Western Australian Current Acts Western Australian Current Acts (1) Subject to
subsection (2), a premium paid to the operator must be held in trust (in a
bank account or invested as trust funds may be invested under Part III of the
Trustees Act 1962 ) until —
(a) the
person by or on whose behalf the premium was paid —
(i)
enters into occupation of the residential premises; or
(ii)
is entitled to enter into occupation of the residential
premises and is no longer entitled to rescind the residence contract under
section 14 because the applicable period referred to in that section has
expired,
whichever occurs
first; or
(b) it
becomes apparent that that person will not enter into occupation of the
residential premises.
(2A) If —
(a) a
premium is paid to an operator and subsection (2) does not apply; and
(b) the
premium is not held in trust or invested as required by subsection (1),
the operator is guilty
of an offence.
Penalty for this subsection: a fine of $20 000
(2) The Commissioner
may, on the application of an operator, grant an exemption from subsection (1)
if satisfied of the operator’s capacity and willingness to provide
residential premises in accordance with its obligations under the residence
contracts.
(3) An exemption may
be conditional or unconditional, and if an operator contravenes or fails to
comply with a condition of an exemption the operator is guilty of an offence.
Penalty for this subsection: a fine of $5 000.
(4) If the prospective
resident does not enter into occupation of residential premises, any question
affecting entitlement to or disposition of the premium must be determined by
reference to the residence contract subject to the following qualifications
—
(a) if
the prospective resident’s failure to enter into occupation of
residential premises is attributable to a failure on the part of the operator
to carry out contractual obligations, interest and accretions arising from
investment of the premium must be paid to the prospective resident;
(b) in
any other case, the operator is entitled to retain any such interest and
accretions.
(5) If —
(a) a
question affecting entitlement to or disposition of the premium is required by
subsection (4) to be determined by reference to the residence contract and the
operator fails to act in accordance with that requirement; or
(b)
interest and accretions arising from investment of the premium are required by
subsection (4)(a) to be paid to the prospective resident and that interest and
those accretions are not paid accordingly,
the operator is guilty
of an offence.
Penalty for this subsection: a fine of $20 000.
[Section 18 amended: No. 1 of 1997 s. 18; No. 36
of 2012 s. 10; No. 42 of 2024 s. 37, 48(1), 50 and 52.]