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This is a Bill, not an Act. For current law, see the Acts databases.
Retirement Villages Amendment Bill
2008
No , 2008
A Bill for
An Act to amend the Retirement Villages Act 1999 to make further provision with
respect to the rights and obligations of residents and operators of retirement villages;
to establish a scheme for the enforcement of a resident's right to receive payment
under a village contract; and for other purposes.
Clause 1 Retirement Villages Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Retirement Villages Amendment Act 2008. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Amendment of Retirement Villages Act 1999 No 81 6
The Retirement Villages Act 1999 is amended as set out in Schedule 1. 7
4 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 8
No 103 9
The Law Enforcement (Powers and Responsibilities) Act 2002 is 10
amended by inserting, in alphabetical order, in Schedule 2 to that Act: 11
Retirement Villages Act 1999, section 196E 12
5 Repeal of Act 13
(1) This Act is repealed on the day following the day on which all of the 14
provisions of this Act have commenced. 15
(2) The repeal of this Act does not, because of the operation of section 30 16
of the Interpretation Act 1987, affect any amendment made by this Act. 17
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
Schedule 1 Amendments 1
(Section 3) 2
[1] Section 3 Objects of Act 3
Insert at the end of section 3 (e): 4
, and 5
(f) to encourage the retirement village industry to adopt best 6
practice management standards. 7
[2] Section 4 Definitions 8
Insert in alphabetical order in section 4 (1): 9
annual management meeting means the meeting referred to in 10
section 72A. 11
approved annual budget means a budget taken to be an approved 12
annual budget under section 116. 13
capital works fund means a fund established under section 100. 14
Consumer Price Index means the Consumer Price Index (All 15
Groups) for Sydney as published by the Australian Statistician. 16
general inquiry document means a document referred to in 17
section 18 (2). 18
optional services means optional services made available, by or 19
on behalf of the operator, to individual residents of a retirement 20
village, and includes such services as may be prescribed by the 21
regulations for the purposes of this definition. 22
Note. Examples of optional services are the provision of meals, laundry 23
services and the cleaning of the residents' residential premises. 24
proposed annual budget means a proposed annual budget 25
referred to in section 112. 26
Register means: 27
(a) in relation to land under the Real Property Act 1900--the 28
Register kept under that Act, and 29
(b) in relation to any other land--the General Register of 30
Deeds kept under the Conveyancing Act 1919. 31
[3] Section 4 (1), definitions of "capital replacement fund", "maintenance 32
fund", "personal services", "statement of approved expenditure" and 33
"statement of proposed expenditure" 34
Omit the definitions. 35
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
[4] Section 4 (1), definition of "Director-General" 1
Omit the definition. Insert instead: 2
Director-General means: 3
(a) the Commissioner for Fair Trading, Department of 4
Commerce, or 5
(b) if there is no such position in that Department--the 6
Director-General of that Department. 7
[5] Section 4 (1), definition of "disclosure statement" 8
Omit "section 18". Insert instead "section 18 (3A)". 9
[6] Section 4 (1), definition of "former occupant" 10
Omit "owns" from paragraph (b). 11
Insert instead "is a registered interest holder (other than a person referred to in 12
section 7 (1) (c)) in respect of". 13
[7] Section 4 (1), definition of "residential care facility" 14
Omit the definition. Insert instead: 15
residential aged care facility means any residential 16
accommodation for retired people that includes: 17
(a) meals and cleaning services, and 18
(b) personal care or nursing care, or both, and 19
(c) appropriate staffing, furniture, furnishings and equipment 20
for the provision of that accommodation and care. 21
[8] Section 4 (1), definition of "service contract" 22
Omit "personal". Insert instead "optional". 23
[9] Section 5 Meaning of "retirement village" 24
Omit section 5 (3) (e). Insert instead: 25
(e) any residential premises the subject of a residential 26
tenancy agreement to which the NSW Aboriginal Housing 27
Office or the New South Wales Land and Housing 28
Corporation is a party, 29
[10] Section 6 Meaning of "ingoing contribution" 30
Omit section 6 (2) (c). Insert instead: 31
(c) if the resident is the registered proprietor of land, the 32
owner of a lot in a strata scheme or the proprietor of a lot 33
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
in a community land scheme on which the residential 1
premises are located--the purchase price of the land or lot, 2
(c1) if the person is the owner of shares in a company title 3
scheme that give rise to a residence right in respect of the 4
premises--the purchase price of the shares, 5
[11] Sections 7 and 7A 6
Omit section 7. Insert instead: 7
7 Meaning of "registered interest holder" 8
(1) For the purposes of this Act, a person is the registered interest 9
holder with respect to residential premises in a retirement village 10
if: 11
(a) the person is: 12
(i) the registered proprietor of land, or 13
(ii) the owner of a lot in a strata scheme, or 14
(iii) the proprietor of a lot in a community land scheme, 15
within a retirement village and as such has a residence 16
right in respect of residential premises within the 17
retirement village, or 18
(b) the person is the owner of shares in a company title scheme 19
that give rise to a residence right in respect of residential 20
premises within a retirement village, or 21
(c) the person's residence contract is in the form of a 22
registered long-term lease that includes a provision that 23
entitles the person to at least 50% of any capital gain. 24
(2) In this section: 25
registered long-term lease means a lease registered under the 26
Real Property Act 1900 that: 27
(a) has a term of at least 50 years (including any option to 28
renew), or 29
(b) is for the life of the lessee. 30
7A Meaning of "capital gain" 31
(1) In this Act, capital gain, in relation to a resident's entitlement 32
under a residence contract or the sharing of a capital gain under a 33
village contract between the operator and a resident, means any 34
increase between the amount that the resident paid for the 35
residence right for the relevant premises and the amount that the 36
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
next resident pays for a residence right for the same premises, 1
less any costs associated with the subsequent sale or lease of the 2
premises. 3
(2) Fees and charges payable under a village contract are not to be 4
included in the calculation of the capital gain. 5
[12] Section 8 "Permanent vacation" of residential premises 6
Omit section 8 (d). Insert instead: 7
(d) if the person is a registered interest holder in relation to 8
residential premises or is taken to be a resident of the 9
premises by the operation of section 4 (2)--the person dies 10
or moves out of the premises. 11
[13] Section 15 Approvals for certain facilities 12
Insert "aged" after "residential" wherever occurring. 13
[14] Section 16 Exceptions to prohibitions on advertising 14
Insert "aged" after "residential" in section 16 (b) and (c), wherever occurring. 15
[15] Section 17 Representations about retirement villages 16
Insert after section 17 (5): 17
(5A) The operator of a retirement village must not publish or distribute 18
written promotional material that makes a representation in 19
relation to the retirement village of a kind prescribed by the 20
regulations. 21
Maximum penalty: 50 penalty units. 22
[16] Section 18 General inquiry document and disclosure statement 23
concerning retirement village 24
Omit section 18 (1)-(3). Insert instead: 25
(1) The operator of a retirement village must provide a person with a 26
general inquiry document within 14 days after becoming aware 27
that the person is a prospective resident or is acting on behalf of 28
a prospective resident. 29
(2) A general inquiry document is to give a basic explanation of the 30
residential premises, services and facilities that are available 31
within a retirement village, and must: 32
(a) be in the form prescribed by the regulations, and 33
(b) contain the information prescribed by the regulations. 34
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
(3) The operator of a retirement village must provide a disclosure 1
statement to a prospective resident, or person acting on behalf of 2
a prospective resident, who: 3
(a) requests a copy, or 4
(b) expresses an interest in particular premises within the 5
retirement village, 6
within 14 days after the request is received or the expression of 7
interest is made. 8
Maximum penalty: 20 penalty units. 9
(3A) A disclosure statement is to give specific details of particular 10
residential premises in a retirement village (including details of 11
the fees and charges that will be payable by the resident of the 12
premises) and must: 13
(a) be in the form prescribed by the regulations, and 14
(b) contain the information prescribed by the regulations, and 15
(c) be signed and dated by the operator of the retirement 16
village. 17
(3B) The regulations may prescribe different forms for, or information 18
to be contained in, general inquiry documents or disclosure 19
statements in respect of different classes of general inquiry 20
documents or disclosure statements or different circumstances in 21
which they are provided. 22
[17] Section 18 (4) 23
Insert "disclosure" before "statement" wherever occurring. 24
[18] Section 18 (6) 25
Omit the subsection. Insert instead: 26
(6) If the operator of a retirement village fails to provide a general 27
inquiry document or disclosure statement in accordance with this 28
section, the prospective resident, or person acting on behalf of the 29
prospective resident, to whom the document or statement should 30
have been provided may apply to the Tribunal for (and the 31
Tribunal may make) an order requiring the operator to provide 32
the general inquiry document or disclosure statement. 33
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
[19] Section 19 1
Omit the section. Insert instead: 2
19 Information to be provided to residents 3
(1) The Director-General may, by notice in writing to the operator of 4
a retirement village, require the operator of the retirement village 5
to provide specified information to the residents of the retirement 6
village or to a prospective resident of the retirement village. 7
(2) An operator of a retirement village must not, without reasonable 8
excuse, fail to provide information in accordance with any such 9
notice. 10
Maximum penalty: 10 penalty units. 11
(3) Without limiting subsection (1), a notice may require the operator 12
of a retirement village to provide information relating to any of 13
the following: 14
(a) the retirement village industry generally, 15
(b) the rights and responsibilities of residents of retirement 16
villages, 17
(c) living within a strata scheme. 18
[20] Section 20 Copies of certain documents to be available 19
Omit "statements of proposed expenditure and the statements of approved 20
expenditure" from section 20 (1) (c). 21
Insert instead "proposed annual budgets (if any) and the approved annual 22
budgets". 23
[21] Section 20 (1) (c) (iii) 24
Omit "statements". Insert instead "budgets". 25
[22] Section 20 (1) (d) 26
Omit "as referred to in". Insert instead "if so required under". 27
[23] Section 20 (1) (i) 28
Omit "capital replacement fund or a maintenance fund". 29
Insert instead "capital works fund". 30
[24] Section 20 (1) (i) 31
Omit "balances". Insert instead "balance". 32
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
[25] Section 20 (1) (j) 1
Insert "if the operator is required to provide the residents with quarterly 2
accounts--" before "the most". 3
[26] Section 23 Deposits to be kept in trust 4
Omit section 23 (1). 5
[27] Section 23 (3A) 6
Insert after section 23 (3): 7
(3A) Subsection (3) does not apply to or in respect of money held by 8
an operator of a retirement village if the operator is: 9
(a) a body constituted or established by an Act, or 10
(b) a body constituted or established for any benevolent, 11
philanthropic or patriotic purpose. 12
[28] Section 23 (4) (a) 13
Insert "or ingoing contribution" after "deposit". 14
[29] Part 5, Division 1, heading 15
Insert before section 24: 16
Division 1 General 17
[30] Section 24 Resident to enter village contract 18
Insert "in writing" after "with the operator" in section 24 (1). 19
[31] Section 24 (4) 20
Insert after section 24 (3): 21
(4) If a refund, in whole or in part, is not made to a former occupant 22
within the period required by subsection (3) (b): 23
(a) the former occupant may apply to the Tribunal for (and the 24
Tribunal may make) an order directing the operator to 25
make the payment, and 26
(b) interest is payable, at the rate prescribed by the regulations, 27
on and from the date that the refund becomes overdue. 28
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
[32] Section 24A 1
Insert after section 24: 2
24A Retirement village land to be recorded on Register 3
(1) The operator of a retirement village must, in accordance with this 4
section, notify the Registrar-General in writing that the land 5
comprising the retirement village (or land that is part of the 6
retirement village) is used as a retirement village. 7
Maximum penalty: 100 penalty units. 8
(2) Any such notice is to be provided: 9
(a) in the case of land that, immediately before the 10
commencement of this section, was used as a retirement 11
village--within 3 months after the commencement of this 12
section, or 13
(b) in any other case--before entering into a residence 14
contract with respect to residential premises on that land. 15
(3) Nothing in this section requires the operator of a retirement 16
village to notify the Registrar-General before entering into a 17
residence contract regarding residential premises on land that is 18
already the subject of a recording under this section. 19
(4) Form of notice for recording 20
The notice referred to in subsection (1) must be: 21
(a) in the form approved by the Registrar-General, and 22
(b) in the case of a notice relating to land under the Real 23
Property Act 1900--accompanied by the fee prescribed 24
under that Act, and 25
(c) in the case of a notice relating to land not under the Real 26
Property Act 1900--accompanied by the fee prescribed 27
under the Conveyancing Act 1919. 28
(5) Registrar-General to record retirement village on Register 29
On receipt of a notice under subsection (1), the Registrar-General 30
is to make a recording on the relevant Register indicating that the 31
land to which the notice relates comprises, or is part of, a 32
retirement village. 33
(6) Operator to notify of recording being made 34
As soon as practicable after the Registrar-General makes a 35
recording under this section, the operator of the retirement village 36
is to notify, in writing: 37
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
(a) the holder of any other registered interest in the land to 1
which the recording relates, and 2
(b) the Residents Committee (if any) of the retirement village, 3
that the recording has been made. The operator must also, when 4
notifying a person referred to in paragraph (a), include a 5
statement in the form approved by the Director-General that sets 6
out the effect of Part 10A. 7
(7) Operator to notify Registrar-General of certain changes 8
The operator of a retirement village must notify the 9
Registrar-General if any of the information contained in a notice 10
lodged under subsection (1) ceases to be accurate by submitting 11
a new notice under that subsection. 12
(8) Use of recording on Register 13
Information that is recorded under this section may be used to 14
establish a list of retirement villages. 15
(9) Application to remove recording 16
A person may apply in writing to the Registrar-General for the 17
removal of a recording made under this section. 18
(10) Form of application for removal of recording 19
The application referred to in subsection (9) must be: 20
(a) in the form approved by the Registrar-General, and 21
(b) in the case of an application relating to land under the Real 22
Property Act 1900--accompanied by the fee prescribed 23
under that Act, and 24
(c) in the case of an application relating to land not under the 25
Real Property Act 1900--accompanied by the fee 26
prescribed under the Conveyancing Act 1919. 27
(11) Registrar-General may remove recording 28
If the Registrar-General receives an application referred to in 29
subsection (9), the Registrar-General may, if satisfied that: 30
(a) there are no residential premises located on the land to 31
which the recording relates that are the subject of a village 32
contract, and 33
(b) there are no amounts outstanding that are payable under a 34
village contract relating to residential premises located on 35
the land to which the recording relates, 36
remove the recording to which the application relates. 37
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
[33] Section 29 Variation or replacement of village contracts 1
Insert after section 29 (1): 2
(1A) An operator must not purport: 3
(a) to vary a village contract, or 4
(b) to terminate a village contract and enter into a new village 5
contract in relation to the same residential premises, 6
unless the resident who is a party to the contract has obtained a 7
certificate in accordance with this section. 8
Maximum penalty: 100 penalty units. 9
[34] Section 38 Condition report for certain residential premises 10
Insert after section 38 (2): 11
(2A) Without limiting subsection (2), the regulations may make 12
provision for, or with respect to, the following: 13
(a) the time within which the condition report must be 14
completed, 15
(b) the time within which the condition report must be 16
provided to a prospective resident. 17
[35] Section 38 (5) (b) 18
Omit the paragraph. Insert instead: 19
(b) the prospective resident is, or will be, a registered interest 20
holder in respect of the residential premises that the 21
prospective resident intends to occupy. 22
[36] Section 41A 23
Insert after section 41: 24
41A Renovations and alteration of fixtures or fittings 25
(1) A resident of a retirement village may: 26
(a) add, remove or alter any fixtures or fittings on or within the 27
resident's residential premises, or 28
(b) make renovations to the resident's residential premises, 29
but only with the written consent of the operator of the retirement 30
village. 31
(2) The consent of the operator may be subject to such reasonable 32
conditions as the operator may include in, or attach to, the written 33
consent. 34
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
(3) Without limiting subsection (2), the operator may consent to any 1
addition, removal or alteration of fixtures or fittings, or to any 2
renovations, referred to in subsection (1) subject to the condition 3
that, on the termination of the resident's village contract, the 4
premises will be returned to the same condition as they were in 5
immediately before the consent was given. 6
(4) The operator of a retirement village must not unreasonably 7
withhold consent to any addition, removal or alteration of any 8
fixtures or fittings, or to any renovations, referred to in 9
subsection (1). 10
(5) A resident of a retirement village may apply to the Tribunal for 11
(and the Tribunal may make) an order: 12
(a) permitting the addition, removal or alteration of specified 13
fixtures or fittings on or within the resident's residential 14
premises, or 15
(b) permitting the making of specified renovations to the 16
resident's residential premises, or 17
(c) varying the conditions to which the operator's consent is 18
subject. 19
(6) If the Tribunal is satisfied that the operator of the retirement 20
village has unreasonably withheld consent under this section, or 21
that the conditions to which such consent is subject are 22
unreasonable in the circumstances, the Tribunal may make the 23
order sought and the operator is taken to have given consent in 24
accordance with the terms of the order. 25
(7) Despite subsection (1), the consent of the operator of the 26
retirement village is not required: 27
(a) to remove or alter any fixtures or fittings that were added 28
by a resident (including fixtures or fittings that were added 29
before the commencement of this section) unless the 30
removal or alteration of the fixtures or fittings is likely to 31
cause significant damage to the residential premises, or 32
(b) to make renovations, or to add, remove or alter any fixtures 33
or fittings, prescribed by the regulations for the purposes of 34
this section. 35
(8) Nothing in this section authorises a person to add, remove or alter 36
any fixtures or fittings in, or renovate any residential premises 37
within, a retirement village if consent to do so is required under 38
any Act and the consent has not been obtained. 39
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(9) Without limiting subsection (8), nothing in this section authorises 1
a person to carry out development (within the meaning of the 2
Environmental Planning and Assessment Act 1979) in 3
contravention of that Act. 4
[37] Section 43 Standard form of village contract 5
Insert after section 43 (7): 6
(8) A village contract that provides for the payment of an ingoing 7
contribution may also provide: 8
(a) that any such contribution is to be paid by way of 9
instalments at such intervals as may be specified in the 10
contract, and 11
(b) if any such contribution is to be paid by instalments, for 12
interest on the unpaid portion of any such contribution to 13
be payable, as calculated at the rate prescribed by the 14
regulations. 15
[38] Part 5, Division 2 16
Insert after section 44: 17
Division 2 Settling-in period for residents 18
44A Termination of village contract during settling-in period 19
(1) A resident of a retirement village may terminate a village contract 20
to which the resident is a party: 21
(a) by permanently vacating the residential premises within 22
the village, or 23
(b) in the case of a contract other than a residence contract-- 24
by notice in writing to the operator of the retirement village 25
indicating an intention to terminate the contract, 26
before the end of the settling-in period. 27
(2) For the purposes of this Division, the end of the settling-in 28
period means the later of: 29
(a) the day that is 90 days after the date on which the resident 30
is entitled to occupy the residential premises concerned 31
under the residence contract for the premises, or 32
(b) if the resident occupies the premises before the day 33
specified in paragraph (a), the day that is 90 days after the 34
resident first occupies the residential premises, or 35
(c) such date as may be agreed to by the operator and the 36
resident. 37
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
(3) Nothing in this section requires a resident to occupy the 1
residential premises before terminating a village contract under 2
this section. 3
(4) The termination of a village contract in accordance with this 4
Division is not to be regarded as a breach of contract or otherwise 5
as a civil wrong. 6
44B Liability of former occupant if village contract terminated during 7
settling-in period 8
(1) If a village contract is terminated in accordance with this 9
Division, the former occupant is only liable to pay: 10
(a) fair market rent for the period (if any) that the former 11
occupant occupied the residential premises under the 12
contract, and 13
(b) in the case of a village contract that is a residence contract, 14
the cost of any repairs for damage to the residential 15
premises in excess of fair wear and tear, and 16
(c) a reasonable administration fee, and 17
(d) such other amount as may be prescribed by the regulations. 18
(2) Despite subsection (1), if the former occupant has not occupied 19
the residential premises prior to terminating a village contract in 20
accordance with this Division, the occupant is only liable to pay 21
the cost of any repairs for damage to the residential premises in 22
excess of fair wear and tear and a reasonable administration fee. 23
(3) The amount that the former occupant is liable to pay under this 24
section may be offset against any amounts that are to be refunded 25
to the former occupant under section 44C. 26
(4) An administration fee referred to in this section must not exceed 27
the amount prescribed by the regulations. 28
44C Operator to refund certain payments made by resident 29
If a village contract is terminated in accordance with this 30
Division, the operator of the retirement village is to refund or pay 31
to the former occupant: 32
(a) in the case of a former occupant who is a registered interest 33
holder (other than a person referred to in section 34
7 (1) (c))--the proceeds from the sale of the residential 35
premises to which the resident is entitled under the village 36
contract, and 37
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(b) in the case of any other former occupant--any ingoing 1
contribution paid to the operator under the village contract, 2
and 3
(c) any recurrent charges paid to the operator under the village 4
contract, and 5
(d) such other amounts as may be prescribed by the 6
regulations. 7
44D Time for making of payments 8
(1) Except as provided by subsection (2), a refund or payment under 9
this Division is to be made within 14 days after the termination of 10
the village contract or within such other period as the Tribunal 11
may order. 12
(2) A payment referred to in section 44C (a) or (b) that is to be made 13
to a former occupant who was a registered interest holder is to be 14
made within the period after the termination that is the same 15
period as that required for a payment under section 180 (2) to a 16
former occupant following the sale of premises. 17
(3) If a payment that is required to be made under this Division is not 18
paid within the time required by this section, the operator or 19
former occupant may apply to the Tribunal for (and the Tribunal 20
may make) an order requiring the amount to be paid within a 21
specified time. 22
(4) If the operator of a retirement village and a former occupant are 23
unable to agree on an amount required to be paid under this 24
Division, the operator or former occupant may apply to the 25
Tribunal for (and the Tribunal may make) an order with respect 26
to: 27
(a) the amount of fair market rent (if any) required to be paid 28
under section 44B (1) (a), or 29
(b) what damage (if any) to the residential premises is in 30
excess of fair wear and tear, and the amount (if any) 31
required to be paid under section 44B (1) (b), or 32
(c) the reasonable administration fee (if any) required to be 33
paid under section 44B (1) (c). 34
(5) The Tribunal may consider, but is not bound by, the rent (if any) 35
specified in the village contract when determining the fair market 36
rent for the purposes of making an order under subsection (4) (a). 37
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
(6) The Tribunal may consider, but is not bound by, the 1
administration fee (if any) specified in the village contract when 2
determining a reasonable administration fee for the purposes of 3
making an order under subsection (4) (c). 4
44E Former occupant not required to pay certain amounts 5
If a village contract is terminated in accordance with this 6
Division, the former occupant is not required to pay any of the 7
following amounts that would, but for this section, be payable by 8
the former occupant under that contract: 9
(a) any recurrent charges, 10
(b) any departure fee, 11
(c) the cost of refurbishment within the meaning of Division 4 12
of Part 10, 13
(d) the costs of sale or letting of the premises, 14
(e) any amount specified in the village contract as being 15
payable for terminating the contract during the settling-in 16
period, 17
(f) any amount prescribed by the regulations for the purposes 18
of this section. 19
[39] Section 51 Amendment of village rules 20
Insert after section 51 (3): 21
(3A) The operator of a retirement village is to notify the residents of 22
the village of the outcome of any vote taken to obtain the consent 23
of the residents of the retirement village under this section within 24
7 days after the operator of the retirement village becomes aware 25
of the outcome of the vote. 26
[40] Section 51 (4) (b) 27
Omit "statement of approved expenditure". 28
Insert instead "approved annual budget (if any)". 29
[41] Section 53 Operator's concern that amendment will impose additional 30
cost 31
Omit "statement of approved expenditure" from section 53 (1) (including the 32
note), (3) and (4), wherever occurring. 33
Insert instead "approved annual budget". 34
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
[42] Section 53 (1), note 1
Omit "annual statements of proposed and approved expenditure". 2
Insert instead "proposed and approved annual budgets". 3
[43] Section 53 (6) 4
Insert after section 53 (5): 5
(6) This section does not apply in respect of a retirement village 6
where the residents have consented under section 112 (7) to not 7
being supplied with a proposed annual budget. 8
[44] Section 58A 9
Insert after section 58: 10
58A Operator to provide safe premises 11
(1) The operator of a retirement village must ensure that the village 12
generally is reasonably safe. 13
(2) In particular, the operator must: 14
(a) prepare written safety and emergency procedures, and 15
(b) take reasonable steps to ensure that all residents and staff 16
are familiar with such procedures, and 17
(c) undertake a safety inspection at least once each year, and 18
make a safety inspection report on the findings of any such 19
inspection, and 20
(d) make a copy of the inspection report available to the 21
Residents Committee for the retirement village (if any) and 22
place a copy of the report on the notice board in a 23
communal area within the retirement village, and 24
(e) take such other action as the regulations may require to 25
ensure that the village generally is reasonably safe. 26
(3) Without limiting subsection (2) (e), the regulations may make 27
provision for, or with respect to, the following: 28
(a) the form of the written safety and emergency procedures, 29
(b) the conduct of safety inspections required under 30
subsection (2) (c), 31
(c) the manner and form of such a safety inspection report, 32
(d) the period that the safety inspection report is to remain on 33
the notice board as referred to in subsection (2) (d). 34
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(4) Any resident who believes in good faith that the retirement 1
village is not reasonably safe may apply to the Tribunal for (and 2
the Tribunal may make) any of the following: 3
(a) an order directing the operator to comply with subsection 4
(1) or (2), 5
(b) any other order referred to in section 128 (1). 6
[45] Section 59 Operator to provide village emergency system on request 7
Omit "statement of proposed expenditure" from section 59 (2). 8
Insert instead "proposed annual budget". 9
[46] Section 59A 10
Insert after section 59: 11
59A Operator to provide emergency and home care service vehicles 12
access to retirement village 13
The operator of a retirement village must take all reasonable steps 14
to ensure that: 15
(a) emergency and home care service personnel have 16
unimpeded vehicular access to the residential premises in 17
the village at all times, both by day and by night, and 18
(b) the residents of the village, and local emergency and home 19
care service agencies, are consulted and kept informed 20
about any arrangements made to secure that access. 21
Maximum penalty: 20 penalty units. 22
[47] Section 60 Variation in services or facilities provided at village 23
Omit "statement of approved expenditure" from section 60 (7), wherever 24
occurring. 25
Insert instead "approved annual budget". 26
[48] Section 65 Operator not to demand appointment as proxy 27
Omit the section. 28
[49] Section 67 Restriction of operator's access to residential premises 29
Insert at the end of section 67 (1): 30
Maximum penalty: 20 penalty units. 31
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Schedule 1 Amendments
[50] Section 67 (2) (e) (i) 1
Omit the subparagraph. Insert instead: 2
(i) the resident is not a registered interest holder with 3
respect to the premises, and 4
[51] Section 70 Residents Committees and organisations 5
Omit "statement of approved expenditure" from section 70 (7). 6
Insert instead "approved annual budget". 7
[52] Section 70A 8
Insert after section 70: 9
70A Membership of Residents Committee 10
(1) A person must not hold the same office, or hold an office 11
performing the same (or substantially the same) functions, on the 12
Residents Committee of a retirement village for more than 13
3 consecutive years, except as provided by the regulations. 14
(2) The election of a person to an office in contravention of 15
subsection (1) is void. 16
(3) Any act, matter or thing done by a Residents Committee, in good 17
faith, even though at the time that the act, matter or thing was 18
done the election of a member of the Committee was void under 19
subsection (2), is valid as if the election of the member was not 20
void under that subsection. 21
[53] Sections 72A and 72B 22
Insert after section 72: 23
72A Annual management meeting to be held by operator 24
(1) The operator of a retirement village must hold, in each financial 25
year of the retirement village, an annual management meeting of 26
the residents of the retirement village in accordance with this 27
section. 28
Maximum penalty: 20 penalty units. 29
(2) The annual management meeting must be held not more than 30
4 months after the end of each financial year. 31
(3) The annual management meeting must be chaired by: 32
(a) the operator of the retirement village, or 33
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
(b) a representative of the operator of the retirement village 1
who is authorised to answer questions put at the meeting in 2
accordance with this section. 3
(4) The operator must notify the residents of the retirement village at 4
least 14 days before the annual management meeting of: 5
(a) the time and place of the meeting, and 6
(b) the agenda for the meeting. 7
Maximum penalty: 20 penalty units. 8
(5) The notice referred to in subsection (4) must also include an 9
invitation to the residents of the retirement village to submit: 10
(a) written questions to the operator at least 7 days before the 11
meeting, and 12
(b) other questions at the meeting. 13
(6) The regulations may prescribe matters that must be included in 14
the agenda for an annual management meeting. 15
(7) If the operator of the retirement village is required, by section 16
75 (2B) to be absent from any part of the meeting, the meeting is 17
to be chaired by a resident agreed upon by the residents at the 18
meeting for that purpose. 19
(8) Nothing in this section prevents the operator of a retirement 20
village from calling a meeting of the residents of the retirement 21
village at any other time. 22
(9) For the avoidance of doubt, the annual management meeting is a 23
meeting of the residents of a retirement village and, accordingly, 24
the provisions of this Act applying to meetings of the residents 25
also apply to an annual management meeting. 26
72B Questions to be answered at annual management meeting 27
(1) The chair of the annual management meeting must ensure that the 28
residents of a retirement village have a reasonable opportunity to 29
put questions to the operator of the retirement village or a 30
representative of the operator at the meeting. 31
(2) The operator of a retirement village or representative of the 32
operator must answer questions submitted in writing (under 33
section 72A (5) (a)) or put to the operator or representative at the 34
meeting: 35
(a) if possible--in reasonable detail at the relevant meeting, 36
and 37
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(b) to the extent that compliance with paragraph (a) is not 1
possible--in reasonable detail, as soon as is practicable 2
after the meeting, in a notice in writing given to all of the 3
residents of the retirement village. 4
(3) Nothing in this section requires the operator or a person 5
representing the operator to: 6
(a) answer an unreasonable question, or 7
(b) answer a question relating to a matter that is prescribed by 8
the regulations as an excluded matter for the purposes of 9
this section. 10
[54] Section 73 11
Omit the section. Insert instead: 12
73 Villages without Residents Committee 13
If there is no Residents Committee elected for a retirement 14
village, the operator of the village must call a meeting of the 15
residents (to be held in or near the village) if requested to do so 16
by: 17
(a) in the case of a retirement village with fewer than 18
10 occupied residential premises--residents from a 19
majority of the occupied residential premises, or 20
(b) in the case of a retirement village with 10 or more occupied 21
residential premises--the greater of: 22
(i) 5 residents of the retirement village, or 23
(ii) 10% of the residents of the retirement village. 24
[55] Section 75 Attendance at meetings of residents 25
Insert after section 75 (2): 26
(2A) Subsection (2) does not apply to the operator of a retirement 27
village, or a person representing the operator of a retirement 28
village, during the annual management meeting of the retirement 29
village. 30
(2B) The operator or operator's representative must not be present at a 31
meeting of residents during the casting of any vote that is to be 32
taken by the residents at the meeting, but may return to the 33
meeting after the vote has been cast. 34
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[56] Section 77 Proxies 1
Omit section 77 (1). Insert instead: 2
(1) A resident of a retirement village may, from time to time, appoint 3
one of the following persons as the proxy of the resident: 4
(a) a relative of the resident, 5
(b) the guardian of the resident, 6
(c) a member of the Residents Committee or other resident of 7
the retirement village, 8
(d) a person prescribed by the regulations. 9
[57] Section 77 (4) and (4A) 10
Omit section 77 (4). Insert instead: 11
(4) An appointment of a person, other than a person referred to in 12
subsection (1), as a proxy is of no effect. 13
(4A) An appointment of the operator of a retirement village or close 14
associate of the operator of a retirement village as a proxy is of 15
no effect. 16
[58] Section 77 (6) 17
Insert after section 77 (5): 18
(6) This section has effect despite any terms of the instrument 19
appointing a person as the proxy of the resident. 20
[59] Section 78 Certain limitations on proxies 21
Omit section 78 (1). Insert instead: 22
(1) If a person holds appointments as the proxy of 2 residents (or 23
such other number of residents as may be prescribed by the 24
regulations) in any one retirement village at any one time, any 25
appointment of the person as proxy of another resident of the 26
village, while the person continues to hold the other 27
appointments, is void. 28
[60] Section 81 Right to become resident 29
Omit "owns (or owned)" from section 81 (2) (a). 30
Insert instead "is, or was, a registered interest holder (other than a person 31
referred to in section 7 (1) (c)) in respect of". 32
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Schedule 1 Amendments
[61] Section 84 Application for order appointing administrator 1
Omit section 84 (2). Insert instead: 2
(2) The Director-General may apply for an order under this section 3
only if: 4
(a) the Director-General is of the opinion that the well-being 5
or financial security of the residents of the retirement 6
village concerned has been, or is likely to be, seriously 7
affected by the continued operation of the retirement 8
village by the operator, or 9
(b) the Director-General is of the opinion that the operator of 10
the retirement village concerned is wilfully and repeatedly 11
acting in contravention of an order made by the Tribunal 12
or a court in relation to the retirement village, or 13
(c) the retirement village concerned is the subject of an 14
existing order under this section. 15
[62] Sections 87A and 87B 16
Insert after section 87: 17
87A Expenses of administration 18
(1) The expenses incurred by an administrator appointed under this 19
Division in exercising the functions of the operator of a 20
retirement village are payable from recurrent charges and such 21
other funds as would be available to the operator for such 22
expenses if the administrator had not been appointed. 23
(2) Neither the Crown, the Minister nor the Director-General is liable 24
for: 25
(a) any expenses incurred by an administrator appointed under 26
this Division to exercise the functions of the operator of a 27
retirement village, or 28
(b) any liability of an operator of a retirement village in 29
respect of which an administrator is appointed. 30
87B Administrator may vary village contract 31
(1) Despite any other provision of this Act, an administrator 32
appointed under this Division may, with the consent of the 33
Director-General: 34
(a) amend or revoke an approved annual budget, or 35
(b) vary the recurrent charges payable by the residents of the 36
retirement village, or 37
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
(c) vary the services offered by the retirement village. 1
(2) The Director-General may give consent under subsection (1) 2
only if, in the opinion of the Director-General, the proposed 3
revocation, variation or amendment is done for the purpose of: 4
(a) assisting in the process of finding a new operator for the 5
retirement village, or 6
(b) ensuring the financial viability of the retirement village. 7
(3) Nothing done by the administrator in accordance with this section 8
is to be regarded as a breach of contract or otherwise as a civil 9
wrong. 10
(4) No compensation is payable to any person because of the 11
operation of this section or anything done under this section. 12
[63] Part 7, Division 2 13
Omit Divisions 2 and 3. Insert instead: 14
Division 2 Capital maintenance and replacement 15
92 Interpretation 16
(1) In this Division, an item of capital for which an operator of a 17
retirement village is responsible means any item of capital within 18
the retirement village other than an item of capital: 19
(a) that is owned by a resident of the retirement village, or 20
(b) that is association property under a community land 21
scheme or common property under a strata scheme, or 22
(c) that is of a class prescribed by the regulations for the 23
purposes of this section. 24
(2) In this Division, capital maintenance or replacement means the 25
maintenance or replacement of items of capital for which the 26
operator of a retirement village is responsible. 27
(3) For the purposes of this Division, maintenance or replacement of 28
an item of capital is urgent if it is for the purpose of rectifying any 29
of the following: 30
(a) a burst water service, 31
(b) a blocked or broken lavatory service, 32
(c) a serious roof leak, 33
(d) a gas leak, 34
(e) a dangerous electrical fault, 35
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(f) flooding or serious flood damage, 1
(g) serious storm or fire damage, 2
(h) a failure or breakdown of the gas, electricity or water 3
supply to residential premises within the retirement 4
village, 5
(i) a failure or breakdown of any essential service on the 6
residential premises for hot water, cooking, heating or 7
laundering, 8
(j) any fault or damage that causes the retirement village to be 9
unsafe or insecure, 10
(k) any other matter prescribed by the regulations. 11
93 Obligations of operator with respect to certain capital 12
maintenance or replacement 13
(1) The operator of a retirement village is to maintain each item of 14
capital for which the operator is responsible in a reasonable 15
condition having regard to the following: 16
(a) the age of the item, 17
(b) the prospective life of the item, 18
(c) the money paid to the operator by the residents under a 19
village contract (including ingoing contributions). 20
(2) If it is not practical to maintain an item of capital in accordance 21
with this section, the operator may replace the item. 22
(3) The operator of a retirement village must carry out the 23
maintenance of, or replace, an item of capital for which the 24
operator is responsible within a reasonable time after becoming 25
aware of the need for the maintenance or replacement of the item. 26
(4) Nothing in this section requires the operator of a retirement 27
village to carry out maintenance of, or replace, any item of capital 28
unless the maintenance or replacement is in accordance with a 29
proposal that has been consented to under section 99 or is urgent. 30
94 Obligations of residents with respect to capital maintenance or 31
replacement 32
(1) A resident of a retirement village is to notify the operator of the 33
retirement village of the need for maintenance to be carried out 34
on, or the replacement of, an item of capital for which the 35
operator is responsible and that is located within the resident's 36
residential premises as soon as the resident becomes aware of the 37
need for the maintenance or replacement of the item. 38
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(2) A resident of a retirement village must reimburse the operator of 1
the village in respect of any damage (other than fair wear and 2
tear) caused by the resident to an item of capital for which the 3
operator is responsible. 4
(3) A resident of a retirement village must not hinder or obstruct the 5
operator of the retirement village or a person authorised by the 6
operator, from carrying out the maintenance of or replacing any 7
item of capital for which the operator is responsible. 8
Note. Section 67 sets out the circumstances in which an operator of a 9
retirement village or a person authorised by the operator may enter 10
residential premises in respect of which a person has a residence right. 11
95 Resident may carry out urgent capital maintenance or replacement 12
(1) A resident of a retirement village may carry out maintenance of 13
an item of capital for which the operator of the retirement village 14
is responsible, or replace any such item, if: 15
(a) the maintenance or replacement of the item is urgent, and 16
(b) the resident first gives the operator a reasonable 17
opportunity to carry out the maintenance or replace the 18
item. 19
(2) Except as provided by subsection (3), a resident of a retirement 20
village who carries out the maintenance of or replaces an item of 21
capital in accordance with this section is entitled to be reimbursed 22
by the operator of the retirement village for the reasonable costs 23
incurred by the resident in doing so. 24
(3) A resident of a retirement village who is a registered interest 25
holder and carries out the maintenance of or replaces an item of 26
capital located within the residential premises of the resident in 27
accordance with this section is entitled to be reimbursed by the 28
operator of the retirement village for the reasonable costs 29
incurred by the resident for which the operator is liable under 30
section 98. 31
(4) If the operator of a retirement village fails or refuses to reimburse 32
a resident for costs in accordance with this section, the resident 33
may apply to the Tribunal for (and the Tribunal may make) an 34
order requiring the operator to reimburse the resident for those 35
costs. 36
96 Tribunal may make orders for capital maintenance and 37
replacement 38
(1) If a resident of a retirement village is of the opinion that the 39
operator of the retirement village is not maintaining or replacing 40
items of capital for which the operator is responsible when 41
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
necessary, the resident may apply to the Tribunal for (and the 1
Tribunal may make) an order directing the operator: 2
(a) to carry out specified maintenance of an item of capital 3
within the time specified in the order, or 4
(b) to replace a specified item of capital within the time 5
specified in the order. 6
(2) If the operator of a retirement village is of the opinion that a 7
resident of the retirement village has caused damage to an item of 8
capital for which the operator is responsible, the operator may 9
apply to the Tribunal for (and the Tribunal may make) an order 10
directing the resident to reimburse the operator for the cost of the 11
maintenance or replacement of the item of capital as a result of 12
the damage. 13
(3) Subsection (2) does not apply to damage caused by fair wear and 14
tear. 15
97 Funding of certain capital maintenance or replacement 16
(1) The operator of a retirement village may, in accordance with a 17
proposal that is consented to under section 99, fund up to 50% (or 18
such other proportion as may be prescribed by the regulations) of 19
the cost of capital maintenance or replacement from the 20
following sources: 21
(a) the capital works fund for the retirement village (if any), 22
(b) recurrent charges. 23
(2) Despite subsection (1), the operator of a retirement village may 24
fund the whole cost of capital maintenance or replacement from 25
the capital works fund for the retirement village (if any) and 26
recurrent charges if the operator does not receive: 27
(a) ingoing contributions, or 28
(b) departure fees, or 29
(c) any other source of income (other than recurrent charges) 30
from the residents of the retirement village. 31
(3) This section does not authorise the funding of any of the 32
following from the capital works fund or recurrent charges: 33
(a) the maintenance or replacement of an item of capital to 34
which section 98 applies, 35
(b) the construction of a new building or a new stage of the 36
retirement village, 37
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
(c) any work arising from the breach of a statutory warranty 1
(within the meaning of the Home Building Act 1989) in 2
respect of which proceedings may be commenced under 3
Part 2C of that Act, 4
(d) the depreciation of items of capital, 5
(e) the refurbishment of vacant residential premises within the 6
retirement village, 7
(f) maintenance or replacement of roads or footpaths within a 8
retirement village, 9
(g) such other things as may be prescribed by the regulations. 10
(4) For the avoidance of doubt, capital maintenance or replacement 11
is not carried out in accordance with a proposal consented to 12
under section 99 if: 13
(a) the proportion of the actual cost of carrying out the 14
maintenance or replacement of an item of capital funded 15
from the sources referred to in subsection (1) exceeds the 16
proportion specified in the proposal, or 17
(b) the amount paid for the maintenance or replacement of an 18
item of capital from the sources referred to in subsection 19
(1), exceeds the amount to be paid from those sources 20
under the proposal. 21
98 Funding of capital maintenance or replacement of items within 22
registered interest holder's premises 23
(1) This section applies to an item of capital for which the operator 24
of a retirement village is responsible and that is located within the 25
residential premises of a resident who is a registered interest 26
holder. 27
(2) The operator of a retirement village and a resident who is a 28
registered interest holder are to share the cost of the maintenance 29
or replacement of an item of capital to which this section applies 30
in the same proportion as they are to share any capital gain under 31
the village contract. 32
99 Capital maintenance and replacement to be consented to by 33
residents 34
(1) The operator of a retirement village must, in each financial year, 35
supply each resident of the village with a proposal for the capital 36
maintenance and replacement to be carried out in the next 37
financial year: 38
(a) at the same time as the operator must supply each resident 39
of the village with a proposed annual budget, or 40
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(b) if the operator is not required to supply a proposed annual 1
budget--at least 30 days before the meeting at which the 2
proposal will be submitted to the residents. 3
(2) The proposal must: 4
(a) list each item of capital maintenance and replacement that 5
is proposed to be carried out, and 6
(b) specify in respect of each item the expected cost, including 7
the proportion of the expected cost that is intended to be 8
funded from the capital works fund or recurrent charges, 9
and 10
(c) include any quotes that the operator has obtained with 11
respect to the proposed capital maintenance and 12
replacement, and 13
(d) include provision for urgent capital maintenance and 14
replacement, including the proportion of the cost that is 15
intended to be funded from the capital works fund or 16
recurrent charges. 17
(3) The proposal must be submitted to the residents of the retirement 18
village at a meeting of the residents, whether at the annual 19
management meeting or otherwise. 20
(4) A proposal may be varied during the course of the meeting prior 21
to the residents granting consent to the proposal. 22
(5) If the residents of a retirement village refuse to consent to a 23
proposal submitted under this section, the operator of the 24
retirement village may apply to the Tribunal for (and the Tribunal 25
may make) an order with respect to the capital maintenance and 26
replacement that is to be carried out. 27
(6) An order made by the Tribunal under this section is taken to be a 28
proposal to which the residents of the retirement village have 29
consented. 30
(7) In making an order under this section, the Tribunal may have 31
regard to the following: 32
(a) whether the proposed capital maintenance and 33
replacement is necessary or appropriate, 34
(b) whether the expected total cost of the capital maintenance 35
and replacement is fair and reasonable, 36
(c) whether the proportion of the cost that is intended to be 37
funded from the capital works fund or recurrent charges is 38
fair and reasonable, 39
(d) such other matters as the Tribunal considers appropriate. 40
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(8) This section applies to the operator of a retirement village only if 1
the operator proposes to use any recurrent charges or any part of 2
the capital works fund for the retirement village (if any) to fund 3
capital maintenance and replacement. 4
(9) If the residents of a retirement village consent to a proposal 5
submitted under this section, the operator must, on the request of 6
a resident of the retirement village, provide the resident with a 7
copy of the invoice for any work carried out in accordance with 8
the proposal. 9
100 Capital works fund 10
(1) If an approved annual budget provides for the setting aside of any 11
part of the recurrent charges for the purpose of funding capital 12
maintenance and replacement in a period that extends beyond the 13
end of the financial year to which the budget relates, the operator 14
of the retirement village must establish and maintain a capital 15
works fund. 16
(2) However, this section does not require that a separate fund be 17
established in respect of each financial year. 18
(3) A capital works fund must be held in an account with an 19
authorised deposit-taking institution or as otherwise prescribed 20
by the regulations. 21
(4) The operator of a retirement village is to pay into the capital 22
works fund: 23
(a) such portion of the recurrent charges as may be required 24
under an approved annual budget, and 25
(b) any interest received from the investment of the whole, or 26
any part of, the capital works fund. 27
(5) The operator of a retirement village must not use money from the 28
capital works fund except: 29
(a) to meet the cost of capital maintenance and replacement in 30
accordance with a proposal under section 99, or 31
(b) if the residents of the village consent to a proposal that the 32
operator of the village distribute the whole, or any part, of 33
the capital works fund that is not required to fund capital 34
maintenance and replacement to the residents of the 35
retirement village in equal shares--in accordance with that 36
proposal, or 37
(c) as prescribed by the regulations. 38
Maximum penalty: 100 penalty units. 39
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(6) A proposal under subsection (5) (b) may be made by the operator 1
of the retirement village or the Residents Committee (if any). 2
(7) If the residents consent under subsection (5) (b) to a proposal 3
made by the Residents Committee, the operator may apply to the 4
Tribunal for (and the Tribunal may make) an order that: 5
(a) the distribution is not to be made, or 6
(b) approves or varies the proposed distribution. 7
(8) In making an order under subsection (7) the Tribunal may 8
consider the following: 9
(a) the proportion of the capital works fund that is proposed to 10
be distributed, 11
(b) whether the proportion of the capital works fund that is 12
proposed to be distributed is reasonably likely to be 13
required to fund capital maintenance and replacement, 14
(c) any other matter that the Tribunal considers appropriate. 15
101 Retirement village to be insured 16
(1) The operator of a retirement village must cause the retirement 17
village to be insured (and remain insured) in accordance with this 18
section. 19
Maximum penalty: 100 penalty units. 20
(2) The village must have insurance that: 21
(a) covers the following: 22
(i) damage, 23
(ii) costs incidental to the reinstatement or replacement 24
of insured buildings, 25
(iii) public liability, and 26
(b) provides for the reinstatement of property to its condition 27
when new. 28
(3) The regulations may prescribe a minimum amount of public 29
liability insurance that is required under this section. 30
(4) Insurance for damage and costs incidental to the reinstatement or 31
replacement of insured buildings must cover the full replacement 32
value of the retirement village. 33
(5) Nothing in this section requires the operator of a retirement 34
village to insure an item of capital other than an item of capital 35
for which the operator is responsible. 36
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(6) The operator of a retirement village may fund insurance required 1
under this section from recurrent charges if the cost of any such 2
insurance is included in the approved annual budget. 3
102 Operator not to sell items of capital to residents 4
(1) The operator of a retirement village must not sell any item of 5
capital for which the operator is responsible, or pass 6
responsibility for any such item of capital (whether directly or 7
indirectly), to a resident or prospective resident of the retirement 8
village under a village contract or otherwise except as provided 9
by the regulations. 10
Maximum penalty: 20 penalty units. 11
(2) Any contract, agreement or scheme is unenforceable to the extent 12
that it purports to sell or pass responsibility for the maintenance 13
or replacement of items of capital in contravention of subsection 14
(1). 15
(3) This section does not apply to the sale of residential premises 16
within a retirement village, including fixtures in any such 17
premises. 18
[64] Section 104 Variation of recurrent charges 19
Omit "at specified intervals (or on specified dates)" from section 104 (1) (b). 20
[65] Section 104 (2) 21
Omit the subsection. Insert instead: 22
(2) If a village contract provides for any recurrent charges payable 23
under it to be varied otherwise than according to a fixed formula, 24
the recurrent charges must not be varied more than once in any 25
12 month period. Any second or subsequent purported variation 26
within that 12 month period is of no effect. 27
[66] Section 105A 28
Insert after section 105: 29
105A Recurrent charges varied otherwise than by a fixed formula--not 30
exceeding variation in CPI 31
(1) This section applies to the variation of recurrent charges payable 32
under a village contract if: 33
(a) the contract provides that recurrent charges are to be varied 34
otherwise than in accordance with a fixed formula, and 35
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Schedule 1 Amendments
(b) the variation does not exceed the variation that would 1
result from the recurrent charges being increased in 2
proportion to the variation in the Consumer Price Index 3
(since the recurrent charges were last varied) and rounded 4
to the nearest whole dollar. 5
(2) In relation to a proposed variation in recurrent charges, the 6
variation in the Consumer Price Index since the recurrent charges 7
were last varied is taken to be the difference between: 8
(a) the Consumer Price Index published most recently before 9
those charges were last varied, and 10
(b) the Consumer Price Index published most recently before 11
the written notice of the proposed variation is given. 12
(3) The operator of a retirement village must give at least 14 days' 13
written notice of any proposed variation to the recurrent charges. 14
(4) The notice must specify: 15
(a) the amount of the new recurrent charges, and 16
(b) the date from which the new recurrent charges are payable, 17
and 18
(c) such other information as may be prescribed by the 19
regulations. 20
(5) A resident of a retirement village is not required to pay any 21
increase in his or her recurrent charges to which this section 22
applies until notice of the increase is given as required by this 23
section. 24
(6) A notice given under this section may be cancelled by a later 25
notice or a later notice may provide for a lesser increase than the 26
increase specified in the earlier notice. 27
[67] Section 106 Recurrent charges varied otherwise than by fixed formula-- 28
exceeding variation in CPI 29
Omit section 106 (1) (except the note to that subsection). Insert instead: 30
(1) This section applies to a variation of recurrent charges payable 31
under a village contract if: 32
(a) the contract provides that recurrent charges are to be varied 33
otherwise than in accordance with a fixed formula, and 34
(b) the variation exceeds the variation that would result from 35
the recurrent charges being increased in proportion to the 36
variation in the Consumer Price Index (since the recurrent 37
charges were last varied) and rounded to the nearest whole 38
dollar. 39
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(1A) In relation to a proposed variation in recurrent charges, the 1
variation in the Consumer Price Index since the recurrent charges 2
were last varied is taken to be the difference between: 3
(a) the Consumer Price Index published most recently before 4
those charges were last varied, and 5
(b) the Consumer Price Index published most recently before 6
the written notice of the proposed variation is given. 7
(1B) The operator of a retirement village must give the resident 8
concerned notice in accordance with this section at least 60 days 9
before any proposed variation. 10
[68] Section 106 (2) (c) and (c1) 11
Omit section 106 (2) (c). Insert instead: 12
(c) contain a brief explanation of the reasons for the proposed 13
variation exceeding the variation in the Consumer Price 14
Index or the prescribed rate or amount (if any), and 15
(c1) include details of any action taken to minimise the 16
proposed variation in recurrent charges, and 17
[69] Section 106 (3) 18
Omit "(if any)". 19
[70] Section 106 (7) 20
Omit the subsection. 21
[71] Section 106A 22
Insert after section 106: 23
106A Recurrent charges varied otherwise than by fixed formula to be 24
increased in accordance with Act 25
The operator of a retirement village must not increase (or attempt 26
to increase) recurrent charges that are to be varied otherwise than 27
according to a fixed formula if the increase would be: 28
(a) beyond any upper limit specified in the relevant village 29
contract, or 30
(b) otherwise than in accordance with section 105A or 106. 31
Maximum penalty: 50 penalty units. 32
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[72] Section 107 Residents' consent to variation 1
Insert after section 107 (4): 2
(5) If the operator of a retirement village fails to provide information 3
requested under subsection (4) within the time prescribed by the 4
regulations, the Residents Committee (or a resident of the 5
retirement village) may apply to the Tribunal for (and the 6
Tribunal may make) an order requiring the operator to provide 7
the residents with the information specified in the order. 8
(6) The regulations may prescribe: 9
(a) the period within which information requested under 10
subsection (4) must be provided, and 11
(b) information that the operator of a retirement village is not 12
required to provide despite a request under subsection (4). 13
[73] Section 108 Determination by Tribunal 14
Omit section 108 (1). Insert instead: 15
(1) An operator of a retirement village may apply to the Tribunal for 16
(and the Tribunal may make) an order in respect of a proposed 17
variation of recurrent charges if: 18
(a) the consent of the residents of the retirement village is 19
required before the proposed variation can take effect, and 20
(b) the residents do not consent to the proposed variation 21
under section 107. 22
[74] Section 108 (4) (b) 23
Omit "statement of proposed expenditure or approved expenditure". 24
Insert instead "proposed annual budget or approved annual budget". 25
[75] Section 111 Abatement of recurrent charges 26
Omit "owns" from the note to section 111 (1). 27
Insert instead "is a registered interest holder (other than a person referred to in 28
section 7 (1) (c)) in respect of". 29
[76] Part 7, Division 5, heading 30
Omit the heading. Insert instead: 31
Division 5 Proposed and approved annual budgets 32
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[77] Section 112 Proposed annual budget 1
Insert ", or such other time as may be prescribed by the regulations" after 2
"retirement village" in section 112 (1). 3
[78] Section 112 (1), (3) (a) and (6) 4
Omit "statement of proposed expenditure" wherever occurring. 5
Insert instead "proposed annual budget". 6
[79] Section 112 (2), (3) (c), (4) and (5) 7
Omit "statement" wherever occurring. Insert instead "budget". 8
[80] Section 112 (6) 9
Omit "amended statement". Insert instead "amended budget". 10
[81] Section 112 (7)-(11) 11
Insert after section 112 (6): 12
(7) The residents of a retirement village may, by special resolution, 13
consent to not being supplied with a proposed annual budget. 14
(8) If the residents of a retirement village consent to not being 15
supplied with a proposed annual budget under this section, 16
subsections (1)-(6) and sections 113-117 do not apply in respect 17
of the retirement village while the consent remains in force. 18
(9) Consent given under subsection (7) remains in force until such 19
time as it is revoked by a further special resolution of the 20
residents. 21
(10) The operator is required to notify the residents of the name of the 22
auditor of the accounts at the annual management meeting if: 23
(a) consent given under subsection (7) is in force, and 24
(b) the operator of the village is required to have the accounts 25
of the village audited under section 118. 26
(11) The operator of a retirement village does not commit an offence 27
under subsection (1) if consent given under subsection (7) is in 28
force at the time that the operator is required to supply the 29
proposed annual budget. 30
[82] Section 113 Order for proposed annual budget 31
Omit "statement of proposed expenditure". 32
Insert instead "proposed annual budget". 33
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Schedule 1 Amendments
[83] Section 113 1
Omit "the statement". Insert instead "the budget". 2
[84] Section 114 Residents' consent to expenditure 3
Omit "statement of proposed expenditure" from section 114 (1) and (4), 4
wherever occurring. 5
Insert instead "proposed annual budget". 6
[85] Section 114 (2) and (4)-(6) 7
Omit "the statement" wherever occurring. Insert instead "the budget". 8
[86] Section 114 (4) 9
Omit "amended statement". Insert instead "amended budget". 10
[87] Section 114 (8) 11
Insert after section 114 (7): 12
(8) Subsections (1)-(6) do not apply, and the residents are taken to 13
have consented to the proposed annual budget, if the recurrent 14
charges payable by the residents: 15
(a) have not been varied, or 16
(b) have been varied in accordance with section 104 (1) (a) or 17
105A. 18
[88] Section 115 Determination of expenditure by Tribunal 19
Omit "statement of proposed expenditure" from section 115 (1)-(3), wherever 20
occurring. 21
Insert instead "proposed annual budget". 22
[89] Section 115 (3) (b) 23
Omit "a statement of approved expenditure". 24
Insert instead "an approved annual budget". 25
[90] Section 115A 26
Insert after section 115: 27
115A Proposed annual budget may provide for contingencies 28
The regulations may limit the amount that a proposed annual 29
budget may allocate for contingencies. 30
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[91] Section 116 Expenditure to be in accordance with approved annual 1
budget 2
Omit section 116 (1). Insert instead: 3
(1) A proposed annual budget is taken to be an approved annual 4
budget if: 5
(a) the residents of a retirement village consent to expenditure 6
in accordance with the proposed annual budget, or 7
(b) the Tribunal orders that the expenditure of the operator is 8
to be as itemised in the proposed annual budget. 9
[92] Section 116 (2) and (4) (b) 10
Omit "statement of proposed expenditure" wherever occurring. 11
Insert instead "proposed annual budget". 12
[93] Section 116 (2) and (3) 13
Omit "statement of approved expenditure" wherever occurring. 14
Insert instead "approved annual budget". 15
[94] Section 116 (2) 16
Omit "that statement". Insert instead "that budget". 17
[95] Section 116 (3A) 18
Insert after section 116 (3): 19
(3A) An operator does not contravene subsection (3) if the expenditure 20
that was otherwise than in accordance with the budget: 21
(a) was a variation in expenditure between items in the 22
approved annual budget, and 23
(b) does not reduce the level of services provided by the 24
retirement village, and 25
(c) does not cause the total expenditure provided for by the 26
approved annual budget to be exceeded. 27
[96] Section 117 Amendment of approved annual budget 28
Omit section 117 (1). Insert instead: 29
(1) The operator of a retirement village may seek the consent of the 30
residents to amend an approved annual budget except if: 31
(a) the budget is taken to be an approved annual budget 32
because of section 116 (1) (b), or 33
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(b) the budget is a proposed annual budget modified in 1
accordance with an order of the Tribunal as referred to in 2
section 116 (2). 3
[97] Section 117 (2) and (3) 4
Omit "amended statement of approved expenditure" wherever occurring. 5
Insert instead "approved annual budget as amended". 6
[98] Section 117 (4) (b) 7
Omit "statement of proposed expenditure". 8
Insert instead "proposed annual budget". 9
[99] Section 118 Auditing of accounts 10
Omit "statement of proposed expenditure" from section 118 (2) (a). 11
Insert instead "proposed annual budget (if any)". 12
[100] Section 118 (2) (c) 13
Omit the paragraph. Insert instead: 14
(c) the residents' consent to that appointment is required in the 15
same way that it is required for the expenditure of the fees 16
concerned, but only if the auditor to be appointed did not 17
audit the accounts for the previous financial year. 18
[101] Section 118 (3) and (4) 19
Omit the subsections. Insert instead: 20
(3) Within 28 days after the end of the quarter to which the quarterly 21
accounts relate, or such other period as may be prescribed by the 22
regulations, the operator of a retirement village must provide the 23
Residents Committee (if any) with a copy of the quarterly 24
accounts of the income and expenditure of the village. 25
Maximum penalty: 20 penalty units. 26
(4) If, more than 28 days after the end of the quarter to which the 27
quarterly accounts relate, a resident of the retirement village 28
requests that the operator of the retirement village provide a copy 29
of the quarterly accounts of the income and expenditure for the 30
retirement village, the operator must provide a copy of the 31
accounts to the resident within 7 days after receiving the request. 32
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[102] Section 119 Copies of annual accounts to be provided to residents 1
Insert ", or such other period as may be prescribed by the regulations," after 2
"4 months" in section 119 (1). 3
[103] Section 119 (2) (a) (i), (ii) and (iia) 4
Omit section 119 (2) (a) (i) and (ii). Insert instead: 5
(i) details of the income and expenditure of the village 6
during the financial year, including income and 7
expenditure of the capital works fund (if any), 8
(ii) details of the balance of the capital works fund (if 9
any), 10
(iia) if capital maintenance or replacement has been 11
carried out in accordance with a proposal under 12
section 99--details of the expenditure on each item 13
in that proposal, including the proportion of that 14
expenditure that was funded from recurrent charges 15
or the capital works fund (if any), 16
[104] Section 119 (4) 17
Omit "statement of proposed expenditure". 18
Insert instead "proposed annual budget". 19
[105] Section 119 (7) 20
Omit the subsection. Insert instead: 21
(7) If there is no Residents Committee for the village concerned, a 22
copy of the accounts is to be: 23
(a) displayed on the common property of the village in 24
accordance with the regulations, and 25
(b) provided to any individual resident of the village who 26
requests a copy. 27
[106] Sections 119A and 119B 28
Insert after section 119: 29
119A Accounts not required to be audited in certain cases 30
(1) Despite section 118 (1), the operator of a retirement village is not 31
required to have the accounts of the retirement village audited if: 32
(a) the total of the recurrent charges collected in respect of the 33
village in the financial year to which the accounts relate 34
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
does not exceed $50,000 or such other amount as may be 1
prescribed by the regulations, and 2
(b) the residents have consented to the operator not having the 3
accounts of the village audited and that consent is in force. 4
(2) If the operator of a retirement village is not required to have the 5
accounts of the village audited: 6
(a) the provisions of section 119 (section 119 (3) excepted) 7
apply to the accounts of the retirement village in the same 8
way as they apply to audited accounts, and 9
(b) the operator of the village must include a statement as to 10
whether or not the operator will be able to meet the 11
liabilities relating to the village as and when they fall due 12
during the financial year immediately following. 13
(3) The operator of a retirement village must not make a statement 14
under subsection (2) (b) knowing that it is false or misleading in 15
a material particular. 16
Maximum penalty: 100 penalty units. 17
(4) The residents of a retirement village may revoke any consent 18
given under this section at any time. 19
(5) Consent given under this section remains in force until: 20
(a) the total of the recurrent charges to be collected by the 21
village in a financial year exceeds $50,000 or such other 22
amount as may be prescribed by the regulations, or 23
(b) the consent is revoked by the residents of the village, 24
whichever happens first. 25
119B Quarterly accounts not required to be given to residents in certain 26
circumstances 27
(1) Despite section 118 (3), the operator of a retirement village is not 28
required to give the Residents Committee a copy of the quarterly 29
accounts for a retirement village if: 30
(a) the total of the recurrent charges collected in respect of the 31
village in the financial year to which the accounts relate 32
does not exceed $50,000 or such other amount as may be 33
prescribed by the regulations, and 34
(b) the residents have consented to the operator not giving 35
them copies of the quarterly accounts and that consent is in 36
force. 37
(2) The residents of a retirement village may revoke any consent 38
given under this section at any time. 39
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Amendments Schedule 1
(3) Consent given under this section remains in force until: 1
(a) the total of the recurrent charges to be collected by the 2
village in a financial year exceeds $50,000 or such other 3
amount as may be prescribed by the regulations, or 4
(b) the consent is revoked by the residents of the village, 5
whichever happens first. 6
[107] Section 120 Any surplus or deficit to be carried over 7
Omit the section. 8
[108] Part 7, Division 7 9
Insert after Division 6 of Part 7: 10
Division 7 Surplus or deficit of accounts 11
120A Definitions 12
In this Division: 13
deficit means a deficit in the annual accounts of a retirement 14
village for any financial year ending on or after 23 November 15
2006. 16
surplus means a surplus in the annual accounts of a retirement 17
village for any year. 18
120B Any surplus to be carried over 19
(1) Any surplus in the annual accounts of a retirement village is to be 20
carried forward to the accounts for the next financial year unless: 21
(a) the residents of the village consent to a proposal for the 22
expenditure of the whole or any part of the surplus, or 23
(b) the residents of the village consent to a proposal that the 24
operator distribute the whole or any part of the surplus to 25
the existing residents of the village in equal shares. 26
(2) A proposal under subsection (1) may be made by the operator of 27
the retirement village or the Residents Committee (if any). 28
(3) If the residents consent under subsection (1) (b) to a proposal 29
made by the Residents Committee, the operator may apply to the 30
Tribunal for (and the Tribunal may make) an order that: 31
(a) the distribution is not to be made, or 32
(b) approves or varies the proposed distribution. 33
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Schedule 1 Amendments
(4) In making an order under subsection (3), the Tribunal may 1
consider the following: 2
(a) the proportion of the surplus that is proposed to be 3
distributed, 4
(b) any other matter that the Tribunal considers appropriate. 5
120C Making good of deficit 6
(1) A deficit is to be made good by the operator of the retirement 7
village. 8
(2) Except as provided by the regulations referred to in subsection 9
(3), an operator of a retirement village must not: 10
(a) carry forward a deficit to a subsequent financial year, or 11
(b) request or receive from the residents of the retirement 12
village any special additional payments for the purpose of 13
making good a deficit, or 14
(c) increase or purport to increase recurrent charges payable 15
by the residents of a retirement village in any financial year 16
for the purpose of making good a deficit, or 17
(d) use the whole or any part of the recurrent charges collected 18
by the operator in a financial year to make good a deficit, 19
or 20
(e) use the whole or any part of the capital works fund for the 21
retirement village to make good a deficit. 22
(3) The regulations may prescribe circumstances in which the 23
operator of a retirement village may: 24
(a) increase the recurrent charges payable by the residents of 25
a retirement village for the purpose of making good a 26
deficit, or 27
(b) use the whole or any part of the recurrent charges collected 28
by the operator for the purpose of making good a deficit, or 29
(c) carry forward a deficit to a subsequent financial year. 30
(4) The operator of a retirement village must not charge the residents 31
of a retirement village interest in respect of a deficit. 32
[109] Section 129 How and when residence right or contract is terminated 33
Omit "that are owned by the resident" from section 129 (1). 34
Insert instead "in respect of which the resident is a registered interest holder 35
(other than a person referred to in section 7 (1) (c))". 36
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[110] Section 129 (2) 1
Omit "relating to premises other than premises owned by the resident or 2
premises that are subject to an assignable lease (and the residence right under 3
the contract) terminates". 4
Insert instead "(other than a contract referred to in subsection (1) or (1A)) and 5
the residence right under the contract, terminate". 6
[111] Section 129 (2) (a) and (c) 7
Omit "delivers up vacant possession of the residential premises to the 8
operator" wherever occurring. 9
Insert instead "permanently vacates the premises". 10
[112] Section 129 (2) (b) 11
Omit the paragraph. Insert instead: 12
(b) on the date on which the resident permanently vacates the 13
premises, or 14
[113] Section 130 Tribunal cannot terminate certain residence contracts 15
Omit "owns" from section 130 (a). 16
Insert instead "is a registered interest holder (other than a person referred to in 17
section 7 (1) (c)) in respect of". 18
[114] Section 132 Termination if residence contract frustrated 19
Omit "owns" from section 132 (1). 20
Insert instead "is a registered interest holder (other than a person referred to in 21
section 7 (1) (c)) in respect of". 22
[115] Part 9, Division 3A 23
Insert after Division 3: 24
Division 3A Termination by Supreme Court on 25
application of administrator 26
136A Termination on grounds of retirement village ceasing to operate 27
(1) The Supreme Court may, on application by the administrator of a 28
retirement village appointed under Division 6 of Part 6, make an 29
order terminating the village contracts with respect to the 30
retirement village if the Court is satisfied there is no reasonable 31
prospect of finding a new operator for the retirement village. 32
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(2) If the Court makes an order under this section, the Court: 1
(a) must, insofar as the order relates to residence contracts, fix 2
in the order a date by which the residents who are affected 3
by the order must vacate their residential premises in the 4
village, and 5
(b) may order an operator or former operator (other than an 6
administrator appointed under Division 6 of Part 6) to pay 7
compensation to each resident affected by the order for the 8
resident's loss of rights under a village contract, and 9
(c) may make such other orders as it thinks fit. 10
[116] Section 139 Operator not to recover possession of premises except by 11
order 12
Omit section 139 (1) and (2). Insert instead: 13
(1) A person must not (whether acting on his or her own behalf or on 14
behalf of another): 15
(a) enter, or attempt to enter, residential premises within a 16
retirement village, or 17
(b) remove, or attempt to remove, a resident from residential 18
premises within a retirement village, or 19
(c) take any other action that is intended, or is likely, to cause 20
a resident to vacate residential premises within a 21
retirement village, 22
for the purpose of recovering possession of the residential 23
premises otherwise than in accordance with this or any other Act 24
or law. 25
Maximum penalty: 200 penalty units. 26
[117] Sections 142 (2) and 145 27
Omit "owned by the resident" wherever occurring. 28
Insert instead "occupied by a resident who is a registered interest holder in 29
respect of the premises". 30
[118] Section 147 Disposal of uncollected goods 31
Insert after section 147 (4): 32
(5) An operator of a retirement village must not sell, remove, destroy 33
or dispose of goods referred to in subsection (1) otherwise than 34
as provided by this section. 35
Maximum penalty (subsection (5)): 20 penalty units. 36
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[119] Section 150 References to sale of "residential premises" 1
Omit section 150 (1) and (3). 2
[120] Section 150 (2) 3
Omit "subsection (1) (b)". Insert instead "section 7 (1) (c)". 4
[121] Section 151 Recurrent charges in respect of optional services 5
Omit "personal services" wherever occurring. 6
Insert instead "optional services". 7
[122] Section 152 Recurrent charges in respect of general services: registered 8
interest holders 9
Omit "owns" from section 152 (1). 10
Insert instead "is a registered interest holder in respect of". 11
[123] Section 152 (2) 12
Omit "The". Insert instead "Subject to subsection (3), the". 13
[124] Section 152 (2) (d) 14
Omit "section 150 (1) (b)". Insert instead "section 7 (1) (c)". 15
[125] Sections 152 (2) (d) (i) and (ii), 153 (2) (c)-(e), 159 (2) (d) (i) and (ii) and 16
160 (2) (c)-(e) 17
Omit "delivered up vacant possession of the premises to the operator" 18
wherever occurring. 19
Insert instead "permanently vacated the premises". 20
[126] Sections 152 (2) (d) (ii), 153 (2) (d), 159 (2) (d) (ii) and 160 (2) (d) 21
Omit "vacant possession was delivered" wherever occurring. 22
Insert instead "the former occupant permanently vacated the premises". 23
[127] Section 152 (3) 24
Insert after section 152 (2): 25
(3) The former occupant's liability to pay recurrent charges (being 26
recurrent charges in respect of general services) that arise after 27
the former occupant has permanently vacated the residential 28
premises is to be met: 29
(a) in respect of a liability arising during the 42 days 30
immediately after the former occupant permanently 31
vacated the premises--by the former occupant, and 32
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(b) in respect of a liability arising after the period referred to 1
in paragraph (a)--by the former occupant and the operator 2
of the retirement village in the same proportions as the 3
former occupant and the operator of the retirement village 4
would share any capital gain under the village contract. 5
[128] Section 153 Recurrent charges in respect of general services: generally 6
Omit "the owner" from section 153 (1). 7
Insert instead "a registered interest holder in respect". 8
[129] Section 153 (2) (e) 9
Omit "6 months". Insert instead "42 days". 10
[130] Section 153 (3) 11
Insert after section 153 (2): 12
(3) On and from the date that the former occupant's liability to pay 13
recurrent charges (being recurrent charges in respect of general 14
services) ceases under subsection (2), the operator of the 15
retirement village must pay the recurrent charges payable in 16
relation to those residential premises until the date on which the 17
operator of the village enters into a village contract with an 18
incoming resident. 19
[131] Section 154 Time of payment of recurrent charges 20
Omit "owns" from section 154 (1) (b) (i). 21
Insert instead "is a registered interest holder (other than a person referred to in 22
section 7 (1) (c)) in respect of". 23
[132] Section 157 Payment of departure fee 24
Omit "owns (or owned)" from section 157 (3). 25
Insert instead "is, or was, a registered interest holder in respect of". 26
[133] Section 159 Period for which departure fee may be charged after 27
permanent vacation of premises: old contracts--registered interest 28
holders 29
Omit "owns" from section 159 (1) (a). 30
Insert instead "is a registered interest holder in respect of". 31
[134] Section 159 (2) (d) 32
Omit "section 150 (1) (b)". Insert instead "section 7 (1) (c)". 33
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[135] Section 160 Period for which departure fee may be charged after 1
permanent vacation of premises: old contracts--generally 2
Omit "does not own" from section 160 (1) (a). 3
Insert instead "is not a registered interest holder in respect of". 4
[136] Section 161 Reduction or waiver of departure fee 5
Omit "after the former occupant's permanent vacation of" from section 6
161 (1). 7
Insert instead "after the former occupant has permanently vacated". 8
[137] Section 163 Condition of premises on termination 9
Omit section 163 (1) and (2). Insert instead: 10
(1) This section does not apply to or in respect of a former occupant 11
who is, or was, a registered interest holder in respect of his or her 12
residential premises. 13
(2) A former occupant of a retirement village must, allowing for any 14
renovations or alterations to fixtures or fittings made with the 15
consent of the operator under section 41A, leave his or her 16
residential premises as nearly as possible in the same condition 17
(fair wear and tear excepted) as the premises were in at the 18
beginning of the residence contract. 19
[138] Section 166 Application of Division 20
Omit "owns". Insert instead "is a registered interest holder in respect of". 21
[139] Section 170 Costs of sale 22
Insert after section 170 (3): 23
(4) In this section, costs of sale includes (without limiting the 24
ordinary meaning of that term) such costs relating to the sale of 25
residential premises in a retirement village as may be prescribed 26
by the regulations, but does not include such other costs relating 27
to the sale of residential premises as may be prescribed by the 28
regulations. 29
[140] Section 174 Letting or subletting of premises 30
Omit "section 150 (1) (b)" from section 174 (1). 31
Insert instead "section 7 (1) (c)". 32
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[141] Section 175 Determination by Tribunal concerning proposed tenant or 1
subtenant 2
Insert "and pay such compensation (if any) as is specified in the order" after 3
"concerned" in section 175 (3) (a). 4
[142] Section 175 (4) 5
Omit "subsection (3) (b)". Insert instead "subsection (3) (a)". 6
[143] Section 179 Legal ability to sublet 7
Omit "section 150 (1) (b)" from section 179 (1). 8
Insert instead "section 7 (1) (c)". 9
[144] Section 180 Payments to former occupants who were registered interest 10
holders 11
Omit "owns" from section 180 (1). 12
Insert instead "is, or was, a registered interest holder in respect of". 13
[145] Section 180 (3) (e) 14
Omit "section 150 (1) (b)". Insert instead "section 7 (1) (c)". 15
[146] Section 180 (4)-(6) 16
Omit section 180 (4) and (5). Insert instead: 17
(4) If a payment is not made to the former occupant within the time 18
required by subsection (2): 19
(a) the former occupant may apply to the Tribunal for (and the 20
Tribunal may make) an order directing the operator to 21
make the payment, and 22
(b) interest is payable, at the rate prescribed by the regulations, 23
on that unpaid amount on and from the date that the 24
amount becomes overdue. 25
(5) If, in the opinion of the former occupant, the amount of a payment 26
made under this section was not calculated in accordance with 27
this Act or any relevant village contract, or the conduct of the 28
operator has unfairly had a negative financial impact on the 29
former occupant: 30
(a) the former occupant may apply to the Tribunal for (and the 31
Tribunal may make) an order directing the operator to 32
recalculate the amount in accordance with the directions of 33
the Tribunal and pay any additional amount due to the 34
former occupant as a result of the recalculation, and 35
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Amendments Schedule 1
(b) if the Tribunal considers it appropriate, the Tribunal may 1
order the payment of interest on that additional amount at 2
the rate prescribed by the regulations. 3
(6) Without limiting subsection (5), conduct of the operator that may 4
unfairly have a negative impact on a former occupant includes 5
entering into a village contract with a subsequent resident that 6
contains terms that: 7
(a) are substantially different from those contained in the 8
village contract to which the former occupant was a party, 9
and 10
(b) will have a negative financial impact on the former 11
occupant to the benefit of the operator. 12
[147] Section 181 Payments to former occupants who were not registered 13
interest holders 14
Omit "does not own" from section 181 (1). 15
Insert instead "is not, or was not, a registered interest holder in respect of". 16
[148] Section 181 (7)-(9) 17
Omit section 181 (7) and (8). Insert instead: 18
(7) If a payment is not made to the former occupant within the time 19
required by this section: 20
(a) the former occupant may apply to the Tribunal for (and the 21
Tribunal may make) an order directing the operator to 22
make the payment, and 23
(b) interest is payable, at the rate prescribed by the regulations, 24
on that unpaid amount on and from the date that the 25
amount becomes overdue. 26
(8) If, in the opinion of the former occupant, the amount of a payment 27
made under this section was not calculated in accordance with 28
this Act or any relevant village contract, or the conduct of the 29
operator has unfairly had a negative financial impact on the 30
former occupant: 31
(a) the former occupant may apply to the Tribunal for (and the 32
Tribunal may make) an order directing the operator to 33
recalculate the amount in accordance with the directions of 34
the Tribunal and pay any additional amount due to the 35
former occupant as a result of the recalculation, and 36
(b) if the Tribunal considers it appropriate, the Tribunal may 37
order the payment of interest on that additional amount at 38
the rate prescribed by the regulations. 39
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(9) Without limiting subsection (8), conduct of the operator that may 1
unfairly have a negative impact on a former occupant includes 2
entering into a village contract with a subsequent resident that 3
contains terms that: 4
(a) are substantially different from those contained in the 5
village contract to which the former occupant was a party, 6
and 7
(b) will have a negative financial impact on the former 8
occupant to the benefit of the operator. 9
[149] Part 10A 10
Insert after Part 10: 11
Part 10A Protection of ingoing contributions paid 12
by residents other than registered interest 13
holders 14
182A Application of Part 15
(1) This Part applies to a village contract if: 16
(a) there has been an ingoing contribution paid by a resident 17
(other than a registered interest holder) under a village 18
contract that includes a provision that entitles the resident 19
to a refund of the whole, or any part, of that ingoing 20
contribution, and 21
(b) any such refund exceeds the amount prescribed by the 22
regulations. 23
(2) This Part extends to any such village contract that was in force 24
immediately before the commencement of this section. 25
(3) Despite subsections (1) and (2), this Part does not apply to a 26
village contract with respect to residential premises in a 27
retirement village that gives rise to the residence right of a 28
registered interest holder. 29
182B Creation of charge 30
(1) On the date on which a village contract to which this Part applies 31
is entered into with respect to residential premises within a 32
retirement village, there is created by virtue of this section a 33
charge over all land within the retirement village that secures the 34
entitlement to a refund under the contract. 35
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(2) In the case of a village contract in force immediately before the 1
commencement of this section, any such charge is created on that 2
commencement. 3
(3) Nothing in this section creates a charge over land: 4
(a) that is not recorded as a retirement village under section 5
24A, or 6
(b) in respect of which a resident is a registered interest holder. 7
182C Disposal of land subject to charge 8
(1) A person must not dispose of land in respect of which a charge is 9
in force under this Part except pursuant to an order under section 10
182F. 11
Maximum penalty: 100 penalty units. 12
(2) Subsection (1) does not apply in respect of the disposal of any 13
such land in the course of the sale of a retirement village as a 14
going concern. 15
182D Effect of charge on successors in title 16
A charge that is created over land under this Part is binding on, 17
and is enforceable against, the owner of the land from time to 18
time while the charge is in force. 19
182E Application for enforcement of charge 20
(1) A person may apply to the Supreme Court for an order under 21
section 182F in relation to land within a retirement village in 22
respect of which the person is a resident or former occupant if: 23
(a) the operator of the retirement village has become insolvent 24
or an administrator has been appointed under Division 6 of 25
Part 6, and 26
(b) the person is of the opinion that it is unlikely that the 27
operator will be able to refund the part of the ingoing 28
contribution that the applicant is entitled to be refunded 29
under a village contract relating to that retirement village. 30
(2) A mortgagee, receiver or administrator of land within a 31
retirement village may apply to the Supreme Court for an order 32
under section 182F in relation to land within a retirement village 33
if: 34
(a) the operator of the retirement village has become insolvent 35
or an administrator has been appointed under Division 6 of 36
Part 6, and 37
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(b) the applicant is of the opinion that it is unlikely that the 1
operator will be able to refund any part of an ingoing 2
contribution that a resident or former resident is entitled to 3
be refunded under a village contract relating to that 4
retirement village. 5
182F Order for enforcement of charge 6
The Supreme Court may, on an application made under section 7
182E with respect to land within a retirement village: 8
(a) order that land within the retirement village, in respect of 9
which a charge is in force, is to be sold, and 10
(b) appoint a person to act as the agent for the sale, and 11
(c) make a determination as to the entitlements of each of the 12
residents or former occupants of the retirement village, 13
having regard to: 14
(i) the refund entitlement of each resident or former 15
occupant under their respective village contracts, 16
and 17
(ii) the dates on which charges were created under this 18
Part with respect to those contracts, and 19
(d) make such orders relating to the distribution of the 20
proceeds of the sale as the Court thinks fit, having regard 21
to the order that interests are to be satisfied in accordance 22
with section 182G, and 23
(e) make such other orders as the Court sees fit. 24
182G Priority of interests 25
For the purposes of any order made under this Part, interests in 26
the land concerned are to be satisfied in the following order: 27
(a) the costs of the sale of the land and the applicant's costs in 28
seeking the order, 29
(b) any interest, mortgage, lien or other charge on or over the 30
land created or registered before the creation of a charge 31
under this Part, or otherwise taking priority over a charge 32
over the land that has been created under this Part, 33
(c) the entitlements of residents and former occupants of the 34
retirement village arising from village contracts in respect 35
of which a charge over the land has been created under this 36
Part, 37
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(d) any interest, mortgage, lien or other charge on or over the 1
land created or registered after the creation of a charge 2
over the land under this Part, 3
(e) the interest of the registered proprietor of the land 4
immediately before the sale of the land. 5
182H Order not to disadvantage residents 6
The Supreme Court must not make an order under this Part unless 7
satisfied that the order is in the best interests of the majority of the 8
residents of the retirement village. 9
182I Removal of charge 10
A charge over land created under this Part remains in force until: 11
(a) the village contract that caused the charge to be created is 12
terminated and all of the operator's liabilities under that 13
contract have been met, or 14
(b) the land is sold in accordance with an order under this Part. 15
[150] Section 189 Functions of Director-General 16
Omit ", including prosecution for any offence," from section 189 (1) (b). 17
[151] Section 189 (1) (bi) 18
Insert after section 189 (1) (b): 19
(bi) the function of prosecuting any offence under this Act or 20
the regulations, 21
[152] Section 189A 22
Insert after section 189: 23
189A Director-General may issue warning notices 24
(1) The Director-General may authorise publication of a notice 25
warning persons of particular risks involved in dealing with a 26
specified operator of a retirement village or with a person who 27
appears to be the operator of a retirement village. 28
(2) For example, a notice may relate to the risks involved in dealing 29
with an operator or person who has a history of unconscionable 30
conduct in the operator's or person's dealings with consumers. 31
(3) The Director-General may authorise the publication of such a 32
notice in any one or more of the following ways: 33
(a) to any persons making inquiries to the Director-General 34
about the person concerned, 35
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(b) by advertisement by the use of any medium, 1
(c) to any media representatives. 2
(4) Publication of such a notice may not be authorised unless an 3
investigation has been conducted by the Director-General 4
(whether or not the investigation is in relation to a complaint). 5
(5) Before authorising the publishing of such a notice, the 6
Director-General must give the person concerned an opportunity, 7
for a period of not less than 48 hours, to make representations to 8
the Director-General about the proposed notice unless the 9
Director-General is not able, after making reasonable efforts to 10
do so, to contact the person promptly and advise the person of the 11
opportunity to make representations. 12
(6) The opportunity to make representations is not required to be 13
given if, in the opinion of the Director-General, there is an 14
immediate risk to the public. 15
(7) No liability is incurred by any person for publishing in good faith: 16
(a) a notice under this section, or 17
(b) a fair report or summary of such a notice. 18
[153] Section 190 Director-General may take or defend proceedings 19
Omit section 190 (1) (b). Insert instead: 20
(b) after investigating the complaint, the Director-General is 21
satisfied that the resident may have a right to take or 22
defend the proceedings, and 23
[154] Sections 193-195 24
Omit the sections. 25
[155] Section 196 Exclusion of personal liability 26
Insert ", the Registrar-General" after "by the Director-General". 27
[156] Section 196 28
Insert "or Registrar-General" after "of the Director-General". 29
[157] Section 196 30
Insert ", the Registrar-General" after "subject the Director-General". 31
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[158] Part 12A 1
Insert after Part 12: 2
Part 12A Powers of investigation 3
196A Powers of entry, inspection etc 4
(1) An investigator may exercise the powers conferred by this 5
section for the purposes of: 6
(a) ascertaining whether the provisions of this Act or the 7
regulations are being complied with or have been 8
contravened, or 9
(b) investigating a complaint made under this Act, or 10
(c) obtaining evidence, documents or information in relation 11
to a matter that constitutes or may constitute a 12
contravention of this Act or the regulations. 13
(2) An investigator may enter and inspect at any reasonable time any 14
premises that the investigator believes on reasonable grounds are 15
used for the management of or carrying on of the business of a 16
retirement village. 17
(3) While on premises entered under this section, an investigator 18
may do any one or more of the following: 19
(a) require any person on those premises to produce any 20
documents in the possession or under the control of that 21
person relating to the carrying on of the business of a 22
retirement village and, in the case of documents stored 23
electronically, to produce any such documents in written 24
form, 25
(b) inspect, take copies of or extracts from, or make notes 26
from, any such documents and, for that purpose, take 27
temporary possession of any such documents, 28
(c) take possession of such documents if the investigator 29
considers it necessary to do so for the purpose of obtaining 30
evidence or protecting evidence from destruction, 31
(d) take such photographs, films and audio, video and other 32
recordings as the investigator considers necessary, 33
(e) require any person on those premises to answer questions 34
or otherwise furnish information in relation to the carrying 35
on of the business of a retirement village or a contravention 36
of a provision of this Act, 37
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(f) require the owner or occupier (including a resident) of 1
those premises to provide the investigator with such 2
assistance and facilities as is or are reasonably necessary to 3
enable the investigator to exercise the functions of an 4
investigator under this Part. 5
(4) An investigator is not entitled to enter a part of premises used for 6
residential purposes except: 7
(a) with the consent of the occupier, or 8
(b) under the authority of a search warrant. 9
(5) An investigator may not exercise in any premises a function 10
conferred by this Part unless the investigator produces a 11
certificate of identification if requested to do so by a person 12
apparently in charge of those premises or apparently in charge of 13
any work being performed on those premises. 14
196B Power of investigator to obtain information, documents and 15
evidence 16
If an investigator believes on reasonable grounds that a person is 17
capable of giving information, producing documents, or giving 18
evidence in relation to a matter that constitutes, or may constitute, 19
an offence under this Act or the regulations, the investigator may, 20
by notice in writing given to the person, require the person: 21
(a) to provide an investigator, by writing signed by the person 22
(or, in the case of a corporation, by a competent officer of 23
the corporation) and given to the investigator within the 24
time and in the manner specified in the notice, with any 25
such information, or 26
(b) to produce to an investigator, in accordance with the 27
notice, any such documents, or 28
(c) to appear before an investigator at a time and place 29
specified in the notice and give any such evidence, either 30
orally or in writing, and produce any such documents. 31
196C Obstruction etc of investigator 32
(1) A person must not: 33
(a) without reasonable excuse, refuse or fail to comply with 34
any notice given or requirement made, or to answer any 35
question asked, by an investigator under this Part, or 36
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(b) provide information or give evidence in purported 1
compliance with a requirement made or question asked by 2
an investigator under this Part knowing the information or 3
evidence to be false or misleading in a material particular, 4
or 5
(c) wilfully delay, hinder or obstruct an investigator in the 6
exercise of the investigator's functions under this Part. 7
Maximum penalty: 100 penalty units or imprisonment for 8
6 months, or both. 9
(2) Despite any other provision of this Part, a natural person is 10
excused from answering any question, providing any 11
information, giving evidence or producing or permitting the 12
inspection of a document in accordance with this Part on the 13
ground that the answer, information, evidence or document may 14
tend to incriminate the person. 15
196D Taking possession of documents to be used as evidence 16
(1) If an investigator takes possession of any documents under this 17
Part for the purpose of obtaining evidence or protecting evidence 18
from destruction, they may be retained by the investigator until 19
the completion of proceedings (including proceedings on appeal) 20
in which they may be evidence. 21
(2) The person from whom the documents are taken must be 22
provided, within a reasonable time after the documents are taken, 23
with a copy of the documents certified by an investigator as a true 24
copy. 25
(3) A copy of documents provided under this section is, as evidence, 26
of equal validity to the documents of which it is certified to be a 27
true copy. 28
196E Search warrants 29
(1) An investigator may apply to an authorised officer within the 30
meaning of the Law Enforcement (Powers and Responsibilities) 31
Act 2002 for the issue of a search warrant for premises if the 32
investigator believes on reasonable grounds: 33
(a) that a provision of this Act or the regulations is being 34
contravened on the premises, or 35
(b) that there is on the premises evidence of a contravention of 36
this Act or the regulations. 37
(2) An authorised officer to whom such an application is made may, 38
if satisfied that there are reasonable grounds for doing so, issue a 39
search warrant authorising an investigator named in the warrant: 40
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(a) to enter and inspect premises, and 1
(b) to exercise on the premises any function of an investigator 2
under this Part. 3
(3) Division 4 of Part 5 of the Law Enforcement (Powers and 4
Responsibilities) Act 2002 applies to a search warrant issued 5
under this section. 6
[159] Section 197A 7
Insert after section 197: 8
197A False or misleading information 9
An operator of a retirement village must not, in purported 10
compliance with any requirement of this Act, give to any resident 11
or prospective resident any information that the operator knows 12
to be false or misleading in a material particular. 13
Maximum penalty: 20 penalty units. 14
[160] Section 198 Costs of operator's legal advice or proceedings 15
Omit "statement of approved expenditure" from section 198 (1) (a). 16
Insert instead "approved annual budget". 17
[161] Section 198 (2) 18
Omit "statement of proposed expenditure". 19
Insert instead "proposed annual budget". 20
[162] Section 202 Costs of administration 21
Insert at the end of the section: 22
(2) In the course of the administration of this Act, the Minister may 23
fund the provision of advisory and advocacy services to residents 24
and prospective residents of retirement villages. 25
[163] Section 203 Regulations 26
Insert after section 203 (3): 27
(4) The regulations may exempt specified village contracts or a 28
specified class of village contracts from any provision of this Act. 29
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[164] Schedule 1 Consent of residents 1
Omit Part 3. Insert instead: 2
Part 3 Consent requiring special resolution 3
5 Notice of special resolution 4
If a measure or action requires a special resolution, a ballot must 5
be conducted in accordance with the regulations. 6
6 How special resolution is carried 7
A special resolution is carried only if it is passed by at least 75% 8
of the number of residents who participate in the ballot. 9
[165] Schedule 4 Savings, transitional and other provisions 10
Insert at the end of clause 1 (1): 11
Retirement Villages Amendment Act 2008 12
[166] Schedule 4, clause 1 (1A) 13
Insert after clause 1 (1): 14
(1A) For the avoidance of doubt, any such provision may, if the 15
regulations so provide, have effect despite any specified 16
provision of this Act (including a provision of this Schedule). 17
[167] Schedule 4, Part 3 18
Insert after Part 2: 19
Part 3 Provisions consequent on enactment of 20
Retirement Villages Amendment Act 2008 21
Division 1 General 22
15 Definition 23
In this Part: 24
2008 amending Act means the Retirement Villages Amendment 25
Act 2008. 26
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16 Amendments extend to existing contracts 1
Except as otherwise provided by this Part or the regulations, an 2
amendment made by the 2008 amending Act extends to a village 3
contract that was in force immediately before the commencement 4
of that amendment. 5
Division 2 Recurrent charges 6
17 Liability of former occupant of residential premises for recurrent 7
charges where former occupant is registered interest holder 8
(1) This clause applies to a former occupant of residential premises 9
in a retirement village who is the registered interest holder in 10
relation to those premises and who had vacated the premises 11
before the commencement of section 152 (3) (as inserted by the 12
2008 amending Act). 13
(2) If a former occupant of residential premises in a retirement 14
village was still liable to pay recurrent charges in respect of those 15
premises immediately before the commencement of section 16
152 (3) (as inserted by the 2008 amending Act), a reference in 17
section 152 (3) (a) to 42 days immediately after the former 18
occupant permanently vacated the premises is to be read as a 19
reference to 6 months after that commencement. 20
(3) In this clause, a reference to recurrent charges is a reference to 21
recurrent charges in respect of general services. 22
18 Liability of former occupant of residential premises for recurrent 23
charges where former occupant is not registered interest holder 24
(1) This clause applies to a former occupant of residential premises 25
in a retirement village who is not a registered interest holder in 26
relation to those premises and who had vacated the premises 27
before the amendment of section 153 (2) (e) by the 2008 28
amending Act. 29
(2) If a former occupant of residential premises in a retirement 30
village was still liable to pay recurrent charges in respect of those 31
premises immediately before the amendment of section 32
153 (2) (e) by the 2008 amending Act, a reference in that 33
paragraph to the date that is 42 days after the date on which the 34
former occupant otherwise permanently vacated the premises is 35
to be read as a reference to: 36
(a) the date that is 42 days after the commencement of this 37
clause, or 38
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(b) the date that is 6 months after the former occupant 1
delivered up vacant possession of those premises to the 2
operator, 3
whichever date occurs first. 4
(3) In this clause, a reference to recurrent charges is a reference to 5
recurrent charges in respect of general services. 6
Division 3 Making good of outstanding deficits 7
19 Definition 8
In this Division, outstanding deficit means the total deficit in the 9
annual accounts of a retirement village that accrued on or before 10
the end of a financial year of the retirement village occurring 11
most recently before 23 November 2006. 12
20 Making good of deficit 13
(1) The operator of a retirement village may: 14
(a) make good the whole, or any part, of any outstanding 15
deficit from any funds, other than recurrent charges, 16
available to the operator, or 17
(b) propose that the residents of the village make good the 18
whole, or any part, of any outstanding deficit: 19
(i) by making special additional payments, or 20
(ii) from any surplus in the annual accounts of the 21
retirement village in any financial year. 22
(2) The residents of a retirement village may, by special resolution, 23
consent to a proposal under subclause (1) (b) (i) or (ii). 24
(3) A proposal under subclause (1) (b) may only be put to the 25
residents of the retirement village once. 26
(4) Despite section 120B (as inserted by the 2008 amending Act), if 27
the residents of a retirement village consent to a proposal under 28
subclause (1) (b) (ii), the operator of the retirement village may 29
make good the whole, or any part, of that outstanding deficit from 30
a surplus in the annual accounts of the village in accordance with 31
the proposal. 32
(5) The regulations may prescribe expenditure or circumstances 33
resulting in, or contributing to, the outstanding deficit in respect 34
of which the operator is prevented from making a proposal under 35
subclause (1) (b) (i) or (ii). 36
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(6) Nothing in this clause authorises the making good of the whole 1
or any part of an outstanding deficit by using money from the 2
capital works fund. 3
21 Tribunal may make orders for making good of deficit 4
(1) If a retirement village has an outstanding deficit on or after 5
23 November 2011 or such later date as may be prescribed by the 6
regulations, the operator may apply to the Tribunal for (and the 7
Tribunal may make) an order specifying: 8
(a) the amount of any such deficit that is to be made good by 9
the operator of the retirement village, and 10
(b) the amount of any such deficit that is to be made good by 11
the residents of the retirement village, and 12
(c) the date by which any such deficit is to be made good. 13
(2) In making an order under this clause, the Tribunal must give 14
consideration to such matters as may be prescribed by the 15
regulations. 16
(3) If the operator of the retirement village does not apply to the 17
Tribunal for an order under this clause within 30 days after 18
23 November 2011, or such later date as may be prescribed by the 19
regulations, the operator must make good the whole of the 20
outstanding deficit. 21
Division 4 Capital replacement and maintenance 22
22 Definitions 23
In this Division: 24
capital replacement fund means a capital replacement fund 25
established under section 95 (as in force immediately before its 26
substitution by the 2008 amending Act). 27
capital works fund means a capital works fund established under 28
section 100 (as substituted by the 2008 amending Act). 29
maintenance fund means a maintenance fund established under 30
section 100 (as in force immediately before its substitution by the 31
2008 amending Act). 32
23 Reimbursement for urgent capital replacement or maintenance 33
carried out by resident 34
Section 95 (as substituted by the 2008 amending Act) does not 35
apply in respect of any capital replacement or maintenance 36
carried out, or caused to be carried out, by a resident of a 37
retirement village before the commencement of that amendment. 38
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24 Application of capital replacement and maintenance provisions 1
For the purposes of section 98 (as substituted by the 2008 2
amending Act), the cost to a resident of a retirement village (who 3
was a resident of the village immediately before that substitution) 4
for capital maintenance or replacement must not, in any financial 5
year, exceed $1,000 or such other amount as may be prescribed 6
by the regulations. 7
25 Existing capital replacement funds and maintenance funds 8
(1) On the substitution of Division 2 of Part 7 by the 2008 amending 9
Act, any capital replacement fund existing immediately before 10
that substitution is dissolved. 11
(2) Any funds held in a capital replacement fund for a retirement 12
village that is dissolved by subclause (1) are to be held by the 13
operator and may be used by the operator to fund the operator's 14
proportion of any capital maintenance and replacement. 15
(3) Any maintenance fund for a retirement village existing 16
immediately before the repeal of Division 3 of Part 7 by the 2008 17
amending Act is taken, on that repeal, to be a capital works fund. 18
26 Sale of items of capital to residents 19
(1) Except as provided by this clause, section 102, as substituted by 20
the 2008 amending Act, does not apply in respect of the sale of 21
an item of capital before the substitution of that section. 22
(2) A resident of a retirement village may, by notice in writing to the 23
operator of the village, advise that this clause applies to a 24
specified item of capital owned by the resident if: 25
(a) the item was purchased from the operator of the village on 26
or after 23 November 2006, and 27
(b) but for the purchase of the item, it is an item for which the 28
operator would be responsible (within the meaning of 29
section 92, as substituted by the 2008 amending Act). 30
(3) On the giving of such a notice to the operator of a retirement 31
village: 32
(a) ownership of the item of capital referred to in the notice is 33
transferred to the operator, and 34
(b) the resident is entitled to receive a payment equal to the 35
amount the resident paid for the item. 36
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(4) A payment that a resident is entitled to receive under this clause 1
is required to be made at the same time as the operator is required 2
to make a payment to the resident under section 44D (2), 180 (2) 3
or 181 (2) as the case may be. 4
(5) The operator of a retirement village may apply to the Tribunal for 5
(and the Tribunal may make) an order, reducing the amount to 6
which a resident is entitled under subclause (3) (b), having regard 7
to the condition of the item of capital concerned. 8
(6) An application made by an operator under subclause (5) may 9
relate to more than one item of capital or more than one notice 10
under this clause. 11
27 Contract, agreement or scheme for the replacement or 12
maintenance of items of capital 13
(1) This clause applies to any contract, agreement or scheme 14
between the operator of a retirement village and a resident of the 15
retirement village that: 16
(a) purports to pass responsibility for the maintenance or 17
replacement of an item of capital for which the operator is 18
responsible (within the meaning of section 92) to the 19
resident, and 20
(b) was entered into before the substitution of section 102. 21
(2) Except as provided by this clause, section 102 does not apply in 22
respect of a contract, agreement or scheme to which this clause 23
applies. 24
(3) A resident who is a party to a contract, agreement or scheme to 25
which this clause applies may give notice in writing to the 26
operator who is a party to the contract, agreement or scheme that 27
the resident intends section 102 (2) to apply to the contract, 28
agreement or scheme. 29
(4) On the giving of the notice, section 102 (2) and (3) are taken to 30
extend to the contract, agreement or scheme, but only in relation 31
to anything required to be done under the contract, agreement or 32
scheme after the giving of the notice. 33
(5) A notice may only be given under this clause within the period of 34
3 months immediately after the commencement of section 102. 35
(6) A reference in this clause to section 102 is a reference to that 36
section as substituted by the 2008 amending Act. 37
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Division 5 Miscellaneous 1
28 Amendments relating to annual budgets 2
A statement of proposed expenditure or a statement of approved 3
expenditure under this Act (as in force immediately before the 4
commencement of this clause) is taken, on that commencement, 5
to be a proposed annual budget or an approved annual budget, 6
respectively. 7
29 General inquiry document and disclosure statement concerning a 8
village 9
(1) An amendment made to section 18 (1) by the 2008 amending Act 10
does not apply to or in respect of a person if the operator of a 11
retirement village was aware, before the commencement of that 12
amendment, that the person was a prospective resident or was 13
acting on behalf of a prospective resident. 14
(2) However, the operator of a retirement village must provide any 15
such person with a general inquiry document within 14 days after 16
the commencement of that amendment. 17
(3) An amendment made to section 18 (3) by the 2008 amending Act 18
does not apply to a request or expression of interest made before 19
the commencement of that amendment. 20
30 Amendment relating to residents entering village contract 21
An amendment made to section 24 (1) by the 2008 amending Act 22
does not extend to an agreement entered into before the 23
commencement of that amendment. 24
31 Amendment relating to renovations and alteration of fixtures or 25
fittings 26
Section 41A (as inserted by the 2008 amending Act) does not 27
apply to any renovations or alterations of fixtures or fittings that 28
were commenced, but not completed, before the insertion of that 29
section. 30
32 Settling-in period provisions 31
(1) Division 2 of Part 5 (as inserted by the 2008 amending Act) 32
extends to a village contract entered into before the insertion of 33
that Division. 34
(2) For the avoidance of doubt, the end of the settling-in period with 35
respect to a village contract to which Division 2 of Part 5 applies 36
because of subclause (1) is the later of: 37
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Retirement Villages Amendment Bill 2008
Schedule 1 Amendments
(a) the day that is 90 days after the date on which the resident 1
is entitled to occupy the residential premises concerned 2
under the residence contract for the premises, or 3
(b) if the resident occupies the premises before the day 4
specified in paragraph (a), the day that is 90 days after the 5
resident first occupies the residential premises, or 6
(c) such date as may be agreed to by the operator and the 7
resident. 8
33 Membership of Residents Committee 9
For the purposes of section 70A (as inserted by the 2008 10
amending Act), any term of office concluded before the 11
commencement of that section is disregarded. 12
34 Holding of first annual management meeting 13
Section 72A (as inserted by the 2008 amending Act) applies to 14
each financial year for a retirement village ending after the 15
insertion of that section and extends to a financial year of a 16
retirement village that ended within the 2 months occurring 17
immediately before that insertion. 18
35 Existing proxies 19
(1) An amendment made to this Act by the 2008 amending Act does 20
not affect the casting of a vote by means of a proxy in force 21
immediately before the commencement of the amendment. 22
(2) However, any such proxy expires at the end of the financial year 23
of the retirement village commencing after the commencement of 24
the amendment. 25
36 Variation of recurrent charges 26
Section 104 (2) (as substituted by the 2008 amending Act) 27
applies to a village contract that is referred to in that subsection 28
and was in existence before that substitution on and from the date 29
that the village contract was last varied before that substitution. 30
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Retirement Villages Amendment Bill 2008
Amendments Schedule 1
37 Amendments relating to quarterly accounts 1
An amendment made to section 118 by the 2008 amending Act 2
does not apply to the quarterly accounts for a retirement village 3
in respect of a quarter that had ended before the commencement 4
of the amendment. 5
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