South Australian Current Acts South Australian Current Acts46—Application to Tribunal
(1) A party to a
dispute between an operator and a resident of a retirement village may apply
to the Tribunal for resolution of the matters in dispute.
(a) an
application should not be made to the Tribunal unless the parties have made
reasonable attempts to resolve the dispute in accordance with the operator's
dispute resolution policy and such attempts have failed to resolve the
dispute; and
(b) an
application must not be made to the Tribunal in relation to an act or omission
that occurred more than 4 years before the day on which the application is
made except with the permission of the Tribunal.
(3) On an application
under subsection (1)—
(a) if
the Tribunal finds that a party to the dispute has breached, or failed to
comply with, a residence contract, the Tribunal may—
(i)
by such order as it considers appropriate in the
circumstances, restrain the breach of the contract or require action in
performance of the contract;
(ii)
order the payment of an amount payable under the
contract;
(iii)
order the payment of compensation for loss or injury,
other than personal injury, caused by a breach of the contract or a failure to
comply with the contract;
(b) if
the Tribunal finds that a party to the dispute has breached, or failed to
comply with, a provision of this Act, the Tribunal may—
(i)
by such order as it considers appropriate in the
circumstances, restrain a breach of this Act or require action to comply with
this Act or, in relation to an operator, require the operator to vary or
reverse a decision or the effect of an act of the operator;
(ii)
order a party to the dispute to refrain from future
action of a kind specified in the order;
(iii)
order the payment of compensation for loss or injury,
other than personal injury, caused by a breach of this Act or a failure to
comply with this Act;
(c) if
the Tribunal finds that the operator has acted in a harsh or unconscionable
manner, the Tribunal may, by such order as it considers appropriate in the
circumstances—
(i)
require the operator to vary or reverse a decision or the
effect of an act of the operator;
(ii)
avoid ab initio , or modify, terms or conditions of an
agreement between the operator and the resident;
(iii)
require the operator to repay to the resident any amount
paid by the resident pursuant to a term or condition of an agreement (that has
been avoided or modified by the Tribunal);
(d) if
the dispute relates to the payment of an exit entitlement—the Tribunal
may determine the amount that is payable, and make orders as to payment.
(4) Despite
section 51(3) of the South Australian Civil and Administrative Tribunal
Act 2013 , the Tribunal may only refer a matter, or any aspect of a
matter, in dispute between an operator and a resident for mediation with the
express consent of the parties (which may not be subsequently withdrawn).
(5) The Tribunal may
refuse to determine an application under this section if the Tribunal
considers that it is appropriate to do so for any reason.
(6) The Tribunal may
make an order under this section notwithstanding that it provides a remedy in
the nature of an injunction or order for specific performance in circumstances
in which that remedy would not otherwise be available.
(7) However, a member
of the Tribunal who is not legally qualified cannot make an order under
subsection (6) without the approval of the President or a
Deputy President of the Tribunal.
(8) The Tribunal may
make ancillary or incidental orders for the purposes of proceedings under this
section.
(9) A dispute as to
the payment of an exit entitlement may also be brought before a court
competent to hear and determine a claim founded on contract for the amount in
dispute.
(10) This section does
not derogate from—
(a) the
other provisions of this Act that relate to applications to the Tribunal; and
(b) the
jurisdiction of a court, or of another tribunal constituted by law.
(11) In this
section—
"resident" of a retirement village includes a former resident of a
retirement village.