This legislation has been repealed.
[r. 3(1)]
Foreword
An increasing number of retired people are finding the concept of retirement
villages attractive. These villages exist in a number of forms with a range of
tenures and accommodation types. Different financial arrangements and forms of
contract include lease, licence, a right conferred by shares, strata title, or
freehold title. Retirement villages also differ widely with regard to the
nature of care and other amenities and services that may be available.
The Code, the Retirement Villages Act 1992 and Retirement Villages
Regulations 1992 provide a package for the regulation of the retirement
village industry that safeguards the rights of both the residents and the
owners of retirement villages, and provides clear guidelines for the industry.
The Code sets out the practices that apply to the promotion, sale and
operation of retirement villages.
This Code has been prescribed as an interim code under the Fair Trading
Act 2010 section 44. It is, in substance, the same as the Interim
Code of Fair Practice for Retirement Villages 2012, whichlapsed on
31 March 2013. This Code will remain in force for 6 months from
1 April 2013, to allow time for consultation and development of a
new revised code, in accordance with section 44.
Division 1 of the Code deals with, and provides information on, general
matters such as the meaning of terms used in the Code; the application,
general principles and objectives of the Code; the basic rights of residents
of a retirement village and the Code’s relationship to other relevant
legislation.
Division 2 sets out the approvals that must be obtained before any sales
promotion of a retirement village is undertaken, and specifies the information
that must be disclosed in any advertising or promotional material.
Division 3 sets out the information that must be provided to a
prospective resident of a retirement village before the person enters into a
residence contract or any service contract with the administering body of the
village.
Division 4 specifies the information that must be included in the
residence contract and any service contract.
Division 5 sets out the rights and obligations of the administering body
and residents in relation to the management and operation of a retirement
village, including consultation on the village operating budget, the provision
of quarterly operating income and expenditure statements, the establishment of
a residents’ committee and the holding of residents’ meetings.
Division 6 recognises that disputes may occur in a retirement village and
outlines the processes that may be utilised to resolve them, including
mediation.
Division 7 explains the rights and the obligations of the administering
body and a resident of a retirement village, in relation to the termination of
a residence contract.
Division 8 specifies the method of delivery of any written notice,
correspondence or other document that must be given under this Code to a
resident or the administering body of a retirement village.
Appendix 1 provides a list of questions that a prospective resident should
carefully read and consider before deciding to enter any retirement village.
Compliance with this Code
The Code must be complied with and is enforceable by the Commissioner in the
State Administrative Tribunal under the Fair Trading Act 2010 .
Where it appears to the Commissioner that an administering body has not
complied with the Code, the Commissioner may apply to the State Administrative
Tribunal for an order, and the State Administrative Tribunal may make orders
including that —
•
the administering cease contravening the Code; and/or
•
the administering body rectify any consequence of that contravention.
An administering body that fails to comply with an order made by the State
Administrative Tribunal commits an offence that is punishable by a fine of up
to $50,000.
This Code is the
Interim Code of Fair Practice for Retirement Villages 2013 .
Definitions in the Retirement Villages Act 1992
The following definitions from the Retirement Villages Act 1992 have
application to this Code —
administering body , in relation to a retirement village, means the person by
whom, or on whose behalf, the retirement village is administered and includes
a person (other than a resident) who is the owner of land within the
retirement village;
Commissioner means the person for the time being designated as the
Commissioner under section 7A;
owner , in relation to land under the operation of the
Transfer of Land Act 1893 , means a person who alone or with others is
registered as the proprietor of an estate in fee simple;
premium means a payment (including a gift) made to the administering body of a
retirement village in consideration for, or in contemplation of, admission of
the person by or on whose behalf the payment was made as a resident in a
retirement village (including any such payment made for the purchase of
residential premises in a retirement village or for the purchase, issue or
assignment of shares conferring a right to occupy any such residential
premises) but does not include —
(a) any
such payment excluded by regulation from the ambit of this definition; or
(b)
recurrent charges;
recurrent charge means any amount (including rent) payable by a resident to
the administering body of a retirement village on a recurrent basis;
residence contract means a contract, agreement, scheme or arrangement which
creates or gives rise to a right to occupy residential premises in a
retirement village, and may take the form of a lease or licence;
residence rules means the rules with which residents of a retirement village
are expected by the administering body to comply, but does not include any
prescribed subsidiary legislation (to which residents are subject) in force
under any prescribed Act;
resident , in relation to a retirement village, means a person who has been
admitted to occupation of residential premises in accordance with a retirement
village scheme and includes a spouse or de facto partner of such a person
who —
(a) is
residing with that person; or
(b) was
residing with that person at the time of his or her death;
residential premises means any premises or part of premises (including any
land occupied with the premises) used or intended to be used as a place of
residence and includes a hostel unit;
residential tenancy agreement has the same meaning as in the
Residential Tenancies Act 1987 ;
retired person means a person who has attained the age of 55 years or
retired from full-time employment or a person who is or was the spouse or de
facto partner of such a person;
retirement village means a complex of residential premises, whether or not
including hostel units, and appurtenant land, occupied or intended for
occupation under a retirement village scheme or used or intended to be used
for or in connection with a retirement village scheme;
retirement village scheme or scheme means a scheme established for retired
persons or predominantly for retired persons, under which —
(a)
residential premises are occupied in pursuance of a residential tenancy
agreement or any other lease or licence;
(b) a
right to occupation of residential premises is conferred by ownership of
shares;
(c)
residential premises are purchased from the administering body subject to a
right or option of repurchase;
(d)
residential premises are purchased subject to conditions restricting the
subsequent disposal of the premises; or
(e)
residential premises are occupied under any other scheme or arrangement
prescribed for the purposes of this definition,
but does not include any such scheme under which no resident or prospective
resident of residential premises pays a premium in consideration for, or in
contemplation of, admission as a resident under the scheme;
service contract means a contract between an administering body or former
administering body of a retirement village and a resident for the provision to
the resident of —
(a)
hostel care;
(b)
infirmary care;
(c)
medical or nursing services;
(d)
meals;
(e)
administrative and management services;
(f)
maintenance and repair services;
(g)
recreation services; or
(h) any
other services,
and any collateral agreement or document relating to the provision of any such
service;
working day means a day other than a Saturday, a Sunday or a public holiday.
(1) Subject to
subclause (2), this Code applies to the administering body and a resident
or prospective resident of a retirement village, whether or not the village
was established before or after the commencement of the Code.
(2) This Code does not
apply to the administering body or a resident or prospective resident of a
retirement village if —
(a) the
administering body is an approved provider within the meaning of the
Aged Care Act 1997 of the Commonwealth ( Cwlth ) in relation to the
residential premises used or intended to be used as a place of residence by
the resident or prospective resident; and
(b) the
administering body provides, or is to provide, the resident or prospective
resident with residential care within the meaning of the
Aged Care Act 1997 (Cwlth); and
(c) the
resident or prospective resident is receiving, or is entitled to receive,
residential care in respect of which the administering body is eligible for
residential care subsidy within the meaning of the Aged Care Act 1997
(Cwlth).
(3) Except as provided
in subclause (4), Division 2 of this Code does not apply to any
contract, agreement or arrangement made or entered into prior to the
commencement of the Code.
(4) If a contract,
agreement or arrangement made or entered into prior to the commencement of
this Code is silent on a matter with which Division 2 of the Code deals,
the provisions of Division 2 will apply to such matter.
This Code and the Retirement Villages Act 1992 do not apply to residential
care services provided by an administering body under the Aged Care
Act 1997 (Cwlth).
Note that under the Fair Trading Act 2010 section 10 this Code binds
the Crown.
The general principles
guiding all those involved in the provision of retirement villages and related
services are that —
(a) the
well-being and interests of residents, together with the rights of
administering bodies, must be given due consideration; and
(b) the
freedom of decision and action of each resident must be restricted as little
as possible and must be recognised in the relationship between a resident and
the administering body of a retirement village; and
(c) the
relationship of residents with their family and past and present communities
is important and must be recognised, taking into account the cultural,
religious and linguistic background of each resident; and
(d)
residents must be treated fairly and not subject to abuse or exploitation.
The objectives of the
Code are to —
(a)
promote fair trading practices in the provision of retirement villages and
related services by setting out the rights and obligations of residents and
administering bodies in retirement villages; and
(b)
encourage fairness in the promotion, sale or grant of rights in, and operation
of, retirement villages; and
(c)
require the disclosure of all relevant information to a person who is
considering entering a particular retirement village; and
(d)
require contracts for the occupation of residential premises and for the
provision of amenities and services in a retirement village to contain full
details of the obligations and entitlements of the resident and the
administering body; and
(e)
facilitate consultation between the administering body and the residents on
the management of a retirement village; and
(f)
establish appropriate mechanisms for the resolution of any dispute in a
retirement village between the residents and the administering body or between
residents.
(1) The administering
body of a retirement village must respect a resident’s basic right to
privacy in his or her residential premises, subject to the right of the
administering body to inspect the premises as set out in the residence rules
and the residence contract.
(2) The administering
body must respect a resident’s basic right to quiet enjoyment of his or
her residential premises and any communal amenities.
(3) The administering
body must respect a resident’s basic right to complete autonomy over his
or her property and personal and financial affairs, subject to any statutory
restriction or any other restriction provided for in the residence contract.
Other relevant legislation
The provisions of this Code should be read in conjunction with other relevant
legislation. The Retirement Villages Act 1992 and the
Retirement Villages Regulations 1992 set out rights and obligations
relating to retirement villages. The Fair Trading Act 2010 is applicable
to residence contracts and other contracts concerning retirement villages.
Where residential premises in a retirement village are strata titled, the
provisions of the Strata Titles Act 1985 and any applicable by-laws also
apply.
The Aged Care Act 1997 (Cwlth) has application to residential care
services provided under that Act by the administering body of a retirement
village.
Division 2 — Advertising and promotion of retirement
villages
All promotional or
sales material provided by, or on behalf of, the administering body of a
retirement village about that village, whether in written or oral form, must
be —
(a)
truthful, accurate and unambiguous; and
(b)
entirely consistent with the provisions of this Code, the
Retirement Villages Act 1992 and the Fair Trading Act 2010 .
2.2 Retirement village developments
(1) The owner of land
upon which a retirement village is to be developed, must obtain all necessary
consents to develop the retirement village from the relevant authorities
before any sales promotion of the village is undertaken.
(2) Subclause (1)
does not preclude the owner from carrying out a market survey or inviting
expressions of interest in the proposed retirement village prior to any sales
promotion.
(3) Where the consent
to develop a retirement village includes a requirement for certain amenities
or services to be provided for the life of the village, that requirement must
be included in any promotional or sales material provided to a prospective
resident.
2.3 Proposed amenities and services
Where the promotional
or sales material provided by, or on behalf of, the administering body of a
retirement village makes reference to proposed amenities and services in the
village, the promotional or sales material must —
(a)
state —
(i)
the latest date by which those amenities and services
will be provided or made available to the residents of the village; or
(ii)
the happening of an event upon which the provision or
availability of those amenities and services depends;
and
(b)
state any conditions upon which the provision or availability of those
amenities and services to the residents depend.
2.4 Approvals for facilities that provide
residential aged care services
The administering body
must obtain all necessary consents from the relevant authorities to operate
facilities that provide residential care services under the
Aged Care Act 1997 (Cwlth), before such facilities are promoted as being
available to, or associated with, a retirement village.
2.5 Access to residential aged care services
Where the promotional
or sales material provided by, or on behalf of, the administering body of a
retirement village makes reference to the availability of residential care
services under the Aged Care Act 1997 (Cwlth), the following statement on
the terms of access to such services printed in 16 point type and boxed
must be included in the promotional or sales material —
You should be aware that current Commonwealth policy guidelines on admission
to Commonwealth funded residential aged care facilities require places to be
allocated on a “needs” basis. It is not possible for an
organisation providing services for older people to guarantee admission to
Commonwealth funded residential aged care facilities.
Division 3 — Prospective resident’s right to
information before entering into a residence contract or service contract
3.1 Before entering into a residence contract
The owner of a
retirement village must make the following information available, in writing,
to a prospective resident of the retirement village at least 5 working days
before the prospective resident enters into a residence contract for
occupation of residential premises in the village —
(a) a
copy of —
(i)
if the retirement village is already operating, the
audited or actual accounts of income and expenditure for the previous
financial year of the village and the operating budget for the current
financial year; or
(ii)
in any other case, the proposed operating budget for the
first year of operation;
(b) a
copy of every contract required to be entered into in order to reside in the
retirement village and details of any costs associated with entering into
every such contract;
(c) if
the residential premises are comprised in a strata plan or a survey-strata
plan registered under the Strata Titles Act 1985 —
(i)
a copy of the by-laws of the relevant strata company; and
(ii)
an authority to obtain information pursuant to the
Strata Titles Act 1985 section 43.
Note that under the Retirement Villages Act 1992 section 13(2)(c)
the owner of a retirement village is obliged to provide a prospective resident
with a copy of the residence rules of that village. A full statement of the
rights conferred undersections 13 and 14 of that Act is set out in the
Retirement Villages Regulations 1992 Schedule 1 Form 2.
Information statement by owner
Note that under the Retirement Villages Act 1992 section 13(2)(a),
an owner is required to provide a prospective resident with written answers to
the questions set out in the Retirement Villages Regulations 1992
Schedule 1 Form 1. The questions require the owner to disclose such
things as —
•
the premium (i.e. the ingoing contribution) and other costs payable by
the resident to enter the retirement village;
•
the village operating costs payable by the resident and the method or
calculation used to determine and vary those costs;
•
the amenities and services that are provided or made available to the
resident and the charges or fees payable by the resident to access or use
those amenities and services;
•
details of costs associated with moving to and living in alternative
accommodation within the retirement village; and
•
a clear explanation of the right of the resident to a refund of the
whole or a part of the premium on the termination of the residence contract.
Appendix 1 — Checklist for residents
A prospective resident should carefully read and consider the list of
questions provided in Appendix 1 to this Code before deciding to enter any
retirement village.
3.2 Before entering into a service contract
The administering body
of a retirement village must give the following information in writing to a
prospective resident, or a resident, at least 5 working days before that
person enters into a service contract with the administering body —
(a) the
costs payable under the contract, including all ongoing village operating
costs or charges; and
(b)
details of the services to be provided under the contract; and
(c)
details of the notice to be given to, and the costs payable by, the resident
to terminate the provision of the services.
Division 4 — Residence contract and service contract
4.1 Legibility and presentation requirements
(1) The residence
contract and any service contract between the administering body and a
prospective resident, or a resident, of a retirement village must —
(a) be
written in clear, concise and plain language; and
(b) be
printed in a size not less than 12 point type.
(2) The following
statement must appear in 16 point type and be included in the residence
contract and any service contract —
I acknowledge that I have been given a copy of, and have had the opportunity
to take independent advice on, this contract.
Residence contract cooling off period
Under the Retirement Villages Act 1992 section 14, a residence
contract entered into after the commencement of the Act must provide for a
cooling-off period of not less than 5 working days after the date of the
contract (i.e. the day on which the contract was signed by the last party to
sign it).
If the information referred to in section 13(2) of that Act is not
provided at least 5 days before a residence contract is entered into, the
cooling-off period for that contract is 10 days after the day on which
the information is provided.
During the cooling-off period, a person may withdraw from a residence contract
by giving notice in writing to all other parties to the contract (unless the
person has entered into residence in the retirement village during the
cooling-off period).
On withdrawing from a residence contract a person is entitled, subject to the
provisions of the Retirement Villages Act 1992 sections 14(2) and
75, to the full repayment of all moneys paid.
Where a facility provides a residential care service to a person under the
Aged Care Act 1997 (Cwlth), Subdivision 57-G of that Act will apply
to the refund of any entry payment made by the person for the provision of the
service.
The residence contract
must fully disclose —
(a) the
legal basis of occupancy (e.g. whether the resident is purchasing or leasing
the property or occupying the property under licence); and
(b) the
type of occupancy (e.g. self-care or serviced unit); and
(c) the
length of time the resident is entitled to reside in the retirement village in
return for payment under the residence contract.
(1) The residence
contract for residential premises in a retirement village that is proposed or
under construction must include —
(a) a
description of the fixtures, fittings and furnishings that are to be provided
in the residential premises; and
(b)
plans that show the location, floor plan and significant dimensions of the
residential premises; and
(c)
plans that show the location, size and other features of any separate carport,
garage, storage or other area to be allocated to the resident; and
(d) a
map that shows all buildings and grounds that will form the communal property
of the retirement village.
(2) The residence
contract for residential premises in an existing retirement village
must —
(a)
identify the specific address of the residential premises; and
(b)
include a description of the fixtures, fittings and furnishings that are, or
are to be, provided in the residential premises; and
(c)
identify facilities such as a carport, garage, storage or other area allocated
to the resident; and
(d)
include a map that shows all buildings and grounds that form the communal
property of the retirement village.
The residence contract
must state —
(a) all
amenities that are, or are to be, provided or made available to the resident
by the administering body; and
(b) any
charges or conditions that apply to the resident’s access to, or use of,
those amenities; and
(c) the
basis for the future determination of the costs of providing or making those
amenities available.
(1) A service contract
must state —
(a) the
nature of the services that are, or are to be, provided or made available to
the resident by the administering body; and
(b) any
charges or conditions that apply to the resident’s access to, or use of,
those services; and
(c) the
basis for the future determination of the costs of providing or making those
services available.
(2) A resident shall
not be liable to pay for personal services that the resident does not receive,
other than the reasonable costs incurred in making any service available,
where —
(a) the
residence contract has been terminated; or
(b) the
resident has permanently vacated the residential premises; or
(c) the
resident has temporarily ceased to reside in the residential premises.
(3) For the purposes
of subclause (2), personal services means any amenity or service provided
to a resident by the administering body, other than the provision
of —
(a)
residential accommodation; and
(b)
communal amenities in the retirement village; and
(c)
village management services.
Examples of personal services are the provision of meals, laundry services and
the cleaning of the resident’s residential premises.
4.6 Payment of premium and refund entitlement
The residence contract
must state —
(a) any
premium or rent payable by the resident to secure residential premises in the
retirement village; and
(b) the
right of the resident to a refund of the whole or a part of the premium on the
termination of the residence contract, including —
(i)
the method or calculation used to determine the refund
and when it is to be paid; and
(ii)
any fees or commissions charged by the administering body
and the method or calculation used to determine those fees or commissions; and
(iii)
any other costs or charges that may be deducted from the
refund entitlement of the resident.
An example of a cost referred to in paragraph (b)(iii) above is the cost
of any repair or refurbishment of the residential premises.
4.7 Charges for village operating costs
The residence contract
must state —
(a) the
items of the village operating costs to which the resident must contribute;
and
(b) the
actual or estimated operating costs for the current financial year of the
retirement village and the basis for the future determination of those costs;
and
(c) any
ongoing village operating costs or charges that the resident will be liable
for if —
(i)
the resident permanently vacates the residential
premises; and
(ii)
another person has not been admitted to occupation of the
premises under the retirement village scheme;
and
(d) who
is responsible for the costs of maintaining the residential premises in a
reasonable state of repair, including the replacement and maintenance of
fixtures and fittings.
(1) The residence
contract must include details of —
(a) any
reserve fund that is, or is proposed to be, established in the retirement
village for the purpose of accumulating funds to meet the costs of repairs,
replacements, maintenance and renovations within the village; and
(b) any
contribution that a resident is required to make to the reserve fund,
including the method or calculation used to determine the resident’s
contribution.
(2) If the retirement
village is comprised in a strata plan or a survey-strata plan registered under
the Strata Titles Act 1985 , this clause applies to any reserve fund
established by the relevant strata company under that Act.
The residence contract
must include the following information regarding the transfer or relocation of
the resident to other residential premises within the retirement
village —
(a) the
circumstances under which the resident can transfer or be relocated;
(b) the
financial arrangements which would apply on such a transfer or relocation;
(c) who
is responsible for any ongoing village operating costs or charges levied
against the residential premises from which the resident will have moved;
(d) the
period for which the responsibility under paragraph (c) will continue.
4.10 Termination of residence contract and fees
payable on termination
(1) The residence
contract must set out —
(a) the
manner in which a resident may terminate a residence contract after the
expiration of the cooling-off period, including who is to be responsible for
ongoing village operating costs or charges during a period of vacancy of the
residential premises; and
(b) all
fees that are payable by a resident on the termination of the residence
contract.
The conditions under which a residence contract can be terminated, and the
cost of the termination, must also be specified in the answers to the
questions set out in the Retirement Villages Regulations 1992 Schedule 1
Form 1 that must be given to a prospective resident.
(2) The residence
contract must include —
(a) a
statement that the administering body cannot terminate the contract without
the agreement of the resident or an order of the State Administrative
Tribunal; and
(b) a
summary of the powers of the State Administrative Tribunal to terminate a
residence contract.
The legal rights and responsibilities of the administering body and the
resident in relation to the termination of a residence contract are set out in
the Retirement Villages Act 1992 Part 4 Division 5 and
clause 7.1 of this Code.
A summary of these rights and responsibilities and the powers of the State
Administrative Tribunal to terminate a residence contract, is set out in the
boxed and shaded information in Division 7 of this Code.
4.11 Residence contract to refer to this Code and
the Retirement Villages Act 1992
(1) The residence
contract must draw the resident’s attention to the existence of this
Code and the Retirement Villages Act 1992 .
(2) The residence
contract must clearly disclose the right of the resident to —
(a) be
consulted on, and have access to information about, administrative and
operating financial arrangements of the retirement village, as provided for
under clause 5.2 of this Code; and
(b) have
a dispute dealt with —
(i)
within the retirement village, as provided for under
clause 6.2 of this Code; and
(ii)
by referring any matter in dispute to the Commissioner
for investigation and attempted resolution; and
(iii)
by requesting the Commissioner to refer any matter that
remains unresolved to mediation, as provided for under clause 6.3 of this
Code; and
(iv)
in some cases, by making an application to the State
Administrative Tribunal for a legally binding determination of any matter that
remains unresolved.
Division 5 — Village management
(1) In this
Division —
personal representative includes a
resident’s attorney, guardian, executor, administrator or trustee in
bankruptcy;
registered company auditor means a person
registered as an auditor, or taken to be registered as an auditor, under the
Corporations Act 2001 of the Commonwealth;
special resolution means a resolution passed at a
meeting of residents called by the administering body in accordance with
subclause (2).
(2) To pass a special
resolution —
(a) the
residents must have been given written notice of the meeting under
clause 5.11; and
(b)
there must be a quorum present (whether in person or by proxy) of —
(i)
a minimum of 5 residents entitled to vote on the
resolution or 30% of the number of residents entitled to vote on the
resolution (whichever is the greater); or
(ii)
if the retirement village has fewer than 10 occupied
residential premises, a majority of residents entitled to vote;
and
(c) the
resolution must be carried by at least 75% of the number of residents who are
present (whether in person or by proxy) and entitled to vote and vote.
The voting entitlement of the residents is specified at clause 5.11(9) of
this Code.
5.2 Management procedures and resident
consultation
(1) The administering
body of a retirement village must —
(a)
provide prudential, efficient and economical management of the retirement
village, having regard to the terms and conditions of the residence contract
and any related contracts; and
(b)
establish appropriate procedures for consulting with residents on the future
planning and budgeting of the retirement village and any other proposed change
to the administrative or operating financial arrangements of the village; and
(c)
establish appropriate procedures to provide the residents with access to
management information relating to the administrative or operating financial
arrangements of the retirement village.
(2) The administrative
or operating financial arrangements of a retirement village to which
subclause (1)(b) and (c) apply, include but are not limited
to —
(a)
amenities or services provided or made available to the residents where any
change may involve either increased costs to residents or the reduction or
loss of an amenity or service; and
(b) the
operating budget for each financial year of the retirement village (see
clause 5.3); and
(c) any
plans for the expansion of, or for substantial alterations to, the retirement
village; and
(d)
proposals for the upgrading of buildings, fixtures or fittings where the
residents are financing either the whole or a part of the capital or ongoing
costs of the work; and
(e) the
establishment of, or changes to, the residence rules (see clause 5.9).
(3) The administering
body must comply with any reasonable request made by a resident for
information on a specific administrative or operating budget matter, and make
available for inspection any documents that might reasonably be expected to be
material to that request.
(4) The administering
body must respond to a request made under subclause (3) within 10 working
days, and in the case of any refusal or inability to comply with that request,
give reasons in writing.
(1) No later than one
month before the end of each financial year of a retirement village, the
administering body must display the following documentation ( budget documents
) in a central location in the retirement village and make the documentation
available to each resident on request —
(a) a
proposed operating budget for the next financial year of the retirement
village;
(b) the
operating budget information used in the preparation of the proposed budget
that might reasonably be expected to be made available to a resident,
including but not limited to —
(i)
relevant accounts of actual expenditure; and
(ii)
information explaining proposed fee changes or changes to
the provision or availability of amenities or services.
(2) The administering
body must give each resident written notice when the budget documents are
available.
(3) The proposed
operating budget must be presented in a consistent format from one financial
year to the next and include —
(a) the
amount of village operating costs or charges payable by residents during the
year; and
(b) any
other forms of income which are used to meet village operating costs; and
(c) all
proposed categories of expenditure (without grouping together unlike
categories); and
(d) the
net of GST amount for any budget item that is a GST-taxable supply for which
the administering body is entitled to an input tax credit; and
(e) the
method or calculation used to apportion any expenditure item that is an
apportionment of a total expenditure of more than one retirement village
administered by the same administering body; and
(f) the
total proposed expenditure for the year; and
(g) the
expected surplus or deficit for the year.
(4) The administering
body may, but is not required to, use the proposed operating budget form set
out in Appendix 2.
(5) Where the
administering body administers more than one retirement village, the
administering body must provide separate budget documents for each village.
(6) The operating
budget for the next financial year must not be finalised until —
(a) each
resident has been given a minimum of 10 working days after service of the
notice under subclause (2) to consider the proposed budget; and
(b) the
administering body has held a meeting of the residents as required under
clause 5.11(1)(b).
5.4 Quarterly operating income and expenditure
statements
(1) For each quarter
of a financial year of a retirement village and no later than one month after
the end of each such quarter, the administering body must provide operating
income and expenditure statements ( operating statements ) to the residents
that show details of —
(a) the
retirement village’s actual operating costs, income and expenditure
against projections of the same; and
(b)
payments made to and from, and the amounts standing to the credit of, any
reserve funds for the retirement village.
(2) The administering
body may, but is not required to, use the form of operating statements set out
in Appendix 3 and 4.
(3) Where the
administering body administers more than one retirement village, the
administering body must provide separate operating statements for each
village.
(4) The administering
body must —
(a)
display the operating statements in a central location in the retirement
village; and
(b) make
the operating statements available to each resident on request.
(1) At the annual
general meeting called under clause 5.11(1)(a), the administering body
must provide the residents with a clear written presentation of the operating
financial position of the retirement village as at the end of the previous
financial year, including —
(a) if
the accounts of income and expenditure for that year have been independently
audited by a registered company auditor, copies of the audited accounts; or
(b) if
the accounts have not been so audited, copies of the actual accounts of income
and expenditure for that year.
(2) If the accounts
provided to the residents under subclause (1) have not been independently
audited by a registered company auditor, the residents may request that the
accounts be so audited, if agreed by a special resolution.
(3) Where a request
for an independent audit of the accounts has been made under
subclause (2), the administering body must —
(a)
arrange for the accounts to be so audited as soon as practicable; and
(b)
provide a copy of the audited accounts to a resident on request.
The administering body
must apply any surplus in the operating budget of a retirement village towards
the future operating expenses of that village, except where —
(a) the
residence contract provides otherwise; or
(b) the
residents, by a special resolution, approve the application of the whole or a
part of the budget surplus to any other purpose or purposes that is, or are,
generally of benefit to the residents of that retirement village.
5.7 Marketing of residential premises
Where the
administering body is required by a residence contract to market residential
premises, it must —
(a) take
all reasonable steps to enable the residential premises to be placed on the
market as expeditiously as possible; and
(b)
commencing one month after the residential premises are first placed on the
market, provide the resident, or the resident’s personal representative,
with a monthly written marketing report that details the actions taken to
market the premises.
5.8 Repair and refurbishment of residential
premises
(1) Where a resident
permanently vacates the residential premises and is required under the
residence contract to pay for the cost of any repair or refurbishment of those
premises, the administering body must —
(a)
before the commencement of any repair or refurbishment work (the work ), give
the resident or the resident’s personal representative —
(i)
written notice of the claim against the resident for the
work; and
(ii)
an estimated cost of the work;
and
(b)
before accepting or making any demand for payment for the work —
(i)
complete the work; and
(ii)
give the resident, or the resident’s personal
representative, a fully itemised account for the final cost of the work.
(2) The resident, or
the resident’s personal representative, may apply to the State
Administrative Tribunal for an order in relation to a claim made by the
administering body under subclause (1), if the person is of the opinion
that —
(a)
before the work was carried out, the residential premises were in a condition
required by the residence contract; or
(b) the
cost of the work is excessive.
(1) The administering
body must establish a set of residence rules covering the rights and
obligations of the residents of the retirement village.
(2) The residence
rules must be clear and consistent with this Code and the
Retirement Villages Act 1992.
(3) The administering
body must consult with the residents of all occupied residential premises, if
any, prior to making, changing or revoking the residence rules.
(4) The residents may,
by special resolution and with the agreement of the administering body, change
or revoke the residence rules.
(5) The administering
body must not unreasonably withhold agreement to a special resolution passed
by the residents under subclause (4).
(6) Each resident of a
retirement village must comply with the residence rules.
(1) The residents of a
retirement village may establish a residents’ committee by an election
conducted —
(a)
among themselves; or
(b) in
the absence of an election held under paragraph (a), by the administering
body if requested by —
(i)
a minimum of 5 residents or 10% of the residents,
whichever is the greater; or
(ii)
if the village has fewer than 10 occupied residential
premises, residents from a majority of the occupied residential premises.
(2) Only one
residents’ committee (regardless of its name) may be established in the
retirement village for the purposes of subclause (5), and only a resident
of the village may be a member of the committee.
(3) A member of the
residents’ committee —
(a)
holds office for not more than one year, but may be re-elected; and
(b) may
be removed at any time, by a special resolution.
(4) The
residents’ committee may —
(a)
decide its own procedures; and
(b) form
subcommittees and decide a subcommittee’s procedures.
(5) The function of
the residents’ committee is to consult with the administering body on
behalf of the residents about the day-to-day running of the retirement village
and any issues or proposals raised by the residents.
(6) Nothing in this
clause prevents the residents of the retirement village from establishing
other committees or bodies of residents for other purposes.
(1) The administering
body of a retirement village —
(a) must
hold an annual general meeting of the residents within 5 months after the
end of each financial year of the retirement village; and
(b) must
hold an annual budget meeting of the residents before the end of each
financial year, at which the business to be transacted shall be limited to
dealing with matters relating to the final budget proposals for the next
financial year of the retirement village; and
(c) may
call a meeting of the residents at any time if it is reasonable to do so; and
(d) must
call a meeting of the residents on the reasonable request of a
residents’ committee established under clause 5.10; and
(e) must
call a meeting of the residents if requested to do so by —
(i)
a minimum of 5 residents or 10% of the residents,
whichever is the greater; or
(ii)
if the retirement village has fewer than 10 occupied
residential premises, residents from a majority of the occupied residential
premises.
(2) Where the
administering body administers more than one retirement village, the
administering body must hold meetings under subclause (1)(a) and (b) for
each village.
(3) Where a
residents’ committee has been established in the retirement village
under clause 5.10, the committee may of its own volition call a meeting
of the residents of the village for any purpose, other than a purpose for
which this Code or the residence contract requires the administering body to
call a meeting.
(4) Where a request
for a meeting of the residents is made under subclause (1)(d) or (e), the
administering body must hold the meeting within 20 working days of the request
being made, or at a later date if agreed to by the residents’ committee
referred to in subclause (1)(d) or the majority of the residents referred
to in subclause (1)(e), as the case may be.
(5) Subject to
subclause (6), the administering body or the residents’ committee,
as the case may be, must give each resident at least 10 working days written
notice of a meeting called under subclause (1) or (3).
(6) In extraordinary
or urgent circumstances, the administering body may call a meeting of the
residents by giving each resident written notice of the meeting that is
reasonable in the circumstances but not less than 2 working days.
(7) A notice given
under subclause (5) or (6) must set out —
(a) the
time and place of the meeting; and
(b) the
business to be transacted at the meeting, including any resolution that is to
be put as a special resolution.
(8) The administering
body must within 2 working days after a meeting of the residents give written
notice to all the residents of any special resolution passed at the meeting.
(9) Unless otherwise
provided in the residence contract, if 2 or more residents occupy the same
residential premises in the retirement village, each of them may vote at a
meeting of the residents on any matter that requires, or provides for, a vote
of the residents.
(10) A meeting of the
residents must not be held simultaneously with a meeting held under another
law, such as a meeting held under the Strata Titles Act 1985 if the
retirement village is comprised in a strata plan or survey-strata plan
registered under that Act.
(1) This clause
applies to a resident of a retirement village, or the resident’s
personal representative, subject to any provision in the residence contract.
(2) A resident who is
entitled to vote at a meeting of the residents, or the resident’s
personal representative, may by signed notice (the proxy notice ) appoint a
person (the proxy ) to vote for the resident by way of a proxy vote at a
specific meeting of the residents stated in the notice.
(3) The appointment of
the proxy is valid only if the proxy notice is given to the chairperson of the
meeting at which the proxy is to vote before any vote is taken at that
meeting.
(4) A proxy vote may
be given for one meeting only.
(5) Where a proxy vote
is given for more than one meeting, the proxy vote is valid for the first
meeting stated in the proxy notice.
(6) A person who may
be appointed as the proxy of a resident does not include a representative or
close associate of the administering body or a person nominated by the
administering body, other than where the resident is a relative of such a
person.
(7) A resident, or the
resident’s personal representative, may, but is not required to, use the
form for the appointment of a proxy set out in Appendix 5.
(8) A person appointed
as the proxy of a resident cannot vote on behalf of the resident if the
resident personally votes on the matter or matters concerned.
(9) If a person holds
appointments as the proxy of 5 residents in any one retirement village at any
one time, any appointment of the person as the proxy of another resident of
the village, while the person continues to hold the 5 appointments, is void.
(10) At any time prior
to the exercise of a proxy vote by a person appointed as the proxy of a
resident, the resident may revoke the appointment by giving written notice
to —
(a) the
proxy; and
(b) the
chairperson of the meeting at which the proxy was to vote.
Division 6 — Dispute resolution
In this
Division —
approved form means a form approved for that
purpose by the Commissioner;
special resolution has the same meaning as it has
in Division 5 of this Code.
(1) Where a dispute
occurs in a retirement village —
(a) the
administering body must nominate a suitable person or body to deal with the
dispute; and
(b) a
resident who is a party to the dispute may be supported by another person at
any stage in the dispute process, provided the other party is given prior
notice of the name of that person; and
(c) the
party making the complaint (the first party ) must give written notice to the
party against whom the complaint is made (the second party ), stating the
matters complained of and calling on the second party to rectify or otherwise
attempt to settle these matters; and
(d) the
second party must respond to the notice given under paragraph (c) within
10 working days after service of the notice, and give reasons in writing if
any of the complaint matters are rejected; and
(e) the
parties are to meet in the retirement village, or at any other place as
mutually agreed, to attempt to resolve any matters that remain in dispute; and
(f) the
meeting must be held within 20 working days after service of the notice under
paragraph (c) or, if mutually agreed to by both parties, at a later date;
and
(g)
prior to the meeting, the parties must exchange all documents and information
that might reasonably be expected to be material to the resolution of the
matters in dispute; and
(h)
other than for the resolution or determination of the matters in dispute,
anything said, done or produced by a party during the dispute process must not
be used for any purpose or disclosed or communicated to another person, except
with the agreement of that party; and
(i)
the administering body must advise any resident who is a
party to the dispute of available avenues for the further review of any matter
that remains in dispute, including the right to apply for the matter to be
mediated under clause 6.3 of this Code or determined by the State
Administrative Tribunal.
(2) The dispute
process prescribed under subclause (1) may be varied if agreed to by the
administering body and a special resolution of the residents.
(3) The administering
body or the residents, as the case may be, must not unreasonably withhold
agreement to any proposed variation to the dispute process.
(4) The administering
body must document the dispute process and make the document, complete with
any variations made under subclause (2), available to all the residents
of the retirement village.
(1) A party to a
retirement village dispute may apply to the Commissioner, in the approved
form, to have the dispute referred to mediation, other than where the matters
in dispute —
(a) are
the subject of an arbitration proceeding that has commenced; or
(b) have
been the subject of an award (interim or final) in an arbitration proceeding;
or
(c) are
before, or have been decided by, a court or the State Administrative Tribunal
or other tribunal of competent jurisdiction.
(2) The Commissioner
may decline to accept the application if —
(a) no
attempt has been made to resolve the dispute using the village dispute process
established under clause 6.2; or
(b) the
Commissioner considers that the matters in dispute could be adequately dealt
with in some other way, including by negotiation by the Commissioner under the
Retirement Villages Act 1992 section 8(1)(d); or
(c) any
party has not agreed to have the dispute dealt with by mediation under this
clause; or
(d) the
Commissioner considers that the application should not be accepted for another
reason.
(3) Within 10 working
days after receiving the application, the Commissioner must —
(a) give
written reasons for any decision made to refuse to accept the application; or
(b)
appoint a mediator to mediate the dispute and give written notice to the
parties to the dispute of —
(i)
the appointed mediator; and
(ii)
the time, date and place for the holding of the
mediation.
(4) The notice under
subclause (3)(b) must —
(a) be
given at least 5 working days before the mediation is to take place; and
(b)
where given to a party against whom the complaint has been made, include a
copy of the application.
(5) A party to a
dispute cannot be compelled to attend mediation.
(6) If a person who is
given a notice under subclause (3)(b) notifies the Commissioner that the
person does not wish to attend the mediation, the Commissioner must advise the
appointed mediator and the other parties to the dispute of this fact.
(7) If the
Commissioner is notified by any party that the mediator appointed under
subclause (3)(b) is not the preferred mediator, the Commissioner
may —
(a)
appoint another mediator who is acceptable to all the parties; and
(b)
issue an amended notice under subclause (3)(b).
(8) The mediator may
permit a party to be represented or assisted in the presentation of the case
by an agent, other than a person engaged as a legal representative, if the
mediator is satisfied that —
(a) the
party is unable to appear personally or conduct the proceedings properly
himself or herself; and
(b) the
agent has sufficient knowledge of the matters in dispute to represent the
party effectively; and
(c) no
other party will be unfairly disadvantaged by the fact that the agent is
allowed to so act.
(9) If the parties
reach a mediated agreement on the dispute, the mediator is to —
(a)
record the agreement in writing and have it signed by or for the parties as
soon as practicable after the mediation ends; and
(b) give
a copy of the signed agreement to the parties and the Commissioner as soon as
practicable after it is signed.
(10) If, at any time
during the course of mediation, the mediator is of the opinion that the
parties are not likely to settle the dispute, the mediator must —
(a)
conclude the mediation; and
(b)
notify the Commissioner that the mediation has been unsuccessful.
(11) Evidence of
anything said, done or produced at a mediation may not be given in a court or
before a person or body authorised by law to hear evidence, except with the
agreement of the parties to the dispute.
(12) The mediator or a
party or an agent of a party must not make a record of, or disclose or
communicate to another person, anything said, done or produced at a mediation.
(13) The mediator does
not contravene subclause (12) if —
(a) the
mediator makes notes during the mediation that the mediator considers
appropriate and destroys them at the end of the mediation; or
(b) the
mediator records and provides a copy of a mediated agreement under
subclause (9).
(14) Any party may, by
written notice (the withdrawal notice ) given to the Commissioner, withdraw
from the mediation before or after the mediation has commenced.
(15) The Commissioner
must advise the appointed mediator and the other parties to the dispute of the
withdrawal as soon as practicable after receipt of the withdrawal notice.
It is recognised that in any communal living situation, such as a retirement
village where amenities are shared, disputes between residents and the
administering body, or between residents, may occur from time to time. This
Code places particular emphasis on providing easy access to an informal and
inexpensive process to resolve disputes. The prevention of disputes through
open communication and the provision of information, and democratic
decision-making, is always preferable.
Many disputes are due to simple misunderstandings or lack of suitable
information. Every attempt should be made by those involved in a dispute to
resolve it between themselves. It may be useful to discuss the problem with a
friend or advocate (for example, a member of the residents’ committee)
before using the dispute processes available under this Code.
If the dispute cannot be resolved within the retirement village, either party
can seek the assistance of the Commissioner. The Commissioner can provide
information and conciliation services to either party to assist in the
resolution of the dispute or refer the matter to an independent external
mediator.
If the dispute remains unresolved, either party may apply to the State
Administrative Tribunal for a hearing if the dispute is one in which the State
Administrative Tribunal has jurisdiction.
The details of the State Administrative Tribunal’s powers can be found
in the Retirement Villages Act 1992 , and any associated Act referred to
in that Act.
Division 7 — Termination of residence contracts
7.1 Notice of intention to terminate
(1) Unless otherwise
provided in the residence contract, the administering body of a retirement
village must give a resident at least 10 working days written notice of its
intention to apply to the State Administrative Tribunal for an order to
terminate a residence contract under the Retirement Villages Act 1992
section 58 or 59.
(2) The notice given
under subclause (1) must —
(a) if
the application is sought under section 58 of the Act, specify the
reasons why the residential premises occupied by the resident are unsuitable
for occupation by the resident; and
(b) if
the application is sought under section 59 of the Act —
(i)
specify the breach of the residence contract or residence
rules, as the case may be; and
(ii)
give the resident a reasonable and specified time to
rectify a breach that may be rectified;
and
(c)
clearly state that the residence contract cannot be terminated without an
order by the State Administrative Tribunal; and
(d)
advise the resident of his or her right to occupy the residential premises
until the State Administrative Tribunal fixes a termination date.
Retirement villages are clearly marketed by the industry as permanent
accommodation for residents of such villages. Accordingly, a residence
contract may be terminated only in a limited number of circumstances, as set
out in the residence contract or the Retirement Villages Act 1992 .
The administering body of a retirement village cannot terminate a residence
contract on its own; that is, without the agreement of the resident. However,
a resident or the administering body may apply to the State Administrative
Tribunal to terminate a residence contract under circumstances as specified in
the Retirement Villages Act 1992 .
Termination by a resident
The manner in which a resident may terminate a residence contract after the
expiration of the cooling-off period is as set out in the contract or the
Retirement Villages Act 1992 .
Termination by the State Administrative Tribunal
As set out in the Retirement Villages Act 199 2Part 4
Division 5, an administering body may apply to the State Administrative
Tribunal to terminate a residence contract on the grounds that —
•
the resident’s physical or mental health is such as to make the
residential premises unsuitable for occupation by the resident
(section 58 of the Act);
•
the resident has breached the residence contract or the residence rules
and has failed to rectify that breach (section 59 of the Act);
•
the resident has intentionally or recklessly caused or permitted, or is
likely intentionally or recklessly to cause or permit, serious damage to the
residential premises or injury to the administering body, an employee of the
administering body or another resident (section 62 of the Act); or
•
the administering body would, in the special circumstances of the case,
suffer undue hardship if the residence contract were not terminated
(section 63 of the Act).
Under section 57 of the Act, a resident may apply to the State
Administrative Tribunal for an order in respect of a dispute with the
administering body as to whether the resident should be transferred to another
kind of accommodation in the village. The State Administrative Tribunal may
make an order that —
•
restrains the administering body from transferring the resident to
another kind of accommodation in the village;
•
requires the resident to transfer, or the administering body to
transfer the resident, to another kind of accommodation in the village; or
•
terminates the residence contract of the resident.
Notice of termination
As required under the Retirement Villages Act 1992 sections 58 and
59, the State Administrative Tribunal must not make an order terminating a
residence contract on medical grounds or for a breach of the contract or
residence rules, unless satisfied that the administering body has complied
with the procedures in clause 7.1 of this Code or the contract for giving
notice of the intention to terminate the contract.
Section 61 of the Act gives the State Administrative Tribunal the power
to waive the requirement to give this notice if considered appropriate to do
so having regard to any special circumstances of a particular case.
Payments on termination
Where a residence contract has been terminated under the residence contract or
the Retirement Villages Act 1992 on the happening of an event or
circumstance which requires the repayment of the whole or a part of the
premium paid by the resident to enter the village, the administering body must
pay the resident any money due under the contract —
•
within 7 days of the succeeding resident taking occupation of the
residential premises; or
•
in any other case within 45 days of the day on which the resident
ceases occupation of the residential premises.
Where the State Administrative Tribunal has terminated a residence contract,
the State Administrative Tribunal is to fix a date by which the resident must
vacate the residential premises.
This in no way affects the rights of the administering body to set terms and
conditions on the disposal of the resident’s interest in the residential
premises pursuant to the residence contract where the resident has the right
to appoint his or her own agent.
When ordering the termination of a residence contract, the State
Administrative Tribunal may make any order for the payment or refund of money
by the administering body to the resident or by the resident to the
administering body.
Where a facility provides a residential care service to a person under the
Aged Care Act 1997 (Cwlth), Subdivision 57-G of that Act will
determine the period within which the refund of any entry payment made by the
person for the provision of the service is to be paid.
(1) Any written
notice, correspondence or other document that must be given under this Code to
a resident of a retirement village shall be —
(a)
delivered by hand to —
(i)
the resident; or
(ii)
the resident’s mailbox; or
(iii)
the resident’s personal representative;
or
(b)
addressed to the resident and sent by prepaid post to —
(i)
the residential premises occupied by the resident; or
(ii)
if the resident has temporarily or permanently vacated
the residential premises, another address as notified by the resident to the
administering body; or
(iii)
the address of the resident’s personal
representative.
(2) Any written
notice, correspondence or other document that must be given under this Code to
the administering body of a retirement village shall be —
(a)
delivered by hand to —
(i)
the administering body’s usual place of business on
any working day; or
(ii)
the administering body’s mailbox;
or
(b)
addressed to the administering body and sent by post to the administering
body’s usual place of business.
(3) Subject to any
evidence to the contrary, any written notice, correspondence or other document
referred to in this clause that is sent by post, is taken to have been
received at the expiration of the second working day after the day of posting.
(4) In this
clause —
personal representative has the same meaning as it
has in Division 5 of this Code.