premises of that owner resident,
must decide whether or not to exercise the
option, and that person must give the owner
resident written notification of that decision
not more than 28 days after the owner
resident notifies the person, in writing, that
the premises are for sale.
(2) If a person who holds such an option does
not give the notification required by sub-
section (1) within the time required by the
sub-section, the option lapses.
(3) This section has effect despite any term in
the option.
32B. Sale of premises
(1) An owner resident of a retirement village
may—
(a) set the sale price of his or her premises
in the village; and
(b) appoint a selling agent of the owner
resident's choice (who may be the
manager of the village if the manager is
eligible to be appointed).
s. 10
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(2) If the manager of a retirement village is
appointed to act as the agent of an owner
resident of the village in the sale of that
owner resident's premises, the owner resident
may allow (but is not obliged to allow) the
manager to set the sale price of the premises.
(3) Any appointment of the manager of a
retirement village, or a person chosen by the
manager of a retirement village—
(a) to act as the agent of an owner resident
of the village in the sale of the owner
resident's premises; or
(b) as the person who sets the sale price of
any such premises—
being an appointment made as part of the
consideration for the owner resident entering
the village, or otherwise at the manager's
request, is void.
(4) A manager, or a person chosen by a
manager, who is appointed as an agent for
the sale of the premises of an owner resident
under sub-section (1) must, if the owner
resident so requests, provide the owner
resident at the end of each named month
with a report—
(a) detailing the marketing program
(including details of all advertising of
the premises or the village); and
(b) listing all inquiries about the sale; and
(c) 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 manager);
and
s. 10
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(d) providing details (including the asking
price) of all other residential premises
for sale in the village—
during that month.
Penalty: 60 penalty units.
(5) If a person, other than the manager, is
appointed as an agent for the sale of the
premises of an owner resident in a retirement
village, the owner resident must notify the
manager in writing of—
(a) the name and contact details of the
person who is so appointed; and
(b) the asking price for the premises; and
(c) any changes to—
(i) the appointment and contact
details; and
(ii) the asking price for the premises.
Penalty: 60 penalty units.
32C. Manager not to interfere in sale
(1) A manager of a retirement village who is not
appointed as an agent for the sale of the
premises of an owner resident in the village
must not interfere with the sale of the
premises.
Penalty: 60 penalty units
(2) Without limiting sub-section (1), a manager
interferes with the sale of the premises if the
manager interferes with any "For Sale" sign
relating to the premises.
s. 10
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(3) Sub-section (2) does not apply if the sign has
been erected contrary to the village by-laws
or in such a way as to interfere with the
peace, comfort and quiet enjoyment of
another resident of the village.
32D. Costs of sale
An owner resident of a retirement village is
not liable to pay commission on the sale of
his or her premises to the manager of the
village or a person chosen by the manager, if
the premises are sold otherwise than as a
result of the manager (or person) acting as
the agent for the sale of the premises.
32E. Purchaser and manager to enter into
contract
(1) If an owner resident sells his or her premises
in a retirement village, the owner resident
must give the manager sufficient notice of
the proposed sale to enable the manager to
comply with section 19.
Penalty: 60 penalty units.
(2) Any contract for the sale of the premises of
an owner resident in a retirement village is
deemed to include a provision to the effect
that the contract is conditional on the
purchaser entering into a management
contract with the manager 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
owner resident must notify the manager of
the retirement village in writing of that fact.
Penalty: 60 penalty units.
s. 10
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(4) If the manager of the retirement village
decides not to enter into a management
contract with the purchaser, the manager
must, not later than 21 days after being
notified under sub-section (3)—
(a) advise the owner resident of that
decision and of the reasons for it; and
(b) apply to the Tribunal for an order
declaring that the manager is not
obliged to enter into the management
contract.
32F. Application by owner resident to Tribunal
If the manager of the retirement village does
not, within 21 days after being given
notification under section 32E(3), either—
(a) enter into a management contract with
the purchaser; or
(b) apply to the Tribunal under section
32E(4)—
the owner resident may apply to the Tribunal
for an order directing the manager to enter
into a management contract with the
purchaser.
32G. Tribunal's determinations on application
of manager or owner resident
(1) On application under section 32E(4) or 32F,
the Tribunal may determine whether the
decision of the manager not to enter into a
management contract is reasonable in the
circumstances, having regard to—
(a) whether the premises concerned are
suitable for occupation by the purchaser
(or another person the purchaser
intends to allow to live in the premises),
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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 sub-section (1)(b), the
age of the purchaser (or another person
whom 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 sub-
section (1), the Tribunal may make an order
of the kind referred to in section 32E(4) or
32F, as appropriate, regardless of whether
that is the order sought.
(4) An order referred to in section 32F may also,
if the Tribunal considers it appropriate, set
the terms of the management contract to be
entered into, having regard to the
management contracts in force in the village.
(5) If the Tribunal makes the order referred to in
section 32F, the Tribunal may also order the
manager to pay such compensation to the
owner resident or the purchaser (or both) for
delay and inconvenience as it considers just
in the circumstances.'.
11. Repeal of arbitration provision
Section 35 of the Retirement Villages Act 1986
is repealed.
s. 11
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12. Role of residents committee in disputes
(1) In section 36(7) of the Retirement Villages Act
1986, for "an arbitrator" substitute "a mediator".
(2) After section 36(7) of the Retirement Villages
Act 1986 insert—
"(7A) The residents committee must not act as a
mediator in any dispute between residents
when the dispute is being dealt with by the
manager under Division 3 of Part 6A.".
13. Insertion of new section 36A
After section 36 of the Retirement Villages Act
1986 insert—
"36A. Resident's right to act through
representative
Despite any resolution or decision at an
annual meeting or at a meeting of the
residents committee that is to the contrary, a
resident may appoint another person to act in
the place of that person at any annual
meeting or meeting of the residents
committee.".
14. Insertion of new Part heading
After section 37 of the Retirement Villages Act
1986 insert—
"PART 6A—OPERATION AND MANAGEMENT
OF RETIREMENT VILLAGES
Division 1—Maintenance and Other Charges".
15. Maintenance charges
In section 38 of the Retirement Villages Act
1986, the definition of "maintenance charge" is
repealed.
s. 12
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16. Insertion of new sections 38A to 38H and Parts 6B
and 6C
After section 38 of the Retirement Villages Act
1986 insert—
'38A. Charges for personal services
The manager of a retirement village must not
levy a charge for personal services against a
person who has ceased to be a resident of a
retirement village for any period that is
28 days or more after the time at which the
person ceases to be such a resident.
Penalty: 60 penalty units.
38B. Maintenance charges—former non-owner
residents
(1) The liability of a former non-owner resident
of premises in a retirement village for
maintenance charges that arise on or after the
time at which the former non-owner resident
ceased to occupy the premises, ceases on—
(a) the date on which another person enters
into a management contract with the
manager for the premises; or
(b) the date on which a person takes up
residence in the premises with the
consent of the manager; or
(c) the date that is 6 months after the date
on which the former non-owner
resident otherwise delivers up vacant
possession of the premises—
whichever date occurs first, or any earlier
date that the former non-owner resident and
the manager may agree on.
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(2) Sub-section (1) does not apply if the contract
under which the non-owner resident pays
maintenance charges provides for an earlier
cessation of liability for the payment of
maintenance charges.
(3) In this section "former non-owner
resident", in relation to a retirement village,
means a person who was a resident of the
village but who has ceased to be such a
resident.
Division 2—Powers of Attorney and Proxies
38C. Manager not to demand power of attorney
(1) The manager of a retirement village must
not—
(a) require a resident of the retirement
village to give the manager a power of
attorney in favour of the manager; or
(b) accept a power of attorney given in
favour of the manager by a resident of
the retirement village.
Penalty: 60 penalty units.
(2) The manager of a retirement village must not
require a resident of the retirement village to
give a power of attorney in favour of—
(a) a close associate of the manager; or
(b) a person nominated by the manager.
Penalty: 60 penalty units
(3) A person who—
(a) is a close associate of the manager of a
retirement village; or
s. 16
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(b) is nominated by a manager of a
retirement village to accept a power of
attorney from a resident of the
village—
must not accept a power of attorney given in
favour of that person by a resident of the
retirement village.
Penalty: 60 penalty units.
(4) A power of attorney given in favour of a
manager of a retirement village (or a close
associate of the manager or a person
nominated by the manager) by a resident of
the retirement village is void.
(5) Sub-sections (1)(b), (3) and (4) do not apply
if the resident who gives the power of
attorney is a relative of the manager, close
associate or nominated person (as the case
requires).
(6) This section does not apply to any power of
attorney that is of a prescribed class of
powers of attorney.
(7) This section has effect despite any term of
the power of attorney.
38D. Manager not to demand appointment as
proxy
(1) The manager of a retirement village must
not—
(a) require a resident of the retirement
village to appoint the manager as the
proxy of the resident; or
(b) accept an appointment to act as the
proxy of a resident of the retirement
village.
Penalty: 60 penalty units.
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(2) The manager of a retirement village must not
require a resident of the retirement village to
appoint—
(a) a close associate of the manager; or
(b) a person nominated by the manager—
as a proxy of the resident.
Penalty: 60 penalty units.
(3) A person who—
(a) is a close associate of the manager of a
retirement village; or
(b) is nominated by the manager of a
retirement village to be appointed to act
as a proxy of a resident of the
retirement village—
must not accept an appointment to act as a
proxy of a resident of the retirement village.
Penalty: 60 penalty units.
(4) An appointment of the manager of the
retirement village (or a close associate of the
manager or a person nominated by the
manager) as the proxy of a resident of the
retirement village is void.
(5) Sub-sections (1)(b), (3) and (4) do not apply
if the resident of the retirement village who
makes the appointment is a relative of the
manager, the close associate or nominated
person (as the case requires).
(6) This section has effect despite any term of
the proxy.
s. 16
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Division 3—Dispute Mediation
38E. Procedure for dealing with management
complaints
(1) The manager of a retirement village must set
out in a document the procedure to be used
by the manager in addressing management
complaints and must include the following
information in that document—
(a) the name of the person or persons to
whom residents may give notice of
management complaints; and
(b) the times and places at which notice of
management complaints may be given,
which must not unreasonably restrict
the ability of residents to give such
notices; and
(c) the process the manager is to use to
consider management complaints and
advise residents of the outcome of that
consideration, including—
(i) the restrictions on the manager's
powers under sub-section (3); and
(ii) the nature of the manager's
obligation under sub-section (4);
and
(d) the fact that residents may seek advice
on management complaints from the
Director or from the body managed by
the Director, the name of the body
managed by the Director from which
advice may be sought and the public
contact telephone number and postal
address of that body.
Penalty: 60 penalty units.
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(2) The manager of a retirement village must
establish and maintain the procedure for
dealing with management complaints that
is set out in the document under sub-
section (1).
Penalty: 60 penalty units.
(3) The manager of a retirement village must not
set out in a document under sub-section (1)
or establish or maintain a procedure—
(a) that enables the manager to take any
action that is—
(i) without the consent of the person
making the management
complaint; or
(ii) duplicates, is inconsistent with or
overrides any other law; or
(iii) duplicates, is inconsistent with or
overrides the provisions of any
contract between the person
making the management
complaint and the manager; or
(b) that requires notification of a
management complaint to be in writing;
or
(c) that enables a management complaint
to be dealt with at the same time as the
complaint is being dealt with by the
residents committee; or
(d) that prevents a resident who has made a
management complaint from being
represented by another person when
dealing with the management
complaint.
s. 16
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(4) If, within 72 hours of being given notice of a
management complaint, the manager is
unable to resolve the complaint, the manager
must create and maintain a written record of
the complaint in accordance with the
regulations.
Penalty: 60 penalty units.
(5) The manager of a retirement village must not
take any action that might reasonably be
regarded as—
(a) deterring a person from making a
management complaint; or
(b) causing detriment to a resident because
that resident or another resident has
made or proposes to make a
management complaint.
Penalty: 60 penalty units.
38F. Procedure for dealing with resident
disputes
(1) The manager of a retirement village must set
out in a document the procedure to be used
by the manager in mediating resident
disputes and must include the following
information in that document—
(a) the name of the person or persons to
whom residents may give notice of
resident disputes; and
(b) the times and places at which notice of
resident disputes may be given, which
must not unreasonably restrict the
ability of residents to give such notices;
and
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(c) the process the manager is to use to
mediate resident disputes and advise
residents of the outcome of that
mediation, including—
(i) the restrictions on the manager's
powers under sub-section (3); and
(ii) the nature of the manager's
obligation under sub-section (4);
and
(d) the fact that residents may seek advice
from the Director on resident disputes
or from the body managed by the
Director, the name of the body
managed by the Director from which
advice may be sought and the public
contact telephone number and postal
address of that body.
Penalty: 60 penalty units.
(2) The manager of a retirement village must
establish and maintain the procedure for
dealing with resident disputes that is set out
in the document under sub-section (1).
Penalty: 60 penalty units.
(3) The manager of a retirement village must not
set out in a document under sub-section (1)
or establish or maintain a procedure—
(a) that enables the manager to take any
action that is—
(i) without the consent of a party to a
resident dispute; or
(ii) duplicates, is inconsistent with or
overrides any other law; or
s. 16
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(iii) duplicates, is inconsistent with or
overrides the provisions of any
contract between a party to the
resident dispute and the manager;
or
(b) that requires notification of a resident
dispute to be in writing; or
(c) that enables a resident dispute to be
dealt with at the same time as the
dispute is being dealt with by the
residents committee; or
(d) that prevents a resident who is a party
to a resident dispute from being
represented by another person when
dealing with the dispute.
(4) If, within 72 hours of being given notice of a
resident dispute, the manager is unable to
resolve the dispute, the manager must create
and maintain a written record of the dispute
in accordance with the regulations.
Penalty: 60 penalty units.
(5) The manager of a retirement village must not
take any action that might reasonably be
regarded as—
(a) deterring a person from giving notice of
a resident dispute; or
(b) causing detriment to a resident because
that resident or another resident has
given or proposes to give notice of a
resident dispute.
Penalty: 60 penalty units.
s. 16
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38G. Residents to be informed of complaints
and disputes mechanisms
The manager of a retirement village must
ensure that all residents are—
(a) informed of the matters contained in the
documents required under sections 38E
and 38F; and
(b) ensure that copies of the documents
required under sections 38E and 38F
are readily available to all residents.
Penalty: 60 penalty units.
38H. Recording and reporting requirements
(1) The manager of a retirement village must
keep a record of all management complaints
made and resident disputes of which notice
has been given in the retirement village,
including records of any outcome reached
and the action, if any, taken in relation to
each complaint and dispute.
Penalty: 60 penalty units.
(2) The manager of a retirement village must, at
the annual meeting of the residents of the
village, without identifying the parties to a
management complaint or resident dispute,
present a report on—
(a) the number and nature of management
complaints made or resident disputes of
which notice has been given in the
previous year; and
(b) the outcome of each complaint or
dispute, including any action taken to
resolve the complaint or dispute; and
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(c) any changes made or proposed to be
made to address issues arising out of a
complaint or dispute.
Penalty: 60 penalty units.
PART 6B—MATTERS RELATING TO
CESSATION OF OCCUPATION OF PREMISES
38I. Payments to owner residents
(1) A person who is liable to make a payment
to—
(a) a former resident of a retirement village
on the former resident leaving the
retirement village; or
(b) the estate of a former resident on the
resident's death—
being a payment that is consequent on the
former resident so leaving or dying, must
make that payment—
(c) within 14 days after the resident so
leaves or dies; or
(d) if the former resident is not entitled to
recover the amount until the fulfilment
of a condition of a kind to which
section 26(2)(a) or (b) applies, on the
day on which the payment is required
to be made under that condition.
Penalty: 60 penalty units.
s. 16
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(2) At the same time as the payment is made, the
manager of the retirement village must give
the former resident a statement setting out all
amounts payable to the former resident and
all amounts payable by the former resident to
discharge the residence contract and showing
how the amounts were calculated.
Penalty: 60 penalty units.
(3) This section does not apply where the
amount that is entitled to be recovered is
entitled to be recovered in accordance with a
condition of a kind to which section 26(2)(c)
applies.
(4) In this section "former resident", in
relation to a retirement village, means a
person who was a resident of the village but
who has left the village or who has died.
PART 6C—REGISTER OF RETIREMENT
VILLAGES
38J. Obligation to keep register
(1) The Director must keep and maintain a
register in accordance with this Part for the
purpose of enabling members of the public to
have access to information about the
application of this Act to particular
retirement villages.
(2) The Director must record in the register the
following information in respect of each
retirement village of which the Director has
received notice under section 38L—
(a) the name of the retirement village; and
(b) the physical address of the retirement
village; and
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(c) the postal address of the retirement
village; and
(d) if an order for an exemption has been
made in relation to the retirement
village under section 6, particulars of
that order that are sufficient to enable
that order to be identified.
38K. Inspection of the register
A member of the public may inspect the
information recorded in the register under
section 38J(2).
38L. Requirement to notify Director
(1) Immediately on the lodgement of a
retirement village notice under section 9 of
the Act, the manager of the retirement
village must give a notice to the Director that
sets out—
(a) the particulars that are required to
enable the Director to record the
information required under section
38J(2); and
(b) the particulars that are specified in sub-
section (2).
Penalty: 10 penalty units.
(2) For the purposes of sub-section (1)(b), the
particulars are—
(a) the name and address of the manager of
the retirement village; and
(b) any other prescribed particulars.
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(3) The manager of a retirement village must,
within 14 days of any change in any
particular, of which he or she is required to
notify the Director under this Part, notify the
Director of the change in that particular.
Penalty: 10 penalty units.
(4) The manager of a retirement village must,
within 14 days of receiving a request from
the Director—
(a) as to whether or not any change is
required to the particulars specified
under section 38J(2) or sub-section (2),
notify the Director of any change that is
required to the particulars on the
register; or
(b) to confirm that the particulars that are
on the register are correct, notify the
Director—
(i) as to whether or not the particulars
on the register are correct; or
(ii) if the particulars are not correct,
notify the Director of any change
that is required to the particulars.
Penalty: 10 penalty units.'.
17. Cancellation of notices as to part of land
(1) In section 39(1) of the Retirement Villages Act
1986—
(a) in paragraph (b), for "this section."
substitute "this section; or";
(b) after paragraph (b) insert—
"(c) in accordance with section 48.".
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(2) In section 39(2) of the Retirement Villages Act
1986 after "is cancelled" insert "as to the whole or
any part of the land that is the subject of the
notice".
(3) In section 39(3) of the Retirement Villages Act
1986—
(a) in paragraph (b)(i) for "retirement village
land" substitute "land to which the
application relates";
(b) in paragraph (c), for "(b)." substitute "(b);";
(c) after paragraph (c) insert—
"(d) if so required by the Director, must
include any information that is
reasonably necessary to establish the
boundaries of the land to which the
application relates and the use to which
the land is put.".
(4) In section 39(6) of the Retirement Villages Act
1986—
(a) after "is cancelled" insert "to the extent that
it applies to land that is the subject of an
application that has been granted,";
(b) in paragraph (a), for "the land to which the
notice relates" substitute "the land to which
the application relates".
(5) For section 39(7) of the Retirement Villages Act
1986 substitute—
"(7) If there is produced to the Registrar of
Titles—
(a) an agreement signed by all residents to
the effect that a retirement village
notice is cancelled, the Registrar may—
(i) delete any recordings of the notice
from the Register; or
s. 17
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(ii) make a recording in the Register
of the cancellation of the notice—
as the case requires; or
(b) a copy of the Government Gazette in
which the Director has published a
declaration that a retirement village
notice (to the extent that it applies to
land that is the subject of an application
under sub-section (2) that has been
granted) is cancelled, the Registrar
may—
(i) delete any recordings of the notice
(to the extent that the notice
applies to land that is the subject
of the application under sub-
section (2) that has been granted)
from the Register; or
(ii) make a recording in the Register
of the cancellation of the notice
(to the extent that the notice
applies to land that is the subject
of the application under sub-
section (2) that has been
granted)—
as the case requires.".
18. Insertion of new sections 40 to 41A
For sections 40 and 41 of the Retirement
Villages Act 1986 substitute—
"40. Application of Fair Trading Act 1999
(1) Part 10 of the Fair Trading Act 1999
(except sections 120, 121 and 130) extends
and applies (with any necessary
modifications) to this Act as if any reference
in that Part to the Fair Trading Act 1999
were a reference to this Act.
s. 18
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(2) Sections 106HA, 143 and 144 and Division 2
of Part 11 (except sections 151A, 151B,
151C, 153 and 155) of the Fair Trading Act
1999 extend and apply (with any necessary
modifications) to this Act as if any reference
in those provisions to the Fair Trading Act
1999 were a reference to this Act.
(3) For the purposes of sub-section (2),
section 154 of the Fair Trading Act 1999
applies as if a reference to prescribed
proceedings were a reference to—
(a) proceedings for an offence against a
provision of this Act (except an offence
applied by sub-section (1)); or
(b) proceedings on an application for an
injunction under section 149, 149A or
150 of the Fair Trading Act 1999 (as
applied by sub-section (2)) against a
person alleged to have contravened a
provision of this Act (except an offence
applied by sub-section (1)); or
(c) proceedings on an application for an
order under section 158, or for
damages under section 159, of the Fair
Trading Act 1999 (as applied by sub-
section (2)).
41. Who may bring proceedings for offences?
(1) Proceedings for an offence against this Act
or the regulations may only be brought by—
(a) the Director; or
(b) a person authorised by the Director for
the purposes of this section.
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(2) In proceedings for an offence against this
Act or the regulations it must be presumed,
in the absence of evidence to the contrary,
that the person bringing the proceedings was
authorised to bring the proceedings.
(3) Sub-section (1) does not apply to
proceedings for an indictable offence.
41A. Offence to supply false or misleading
information
A person who is required under this Act to
supply any information or particulars to the
Director must not supply any information or
particulars that are false or misleading.
Penalty: 60 penalty units.".
19. Insertion of new section 42A
After section 42 of the Retirement Villages Act
1986 insert—
"42A. Certain contractual provisions relating to
arbitration void
Any provision in a residence contract or a
management contract that provides for a
process of dealing with management
complaints or resident disputes through
arbitration is void.".
20. Further regulation making powers
(1) After section 43(1)(a) of the Retirement Villages
Act 1986 insert—
"(ab) contracts entered into between owners and
residents of retirement villages or managers
and residents of retirement villages,
including—
(i) matters that are or are not to be
included in such contracts; and
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(ii) forms of such contracts, including
methods of setting out the substance of
the contracts, other matters relating to
the setting out and style of the contracts
and the use of words or other symbols
in the contracts;
(ac) payment of amounts to residents who have
left retirement villages or died, including
conditions that may or may not be included
in contracts as to such payments and
offences relating to such payments;".
(2) In section 43(2)(e) of the Retirement Villages
Act 1986, for "5 penalty units" substitute
"20 penalty units".
21. Insertion of new Part 8
After Part 7 of the Retirement Villages Act 1986
insert—
'PART 8—TRANSITIONAL
45. Definitions
In this Part, "2005 Amendment Act" means
the Retirement Villages (Amendment) Act
2005.
46. Transitional provision—residential care
facilities—2005 Amendment Act
Despite the commencement of section 3 of
the 2005 Amendment Act, this Act continues
to apply to any premises that are part of
retirement village land in a retirement
village, being—
(a) a retirement village that is in existence
at the commencement of that section;
and
s. 21
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(b) being premises that fall within the
definition of "residential care
facility"—
as if the premises were not a residential care
facility—
(c) unless at the time of the
commencement of section 3 of that Act
all persons to whom accommodation is
being provided on the premises are
approved as aged care recipients under
Part 2.3 of the Aged Care Act 1997 of
the Commonwealth; or
(d) until such time (if any), after the
commencement of section 3 of that Act,
as all persons to whom accommodation
is being provided on the premises are
approved as aged care recipients under
Part 2.3 of the Aged Care Act 1997 of
the Commonwealth.
47. Transitional provision—Extinguishment
of charge relating to residential care
facilities—2005 Amendment Act
(1) If, within 18 months of the commencement
of section 3 of the 2005 Amendment Act,
premises that were part of a retirement
village, immediately before the
commencement of that section, come to be
taken not to be part of the retirement village,
by virtue of the operation of section 46(c) or
(d), the owner of the land on which the
premises are situated may apply to the
Director for a declaration that the charge, in
so far as it applies to the land on which the
premises are situated, is extinguished.
s. 21
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(2) An application under sub-section (1)—
(a) must be in writing; and
(b) must include a statutory declaration
signed by the owner of the land and
stating that—
(i) the land is no longer used as a
retirement village; and
(ii) the owner has notified all
residents of the premises and all
residents of the retirement village
of which the premises was
formerly a part explaining the
consequences of making the
declaration, in a form approved by
the Director; and
(iii) the owner has no knowledge of
any proceedings by a resident to
obtain payment of a refundable in-
going contribution or to enforce
the charge; and
(c) must include a copy of the notice
given to the residents referred to in
paragraph (b); and
(d) if so required by the Director, must
include any information that is
reasonably necessary to establish the
boundaries of the land to which the
application relates and the use to which
that land is put.
(3) The Director may grant or refuse an
application under this section.
(4) On an application made in accordance with
this section the Director may by instrument
declare that a charge is extinguished in so far
as it applies to the land to which the
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application relates if the Director is satisfied
that the land is no longer a part of land used
as a retirement village.
(5) If in respect of land charged under this Part
there is produced to the Registrar of Titles a
copy of the instrument in which the Director
has made a declaration that the charge is
extinguished, to the extent that it applies to
the land that is the subject of an application
under this section, the Registrar of Titles
may delete any recordings of the charge from
the Register or make a recording in the
Register of the extinguishment of the charge.
48. Transitional provision—Cancellation of
notices relating to residential care
facilities—2005 Amendment Act
(1) If, within 18 months of the commencement
of section 3 of the 2005 Amendment Act,
premises that were part of a retirement
village immediately before the
commencement of that section come to be
taken not to be part of that village, by virtue
of the operation of section 46(c) or (d), the
owner of the land on which the premises are
situated may apply to the Director for a
declaration that the notice, in so far as it
applies to the land on which the premises are
situated, is cancelled.
(2) An application under sub-section (1)—
(a) must be in writing; and
(b) must include a statutory declaration
signed by the owner of the land stating
that—
(i) the land to which the application
relates is no longer used as a
retirement village; and
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(ii) the owner has served on—
(A) all residents and former
residents of the premises;
and
(B) all residents and former
residents of the retirement
village of which the premises
were formerly a part; and
(C) the legal personal
representatives of any former
residents of the premises or
retirement village who have
died while residents of the
village—
notice in writing explaining the
consequences of making the
declaration, in a form approved by
the Director; and
(iii) the owner has no knowledge of
any proceedings by a resident to
obtain payment of a refundable in-
going contribution or to enforce
the charge; and
(c) must include a copy of the notice
given to the residents referred to in
paragraph (b); and
(d) if so required by the Director, must
include any information that is
reasonably necessary to establish the
boundaries of the land to which the
application relates and the use to which
the land is put.
(3) The Director may grant or refuse an
application under this section.
s. 21
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(4) On an application made in accordance with
this section the Director may, by instrument
published in the Government Gazette,
declare that the retirement village notice to
which the application relates is cancelled, in
so far as it applies to the land to which the
application relates, if the Director is satisfied
that—
(a) the land is no longer a part of land used
as a retirement village; and
(b) the owner has served on all residents,
former residents and their legal
personal representatives notice in
accordance with this section.
(5) If there is produced to the Registrar of Titles
a copy of the Government Gazette in which
the Director has published a declaration that
a retirement village notice is cancelled, to the
extent that it applies to the land that is the
subject of an application under this section,
the Registrar of Titles may delete any
recordings of the notice from the Register or
make a recording in the Register of the
cancellation of the notice.
49. Transitional provision—contracts—2005
Amendment Act
Section 21B does not apply to any contract
entered into before the commencement of
section 7 of the 2005 Amendment Act.
50. Transitional provision—appointment of
agents—2005 Amendment Act
Section 32B does not apply to an agent in
respect of whom an engagement is in force,
immediately before the commencement of
section 10 of the 2005 Amendment Act,
under an appointment made by an owner
s. 21
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resident, and that agent may continue to act
under that appointment as if section 32B had
not been enacted.
51. Transitional provision—powers of
attorney—2005 Amendment Act
Division 2 of Part 6A does not apply to any
power of attorney given before the
commencement of section 16 of the 2005
Amendment Act.
52. Transitional provision—payments to
owner residents—2005 Amendment Act
(1) Section 26 (as in force on and from the
commencement of section 16 of the 2005
Amendment Act) and section 38I do not
apply to existing contracts and section 26
(as in force immediately before that
commencement) continues to apply to any
such contract.
(2) A person who is liable, under an existing
contract, to make a payment to—
(a) a former resident of a retirement village
on the former resident leaving the
retirement village; or
(b) the estate of a former resident on the
resident's death—
being a payment that is consequent on the
former resident so leaving or dying, must
make that payment—
(c) within 14 days of the resident so
leaving or dying; or
s. 21
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(d) if the former resident is not entitled to
recover the amount until the fulfilment
of a condition, on the day that is
14 days after the day on which the
payment is required to be made under
that condition.
Penalty: 60 penalty units.
(3) At the same time as the payment is made, the
manager of the retirement village must give
the former resident a statement setting out all
amounts payable to the former resident and
all amounts payable by the former resident to
discharge the residence contract and showing
how the amounts were calculated.
Penalty: 60 penalty units.
(4) In this section—
"existing contract" means a contract
entered into before the commencement
of section 16 of the 2005 Amendment
Act;
"former resident", in relation to a
retirement village, means a person who
was a resident of the village but who
has left the village or who has died.
53. Transitional provision—registration of
retirement villages—2005 Amendment
Act
The manager of a retirement village that is
in existence on the commencement of
section 16 of the 2005 Amendment Act
must, within 21 days of that commencement,
give a notice to the Director that complies
with section 38L(1).
s. 21
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54. Transitional provision—contractual
provisions relating to arbitration—2005
Amendment Act
Section 42A applies to any residence
contract and to any management contract in
force on the commencement of section 19 of
the 2005 Amendment Act.'.
22. Repeal of form of retirement village notice
Schedule 1 to the Retirement Villages Act 1986
is repealed.
23. Repeal of form of disclosure statement
Schedule 2 to the Retirement Villages Act 1986
is repealed.
24. Repeal of form of check list
Schedule 3 to the Retirement Villages Act 1986
is repealed.
═══════════════
s. 22
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49
ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 9 December 2004
Legislative Council: 22 March 2005
The long title for the Bill for this Act was "to amend the Retirement
Villages Act 1986 and for other purposes."
Endnotes
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