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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
RETIREMENT VILLAGES
BILL 1999
Queensland
RETIREMENT VILLAGES BILL 1999
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
Division 1--Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Division 2--Objects
3 Main objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Division 3--Interpretation and basic concepts
4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5 What is a "retirement village" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6 What is "retirement village land" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7 What is a "retirement village scheme" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8 Who is a "retirement village scheme operator" . . . . . . . . . . . . . . . . . . . . . . 16
9 Who is a "resident" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10 What is a "residence contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
11 What is an "existing residence contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12 What is a "service agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13 What is a "public information document" . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
14 What is an "ingoing contribution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
15 What is an "exit fee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
16 What is an "exit entitlement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17 What is a "capital replacement fund" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18 What is a "capital replacement fund contribution" . . . . . . . . . . . . . . . . . . . 19
19 What is a "maintenance reserve fund" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
20 What is a "maintenance reserve fund contribution" . . . . . . . . . . . . . . . . . . . 19
2
Retirement Villages
21 What is a "retirement village dispute" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
22 What is a "retirement village issue" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Division 4--Operation of Act
23 Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24 Application of Body Corporate and Community Management Act 1997 . . 21
25 Application of Fair Trading Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
26 Certain age restrictions on residence not unlawful . . . . . . . . . . . . . . . . . . . . 21
PART 2--RETIREMENT VILLAGE SCHEMES
Division 1--Registration
27 Application for registration of a retirement village scheme . . . . . . . . . . . . . 21
28 Registration of retirement village scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
29 Appeal to District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
30 Time for making appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
31 Starting appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
32 Powers of court on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
33 Effect of court's decision on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
34 Offence to operate etc. an unregistered retirement village scheme . . . . . . 24
Division 2--Retirement village scheme register
35 Retirement village scheme register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
36 Scheme operator to give notice about inaccuracy in public
information document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
37 Public information document forms part of residence contract . . . . . . . . . . 27
Division 3--Chief executive may apply for court orders
38 Chief executive may apply for order appointing a manager of a
retirement village . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
39 Additional power of chief executive to seek an order . . . . . . . . . . . . . . . . . 27
Division 4--Cancelling registration of retirement village
40 Applying to cancel registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
41 Cancelling registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
PART 3--RESIDENCE CONTRACTS
Division 1--Purpose and intention of part
42 Purpose and intention of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3
Retirement Villages
Division 2--General
43 Scheme operator may enter into residence contract only if
scheme is registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
44 Person signing residence contract to be given copy . . . . . . . . . . . . . . . . . . . 30
45 Content of residence contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
46 Dealing with ingoing contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
47 Dealing with instruments assigning property under a residence contract . . 33
Division 3--Rescinding residence contracts
48 Residence contract may be rescinded during cooling-off period . . . . . . . . . 34
49 Reassignment of property acquired in cooling-off period . . . . . . . . . . . . . . . 34
50 Scheme operator to compensate assignor if property assigned in
cooling-off period is not reassigned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Division 4--Terminating right to reside
51 Definition for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
52 Termination by resident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
53 Termination by scheme operator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
54 Resident may ask for estimate statement of resident's exit entitlement . . 37
55 Right to reside in a retirement village terminates automatically
on resident's death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Division 5--Reselling resident's right to reside
56 Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
57 Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
58 Scheme operator and resident to agree on work to reinstate unit
to previous condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
59 Scheme operator to ensure reinstatement work to be completed . . . . . . . . 39
60 Scheme operator and former resident to agree on resale value of
accommodation unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
61 Who pays for work in freehold interest scheme . . . . . . . . . . . . . . . . . . . . . . 40
62 Who pays for work in leasehold or licence scheme . . . . . . . . . . . . . . . . . . . 41
63 When former resident's exit entitlement payable . . . . . . . . . . . . . . . . . . . . . 41
64 Units not sold within 6 months . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
65 Operator to tell resident of all offers for accommodation unit . . . . . . . . . . . 42
66 Accepting offers at less than agreed resale value . . . . . . . . . . . . . . . . . . . . . 43
67 Updating agreed resale value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4
Retirement Villages
68 Costs of selling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
69 Limited ground for scheme operator to refuse to accept offer . . . . . . . . . . . 44
70 Valuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Division 6--Enforcing residence contracts
71 Enforcing residence contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
72 Restriction on enforcing residence contract . . . . . . . . . . . . . . . . . . . . . . . . . 46
73 Limit on scheme operator's liability for breach of residence contract . . . . 46
PART 4--OTHER DOCUMENTS RELATING TO RETIREMENT
VILLAGE SCHEMES
74 Form and content of public information document . . . . . . . . . . . . . . . . . . . . 47
75 Accommodation information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
76 Residents' contributions information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
77 Information about payments scheme operator must make to a resident . . . 48
78 Funds information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
79 Facilities information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
80 Information about retirement village land . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
81 Residents' rights information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
82 Resale process information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
83 Dispute resolution information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
84 Public information document to be given to prospective resident . . . . . . . . 50
85 Residents' access to certain documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
86 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
PART 5--OPERATION OF SCHEMES FOR, AND
MANAGEMENT OF, RETIREMENT VILLAGES
Division 1--Operator and employees of village
87 Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
88 Persons prohibited from operating a retirement village scheme etc. . . . . . . 52
Division 2--Exercise of power of attorney by scheme operator
89 Power of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Division 3--Capital improvement
90 Responsibility for capital improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Division 4--Capital replacement fund
91 Capital replacement fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5
Retirement Villages
92 Amount of capital replacement fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
93 Capital replacement fund budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
94 Payments into capital replacement fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
95 Restriction on investing capital replacement fund amounts . . . . . . . . . . . . 58
96 Resident liable for replacing certain capital items . . . . . . . . . . . . . . . . . . . . 58
Division 5--Maintenance reserve fund
97 Maintenance reserve fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
98 Amount of maintenance reserve fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
99 Maintenance reserve fund budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
100 Payments into maintenance reserve fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
101 Restriction on investing maintenance reserve fund amounts . . . . . . . . . . . . 61
Division 6--Charges for personal services
102 Charges for personal services for former residents . . . . . . . . . . . . . . . . . . . . 61
Division 7--Charges for general services
103 Working out and paying charges for general services for residents . . . . . . . 62
104 Working out and paying general services charges for former residents . . . 62
105 General services charges for unsold right to reside in
accommodation units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
106 Increasing general services charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
107 Resident's responsibility for paying increased general services charge . . . 64
108 New services to be approved by majority of residents . . . . . . . . . . . . . . . . . 65
Division 8--Insurance
109 Definitions for div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
110 Scheme operator must insure village . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Division 9--Financial accounts and statements
111 Scheme operator must keep separate accounts for capital
replacement fund and maintenance reserve fund . . . . . . . . . . . . . . . . . . . . . 66
112 Quarterly financial statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
113 Annual financial statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
PART 6--STATUTORY CHARGES OVER RETIREMENT
VILLAGE LAND
Division 1--Preliminary
114 Application of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6
Retirement Villages
Division 2--Creating a statutory charge, its effect and priority
115 Definition for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
116 Creating a charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
117 Charge extends to new land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
118 Effect of charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
119 Priority of charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Division 3--Enforcing a statutory charge
120 Enforcing a charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
121 Orders court may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
122 Effect of court order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Division 4--Extinguishing and releasing a statutory charge
123 Extinguishing a charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
124 Scheme operator may ask for release of charge if land stops
being retirement village land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
125 Chief executive to release charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
PART 7--RESIDENTS PARTICIPATION
Division 1--Residents committee
126 Residents committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
127 Residents constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
128 Committee's function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Division 2--By-laws
129 Residents may make, change or revoke by-laws . . . . . . . . . . . . . . . . . . . . . 75
Division 3--Residents meetings
130 Annual meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
131 Other meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Division 4--Proxy voting and postal voting
132 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
PART 8--ENFORCEMENT
Division 1--Inspectors
133 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
134 Limitation of inspector's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
135 Inspector's appointment conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
136 Inspector's identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
7
Retirement Villages
137 Production or display of inspector's identity card . . . . . . . . . . . . . . . . . . . . . 79
Division 2--Powers of inspectors
Subdivision 1--Entry of places
138 Power to enter places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Subdivision 2--Procedure for entry
139 Entry with consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
140 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
141 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
142 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Subdivision 3--Powers after entry
143 General powers after entering places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
144 Failure to help inspector or give inspector information . . . . . . . . . . . . . . . . 83
Subdivision 4--Power to seize evidence
145 Power to seize evidence from places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
146 Receipts for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
147 Inspector to allow inspection etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
148 Obligation to return seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Subdivision 5--Power to obtain information
149 Power to require production of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Subdivision 6--General enforcement matters
150 Obstructing etc. an inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
151 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
PART 9--DISPUTE RESOLUTION
Division 1--Preliminary
152 Parties' rights under this part preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
153 Preliminary negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Division 2--Mediators
154 Mediator's function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
155 Matters that may be mediated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Division 3--Mediation of retirement village disputes
156 Notice of retirement village dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
157 Chief executive to act on dispute notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
8
Retirement Villages
158 Right of representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
159 Conference to be held in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
160 Parties attendance at conference not compellable . . . . . . . . . . . . . . . . . . . . 89
161 Parties to mediation conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
162 Mediation agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
163 No official record of mediation conference . . . . . . . . . . . . . . . . . . . . . . . . . . 90
164 Withdrawal of dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
PART 10--APPLICATIONS TO TRIBUNAL
Division 1--Preliminary
165 Applications generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Division 2--Applications about retirement village disputes
166 Application for reference of dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
167 Chief executive to refer dispute to tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 3--Applications about other retirement village issues
168 Resident's right to apply for an order if threatened with removal,
deprivation or restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
169 Resident may apply for order if given false or misleading documents . . . . 92
170 Former resident may apply for order for payment of exit entitlement . . . . . 92
171 Chief executive to refer application to tribunal . . . . . . . . . . . . . . . . . . . . . . 93
Division 4--Requests to chief executive to make application
172 Resident may ask chief executive to make application for the resident . . 93
PART 11--TRIBUNAL HEARINGS OF RETIREMENT VILLAGE
ISSUES
Division 1--Tribunal hearings
173 Chairperson may hold directions hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
174 Presiding member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
175 Venues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
176 Hearing to be held in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
177 Appearances before tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
178 Right of representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
179 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
180 Amendment of issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
181 Questions to be decided by majority of tribunal . . . . . . . . . . . . . . . . . . . . . . 96
9
Retirement Villages
182 Tribunals to keep records of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
183 Powers of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
184 Inspection of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
185 Offences--hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
186 Self incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
187 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
188 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
189 Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Division 2--Tribunal orders
190 Tribunal orders generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
191 Tribunal orders under section 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
192 Tribunal orders under section 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
193 Tribunal orders under section 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
194 Enforcement of particular tribunal orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
195 Orders requiring payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
196 Orders of tribunal to be complied with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
197 Tribunal's order final and binding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
198 Restricted right to question tribunal's hearing and order . . . . . . . . . . . . . . . 103
Division 3--Other provisions
199 Parties to pay own costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
200 Allowance to witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
201 Withdrawal of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
PART 12--COMPOSITION AND FUNCTIONS OF TRIBUNAL
Division 1--Tribunal panel
202 Appointment of members of tribunal panel . . . . . . . . . . . . . . . . . . . . . . . . . . 104
203 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
204 Conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
205 Removal from office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Division 2--Composition of retirement village tribunals
206 Composition of retirement village tribunals . . . . . . . . . . . . . . . . . . . . . . . . . 105
207 Chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
208 Tribunal's function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
10
Retirement Villages
209 Tribunal's jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
210 Tribunal's general powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
211 Transfer of hearings between tribunals and courts . . . . . . . . . . . . . . . . . . . . 106
PART 13--OTHER PROVISIONS FOR MEDIATION
CONFERENCES AND TRIBUNAL HEARINGS
Division 1--Privilege and immunity
212 Ordinary protection and immunity allowed . . . . . . . . . . . . . . . . . . . . . . . . . . 107
213 Admissions made during hearing of retirement village issue . . . . . . . . . . . . 107
Division 2--General
214 Exclusion of other jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
215 Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
216 Reports on discharge of tribunals' function . . . . . . . . . . . . . . . . . . . . . . . . . . 109
217 Chief executive's responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
PART 14--MISCELLANEOUS
218 Starting offence proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
219 Appointments and authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
220 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
221 Act's remedies not exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
222 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
223 Responsibility for acts or omissions of representatives . . . . . . . . . . . . . . . . 111
224 Executive officers must ensure corporation complies with Act . . . . . . . . . . 112
225 Annual report on operation of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
226 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
227 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
PART 15--TRANSITIONAL AND SAVINGS PROVISIONS
228 Existing retirement village schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
229 Existing exempt organisations and retirement villages . . . . . . . . . . . . . . . . 114
230 Releasing certain existing charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
231 Apportionment of balance where separate funds maintained . . . . . . . . . . . . 116
232 Apportionment of balance where single fund maintained for
maintenance and repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
233 Apportionment of balance where single fund maintained for
capital replacement and maintenance and repairs . . . . . . . . . . . . . . . . . . . . 116
11
Retirement Villages
234 Existing regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
235 Existing by-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
236 Retirement Villages Act 1988 references . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
PART 16--REPEAL AND AMENDMENT
237 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
238 Amendment--sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 119
ACT AMENDED
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 120
DICTIONARY
1999
A BILL
FOR
An Act to provide for the establishment and operation of retirement
villages, and for other purposes
s1 14 s3
Retirement Villages
The Parliament of Queensland enacts-- 1
ART 1--PRELIMINARY 2
P
1--Introduction 3
Division
title 4
Short
1. This Act may be cited as the Retirement Villages Act 1999. 5
6
Commencement
2. This Act commences on a day to be fixed by proclamation. 7
Division 2--Objects 8
objects 9
Main
3. The main objects of this Act are as follows-- 10
(a) to declare particular rights and obligations of residents and 11
scheme operators; 12
(b) to promote fair trading practices in operating retirement villages 13
and in supplying services to residents; 14
(c) to facilitate the disclosure of information to prospective residents 15
of a retirement village to ensure the rights and obligations of the 16
village residents and scheme operator may be easily understood; 17
(d) to encourage the continued growth and viability of the retirement 18
village industry in the State; 19
(e) to encourage the adoption of best practice standards by the 20
retirement village industry; 21
(f) to provide a clear regulatory framework to ensure certainty for the 22
retirement village industry in planning for future expansion; 23
s4 15 s7
Retirement Villages
(g) to facilitate participation by residents, who want to be involved, in 1
the affairs of retirement villages; 2
(h) to provide for processes for resolving disputes between residents 3
and scheme operators. 4
Division 3--Interpretation and basic concepts 5
6
Definitions
4. The dictionary in schedule 2 defines particular words used in this Act. 7
is a "retirement village" 8
What
5.(1) A "retirement village" is premises where older members of the 9
community or retired persons reside, or are to reside, in independent living 10
units or serviced units, under a retirement village scheme. 11
(2) In this section-- 12
"premises" does not include a site within the meaning of the Mobile Homes 13
Act 1989. 14
is "retirement village land" 15
What
6. Land is "retirement village land" if the land is used, or to be used, 16
for a retirement village and, for land included in a community titles scheme 17
within the meaning of the Body Corporate and Community Management 18
Act 1997, includes the lots and common property into which the land is 19
subdivided. 20
is a "retirement village scheme" 21
What
7. A "retirement village scheme" is a scheme under which a person-- 22
(a) enters into a residence contract; and 23
s8 16 s 10
Retirement Villages
(b) in consideration for paying an ingoing contribution under the 1
residence contract, acquires personally or for someone else, a 2
right to reside in a retirement village, however the right accrues; 3
and 4
(c) on payment of the relevant charge, acquires personally or for 5
someone else, a right to receive 1 or more services in relation to 6
the retirement village. 7
is a "retirement village scheme operator" 8
Who
8. A person is a "retirement village scheme operator" if the person, 9
alone or with someone else, controls the scheme's operation or purports to 10
control the scheme's operation. 11
is a "resident" 12
Who
9. A "resident" of a retirement village is a person who has a right to 13
reside in the retirement village and a right to receive 1 or more services in 14
relation to the retirement village under a residence contract. 15
is a "residence contract" 16
What
10.(1) A "residence contract" is a written contract, other than an 17
excluded contract, about residence in a retirement village entered into 18
between a person and the scheme operator. 19
(2) A residence contract includes any other contract (an "ancillary 20
contract") between the person and the scheme operator if the ancillary 21
contract is dependent on, or arises out of, the making of the residence 22
contract or another ancillary contract. 23
(3) To be a residence contract, a contract must-- 24
(a) either-- 25
(i) purport to give a person, or give rise to a person having, an 26
exclusive right to reside in an accommodation unit in the 27
retirement village; or 28
s 11 17 s 12
Retirement Villages
(ii) provide for, or give rise to, obligations on a person in 1
relation to the person's or someone else's residence in the 2
retirement village; and 3
(b) purport to give a person, or give rise to a person having a right, in 4
common with other residents in the retirement village, to use and 5
enjoy the retirement village's communal facilities; and 6
(c) contain, or incorporate, a service agreement or an agreement to 7
enter into a service agreement; and 8
(d) restrict the way in which, or the persons to whom, the right to 9
reside in the village may be disposed of during the resident's 10
lifetime. 11
is an "existing residence contract" 12
What
11. An "existing residence contract" is a residence contract existing 13
immediately before the commencement of this Act. 14
is a "service agreement" 15
What
12.(1) A "service agreement" is an agreement made between a person 16
and a scheme operator under which general services or personal services are 17
to be supplied for or to the person or someone else when the person or other 18
person becomes a resident of a retirement village. 19
(2) A service agreement may be in a residence contract. 20
(3) In this section-- 21
"general services" are the services supplied, or made available, to all 22
residents of the retirement village. 23
24
Examples of general services--
25
� management and administration
26
� gardening and general maintenance
27
� shop or other facility for supplying goods to residents
28
� service or facility for the recreation or entertainment of residents.
"personal services" are optional services supplied or made available for the 29
benefit, care or enjoyment of a resident of a retirement village. 30
s 13 18 s 15
Retirement Villages
1
Examples of personal services--
2
� laundry
3
� meals
4
� cleaning the resident's accommodation unit.
is a "public information document" 5
What
13. A "public information document" is a document, in the form 6
provided for under section 74,1 giving details about a retirement village 7
scheme. 8
is an "ingoing contribution" 9
What
14.(1) An "ingoing contribution" is the amount payable by a person 10
under a residence contract to secure the person's, or someone else's, right to 11
reside in a retirement village, but does not include a recurrent payment for 12
rent, fees or charges. 13
(2) It is immaterial whether-- 14
(a) the right to reside in the village is enforceable or not; or 15
(b) the payment alone secures the right, or something else is also 16
required to secure it. 17
is an "exit fee" 18
What
15. An "exit fee" is the amount that a resident may be liable to pay to a 19
scheme operator under a residence contract arising from-- 20
(a) the resident ceasing to reside in the accommodation unit to which 21
the contract relates; or 22
(b) the settlement of the sale of the right to reside in the 23
accommodation unit. 24
1 Section 74 (Form and content of public information document)
s 16 19 s 20
Retirement Villages
is an "exit entitlement" 1
What
16. An "exit entitlement" is the amount that a scheme operator may be 2
liable to pay to a former resident under a residence contract arising from-- 3
(a) the resident ceasing to reside in the accommodation unit to which 4
the contract relates; or 5
(b) the settlement of the sale of the right to reside in the 6
accommodation unit. 7
is a "capital replacement fund" 8
What
17. A "capital replacement fund" is a fund established under 9
section 912 for replacing the retirement village's capital items. 10
is a "capital replacement fund contribution" 11
What
18. A "capital replacement fund contribution" is a percentage of the 12
new resident's ingoing contribution, decided by the scheme operator and 13
described in the public information document as a contribution to the capital 14
replacement fund. 15
is a "maintenance reserve fund" 16
What
19. A "maintenance reserve fund" is a fund established under 17
section 97 3 for maintaining and repairing the retirement village's capital 18
items. 19
is a "maintenance reserve fund contribution" 20
What
20. A "maintenance reserve fund contribution" is a proportion of the 21
general services charges, decided by the scheme operator and described in 22
the public information document as a contribution to the maintenance 23
reserve fund. 24
2 Section 91 (Capital replacement fund)
3 Section 97 (Maintenance reserve fund)
s 21 20 s 23
Retirement Villages
is a "retirement village dispute" 1
What
21. A "retirement village dispute" is a dispute between a scheme 2
operator and a resident of a retirement village about the parties' rights and 3
obligations under the resident's residence contract or this Act. 4
is a "retirement village issue" 5
What
22. A "retirement village issue" is-- 6
(a) a retirement village dispute; or 7
(b) an application for a tribunal order under sections 168 to 170 or 8
172.4 9
Division 4--Operation of Act 10
of Act 11
Application
23. This Act applies to-- 12
(a) a retirement village scheme, including a scheme for a retirement 13
village to which the Body Corporate and Community 14
Management Act 1997 applies, the scheme operator and 15
inducements and invitations to enter into the scheme if-- 16
(i) the retirement village is, or is to be, situated in the State, 17
irrespective of where the scheme is operated or inducements 18
or invitations to enter into the scheme are given or published; 19
or 20
(ii) the scheme is operated in the State, irrespective of where the 21
retirement village is, or is to be, situated or inducements or 22
invitations to enter into the scheme are given or published; 23
and 24
4 Sections 168 (Resident's right to apply for an order if threatened with removal,
deprivation or restriction), 169 (Resident may apply for order if given false or
misleading documents), 170 (Former resident may apply for order for payment of
exit entitlement) or 172 (Resident may ask chief executive to make application
for the resident)
s 24 21 s 27
Retirement Villages
(b) a residence contract entered into before or after the 1
commencement of this section, unless this Act states otherwise. 2
of Body Corporate and Community Management Act 3
Application
1997 4
24. If there is an inconsistency between this Act and the Body Corporate 5
and Community Management Act 1997 in relation to a person's rights and 6
obligations under a retirement village scheme, this Act prevails to the extent 7
of the inconsistency. 8
of Fair Trading Act 1989 9
Application
25. This Act does not limit the application of the Fair Trading Act 1989 10
to the acquisition, under a residence contract, of goods or services, within 11
the meaning of that Act. 12
age restrictions on residence not unlawful 13
Certain
26. Despite the Anti-Discrimination Act 1991, it is not unlawful for a 14
scheme operator to discriminate on the basis of age if the discrimination 15
merely limits residence in a retirement village to older members of the 16
community and retired persons. 17
ART 2--RETIREMENT VILLAGE SCHEMES 18
P
Division 1--Registration 19
for registration of a retirement village scheme 20
Application
27.(1) A person may apply to the chief executive to register a retirement 21
village scheme.5 22
5 See part 15 for transitional and savings provisions about existing retirement
village schemes.
s 28 22 s 28
Retirement Villages
(2) The application must be in the approved form and accompanied by-- 1
(a) particulars of the following-- 2
(i) the land on which the retirement village's buildings and 3
facilities are, or are to be, constructed; 4
(ii) the accommodation units and communal facilities the 5
scheme operator undertakes are, or are to be, available for the 6
village when the scheme is registered; 7
(iii) the accommodation units and communal facilities the 8
scheme operator intends to make available for the village 9
after the scheme is registered, depending on the sales 10
activity, finance availability, or market conditions, for the 11
village; 12
(iv) the terms under which persons are, or are to be, invited to 13
enter into the scheme under the residence contracts for the 14
retirement village; 15
(v) other particulars of the scheme prescribed under a regulation; 16
and 17
(b) a copy of the public information document for the retirement 18
village; and 19
(c) the fee prescribed under a regulation. 20
of retirement village scheme 21
Registration
28.(1) The chief executive may register, or refuse to register, a retirement 22
village scheme for which an application for registration has been made. 23
(2) The chief executive's decision must be made within 60 days of the 24
later of-- 25
(a) the day the application is received; or 26
(b) if the particulars with the application do not conform with the 27
requirements of section 27(2) and the chief executive asks for 28
further particulars, the day the particulars are given. 29
(3) The chief executive may register the scheme only if satisfied-- 30
(a) the application complies with section 27; and 31
s 29 23 s 30
Retirement Villages
(b) the applicant is not prohibited from operating a retirement village 1
scheme under section 88.6 2
(4) If the chief executive registers the scheme, the chief executive must 3
promptly give the applicant a registration certificate, in the approved form, 4
stating the day the scheme was registered. 5
(5) If the chief executive refuses to register the scheme, the chief 6
executive must promptly give the applicant a signed notice stating-- 7
(a) the reasons for the refusal; and 8
(b) the applicant may appeal against the decision under section 29. 9
(6) If the chief executive fails to decide the application in the time 10
required under subsection (2), the chief executive is taken to have refused 11
the application and the applicant may appeal against the decision under 12
section 29. 13
to District Court 14
Appeal
29. A person whose application to register a retirement village scheme 15
has been refused, or taken to be refused, may appeal against the decision to 16
the District Court. 17
for making appeals 18
Time
30.(1) A person may appeal against the decision only within-- 19
(a) if a decision notice is given to the person--28 days after the notice 20
was given to the person; or 21
(b) if the chief executive is taken to have refused the application under 22
section 28--88 days after the application was made. 23
(2) The court may extend the period for appealing. 24
6 Section 88 (Persons prohibited from operating a retirement village scheme etc).
s 31 24 s 34
Retirement Villages
appeals 1
Starting
31. An appeal must be started by-- 2
(a) filing a written notice of appeal with the court; and 3
(b) serving a copy of the notice on the chief executive. 4
of court on appeal 5
Powers
32.(1) In deciding an appeal against a decision, the court-- 6
(a) has the same powers as the chief executive; and 7
(b) is not bound by the rules of evidence; and 8
(c) must comply with natural justice. 9
(2) An appeal is by way of rehearing. 10
(3) The court may-- 11
(a) confirm the decision; or 12
(b) set aside the decision and substitute another decision that it 13
considers appropriate; or 14
(c) set aside the decision and return the issue to the chief executive 15
with the directions it considers appropriate. 16
of court's decision on appeal 17
Effect
33. If the court substitutes another decision for the decision, the 18
substituted decision is taken to be that of the chief executive. 19
to operate etc. an unregistered retirement village scheme 20
Offence
34.(1) If a retirement village scheme is not registered, the scheme 21
operator or proposed scheme operator must not-- 22
(a) operate the scheme; or 23
(b) induce or invite a person to participate in the scheme by-- 24
(i) residing in the retirement village to which the scheme relates; 25
or 26
s 35 25 s 35
Retirement Villages
(ii) paying an ingoing contribution; or 1
(iii) doing another act in relation to the scheme; or 2
(c) use a document, or publish an advertisement, to induce or invite a 3
person to participate in the scheme by-- 4
(i) residing in the retirement village to which the scheme relates; 5
or 6
(ii) paying an ingoing contribution; or 7
(iii) doing another act in relation to the scheme; or 8
(d) extend an existing retirement village. 9
Maximum penalty--540 penalty units. 10
(2) However, the scheme operator or proposed scheme operator does not 11
contravene subsection (1)(c) if the document or advertisement merely 12
invites expressions of interest in the scheme. 13
(3) In this section-- 14
"advertisement" includes an advertisement made by publishing a 15
statement or claim-- 16
(a) in a document, including a newspaper or magazine; or 17
(b) by broadcast, electronic communication, telecommunication, 18
video or film. 19
"induce" includes attempt to induce. 20
Division 2--Retirement village scheme register 21
village scheme register 22
Retirement
35.(1) The chief executive must keep a register for retirement village 23
schemes. 24
(2) The register must include the following items (the "records") for 25
each registered scheme-- 26
(a) copies of the following documents-- 27
(i) the registration certificate; 28
s 36 26 s 36
Retirement Villages
(ii) the public information documents and notices about 1
inaccuracies in public information documents given under 2
section 36; 3
(b) the particulars of the scheme mentioned in section 27(2)(a);7 4
(c) the annual financial statements given to the chief executive under 5
section 113(3).8 6
(3) The records are to be kept on the register for at least 10 years. 7
(4) A person may, on payment of the fee prescribed under a regulation-- 8
(a) inspect the register at the department's head office when it is open 9
to the public; and 10
(b) take extracts from, or obtain a copy of details in, the register. 11
(5) The register may be kept in any form that allows a person to have 12
access to it under subsection (4). 13
operator to give notice about inaccuracy in public information 14
Scheme
document 15
36.(1) This section applies if the particulars in a public information 16
document for a resident become inaccurate in a way that may materially 17
affect the interests of a resident of the village. 18
(2) Within 28 days after the scheme operator becomes aware of the 19
inaccuracy or the circumstances causing the inaccuracy, the scheme operator 20
must make a full written disclosure of the inaccuracy to the chief executive 21
and to each resident who is, or is likely to be, materially affected by the 22
inaccuracy. 23
Maximum penalty for subsection (2)--540 penalty units. 24
7 Section 27 (Application for registration of retirement village scheme)
8 Section 113 (Annual financial statements)
s 37 27 s 39
Retirement Villages
information document forms part of residence contract 1
Public
37.(1) A public information document for each resident is taken to form 2
part of the resident's residence contract to which the public information 3
document relates. 4
(2) A notice given to the chief executive and a resident under section 36 is 5
taken to form part of the resident's residence contract. 6
(3) If a provision ("PID provision") of a public information document 7
forming part of a resident's residence contract is inconsistent with another 8
provision ("contract provision") of the contract not contained in the public 9
information document, and the contract provision disadvantages the 10
resident, the PID provision prevails to the extent of the inconsistency 11
(4) If a PID provision is inconsistent with this Act, this Act prevails to 12
the extent of the inconsistency. 13
3--Chief executive may apply for court orders 14
Division
executive may apply for order appointing a manager of a 15
Chief
retirement village 16
38.(1) If the chief executive reasonably believes it is necessary to protect 17
the interests of residents of a particular retirement village, the chief executive 18
may apply to the District Court for-- 19
(a) an order that a person be appointed as manager of the retirement 20
village to control its operation; or 21
(b) in urgent circumstances, an ex parte interim order appointing a 22
stated person as manager of the retirement village. 23
(2) If the court makes an order under subsection (1), it may, at any time, 24
make any ancillary order it considers necessary to support the order. 25
power of chief executive to seek an order 26
Additional
39.(1) This section applies if the chief executive considers, on reasonable 27
grounds, that a person is contravening section 34.9 28
9 Section 34 (Offence to operate etc. an unregistered retirement village scheme)
s 40 28 s 40
Retirement Villages
(2) The chief executive may apply to the District Court for an order to 1
stop the person from contravening the section. 2
(3) The court may make any order, including an interim order, it 3
considers appropriate. 4
Division 4--Cancelling registration of retirement village 5
to cancel registration 6
Applying
40.(1) A scheme operator may ask the chief executive to cancel the 7
registration of the retirement village scheme if the operator-- 8
(a) stops operating the scheme; or 9
(b) proposes to stop operating the scheme. 10
(2) The request must be written. 11
(3) The scheme operator must also-- 12
(a) give each resident of the retirement village a written notice stating 13
the following-- 14
(i) the scheme operator has asked the chief executive to cancel 15
the registration of the scheme; 16
(ii) if there is a statutory charge over the retirement village land, 17
whether or not the operator has asked the chief executive to 18
release the statutory charge over the retirement village land 19
under section 124;10 20
(iii) how it will affect the person if the scheme is cancelled; 21
(iv) that, within 60 days after the person receives the notice, the 22
person may, by written notice given to the chief executive, 23
object to the cancellation; and 24
(b) give the chief executive-- 25
10 Section 124 (Scheme operator may ask for release of charge if land stops being
retirement village land)
s 41 29 s 42
Retirement Villages
(i) a statutory declaration made by the scheme operator stating 1
the facts of the scheme operator's compliance with 2
paragraph (a); and 3
(ii) a copy of the notice given to residents under paragraph (a). 4
(4) In this section-- 5
"resident" includes a former resident who has not received an exit 6
entitlement to which the former resident is entitled under the former 7
resident's residence contract. 8
registration 9
Cancelling
41.(1) Subsection (2) applies if-- 10
(a) a statutory charge existed over the retirement village land, the 11
chief executive has released the charge; and 12
(b) the chief executive is satisfied-- 13
(i) the scheme operator has complied with section 40(3); and 14
(ii) cancelling the scheme is appropriate, having regard to the 15
objections, if any, made under section 40(3). 16
(2) The chief executive may-- 17
(a) cancel the registration of the scheme; and 18
(b) record the cancellation in the register. 19
ART 3--RESIDENCE CONTRACTS 20
P
1--Purpose and intention of part 21
Division
and intention of part 22
Purpose
42.(1) The purpose of this part is to state minimum requirements for 23
residence contracts. 24
s 43 30 s 45
Retirement Villages
(2) However, it is not the intention of this part to prevent a scheme 1
operator agreeing in a residence contract or otherwise to conditions that are 2
more beneficial to a resident or former resident than the provisions of this 3
part. 4
Division 2--General 5
operator may enter into residence contract only if scheme is 6
Scheme
registered 7
43.(1) A scheme operator may enter into a residence contract for the 8
retirement village with someone else only if the scheme is registered under 9
this Act. 10
Maximum penalty--540 penalty units. 11
(2) If a scheme operator enters into a residence contract in contravention 12
of subsection (1), the contract is not invalid or unenforceable for that reason 13
only, but may be terminated under section 52.11 14
signing residence contract to be given copy 15
Person
44. When a person enters into a residence contract with a scheme 16
operator, the operator must immediately give the person-- 17
(a) a signed copy of the contract; and 18
(b) a public information document relating to the contract, unless the 19
document has already been given to the person under 20
section 84.12 21
Maximum penalty--100 penalty units. 22
of residence contract 23
Content
45.(1) A scheme operator must ensure each residence contract for the 24
retirement village includes details about the following-- 25
11 Section 52 (Termination by resident)
12 Section 84 (Public information document to be given to prospective resident)
s 45 31 s 45
Retirement Villages
(a) the right to rescind the contract under section 48 before the 1
cooling-off period ends; 2
(b) the ingoing contribution payable under the contract; 3
(c) the exit fee payable under the contract; 4
(d) the resident's exit entitlement; 5
(e) the services charges; 6
(f) the amounts payable, and when the amounts are payable, by the 7
resident for the maintenance reserve fund for the retirement 8
village; 9
(g) the insurance for the retirement village, and insurance for which 10
the resident is responsible; 11
(h) the resident's right to resell the right to reside in the 12
accommodation unit; 13
(i) the resident's entitlement to audited and unaudited financial 14
statements for the village; 15
(j) the dispute resolution process established under this Act; 16
(k) the statutory charge, if relevant to the resident's title to, or interest 17
in, the accommodation unit; 18
(l) the resident's and scheme operator's rights to terminate the 19
contract; 20
(m) anything else prescribed under a regulation. 21
Maximum penalty--100 penalty units. 22
(2) A provision of a residence contract is of no effect to the extent that it 23
is inconsistent with this Act or purports to restrict or exclude the operation 24
of a provision of this Act. 25
(3) Also, a provision of a residence contract is of no effect to the extent 26
that it purports to restrict or exclude the operation of a public information 27
document, or a provision of a public information document, taken to form 28
part of the contract under section 37.13 29
13 Section 37 (Public information documents form part of scheme's residence
contracts)
s 46 32 s 46
Retirement Villages
with ingoing contribution 1
Dealing
46.(1) A person who receives an amount as an ingoing contribution 2
under a residence contract must give it to one of the following persons (the 3
"trustee") to hold in trust-- 4
(a) the public trustee; 5
(b) the scheme operator's lawyer; 6
(c) a real estate agent; 7
(d) any authorised trustee corporation under the Corporations Law.14 8
Maximum penalty--100 penalty units. 9
(2) If the trustee receives an amount under subsection (1), the trustee's 10
receipt for the amount is a sufficient discharge for the person for the amount 11
paid. 12
(3) The trustee must hold the amount in trust until the later of-- 13
(a) the day the conditions precedent, if any, to the creation of the right 14
to reside to which the amount relates are fulfilled; or 15
(b) the day the cooling-off period ends. 16
Maximum penalty--100 penalty units. 17
(4) At the end of the later day, the trustee must pay the amount to the 18
person lawfully entitled to it. 19
Maximum penalty--100 penalty units. 20
(5) If there is a dispute between a resident and a scheme operator about 21
who is lawfully entitled to the amount, the dispute is a retirement village 22
dispute. 23
(6) If a retirement village dispute arises under subsection (5), the scheme 24
operator must give the trustee written notice of the dispute immediately it 25
arises. 26
Maximum penalty--100 penalty units. 27
14 Under the Corporations Law, section 9, an "authorised trustee corporation" is
`a body corporate that is declared by the regulations to be an authorised trustee
corporation for the purposes of the provision in which the expression appears'.
s 47 33 s 47
Retirement Villages
(7) If the trustee is given a notice under subsection (6), the trustee must 1
hold the amount in trust until the dispute is resolved-- 2
(a) as provided for under this Act; or 3
(b) by agreement, by deed, between the parties. 4
Maximum penalty--100 penalty units. 5
(8) However, if the contract is rescinded in the cooling-off period, the 6
trustee must immediately pay the amount to the person by whom it was 7
paid under the contract. 8
Maximum penalty--100 penalty units. 9
(9) If a person (the "payer") who is required to pay an amount to 10
someone (the "payee") under this section does not pay the amount, the 11
payee may recover it, as a debt payable by the payer to the payee. 12
with instruments assigning property under a residence 13
Dealing
contract 14
47.(1) This section applies if the person (the "assignor") who enters into 15
a residence contract to secure the person's, or someone else's, right to reside 16
in a retirement village assigns property under the residence contract before 17
the cooling-off period ends. 18
(2) The scheme operator must ensure the assignment instrument is held 19
in escrow by the public trustee or the scheme operator's lawyer (the 20
"authorised person"). 21
Maximum penalty--100 penalty units. 22
(3) If the residence contract is rescinded in the cooling-off period, the 23
authorised person must release the assignment instrument to the assignor. 24
Maximum penalty--100 penalty units. 25
(4) If the residence contract is not rescinded in the cooling-off period, the 26
authorised person must, at the end of the cooling-off period, release the 27
assignment instrument to the assignee, or someone else at the assignee's 28
written direction. 29
Maximum penalty--100 penalty units. 30
(5) In this section-- 31
s 48 34 s 50
Retirement Villages
"assignee" means the person in whose favour property is assigned under 1
an assignment instrument. 2
Division 3--Rescinding residence contracts 3
contract may be rescinded during cooling-off period 4
Residence
48. A person who, personally or for someone else, enters into a residence 5
contract to secure the person's, or other person's, right to reside in a 6
retirement village may, by written notice given to the scheme operator, 7
rescind the contract before the cooling-off period ends. 8
of property acquired in cooling-off period 9
Reassignment
49.(1) This section applies if the assignee under an assignment 10
instrument mentioned in section 47 acquires the property the subject of the 11
assignment within the cooling-off period. 12
(2) As soon as possible after the assignee becomes aware the residence 13
contract has been rescinded, the assignee must reassign the property to-- 14
(a) the person from whom the assignee acquired it (the "assignor"); 15
or 16
(b) someone else, at the assignor's written direction. 17
Maximum penalty--100 penalty units. 18
(3) The assignee must reassign the property free of all interests, 19
mortgages and other charges to which it has become subject since the 20
assignee acquired it. 21
Maximum penalty--100 penalty units. 22
(4) The assignee is responsible for the costs, expenses and duties relating 23
to the reassignment under this section. 24
operator to compensate assignor if property assigned in 25
Scheme
cooling-off period is not reassigned 26
50.(1) This section applies if section 49 requires an assignee to reassign 27
property on rescission of a residence contract but the assignee-- 28
s 51 35 s 52
Retirement Villages
(a) has disposed of the property; or 1
(b) is unable, when the contract is rescinded, to discharge any 2
interests, mortgages and other charges to which the property has 3
become subject since the assignee acquired it. 4
(2) The scheme operator for the retirement village to which the contract 5
relates must pay compensation to-- 6
(a) the assignor; or 7
(b) someone else, at the assignor's written direction. 8
(3) The amount of compensation payable-- 9
(a) is the amount equalling the value attributed to the assigned 10
property under the residence contract; and 11
(b) may be recovered as a debt payable by the scheme operator to the 12
assignor, or other person mentioned in subsection (2)(b), in a 13
court having jurisdiction for the recovery of the amount claimed. 14
(4) If there are 2 or more scheme operators for the retirement village, the 15
scheme operators are jointly and severally liable to pay the compensation. 16
Division 4--Terminating right to reside 17
for div 4 18
Definition
51. In this division-- 19
"resident" includes a person who, for someone else, enters into a residence 20
contract to secure the other person's right to reside in a retirement 21
village. 22
by resident 23
Termination
52.(1) A resident may terminate the resident's right to reside in a 24
retirement village by 1 month's written notice given to the scheme operator. 25
(2) Also, a resident may terminate the resident's right to reside in a 26
retirement village by written notice given to the scheme operator if the 27
retirement village scheme is not registered. 28
s 53 36 s 53
Retirement Villages
(3) A notice under subsection (2) must-- 1
(a) be given within 14 days after the resident becomes aware the 2
retirement village scheme is not registered; and 3
(b) state the day, no earlier than the day on which notice is given, on 4
which the termination takes effect. 5
(4) If a resident terminates the resident's right to reside in a retirement 6
village under subsection (2), the scheme operator must refund the full 7
amount of the resident's ingoing contribution to the resident within 30 days 8
of the termination. 9
Maximum penalty--540 penalty units. 10
(5) A resident may recover an amount owing under subsection (4) as a 11
debt owed by the scheme operator. 12
by scheme operator 13
Termination
53.(1) A scheme operator may terminate a resident's right to reside in the 14
retirement village by giving the written notice required by this section to the 15
resident. 16
(2) If the resident's right to reside in the retirement village is to be 17
terminated on either of the following grounds, the scheme operator must 18
give the resident 14 days notice-- 19
(a) the resident has intentionally or recklessly-- 20
(i) injured a person while the person is in the retirement village; 21
or 22
(ii) seriously damaged the resident's accommodation unit; or 23
(iii) seriously damaged property of another person in the 24
retirement village; 25
(b) the resident is likely, intentionally or recklessly, to do something 26
mentioned in paragraph (a)(i) to (iii). 27
(3) The scheme operator must give the resident 2 months notice if the 28
resident's right to reside in the retirement village is to be terminated on the 29
on any of the following grounds-- 30
(a) the resident has committed a material breach of the contract; 31
s 54 37 s 54
Retirement Villages
(b) the scheme operator reasonably believes the resident has 1
abandoned the resident's right to reside in the retirement village; 2
(c) the scheme operator and a person who has assessed the resident's 3
care needs under the Aged Care Act 1997(Cwlth), section 22-4 4
reasonably believe the resident's type of accommodation is now 5
unsuitable for the resident.15 6
7
Example of accommodation that is now unsuitable for the resident--
8
The resident resides in an independent living unit and now needs help with
9
personal care not normally provided by the scheme operator.
(4) The notice must state-- 10
(a) the grounds on which the right to reside is being terminated; and 11
(b) the day by which the resident must vacate the retirement village. 12
(5) If the scheme operator does not know the resident's current address, 13
the scheme operator may give the notice by publishing it in-- 14
(a) a newspaper circulating throughout the State; and 15
(b) a newspaper circulating throughout Australia. 16
(6) The scheme operator must not include the grounds for the termination 17
in the newspaper notice. 18
Maximum penalty for subsection (6) --50 penalty units. 19
may ask for estimate statement of resident's exit entitlement 20
Resident
54.(1) This section applies if a resident gives a scheme operator a written 21
notice-- 22
(a) stating the resident is considering terminating the resident's right 23
to reside in the retirement village under section 52; and 24
(b) asking the operator to give the resident a written estimate of the 25
resident's exit entitlement as at the date of the notice. 26
15 Aged Care Act 1997 (Cwlth), section 22-4 (Assessment of care needs)
s 55 38 s 57
Retirement Villages
(2) The scheme operator must comply with the request within 14 days 1
after it is given, unless the scheme operator has a reasonable excuse. 2
Maximum penalty--40 penalty units. 3
(3) However, the scheme operator does not contravene subsection (2) if 4
the scheme operator has given the resident an estimate under that subsection 5
within the 6 months immediately preceding the resident's request. 6
to reside in a retirement village terminates automatically on 7
Right
resident's death 8
55. A right to reside in an accommodation unit in a retirement village 9
held by a resident terminates on the death of the resident. 10
5--Reselling resident's right to reside 11
Division
for div 5 12
Definitions
56. In this division-- 13
"termination date" means-- 14
(a) the date a resident's right to reside under a residence contract or an 15
existing residence contract in an accommodation unit in a 16
retirement village is terminated under this Act; or 17
(b) for a right to reside under a residence contract in an 18
accommodation unit in a retirement village terminated before the 19
commencement of this Act, the commencement of this section. 20
"valuer" see section 70. 21
of div 5 22
Application
57. This division applies if-- 23
(a) a resident's right to reside under a residence contract or an 24
existing residence contract in an accommodation unit in a 25
retirement village is terminated; and 26
s 58 39 s 59
Retirement Villages
(b) under the contract, the scheme operator has the controlling right to 1
sell the right to reside in the unit; and 2
(c) the contract does not include provisions at least equivalent to the 3
provisions of this division. 4
operator and resident to agree on work to reinstate unit to 5
Scheme
previous condition 6
58.(1) Within 30 days after the termination date, the former resident and 7
the scheme operator under a residence contract, other than an existing 8
residence contract, are to negotiate in good faith and, if possible, agree in 9
writing on any work ("reinstatement work") that is necessary to be done 10
to reinstate the accommodation unit as nearly as practicable to its condition 11
at the start of the former resident's occupation. 12
(2) For an existing residence contract, the former resident and the scheme 13
operator are to negotiate in good faith and, if possible, agree in writing on 14
any work (also "reinstatement work") that is necessary to be done to 15
reinstate the accommodation unit to a marketable condition having regard 16
to-- 17
(a) the age of the accommodation unit and the retirement village; and 18
(b) the general condition of accommodation units comparable with 19
the unit in the village. 20
(3) If the former resident and the scheme operator can not agree on the 21
reinstatement work, the scheme operator is to obtain a statement of the 22
work, and an itemised quote for doing the work, the operator considers to 23
be reinstatement work from a qualified tradesperson appropriate for the 24
work within a further 14 days. 25
operator to ensure reinstatement work to be completed 26
Scheme
59.(1) This section applies if-- 27
(a) the former resident and the scheme operator agree on 28
reinstatement work under section 58; or 29
(b) a tribunal orders that work be done to reinstate the former 30
resident's accommodation unit. 31
s 60 40 s 61
Retirement Villages
(2) The scheme operator must ensure the reinstatement work is 1
completed within-- 2
(a) for reinstatement work agreed on under section 58-- 3
(i) 90 days after the vacation date; or 4
(ii) if the former resident and the scheme operator agree on 5
another time, the time agreed; or 6
(b) for reinstatement work ordered to be done by a tribunal--the 7
period fixed by the tribunal. 8
(3) In this section-- 9
"vacation date", of an accommodation unit in a retirement village, 10
means-- 11
(a) the date a former resident vacates the unit; or 12
(b) for a former resident who has vacated the unit before the 13
commencement of this Act, the commencement of this section. 14
operator and former resident to agree on resale value of 15
Scheme
accommodation unit 16
60.(1) Within 30 days after the termination date, the former resident and 17
the scheme operator are to negotiate in good faith and, if possible, agree in 18
writing on the resale value of the right to reside in the accommodation unit. 19
(2) If the former resident and the scheme operator can not agree on the 20
resale value of the accommodation unit, the scheme operator is to obtain a 21
valuation of the right to reside in the unit from a valuer within a further 14 22
days. 23
(3) A valuation obtained under subsection (2) is taken to be the agreed 24
resale value of the right to reside in the accommodation unit. 25
pays for work in freehold interest scheme 26
Who
61. If the former resident's interest is a freehold interest, the former 27
resident must pay the cost of reinstatement work. 28
s 62 41 s 63
Retirement Villages
pays for work in leasehold or licence scheme 1
Who
62.(1) If the former resident's interest is a leasehold interest or licence, 2
the cost of reinstatement work must be paid by-- 3
(a) to the extent the former resident caused accelerated wear to the 4
accommodation unit's interior or deliberate damage to the unit-- 5
the former resident; or 6
(b) if the residence contract states who is to make the payment--the 7
person stated; or 8
(c) otherwise-- 9
(i) for a residence contract other than an existing resident 10
contract--the scheme operator; or 11
(ii) for an existing residence contract--the former resident and 12
the scheme operator in the same proportion as they are to 13
share the sale proceeds of the right to reside in the unit on its 14
sale. 15
(2) If the scheme operator must pay the cost of reinstatement work, it 16
must be paid out of the operator's capital replacement fund. 17
former resident's exit entitlement payable 18
When
63.(1) A scheme operator must pay the exit entitlement of a former 19
resident to the person entitled to receive it on or before the sooner of-- 20
(a) the day when it must be paid under the former resident's 21
residence contract; or 22
(b) 28 days after the right to reside is sold. 23
Maximum penalty--540 penalty units. 24
(2) However, this division does not prevent the operator paying the exit 25
entitlement before the right to reside is sold if-- 26
(a) a scheme operator wants to pay an exit entitlement to a former 27
resident after termination but before the right to reside is sold; and 28
(b) the former resident and the operator agree on the value of the right 29
to reside. 30
s 64 42 s 65
Retirement Villages
(3) At the same time as an exit entitlement is paid under this section, the 1
scheme operator must give the former resident a written statement showing 2
how the exit entitlement was worked out and the particulars of any of the 3
following that are payable by the former resident-- 4
(a) any exit fee; 5
(b) any accrued general services charges; 6
(c) any outstanding services charges and fund contributions; 7
(d) any expenses relating to the resale of the right to reside in the 8
accommodation unit; 9
(e) any other payments provided for in the contract. 10
Maximum penalty for subsection (3)--100 penalty units. 11
not sold within 6 months 12
Units
64.(1) This section applies if-- 13
(a) a former resident's right to reside in a particular accommodation 14
unit is not sold within 6 months after the termination date; and 15
(b) the former resident has not been paid an exit entitlement under 16
section 63. 17
(2) The former resident may engage a real estate agent to effect the sale of 18
the right to reside in the accommodation unit. 19
to tell resident of all offers for accommodation unit 20
Operator
65.(1) This section applies if a former resident has not been paid an exit 21
entitlement under section 63. 22
(2) The scheme operator must promptly give to the former resident 23
details of each offer to purchase the former resident's right to reside. 24
Maximum penalty--40 penalty units. 25
(3) Also, if the former resident asks, the scheme operator must give 26
information about the following to the former resident as soon as practicable 27
after the end of each month for which the right to reside remains unsold-- 28
(a) all sales inquiries relating to the right to reside; 29
s 66 43 s 67
Retirement Villages
(b) what steps the operator is taking to promote the sale of the right to 1
reside; 2
(c) the following particulars of all other rights to reside in 3
accommodation units for sale in the village-- 4
(i) the number of rights for sale; 5
(ii) the size of the units; 6
(iii) the selling prices of the rights; 7
(iv) how long the rights have been for sale. 8
Maximum penalty for subsection (3)--40 penalty units. 9
offers at less than agreed resale value 10
Accepting
66.(1) If a scheme operator accepts an offer for a right to reside less than 11
the agreed value for the right, the former resident's exit entitlement is to be 12
worked out as if the right to reside was sold at the agreed value. 13
(2) If a former resident accepts an offer for a right to reside less than the 14
agreed value, the former resident's exit entitlement is to be worked out on 15
the amount of the offer. 16
agreed resale value 17
Updating
67.(1) This section applies if-- 18
(a) a former resident's right to reside in a particular accommodation 19
unit is not sold within 6 months after the termination date; and 20
(b) the former resident has not been paid an exit entitlement under 21
section 63. 22
(2) The former resident and the scheme operator are to reconsider the 23
resale value of the right to reside at least every 3 months and, if possible, 24
agree in writing on a new resale value, which may be the same value. 25
(3) If the former resident and the scheme operator can not agree on the 26
resale value of the accommodation unit, the operator is to obtain a valuation 27
of the right to reside in the unit from a valuer within a further 14 days. 28
s 68 44 s 70
Retirement Villages
(4) A valuation obtained under subsection (3) is taken to be the agreed 1
resale value of the right to reside in the accommodation unit. 2
of selling 3
Costs
68.(1) The costs of the sale of a right to reside in a particular 4
accommodation unit, including the costs mentioned in sections 60(2) and 5
67(3), are to be shared by the former resident and the scheme operator in the 6
same proportion as they are to share the sale proceeds of the right to reside 7
in the unit on its sale. 8
(2) However, if the former resident engages a real estate agent to sell the 9
right to reside, the former resident must pay the real estate agent's costs of 10
the sale, if any, and commission. 11
ground for scheme operator to refuse to accept offer 12
Limited
69. A scheme operator may refuse to accept an offer to purchase a right 13
to reside in an accommodation unit if the operator reasonably believes-- 14
(a) the prospective resident is not within the age limits for residents 15
stated in the public information document; or 16
(b) the type of unit to which the right to reside relates is unsuitable for 17
the prospective resident. 18
19
Example for paragraph (b)--
20
The accommodation is an independent living unit and the prospective resident
21
needs help with personal care not normally provided by the scheme operator.
22
Valuer
70.(1) For this division, the valuer of the resale value of the right to reside 23
in the unit must be a person who-- 24
(a) is a registered valuer; and 25
(b) is agreed on by the scheme operator and the former resident. 26
(2) If the scheme operator and the former resident can not agree on the 27
valuer-- 28
s 71 45 s 71
Retirement Villages
(a) the scheme operator or the former resident must immediately tell 1
the chief executive by written notice; and 2
(b) the valuer is to be a registered valuer decided by the chief 3
executive within 14 days after the chief executive receives the 4
notice mentioned in paragraph (a). 5
(3) In this section-- 6
"registered valuer" means a valuer registered under the Valuers 7
Registration Act 1992. 8
Division 6--Enforcing residence contracts 9
residence contract 10
Enforcing
71.(1) A residence contract is enforceable against the following persons 11
for the recovery of all or part of the exit entitlement-- 12
(a) a person who is a party to the contract; 13
(b) a person who is not a party to the contract but who, when the 14
contract was entered into-- 15
(i) was the scheme operator for the retirement village to which 16
the contract relates; or 17
(ii) owned the retirement village land; 18
(c) a person who is not a party to the contract but who, when the 19
contract is to be enforced-- 20
(i) is the scheme operator; or 21
(ii) owns the retirement village land. 22
(2) For the purpose of enforcing a contract against a person mentioned in 23
subsection (1)(b) or (c), the person is taken to be the scheme operator under 24
the contract. 25
(3) A court may make an order under this section against a person 26
mentioned in subsection (1)(b) only if the court is satisfied-- 27
(a) an order against a person mentioned in subsection (1)(a) or (c) 28
would be ineffectual; and 29
s 72 46 s 73
Retirement Villages
(b) in the particular circumstances, it is just to make the order. 1
(4) Subsection (1)(b)(ii) and (1)(c)(ii) are subject to section 72. 2
on enforcing residence contract 3
Restriction
72.(1) This section applies to a person who is not a party to a residence 4
contract that is sought to be enforced against the person, and who, when the 5
enforcement is sought-- 6
(a) is not the scheme operator; but 7
(b) owns the retirement village land. 8
(2) The contract can not be enforced against the person for the recovery 9
of all or part of the exit entitlement if-- 10
(a) the person acquired the land as a genuine purchaser for value 11
from a mortgagee exercising power of sale under a mortgage; and 12
(b) the mortgage was created over the land before 1 November 1989. 13
on scheme operator's liability for breach of residence contract 14
Limit
73. A scheme operator is not liable for breach of a residence contract for 15
the scheme operator's failure to supply a general service to a resident under 16
the contract if-- 17
(a) the cost of supplying the service is more than the services charge 18
for the service; and 19
(b) the residents have not approved the payment of an increased 20
services charge to cover the cost of supplying the service; and 21
(c) in all the circumstances, the scheme operator acted reasonably. 22
s 74 47 s 74
Retirement Villages
PART 4--OTHER DOCUMENTS RELATING TO 1
RETIREMENT VILLAGE SCHEMES 2
and content of public information document 3
Form
74.(1) A public information document must be in the approved form. 4
(2) A copy of the registration certificate for the retirement village scheme 5
must be attached to the public information document. 6
(3) The public information document must state the day it was given to 7
the chief executive under section 27 or 36.16 8
(4) The public information document must state any age limits for 9
residents that apply to the retirement village scheme. 10
(5) The approved form must make provision for the following 11
information-- 12
(a) accommodation information; 13
(b) residents' contributions information; 14
(c) information about payments the scheme operator must make to 15
residents; 16
(d) funds information; 17
(e) facilities information; 18
(f) information about the village land; 19
(g) residents' rights and obligations information; 20
(h) resale process information; 21
(i) dispute resolution information. 22
(6) This section does not limit the information that may be included in a 23
public information document. 24
16 Section 27 (Application for registration of a retirement village scheme) or 36
(Scheme operator to give notice about inaccuracy in public information
document)
s 75 48 s 78
Retirement Villages
information 1
Accommodation
75. For this part, the accommodation information is as follows-- 2
(a) the type and number of accommodation units to which the 3
document relates; 4
(b) the number of accommodation units available for sale and the sale 5
price of each of the units or, if only a right to reside in a unit is 6
available, the ingoing contribution for the right to reside in the 7
unit; 8
(c) the type of tenure or interest a resident of the accommodation unit 9
obtains in the retirement village; 10
(d) the nature of insurance arrangements for the retirement village. 11
contributions information 12
Residents'
76. For this part, the residents' contributions information is as follows-- 13
(a) the nature of the amounts a resident may be required to pay, for 14
example, an ingoing contribution, an exit fee, services charges, 15
and contributions to particular funds; 16
(b) how the exit fee is to be worked out, including a table showing the 17
minimum and maximum exit fee amounts payable under a 18
residence contract over the term of the contract; 19
(c) how the general services charge is worked out in relation to the 20
retirement village's total operating costs. 21
about payments scheme operator must make to a 22
Information
resident 23
77. For this part, the information about payments the scheme operator 24
must make to residents is how the exit entitlement, if any, is to be worked 25
out if a resident's right to reside in an accommodation unit is terminated. 26
information 27
Funds
78. For this part, the funds information is as follows-- 28
(a) the details of the funds the scheme operator is required to keep; 29
s 79 49 s 81
Retirement Villages
(b) the balance in each fund at the end of the previous financial year; 1
(c) the capital replacement fund contribution; 2
(d) details of the quantity surveyor's report used to decide the 3
percentage of the ingoing contribution to be applied toward the 4
capital replacement fund; 5
(e) for existing residence contracts that provide for an amount from a 6
resident's services charge to be paid towards capital replacement, 7
details of the amount as worked out by the scheme operator. 8
information 9
Facilities
79. For this part, the facilities information is as follows-- 10
(a) facilities the scheme operator undertakes to offer a prospective 11
resident under a residence contract for the retirement village; 12
(b) the facilities the scheme operator proposes offering a prospective 13
resident under a residence contract for the retirement village, 14
depending on sales activity, finance availability or market 15
conditions for the retirement village (each a "contingency") and 16
when they are proposed to be offered; 17
(c) the particular contingency for offering particular facilities 18
mentioned in paragraph (b). 19
about retirement village land 20
Information
80. For this part, the information about retirement village land is as 21
follows-- 22
(a) whether or not there is a statutory charge created under this Act 23
over the land; 24
(b) whether or not there are any other encumbrances over the land. 25
rights information 26
Residents'
81. For this part, the residents' rights information is as follows-- 27
(a) what a resident's rights are to rescind a residence contract in the 28
cooling-off period; 29
s 82 50 s 84
Retirement Villages
(b) what a resident's rights are, under a residence contract and this 1
Act, to be given financial information about the retirement village 2
scheme operation; 3
(c) what a resident's rights are if the residence contract is terminated; 4
(d) anything else prescribed under a regulation to be residents' rights 5
information. 6
process information 7
Resale
82. For this part, the resale process information is as follows-- 8
(a) how the resale value is to be decided; 9
(b) when reinstatement work will be required and who pays for it; 10
(c) the process for, and effect of, accepting offers, including, for 11
example, when offers may be refused; 12
(d) the provision of monthly sales information; 13
(e) how the expenses of sale are to be shared. 14
resolution information 15
Dispute
83. For this part, the dispute resolution information is as follows-- 16
(a) the types of disputes for which dispute resolution is available; 17
(b) how a dispute may be submitted to a village-based dispute 18
resolution panel, mediation or, in the last resort, the tribunal; 19
(c) the fee for an application to the tribunal for resolution of a dispute. 20
information document to be given to prospective resident 21
Public
84. A scheme operator must give a prospective resident of the retirement 22
village a copy of the public information document before the prospective 23
resident enters into a residence contract for the village. 24
Maximum penalty--540 penalty units. 25
s 85 51 s 86
Retirement Villages
access to certain documents 1
Residents'
85.(1) A resident may ask the scheme operator to allow the resident to 2
inspect, or take a copy of, a relevant document in the scheme operator's 3
possession or control. 4
(2) A request under this section must be-- 5
(a) in writing and state a reasonable time, at least 7 days after it is 6
given, for the resident's access to the document; and 7
(b) accompanied by any fee that may be prescribed under a 8
regulation. 9
(3) The scheme operator must comply with the request. 10
Maximum penalty--10 penalty units. 11
(4) In this section-- 12
"relevant document" means the resident's residence contract or public 13
information document. 14
or misleading documents 15
False
86.(1) A scheme operator must not give the chief executive or a resident 16
a document containing information the scheme operator knows is false or 17
misleading. 18
Maximum penalty--200 penalty units. 19
(2) A complaint against a scheme operator for an offence against 20
subsection (1) is sufficient if it states the information was false or 21
misleading to the scheme operator's knowledge. 22
s 87 52 s 88
Retirement Villages
PART 5--OPERATION OF SCHEMES FOR, AND 1
MANAGEMENT OF, RETIREMENT VILLAGES 2
1--Operator and employees of village 3
Division
for div 1 4
Definitions
87. In this division-- 5
"conviction" means a finding of guilt, or the acceptance of a plea of guilty, 6
by a court. 7
"insolvent under administration" has the meaning given by the 8
Corporations Law. 9
"relevant conviction" means a conviction for-- 10
(a) an offence involving fraud or dishonesty punishable, at the time 11
the conviction is recorded, by not less than 3 months 12
imprisonment; or 13
(b) an offence involving physical violence to someone else. 14
prohibited from operating a retirement village scheme etc. 15
Persons
88.(1) A person who is an insolvent under administration must not-- 16
(a) be a scheme operator; or 17
(b) promote a retirement village scheme; or 18
(c) sell rights to reside in a retirement village; or 19
(d) be concerned, directly or indirectly, in managing a retirement 20
village. 21
Maximum penalty--100 penalty units. 22
(2) A person who has a relevant conviction must not-- 23
(a) be a scheme operator; or 24
(b) promote a retirement village scheme; or 25
(c) sell rights to reside in a retirement village; or 26
s 89 53 s 89
Retirement Villages
(d) be concerned, directly or indirectly, in managing a retirement 1
village. 2
Maximum penalty--100 penalty units. 3
(3) Subsections (1)(b) or (c) and (2)(b) or (c) do not apply to a person 4
who is a resident or a former resident of a retirement village, or who acts for 5
the resident or former resident, who does something mentioned in the 6
subsections only to terminate the resident's or former resident's right to 7
reside in an accommodation unit in the retirement village. 8
2--Exercise of power of attorney by scheme operator 9
Division
of attorney 10
Power
89.(1) A scheme operator must not exercise or purport to exercise a 11
power conferred on, or exercisable by, the scheme operator under a limited, 12
general or enduring power of attorney given by a resident of the retirement 13
village in favour of the scheme operator. 14
Maximum penalty--540 penalty units. 15
(2) However, the scheme operator does not contravene subsection (1) 16
if-- 17
(a) the resident is a relative of the scheme operator; or 18
(b) the scheme operator exercises, or purports to exercise, a power of 19
attorney given to the operator by the resident to execute a 20
surrender of a registered lease in favour of the resident over an 21
accommodation unit after the resident's residence contract has 22
been lawfully terminated under this Act; or 23
(c) the resident gives the power of attorney under the Body 24
Corporate and Community Management Act 1997, section 168 or 25
176.17 26
17 Body Corporate and Community Management Act 1997, section 168 (Restriction
on powers of attorney in favour of original owner), section 176 (Restriction on
powers of attorney in favour of seller)
s 90 54 s 91
Retirement Villages
3--Capital improvement 1
Division
for capital improvement 2
Responsibility
90.(1) A scheme operator is solely responsible for the cost of the 3
retirement village's capital improvement, including the capital improvement 4
of the village's communal facilities owned by the operator. 5
(2) Subsection (3) applies only if a resident does not have a freehold 6
interest in the resident's accommodation unit. 7
(3) If a resident gives the scheme operator a written request for a 8
particular capital improvement to the resident's accommodation unit and the 9
operator makes or agrees to make the improvement, the resident is solely 10
responsible for the cost of the capital improvement. 11
(4) Also, if-- 12
(a) retirement village residents, by special resolution at a residents 13
meeting, vote to give the scheme operator a written request for 14
another type of capital improvement to the village; and 15
(b) the operator makes or agrees to make the improvement, 16
all the village residents when the vote was taken are jointly and severally 17
responsible for the cost of the capital improvement. 18
4--Capital replacement fund 19
Division
replacement fund 20
Capital
91.(1) A scheme operator must-- 21
(a) establish and keep a fund (the "capital replacement fund") for 22
replacing the retirement village's capital items; and 23
(b) hold amounts standing to the credit of the fund in a trust account 24
that-- 25
(i) is established and kept for the purpose; and 26
(ii) requires withdrawals from it, whether by cheque or 27
otherwise, to be signed by the scheme operator. 28
s 92 55 s 92
Retirement Villages
Maximum penalty--540 penalty units. 1
(2) The scheme operator is solely responsible for contributing to the 2
fund. 3
(3) The scheme operator must not use an amount standing to the credit of 4
the capital replacement fund for a purpose other than-- 5
(a) replacing the village's capital items; or 6
(b) paying the quantity surveyor's reasonable fees for giving a report 7
for section 92. 8
Maximum penalty--540 penalty units. 9
(4) Without limiting subsection (3), the scheme operator must not use the 10
amount standing to the credit of the fund for-- 11
(a) the village's capital improvement, maintenance or repairs; or 12
(b) capital replacement, maintenance or repairs of body corporate 13
property to which the Body Corporate and Community 14
Management Act 1997 applies. 15
Maximum penalty for subsection (4)--540 penalty units. 16
of capital replacement fund 17
Amount
92.(1) Before a scheme operator decides a budget under section 93, the 18
operator must obtain a quantity surveyor's written report about the expected 19
capital replacement costs for the village for the next 10 years. 20
Maximum penalty--540 penalty units. 21
(2) The scheme operator must decide the amount to be held in the capital 22
replacement fund for the village (the "capital replacement reserve") 23
having regard to the fund's purpose, the quantity surveyor's report and any 24
amounts transferred to the fund under section 231 or 233.18 25
18 Section 231 (Apportionment of balance where separate funds maintained) or
section 233 (Apportionment of balance where single fund maintained for capital
replacement and maintenance and repairs)
s 93 56 s 93
Retirement Villages
(3) If the amount held in an existing retirement village's capital 1
replacement fund is less than the capital replacement reserve, the operator 2
must decide the amount the operator must pay to the fund to reach the 3
capital replacement reserve within the following period after the 4
commencement of this division-- 5
(a) if the first resident in the village occupied an accommodation unit 6
5 or more years before the commencement--10 years; 7
(b) if the first resident in the village occupied an accommodation unit 8
less than 5 years before the commencement--5 years. 9
(4) If the amount a scheme operator must spend on capital replacement at 10
any time is more than the amount held in the capital replacement fund, the 11
operator must pay the difference between the actual amount to be spent and 12
the amount held in the capital replacement fund. 13
(5) The operator may adjust the capital replacement fund contribution 14
annually to ensure the capital replacement reserve is reached within the 15
relevant period mentioned in subsection (3). 16
replacement fund budget 17
Capital
93.(1) The scheme operator must adopt a budget for each financial year 18
for the capital replacement fund. 19
(2) The capital replacement fund budget must-- 20
(a) allow for raising a reasonable capital amount to-- 21
(i) provide for necessary and reasonable spending from the 22
capital replacement fund for the financial year; and 23
(ii) reserve an appropriate proportional share of amounts 24
necessary to be accumulated to meet anticipated major 25
expenditure over at least the next 9 years after the financial 26
year; and 27
(b) fix the amount to be raised by way of capital replacement fund 28
contribution to cover the capital amount mentioned in 29
paragraph (a). 30
s 94 57 s 94
Retirement Villages
1
Example--
2
Replacing a village stand-by electricity generator is anticipated to be necessary in
3
3 years time at a cost currently estimated at $60 000. The contribution amount for the
4
capital replacement fund in the budget for the financial year must therefore include
5
the annual proportional share for its replacement of $20 000. Next year, the
6
estimated cost has increased to $68 000 and so the second year amount will be $24
7
000. The estimated cost in the third year is $70 000, so with the $44 000
8
accumulated, a further $26 000 is necessary to meet the cost.
into capital replacement fund 9
Payments
94.(1) The following amounts must be paid into the capital replacement 10
fund-- 11
(a) amounts received under insurance policies for the destruction of 12
items of a capital nature; 13
(b) interest from investment of amounts held in the fund; 14
(c) the capital replacement fund contribution; 15
(d) if an existing residence contract requires an amount from a 16
resident's services charge to be paid towards capital 17
replacement-- 18
(i) if the amount is stated in the contract--the amount; or 19
(ii) if the amount is not stated in the contract--the amount 20
decided by the operator worked out in the way stated in the 21
public information document; 22
(e) any amounts transferred to the fund under section 231 or 233; 23
(f) any amount paid by a resident under section 96(2). 24
Maximum penalty--540 penalty units. 25
(2) Subsection (1) does not limit the amounts a scheme operator may pay 26
into the capital replacement fund. 27
(3) However, the scheme operator must not pay into the capital 28
replacement fund amounts properly payable into another fund. 29
Maximum penalty for subsection (3)--540 penalty units. 30
s 95 58 s 97
Retirement Villages
on investing capital replacement fund amounts 1
Restriction
95. A scheme operator must not invest an amount standing to the credit 2
of the retirement village's capital replacement fund other than in an 3
authorised investment under the Trusts Act 1973. 4
Maximum penalty--540 penalty units. 5
liable for replacing certain capital items 6
Resident
96.(1) This section applies if a capital item of a retirement village is-- 7
(a) deliberately damaged by a resident; or 8
(b) subjected to accelerated wear caused by a resident's actions. 9
(2) The resident is liable for the cost of replacing the item. 10
Division 5--Maintenance reserve fund 11
reserve fund 12
Maintenance
97.(1) A scheme operator must-- 13
(a) establish and keep a fund (the "maintenance reserve fund") for 14
maintaining and repairing the retirement village's capital items; 15
and 16
(b) hold amounts standing to the credit of the fund in a trust account 17
that-- 18
(i) is established and kept for the purpose; and 19
(ii) requires withdrawals from it, whether by cheque or 20
otherwise, to be signed by the scheme operator. 21
Maximum penalty--540 penalty units. 22
(2) Residents are solely responsible for contributing to the fund. 23
(3) The scheme operator must not use an amount standing to the credit of 24
the fund for a purpose other than-- 25
(a) maintaining and repairing the village's capital items; or 26
s 98 59 s 98
Retirement Villages
(b) paying the quantity surveyor's reasonable fees for giving a report 1
for section 98. 2
Maximum penalty--540 penalty units. 3
(4) Without limiting subsection (3), the scheme operator must not use the 4
amount standing to the credit of the fund for-- 5
(a) the day to day maintenance of the village; or 6
(b) the village's capital improvement or replacement; or 7
(c) capital replacement, maintenance or repairs of body corporate 8
property to which the Body Corporate and Community 9
Management Act 1997 applies. 10
Maximum penalty for subsection (4)--540 penalty units. 11
of maintenance reserve fund 12
Amount
98.(1) Before the scheme operator decides a budget under section 99, the 13
operator must obtain a quantity surveyor's written report about the expected 14
maintenance costs for the village for the next 10 years. 15
Maximum penalty--540 penalty units. 16
(2) The scheme operator must decide the amount to be held in the 17
maintenance reserve fund for the village (the "maintenance reserve") 18
having regard to the fund's purpose, the quantity surveyor's report and any 19
amounts transferred to the fund under sections 231 to 233.19 20
(3) If the amount held in an existing retirement village's maintenance 21
reserve fund is less than the maintenance reserve, the operator must increase 22
the maintenance reserve fund contribution to reach the maintenance reserve 23
within the following period after the commencement of this division-- 24
(a) if the first resident in the village occupied an accommodation unit 25
5 or more years before the commencement--10 years; 26
19 Section 231 (Apportionment of balance where separate funds maintained),
section 232 (Apportionment of balance where single fund maintained for
maintenance and repairs) and section 233 (Apportionment of balance where
single fund maintained for capital replacement and maintenance and repairs)
s 99 60 s 99
Retirement Villages
(b) if the first resident in the village occupied an accommodation unit 1
less than 5 years before the commencement--5 years. 2
(4) If the amount a scheme operator must spend on maintenance or 3
repairs at any time is more than the amount held in the maintenance reserve 4
fund, the operator must pay the difference between the actual amount to be 5
spent and the amount held in the maintenance reserve fund. 6
(5) An amount paid under subsection (4) is to be treated as an interest 7
free loan from the scheme operator to the maintenance reserve fund. 8
(6) The scheme operator may adjust the maintenance reserve fund 9
contribution annually to ensure the maintenance reserve is reached within 10
the relevant period mentioned in subsection (3). 11
reserve fund budget 12
Maintenance
99.(1) The scheme operator must adopt a budget for each financial year 13
for the maintenance reserve fund budget. 14
(2) The maintenance reserve fund budget must-- 15
(a) allow for raising a reasonable amount for maintenance and repairs 16
to-- 17
(i) provide for necessary and reasonable spending from the 18
maintenance reserve fund for the financial year; and 19
(ii) reserve an appropriate proportional share of amounts 20
necessary to be accumulated to meet anticipated major 21
expenditure over at least the next 9 years after the financial 22
year; and 23
(b) fix the amount to be raised by way of contribution to cover the 24
estimated recurrent expenditure mentioned in paragraph (a). 25
26
Example--
27
Painting of village property is anticipated to be necessary in 3 years time at a cost
28
currently estimated at $3 000. The contribution amount for the capital replacement
29
fund in the budget for the financial year must therefore include the annual
30
proportional share for painting of $1 000. Next year, the estimated cost has increased
31
to $3 400 and so the second year levy will be $1 200. The estimated cost in the third
32
year is $3 500, so with the $2 200 accumulated, a levy of $1 300 is necessary to
33
meet the cost.
s 100 61 s 102
Retirement Villages
into maintenance reserve fund 1
Payments
100.(1) The following amounts must be paid into the maintenance 2
reserve fund-- 3
(a) the residents' maintenance reserve fund contributions; 4
(b) interest received on investments belonging to the fund. 5
Maximum penalty--540 penalty units. 6
(2) Subsection (1) does not limit the amounts a scheme operator may pay 7
into the maintenance reserve fund. 8
(3) However, the scheme operator must not pay into the maintenance 9
reserve fund amounts properly payable into another fund. 10
Maximum penalty for subsection (3)--540 penalty units. 11
on investing maintenance reserve fund amounts 12
Restriction
101. A scheme operator must not invest an amount standing to the credit 13
of the retirement village's maintenance reserve fund other than in an 14
authorised investment under the Trusts Act 1973. 15
Maximum penalty--540 penalty units. 16
6--Charges for personal services 17
Division
for personal services for former residents 18
Charges
102. If a resident of a retirement village who is liable to pay a charge for 19
personal services vacates the village, the scheme operator must not levy the 20
charge against the resident for more than 28 days after the resident vacates 21
the village. 22
Maximum penalty--540 penalty units. 23
s 103 62 s 104
Retirement Villages
7--Charges for general services 1
Division
out and paying charges for general services for residents 2
Working
103.(1) The amount a resident of a retirement village may be charged for 3
general services under a residence contract must be worked out in the way 4
stated in the public information document. 5
(2) A scheme operator must not charge a resident of a retirement village 6
for general services an amount more than the amount worked out under 7
subsection (1). 8
Maximum penalty--200 penalty units. 9
(3) The scheme operator must not include, or provide for, in a residence 10
contract in the charge for general services an amount or component, 11
however described, that is payable for or towards replacing the retirement 12
village's capital items. 13
Maximum penalty--200 penalty units. 14
(4) However, subsection (3) does not apply to an existing residence 15
contract. 16
(5) Subject to section 104, a resident of a retirement village is responsible 17
for only the resident's proportion of the general services charges for the 18
period the resident resides in the resident's accommodation unit. 19
out and paying general services charges for former residents 20
Working
104.(1) A former resident of a retirement village is responsible for the 21
resident's proportion of the general services charges after the resident 22
vacates the unit until the first of the following happens-- 23
(a) the right to reside in the unit is sold; 24
(b) subject to subsection (2), a period of 90 days elapses (the "90 day 25
period"); 26
(c) a tribunal orders the scheme operator to pay the former resident's 27
exit entitlement under section 170. 28
s 105 63 s 106
Retirement Villages
(2) If a former resident's right to reside in an accommodation unit has 1
not been sold within the 90 day period, the resident and the scheme operator 2
are each liable, after the period ends, to pay the general services charges in 3
the same proportion as they are to share the sale proceeds of the right to 4
reside in the unit on its sale. 5
(3) However, subsections (1)(a) and (b) and (2) do not apply to a former 6
resident under an existing residence contract. 7
(4) If a former resident's right to reside in an accommodation unit has 8
not been sold within the 90 day period, the scheme operator may-- 9
(a) accrue, as a book debt, the resident's proportion of the general 10
services charges for the period starting after the end of the period 11
and ending on the day the right to reside is sold; and 12
(b) set off the accrued amount against the resident's exit entitlement. 13
(5) A scheme operator must not charge interest on the accrued amount. 14
Maximum penalty for subsection (5)--100 penalty units. 15
services charges for unsold right to reside in accommodation 16
General
units 17
105. A scheme operator must pay the proportion of the general services 18
charges relating to the right to reside in an accommodation unit in the 19
village-- 20
(a) that has not been occupied under a resident contract; or 21
(b) for which there is no residence contract in force. 22
Maximum penalty--200 penalty units. 23
general services charges 24
Increasing
106.(1) A scheme operator may increase charges for general services for 25
a retirement village only under this section or as allowed under section 107. 26
(2) The scheme operator must not increase the general services charge 27
above the percentage increase in the CPI for a particular year, unless the 28
increase is approved by the retirement village residents by special resolution 29
at a residents meeting. 30
s 107 64 s 107
Retirement Villages
Maximum penalty--200 penalty units. 1
(3) If the retirement village residents, by special resolution at a residents 2
meeting, approve an increase in the general services charge for the 3
retirement village above the percentage increase in the CPI for a particular 4
year, the general services charge may be increased only by the amount of 5
the approved increase. 6
(4) For applying this section, the percentage increase in the CPI for a 7
particular year is the percentage increase between the CPI last published 8
before the start of the particular year and the CPI published for the quarter 9
ending immediately before the residents meeting is held. 10
(5) In this section-- 11
"CPI" means the all groups consumer price index for Brisbane published 12
by the Australian statistician. 13
responsibility for paying increased general services charge 14
Resident's
107. A resident is not required to pay a charge for a general service under 15
a residence contract to the extent that the charge is more than that payable 16
under the contract and increased under section 106, unless the excess is 17
attributable to an increase in-- 18
(a) rates, taxes or charges levied under an Act in relation to the 19
retirement village land or its use; or 20
(b) the salary or wages of a person engaged in the retirement village's 21
operation and payable under an award, certified agreement, 22
enterprise flexibility agreement, industrial agreement, Queensland 23
workplace agreement or other industrial agreement made, 24
approved, certified, or continued in force under-- 25
(i) the Industrial Relations Act 1999; or 26
(ii) a Commonwealth Act; or 27
(c) insurance premiums in relation to the retirement village or its use; 28
or 29
(d) maintenance reserve fund contributions. 30
s 108 65 s 110
Retirement Villages
services to be approved by majority of residents 1
New
108.(1) A scheme operator may offer residents a service not already 2
supplied under the scheme, for which a services charge is to be, or may be, 3
made, only if the residents agree to it being supplied by special resolution at 4
a residents meeting. 5
(2) Subsection (1) does not apply to-- 6
(a) a personal service; or 7
(b) a service a public information document states is proposed to be 8
supplied. 9
Division 8--Insurance 10
for div 8 11
Definitions
109. In this division-- 12
"building" includes improvements and fixtures forming part of the 13
building, but does not include fixtures installed by a resident removable 14
by the resident at the termination of a residence contract. 15
"damage", for coverage under insurance required to be effected under this 16
division, means-- 17
(a) damage from earthquake, explosion, fire, lightning, storm, 18
tempest or water; or 19
(b) glass breakage; or 20
(c) damage from impact, malicious act, or riot. 21
operator must insure village 22
Scheme
110.(1) A scheme operator must insure and keep insured, to full 23
replacement value, the retirement village, including the accommodation 24
units, other than accommodation units owned by residents, and the 25
communal facilities. 26
Maximum penalty--540 penalty units. 27
(2) An insurance policy taken out under this section-- 28
s 111 66 s 113
Retirement Villages
(a) must cover, to the greatest practicable extent-- 1
(i) damage; and 2
(ii) costs incidental to the reinstatement or replacement of 3
insured buildings, including the cost of taking away debris 4
and the fees of architects and other professional advisers; and 5
(iii) public liability; and 6
(b) must provide for the reinstatement of property to its condition 7
when new. 8
Maximum penalty for subsection (2)--540 penalty units. 9
Division 9--Financial accounts and statements 10
operator must keep separate accounts for capital replacement 11
Scheme
fund and maintenance reserve fund 12
111. A scheme operator must ensure separate accounts are kept for the 13
retirement village's capital replacement fund and maintenance reserve fund. 14
Maximum penalty--540 penalty units. 15
financial statements 16
Quarterly
112.(1) A scheme operator must ensure a quarterly financial statement 17
about the income and expenditure of the capital replacement fund and the 18
maintenance reserve fund is given, on request, to a resident. 19
Maximum penalty--100 penalty units. 20
(2) The statement need not be audited, but must be in a form capable of 21
being audited. 22
Maximum penalty--100 penalty units. 23
financial statements 24
Annual
113.(1) A scheme operator must ensure a financial statement showing 25
the following particulars about the retirement village's operation is given, on 26
request, to a resident within 5 months after the end of each financial year-- 27
s 114 67 s 114
Retirement Villages
(a) income and expenditure during the financial year, including 1
income and expenditure of the capital replacement fund and the 2
maintenance reserve fund; 3
(b) amounts received for insurance claims relating to the village 4
during the financial year; 5
(c) assets and liabilities relating to the village as at the end of the 6
financial year; 7
(d) interests, mortgages and other charges affecting the village's 8
property as at the end of the financial year. 9
Maximum penalty--200 penalty units. 10
(2) The statement must be audited and an audit report issued under 11
Australian Auditing Standards by either of the following-- 12
(a) a member, who holds a public practice certificate, of-- 13
(i) the Australian Society of Certified Practising Accountants; or 14
(ii) the Institute of Chartered Accountants in Australia; 15
(b) a registered company auditor. 16
Maximum penalty--200 penalty units. 17
(3) The scheme operator must give a copy of the statement to the chief 18
executive within 5 months after the end of each financial year. 19
Maximum penalty--200 penalty units. 20
PART 6--STATUTORY CHARGES OVER 21
RETIREMENT VILLAGE LAND 22
Division 1--Preliminary 23
of pt 6 24
Application
114. This part does not apply if a resident holds a freehold interest or a 25
leasehold interest in an accommodation unit in a retirement village. 26
s 115 68 s 116
Retirement Villages
Division 2--Creating a statutory charge, its effect and priority 1
for div 2 2
Definition
115. In this division-- 3
"registered", for a security, means registered under the Land Title Act 4
1994. 5
a charge 6
Creating
116.(1) Immediately the chief executive registers a retirement village, a 7
statutory charge is created over the retirement village land. 8
(2) As soon as practicable after the scheme is registered, the chief 9
executive must give written notice of its registration to the registrar of titles. 10
(3) The notice must-- 11
(a) identify the retirement village land; and 12
(b) state the day on which the scheme was registered. 13
(4) The registrar of titles must record the charge in the freehold land 14
register under the Land Title Act 1994. 15
(5) However, subsection (1) does not apply if, before registering a 16
retirement village scheme, the chief executive decides it should not apply -- 17
(a) because the scheme operator is-- 18
(i) an organisation established for a religious, charitable or 19
community purpose; and 20
(ii) of good standing in operating retirement village schemes; or 21
(b) because of other exceptional circumstances and the chief executive 22
is satisfied the proposed scheme operator provides another 23
security to secure the rights under a residence contract of a 24
resident in the retirement village. 25
s 117 69 s 118
Retirement Villages
extends to new land 1
Charge
117.(1) This section applies if land ("new land") becomes retirement 2
village land of a retirement village after a charge (the "original charge") on 3
the original retirement village land (the "original land") for the retirement 4
village is created under section 116. 5
(2) Immediately the new land becomes retirement village land, the charge 6
over the original land is released and a charge is created over the original 7
land and the new land. 8
(3) The scheme operator must give the chief executive written notice that 9
new land has become retirement village land within 1 month of the new 10
land becoming retirement village land. 11
Maximum penalty--540 penalty units. 12
(4) As soon as practicable after receiving the notice, the chief executive 13
must give written notice of the change to the retirement village land to the 14
registrar of titles. 15
(5) The notice must-- 16
(a) identify the retirement village land; and 17
(b) state the day on which the new land became retirement village 18
land. 19
(6) The registrar of titles must record the release of the original charge 20
and the creation of the charge under subsection (2) in the freehold land 21
register under the Land Title Act 1994. 22
of charge 23
Effect
118. A statutory charge under this part secures the right of each resident 24
of the retirement village to which it relates-- 25
(a) to occupy the resident's accommodation unit; and 26
(b) to use the village's communal and recreational facilities; and 27
(c) to be paid the exit entitlement the resident is entitled to under the 28
resident's residence contract on termination of the contract. 29
s 119 70 s 120
Retirement Villages
of charge 1
Priority
119.(1) A statutory charge notified to the registrar of titles under this 2
division has priority over all registered securities in or over the retirement 3
village land to which the notice relates, whether or not the security was 4
registered before the statutory charge was notified to the registrar of titles. 5
(2) However, a statutory charge does not have priority over the following 6
registered securities-- 7
(a) a charge created, and given priority over other charges, under a 8
Commonwealth law or another law of the State; 9
(b) securities registered in or over the retirement village land before 10
1 November 1989. 11
3--Enforcing a statutory charge 12
Division
a charge 13
Enforcing
120.(1) This section applies if-- 14
(a) retirement village land is subject to a statutory charge under 15
section 116 or 117; and 16
(b) a court orders an amount be paid by a scheme operator to a 17
retirement village resident in relation to a right of the resident 18
mentioned in section 118(a) to (c) (the "original order"); and 19
(c) the amount is not paid by 6 months after the end of the day by 20
which it was required to be paid under the original order. 21
(2) The person in whose favour the original order was made may apply 22
to the District Court for an order that the retirement village land be sold. 23
(3) However, a person may make an application under subsection (2) 24
only if-- 25
(a) the person has given the chief executive written notice of the 26
person's intention to make the application; and 27
(b) for an amount payable under the original order by way of an exit 28
entitlement, the amount is at least $10 000 or another higher 29
amount prescribed under a regulation. 30
s 121 71 s 122
Retirement Villages
(4) Each resident of the retirement village, and anyone else who appears 1
to the court to have a sufficient interest in the application, is entitled-- 2
(a) to be joined as a party to the proceeding; and 3
(b) to be heard on the application. 4
(5) Unless the court orders otherwise, the applicant must give the 5
residents notice of their right to be heard on the application. 6
court may make 7
Orders
121.(1) On hearing an application under section 120(2), the court may 8
order that the retirement village land be sold only if the court is satisfied-- 9
(a) the original order is unsatisfied and is not likely to be satisfied in 10
any other way open to the applicant; and 11
(b) it is not contrary to the interests of any resident of the retirement 12
village that the land be sold. 13
(2) Without limiting the orders it may make, the court may appoint a 14
person to act as the vendor's agent for the sale. 15
of court order 16
Effect
122.(1) An order for the sale of retirement village land under 17
section 121-- 18
(a) authorises the sale of the land free of all existing securities, other 19
than the securities the court preserves in its order; and 20
(b) has effect despite-- 21
(i) an existing caveat or lien affecting the land; or 22
(ii) any Act, other than this Act. 23
(2) A person appointed as the vendor's agent under section 121(2) has 24
the power to convey the land to a purchaser and to do all things necessary to 25
effect the conveyance. 26
(3) On settlement, the vendor is to apply the sale proceeds in the 27
following order-- 28
s 123 72 s 123
Retirement Villages
(a) paying the sale costs and the applicant's costs in seeking the order 1
for sale; 2
(b) paying amounts payable under securities ranking in priority to the 3
statutory charge; 4
(c) satisfying the original order; 5
(d) paying exit entitlements payable to residents if, because of the 6
court order, the retirement village scheme stops operating or the 7
residence contracts under the scheme terminate; 8
(e) paying amounts payable under securities ranking in priority after 9
the statutory charge; 10
(f) paying the balance to the person who owned the retirement village 11
land immediately before the sale, or to someone else at the 12
person's direction. 13
(4) For ensuring compliance with subsection (3)(d), the vendor must take 14
reasonable steps to locate any former resident to whom an exit entitlements 15
is payable. 16
4--Extinguishing and releasing a statutory charge 17
Division
a charge 18
Extinguishing
123.(1) A statutory charge created over retirement village land under this 19
part is extinguished on-- 20
(a) its release by the chief executive under section 125; or 21
(b) the sale of the land under a court order under section 121. 22
(2) However, subsection (1)(b) does not apply if-- 23
(a) the land continues, or is to continue, to be used under a registered 24
retirement village scheme; and 25
(b) under the scheme's residence contracts, a person does not obtain a 26
freehold interest or a leasehold interest in the retirement village 27
land. 28
s 124 73 s 124
Retirement Villages
operator may ask for release of charge if land stops being 1
Scheme
retirement village land 2
124.(1) A scheme operator may ask the chief executive to release the 3
statutory charge created over the retirement village land if-- 4
(a) the land stops being retirement village land; or 5
(b) the scheme operator proposes to stop using the land for the 6
retirement village. 7
(2) A request under subsection (1) must be in writing. 8
(3) The scheme operator must also-- 9
(a) give each resident of the retirement village a notice in writing 10
stating the following-- 11
(i) the scheme operator has asked the chief executive to release 12
the statutory charge over the retirement village land; 13
(ii) how it will affect the resident if it is released; 14
(iii) that, within 60 days after the resident receives the notice, the 15
resident may, by written notice given to the chief executive, 16
object to the release; and 17
(b) give the chief executive-- 18
(i) a statutory declaration made by the scheme operator stating 19
the following-- 20
(A) the fact of the scheme operator's compliance with 21
paragraph (a); 22
(B) whether the scheme operator knows or reasonably 23
suspects a person has started, or is likely to start, 24
proceedings to enforce the charge under section 120; 25
and 26
(ii) a copy of the notice given to residents under paragraph (a). 27
(4) In this section-- 28
"resident" includes a former resident who has not received an exit 29
entitlement to which the former resident is entitled under the former 30
resident's residence contract. 31
s 125 74 s 126
Retirement Villages
executive to release charge 1
Chief
125.(1) The chief executive must release the statutory charge over a 2
retirement village's land if the chief executive is satisfied-- 3
(a) the scheme operator has complied with section 124; and 4
(b) having regard to the objections made under the section, it is 5
appropriate to release the charge over the land. 6
(2) If the chief executive releases a statutory charge under subsection (1), 7
the chief executive must give the registrar of titles written notice of the 8
release of the charge. 9
(3) On receipt of the notice, the registrar of titles must register the release 10
of the charge over the land. 11
ART 7--RESIDENTS PARTICIPATION 12
P
Division 1--Residents committee 13
committee 14
Residents
126.(1) The residents of a retirement village may establish, by election 15
conducted among themselves, a residents committee. 16
(2) A member of the residents committee-- 17
(a) holds office for not more than 1 year, but may be re-elected; and 18
(b) may be removed, at any time, by special resolution at a meeting 19
of the village residents. 20
(3) The residents committee may, subject to section 127-- 21
(a) decide its own procedures; and 22
(b) form subcommittees and decide a subcommittee's procedures. 23
(4) The scheme operator for the retirement village may address the 24
residents at a residents committee meeting. 25
s 127 75 s 129
Retirement Villages
constitution 1
Residents
127.(1) The residents of a retirement village may, by a majority vote of 2
the residents at a residents meeting, adopt a constitution. 3
(2) The constitution-- 4
(a) may not be inconsistent with this Act; and 5
(b) must provide for a matter prescribed under a regulation. 6
(3) The committee must conform with the constitution. 7
function 8
Committee's
128. The function of the residents committee is to deal with the scheme 9
operator on behalf of residents about the day to day running of the village 10
and any complaints or proposals raised by the residents. 11
2--By-laws 12
Division
may make, change or revoke by-laws 13
Residents
129.(1) The residents of a retirement village may, by special resolution at 14
a residents meeting and with the agreement of the scheme operator, make, 15
change or revoke by-laws for the village. 16
(2) The scheme operator's agreement must not be unreasonably 17
withheld. 18
(3) A by-law may be made about the non-exclusive use and enjoyment 19
of the village. 20
(4) If there is an inconsistency between a by-law and a provision of a 21
residence contract for the village, the provision prevails to the extent of the 22
inconsistency. 23
(5) The scheme operator may attend a residents meeting held to make, 24
change or revoke a by-law. 25
(6) Subsection (3) does not limit the residents' power under another law 26
to make, change or revoke by-laws. 27
s 130 76 s 131
Retirement Villages
Division 3--Residents meetings 1
meeting 2
Annual
130.(1) In each year, a scheme operator must call an annual meeting of 3
the residents of the retirement village as soon as reasonably practicable after 4
the annual financial statements mentioned in section 11320 are available. 5
Maximum penalty--100 penalty units. 6
(2) However, the scheme operator must give each resident at least 7
21 days written notice of the meeting. 8
(3) The annual meeting may not be held simultaneously with a meeting 9
that must be held under another Act. 10
11
Example--
12
The meeting may not be held simultaneously with a meeting that is required under
13
the Body Corporate and Community Management Act 1997.
(4) The scheme operator must present the statements to the meeting. 14
Maximum penalty for subsection (4)--100 penalty units. 15
meetings 16
Other
131.(1) A scheme operator or a residents committee or subcommittee of 17
a retirement village may, by 14 days written notice given to each resident of 18
the village, call a meeting of all the residents. 19
(2) However, in extraordinary or urgent circumstances, the scheme 20
operator or the residents committee or subcommittee may call a meeting of 21
the residents by giving each resident the written notice of the meeting that is 22
reasonable in the circumstances but not less than 2 days. 23
20 Section 113 (Annual financial statements)
s 132 77 s 133
Retirement Villages
Division 4--Proxy voting and postal voting 1
2
Voting
132.(1) A resident of a retirement village may by signed notice give a 3
scheme operator or another resident of the village a power to vote for the 4
resident by way of proxy vote at a specific residents meeting stated in the 5
notice. 6
(2) A proxy vote given for more than 1 meeting is of no effect. 7
(3) A resident of a retirement village may cast a vote ("postal vote") for 8
a residents meeting by placing the resident's written vote in a container 9
provided by the scheme operator for the purpose in the common area of the 10
village at least 24 hours before the time when the meeting is to be held. 11
(4) The scheme operator must provide a secure locked container for 12
postal votes in the common area at least 24 hours before the time the 13
meeting is to be held. 14
Maximum penalty--10 penalty units. 15
(5) The scheme operator must not open, or allow to be opened, the 16
container before it is delivered to the chairperson of the meeting. 17
Maximum penalty--10 penalty units. 18
(6) The scheme operator must deliver the container to the chairperson of 19
the meeting immediately before the chairperson opens the meeting. 20
Maximum penalty for subsection (6)--10 penalty units. 21
ART 8--ENFORCEMENT 22
P
Division 1--Inspectors 23
24
Appointment
133.(1) The chief executive may appoint a public service officer as an 25
inspector. 26
s 134 78 s 136
Retirement Villages
(2) The chief executive may appoint an officer as an inspector only if, in 1
the chief executive's opinion, the officer has the necessary expertise or 2
experience to be an inspector. 3
of inspector's powers 4
Limitation
134. The powers of an inspector may be limited-- 5
(a) under a regulation; or 6
(b) under a condition of appointment; or 7
(c) by written notice of the chief executive given to the inspector. 8
appointment conditions 9
Inspector's
135.(1) An inspector holds office on the conditions stated in the 10
instrument of appointment. 11
(2) An inspector ceases holding office-- 12
(a) if the appointment provides for a term of appointment--at the end 13
of the term; and 14
(b) if the appointment conditions provide--on ceasing to hold another 15
office stated in the appointment conditions (the "main office"). 16
(3) An inspector may resign by signed notice of resignation given to the 17
chief executive. 18
(4) However, an inspector may not resign from the office under this Act 19
(the "secondary office") if a condition of appointment to the main office 20
requires the inspector to hold the secondary office. 21
identity card 22
Inspector's
136.(1) The chief executive must give each inspector an identity card. 23
(2) The identity card must-- 24
(a) contain a recent photograph of the inspector; and 25
(b) be in a form approved by the chief executive; and 26
(c) be signed by the inspector; and 27
s 137 79 s 138
Retirement Villages
(d) identify the person as an inspector under this Act. 1
(3) A person who ceases to be an inspector must return the person's 2
identity card to the chief executive within 21 days after the person ceases to 3
be an inspector, unless the person has a reasonable excuse for not returning 4
it. 5
Maximum penalty--10 penalty units. 6
(4) This section does not prevent the giving of a single identity card to a 7
person for this and other Acts or for other purposes. 8
or display of inspector's identity card 9
Production
137.(1) An inspector may exercise a power under this Act in relation to a 10
person only if the inspector-- 11
(a) first produces the inspector's identity card for inspection by the 12
person; or 13
(b) has the inspector's identity card displayed so that it is clearly 14
visible to the person. 15
(2) However, if, for any reason, it is not practicable to comply with 16
subsection (1), the inspector must produce the identity card for inspection 17
by the person at the first reasonable opportunity. 18
2--Powers of inspectors 19
Division
1--Entry of places 20
Subdivision
to enter places 21
Power
138.(1) An inspector may enter a place if-- 22
(a) its occupier consents to the entry; or 23
(b) it is a public place and the entry is made when it is open to the 24
public; or 25
(c) the entry is authorised by a warrant; or 26
s 139 80 s 139
Retirement Villages
(d) it is an office for administering or managing a retirement village 1
and is-- 2
(i) open for carrying on the business of the retirement village; or 3
(ii) otherwise open for entry. 4
(2) For the purpose of asking the occupier of a place for consent to enter, 5
an inspector may, without the occupier's consent or a warrant-- 6
(a) enter land around premises at the place to an extent that is 7
reasonable to contact the occupier; or 8
(b) enter part of the place the inspector reasonably considers 9
members of the public ordinarily are allowed to enter when they 10
wish to contact the occupier. 11
(3) For subsection (1)(d), an office for administering or managing a 12
retirement village does not include a part of the place where a person 13
resides. 14
2--Procedure for entry 15
Subdivision
with consent 16
Entry
139.(1) This section applies if an inspector intends to ask an occupier of a 17
place to consent to the inspector or another inspector entering the place 18
under section 138(1)(a). 19
(2) Before asking for the consent, the inspector must tell the occupier-- 20
(a) the purpose of the entry; and 21
(b) that the occupier is not required to consent. 22
(3) If the consent is given, the inspector may ask the occupier to sign an 23
acknowledgment of the consent. 24
(4) The acknowledgment must state-- 25
(a) the occupier has been told-- 26
(i) the purpose of the entry; and 27
(ii) that the occupier is not required to consent; and 28
(b) the purpose of the entry; and 29
s 140 81 s 141
Retirement Villages
(c) the occupier gives the inspector consent to enter the place and 1
exercise powers under this part; and 2
(d) the time and date the consent was given. 3
(5) If the occupier signs the acknowledgment, the inspector must 4
immediately give a copy to the occupier. 5
(6) A court must find the occupier of a place did not consent to an 6
inspector entering the place under this part if-- 7
(a) an issue arises in a proceeding before the court whether the 8
occupier of the place consented to the entry under 9
section 138(1)(a); and 10
(b) an acknowledgment mentioned in subsection (4) is not produced 11
in evidence for the entry; and 12
(c) it is not proved by the person relying on the lawfulness of the 13
entry that the occupier consented to the entry. 14
for warrant 15
Application
140.(1) An inspector may apply to a magistrate for a warrant for a place. 16
(2) The application must be sworn and state the grounds on which the 17
warrant is sought. 18
(3) The magistrate may refuse to consider the application until the 19
inspector gives the magistrate all the information the magistrate requires 20
about the application in the way the magistrate requires. 21
22
Example--
23
The magistrate may require additional information supporting the application to be
24
given by statutory declaration.
of warrant 25
Issue
141.(1) The magistrate may issue a warrant only if the magistrate is 26
satisfied there are reasonable grounds for suspecting-- 27
(a) there is a particular thing or activity (the "evidence") that may 28
provide evidence of an offence against this Act; and 29
s 142 82 s 143
Retirement Villages
(b) the evidence is at the place or, within the next 72 hours, may be at 1
the place. 2
(2) The warrant must state-- 3
(a) that a stated inspector may, with necessary and reasonable help 4
and force-- 5
(i) enter the place and any other place necessary for entry; and 6
(ii) exercise the inspector's powers under this part; and 7
(b) the offence for which the warrant is sought; and 8
(c) the evidence that may be seized under the warrant; and 9
(d) the hours of the day or night when the place may be entered; and 10
(e) the date, within 7 days after the warrant's issue, the warrant ends. 11
before entry 12
Warrants--procedure
142.(1) This section applies if an inspector named in a warrant issued 13
under this part for a place is intending to enter the place under the warrant. 14
(2) Before entering the place, the inspector must do or make a reasonable 15
attempt to do the following things-- 16
(a) give the person a copy of the warrant; 17
(b) tell the person the inspector is permitted by the warrant to enter 18
the place; 19
(c) give the person an opportunity to allow the inspector immediate 20
entry to the place without using force. 21
(3) However, the inspector need not comply with subsection (2) if the 22
inspector believes on reasonable grounds that immediate entry to the place is 23
required to ensure the effective execution of the warrant is not frustrated. 24
Subdivision 3--Powers after entry 25
powers after entering places 26
General
143.(1) This section applies to an inspector who enters a place. 27
s 144 83 s 144
Retirement Villages
(2) However, if an inspector-- 1
(a) enters a place to get the occupier's consent to enter premises, this 2
section applies to the inspector only if the consent is given; or 3
(b) enters a place under a warrant, this section applies subject to the 4
warrant. 5
(3) For monitoring or enforcing compliance with this Act, the inspector 6
may-- 7
(a) search any part of the place; or 8
(b) inspect a document in or on the place; or 9
(c) take extracts from, or make copies of, a document in or on the 10
place; or 11
(d) take into or onto the place any persons, equipment and materials 12
the inspector reasonably requires for exercising a power under 13
this Act; or 14
(e) require the occupier of the place, or a person at the place, to give 15
the inspector reasonable help to exercise the inspector's powers 16
under paragraphs (a) to (d); or 17
(f) require the occupier of the place, or a person at the place, to give 18
the inspector information to help the inspector ascertain whether 19
this Act is being complied with. 20
(4) When making a requirement mentioned in subsection (3)(e) or (f), 21
the inspector must warn the person it is an offence to fail to comply with the 22
requirement, unless the person has a reasonable excuse. 23
to help inspector or give inspector information 24
Failure
144.(1) A person required to give reasonable help under 25
section 143(3)(e) or information under section 143(3)(f) must comply with 26
the requirement, unless the person has a reasonable excuse. 27
Maximum penalty--100 penalty units. 28
s 145 84 s 146
Retirement Villages
(2) If the requirement is to be complied with by the person giving 1
information, or producing a document, other than a document required to be 2
kept by the person under this Act, it is a reasonable excuse for the person to 3
fail to give the information or produce the document on the ground that 4
giving the information or producing the document might tend to incriminate 5
the person. 6
4--Power to seize evidence 7
Subdivision
to seize evidence from places 8
Power
145.(1) An inspector who enters a place under section 138(1)(d) may 9
seize a thing at the place if the inspector reasonably believes the thing is 10
evidence of an offence against this Act. 11
(2) An inspector who enters a place under this division under a warrant 12
may seize the evidence for which the warrant was issued. 13
(3) An inspector who enters a place under this division under a warrant, 14
or enters a place with the occupier's consent, may seize a thing if the 15
inspector suspects, on reasonable grounds-- 16
(a) the thing is evidence of the commission of an offence against this 17
Act; and 18
(b) the seizure is necessary to prevent-- 19
(i) the thing's concealment, loss or destruction; or 20
(ii) the thing's use in committing, continuing or repeating the 21
offence. 22
for seized things 23
Receipts
146.(1) As soon as practicable after an inspector seizes a thing, the 24
inspector must give a receipt for it to the person from whom it was seized. 25
(2) However, if for any reason it is not practicable to comply with 26
subsection (1), the inspector must leave the receipt at the place of seizure in 27
a conspicuous position and in a reasonably secure way. 28
s 147 85 s 149
Retirement Villages
(3) The receipt must describe generally each thing seized and its 1
condition. 2
to allow inspection etc. 3
Inspector
147. Until a seized thing is returned or otherwise finally dealt with under 4
this Act, an inspector must allow a person who would be entitled to 5
possession of it, if it had not been seized-- 6
(a) to inspect it free of charge; or 7
(b) if it is a document, to obtain a copy of it free of charge. 8
to return seized things 9
Obligation
148.(1) This section applies if a thing is seized under this Act. 10
(2) The chief executive must return the seized thing to its owner at the 11
end of-- 12
(a) 6 months; or 13
(b) if a prosecution for an offence involving the thing is started within 14
the 6 months--the prosecution for the offence and any appeal 15
from the prosecution. 16
(3) Despite subsection (2), the chief executive must return the seized 17
thing to the owner immediately if the chief executive stops being satisfied its 18
retention as evidence is necessary. 19
Subdivision 5--Power to obtain information 20
to require production of documents 21
Power
149.(1) An inspector may require a person to make available for 22
inspection by an inspector, or produce to an inspector for inspection, at a 23
reasonable time and place nominated by the inspector-- 24
(a) a document issued to the person under this act; or 25
(b) a document required to be kept by the person under this Act. 26
s 150 86 s 151
Retirement Villages
(2) The person must comply with the requirement unless the person has 1
a reasonable excuse. 2
Maximum penalty--100 penalty units. 3
(3) It is a reasonable excuse for the person not to comply with the 4
requirement if complying with it might tend to incriminate the person. 5
Subdivision 6--General enforcement matters 6
etc. an inspector 7
Obstructing
150.(1) A person must not obstruct an inspector in the exercise of a 8
power, unless the person has a reasonable excuse for the obstruction. 9
Maximum penalty--40 penalty units. 10
(2) In this section-- 11
"obstruct" includes hinder and resist, and attempt to obstruct. 12
13
Compensation
151.(1) A person may claim compensation from the State if the person 14
incurs loss or expense because of the exercise or purported exercise of a 15
power under this part. 16
(2) Payment of compensation may be claimed and ordered in a 17
proceeding for-- 18
(a) compensation brought in a court of competent jurisdiction; or 19
(b) an offence against this Act brought against the person making the 20
claim for compensation. 21
(3) A court may order the payment of compensation for the loss or 22
expense only if it is satisfied that it is just to make the order in the 23
circumstances of the particular case. 24
s 152 87 s 154
Retirement Villages
PART 9--DISPUTE RESOLUTION 1
Division 1--Preliminary 2
rights under this part preserved 3
Parties'
152. To remove any doubt, it is declared that if a provision of a residence 4
contract requires or permits a dispute under or about the contract to be 5
referred to arbitration or be heard by any court or tribunal, the provision 6
does not limit a party's rights under this part. 7
negotiation 8
Preliminary
153.(1) The parties to a retirement village dispute may refer the dispute to 9
a mediation process under this part only if the parties have attempted to 10
resolve the dispute under this section. 11
(2) A party to the dispute (the "first party") must give the other party to 12
the dispute (the "second party") written notice-- 13
(a) stating the matters in dispute; and 14
(b) nominating a day, no earlier than 14 days after the notice is given, 15
(the "nominated day") for the parties to meet within the village 16
to attempt to resolve the dispute. 17
(3) The second party must give the first party a written response to the 18
notice within 7 days after receiving the notice. 19
(4) On the nominated day, or another day within 7 days after the 20
nominated day and agreed by the parties, the parties must meet in the 21
retirement village and attempt to resolve the dispute. 22
Division 2--Mediators 23
function 24
Mediator's
154. A mediator's function under this Act is to seek to resolve, by 25
mediation, retirement village disputes within a mediator's jurisdiction. 26
s 155 88 s 157
Retirement Villages
that may be mediated 1
Matters
155.(1) A mediator may mediate retirement village disputes, other than a 2
retirement village dispute about an issue between the parties that-- 3
(a) is the subject of arbitration; or 4
(b) has been the subject of an award (interim or final) in an arbitration 5
proceeding; or 6
(c) is before, or has been decided by, a court. 7
(2) For subsection (1)(a), a retirement village dispute is only the subject 8
of arbitration if the arbitration proceeding has started. 9
Division 3--Mediation of retirement village disputes 10
of retirement village dispute 11
Notice
156.(1) A party to a retirement village dispute that a mediator may 12
mediate may apply to the chief executive to have the dispute referred to 13
mediation. 14
(2) The application (the "dispute notice") must be-- 15
(a) in the approved form; and 16
(b) accompanied by the fee prescribed under a regulation; and 17
(c) given to the chief executive. 18
(3) However, if the resident's residence contract has been terminated, the 19
dispute notice must be given within 4 months of the termination. 20
executive to act on dispute notice 21
Chief
157.(1) Within 14 days after receiving the dispute notice, the chief 22
executive must-- 23
(a) appoint a mediator to mediate the retirement village dispute; and 24
(b) give written notice to the parties to the dispute of-- 25
(i) the mediator who is to mediate the dispute; and 26
s 158 89 s 162
Retirement Villages
(ii) the time, date and place of the mediation conference to be 1
conducted by the mediator. 2
(2) The notice under subsection (1)(b) must be given at least 7 days 3
before the mediation conference. 4
of representation 5
Right
158. At a mediation conference, a party to the retirement village dispute 6
may be represented by a lawyer or an agent unless the mediator is satisfied 7
the party should not be represented. 8
to be held in private 9
Conference
159. A mediation conference is not open to the public. 10
attendance at conference not compellable 11
Parties
160. A party to a retirement village dispute can not be compelled to attend 12
a mediation conference. 13
to mediation conference 14
Parties
161.(1) A mediator may allow a person to take part in a mediation 15
conference if the mediator is satisfied the person has a sufficient interest in 16
the resolution of the dispute. 17
(2) However, the person does not become a party to the dispute. 18
agreements 19
Mediation
162.(1) This section applies if the parties to a retirement village dispute 20
reach a mediated agreement on the dispute. 21
(2) The mediator must record the agreement (the "mediation 22
agreement") in writing and have it signed by or for the parties. 23
(3) The mediator must give a copy of the signed agreement to the chief 24
executive as soon as practicable after it is signed. 25
s 163 90 s 165
Retirement Villages
official record of mediation conference 1
No
163.(1) A person must not make a record of anything said at a mediation 2
conference. 3
Maximum penalty--40 penalty units. 4
(2) However, the mediator does not contravene subsection (1) if-- 5
(a) the mediator makes notes during the mediation conference the 6
mediator considers appropriate and destroys them at the end of 7
the mediation; or 8
(b) records an agreement under section 162(2). 9
of dispute 10
Withdrawal
164.(1) A person who has given a dispute notice to the chief executive 11
may, by written notice (the "withdrawal notice") given to the chief 12
executive, withdraw the dispute notice. 13
(2) The withdrawal notice may be given before or after a mediator has 14
started mediating the dispute. 15
(3) The chief executive must advise the mediator, if appointed, and the 16
other parties to the dispute of the withdrawal as soon as practicable after 17
receipt of the withdrawal notice. 18
PART 10--APPLICATIONS TO TRIBUNAL 19
Division 1--Preliminary 20
generally 21
Applications
165. An application under this part must be-- 22
(a) in the approved form; and 23
(b) accompanied by the fee prescribed under a regulation; and 24
(c) given to the chief executive. 25
s 166 91 s 168
Retirement Villages
2--Applications about retirement village disputes 1
Division
for reference of dispute 2
Application
166. A party to a retirement village dispute may apply to the chief 3
executive to refer the dispute to a tribunal if-- 4
(a) the parties to the dispute can not reach a mediated agreement to 5
the dispute; or 6
(b) a party to the dispute does not attend the mediation conference for 7
the dispute; or 8
(c) the dispute is not settled within 4 months after the dispute notice 9
is given to the chief executive; or 10
(d) the party claims that another party to a mediation agreement has 11
not complied with the agreement within the time specified in it or, 12
if no time is specified, within 2 months after the agreement is 13
signed. 14
executive to refer dispute to tribunal 15
Chief
167. Within 14 days after the application is made, the chief executive 16
must-- 17
(a) appoint a tribunal from the tribunal panel to hear the dispute; and 18
(b) give written notice to the tribunal panel members of their 19
appointment to hear the dispute; and 20
(c) give written notice to the parties to the dispute of the appointment 21
and composition of the tribunal to hear the dispute. 22
Division 3--Applications about other retirement village issues 23
right to apply for an order if threatened with removal, 24
Resident's
deprivation or restriction 25
168.(1) This section applies if a resident of a retirement village-- 26
s 169 92 s 170
Retirement Villages
(a) is threatened with removal, or is removed, from the village by the 1
scheme operator of the retirement village; or 2
(b) is threatened with deprivation, or is deprived, of the resident's 3
right to reside in the village under a residence contract by the 4
operator; or 5
(c) is threatened with restriction of, or is restricted in, the resident's 6
use of the retirement village land under the residence contract by 7
the operator. 8
(2) The resident may apply to the chief executive for an order by a 9
tribunal that the scheme operator do, or not do, a stated thing. 10
may apply for order if given false or misleading documents 11
Resident
169.(1) This section applies if-- 12
(a) a scheme operator of a retirement village contravenes 13
section 92;21 and 14
(b) a resident of the retirement village is materially prejudiced by the 15
contravention. 16
(2) The resident may apply to the chief executive for an order by a 17
tribunal to have the resident's residence contract set aside. 18
resident may apply for order for payment of exit entitlement 19
Former
170.(1) This section applies if-- 20
(a) a retirement village scheme operator fails to comply with 21
section 58(2), 60(2), 65 or 67(2);22 and 22
(b) a former resident of the retirement village is materially prejudiced 23
by the failure. 24
21 Section 92 (False or misleading documents)
22 Section 58 (Scheme operator and resident to agree on work to reinstate unit to
previous condition), section 60 (Scheme operator and former resident to agree on
resale value of accommodation unit), section 65 (Operator to tell resident of all
offers for accommodation unit), section 67 (Updating agreed resale value)
s 171 93 s 172
Retirement Villages
(2) The former resident may apply to the chief executive for an order by a 1
tribunal that the operator pay to the former resident the former resident's 2
exit entitlement. 3
executive to refer application to tribunal 4
Chief
171.(1) Within 7 days after an application under section 168, 169 or 170 5
is received, the chief executive must-- 6
(a) appoint from the tribunal panel a tribunal to hear the application; 7
and 8
(b) give written notice to the tribunal panel members of their 9
appointment to hear the application; and 10
(c) give written notice to the resident or former resident and scheme 11
operator of the appointment and composition of the tribunal to 12
hear the application. 13
(2) The notice to the scheme operator must state the grounds on which 14
the order is sought. 15
4--Requests to chief executive to make application 16
Division
may ask chief executive to make application for the resident 17
Resident
172.(1) A resident who is entitled to apply for an order under this part 18
may, by notice to the chief executive in the approved form accompanied by 19
the fee prescribed under a regulation, ask the chief executive to make the 20
application for the resident. 21
(2) A resident must not knowingly or recklessly give false information in 22
a request under subsection (1). 23
Maximum penalty--100 penalty units. 24
(3) After receiving a request under subsection (1), the chief executive 25
may make the application for the resident if the chief executive believes it is 26
appropriate, having regard to-- 27
(a) the resident's physical, mental or financial state; and 28
s 173 94 s 173
Retirement Villages
(b) the alleged facts giving rise to the resident's right to apply for the 1
order. 2
(4) In this section-- 3
"resident" includes a former resident. 4
ART 11--TRIBUNAL HEARINGS OF RETIREMENT 5
P
VILLAGE ISSUES 6
Division 1--Tribunal hearings 7
may hold directions hearing 8
Chairperson
173.(1) Before a tribunal hears a retirement village issue, the chairperson 9
may decide to hold a directions hearing. 10
(2) If the chairperson decides to hold a directions hearing, the chairperson 11
must give reasonable written notice to the parties to the issue of the time, 12
date and place of the directions hearing. 13
(3) The provisions of this division about the conduct of, and procedure at, 14
a tribunal's hearing of a retirement village dispute and the tribunal's powers 15
at the hearing apply, with the necessary changes, to the directions hearing. 16
(4) At the directions hearing-- 17
(a) the tribunal is constituted by the chairperson; and 18
(b) the tribunal may make the decisions and give the directions it 19
considers appropriate. 20
(5) Without limiting subsection (4), the tribunal may make decisions and 21
give directions about-- 22
(a) questions of law; and 23
(b) the tribunal's jurisdiction; and 24
(c) discovery and inspection of documents. 25
s 174 95 s 179
Retirement Villages
member 1
Presiding
174. The chairperson of a tribunal is to preside at the tribunal's hearing of 2
a retirement village issue. 3
4
Venues
175. When hearing a retirement village issue, the tribunal may sit at the 5
times and places the chairperson decides. 6
to be held in private 7
Hearing
176.(1) The tribunal's hearing of a retirement village issue is not open to 8
the public. 9
(2) However, a person may attend the tribunal's hearing with the 10
agreement of the tribunal and the parties to the issue. 11
before tribunal 12
Appearances
177. The following persons are entitled to appear at the tribunal's hearing 13
of a retirement village issue-- 14
(a) the parties to the issue; 15
(b) a person granted leave to appear by the tribunal. 16
of representation 17
Right
178. At the tribunal's hearing of a retirement village issue, a party to the 18
issue may be represented by a lawyer or another person approved by the 19
tribunal. 20
21
Procedure
179.(1) When hearing a retirement village issue, the tribunal must-- 22
(a) observe natural justice; and 23
(b) act as quickly, and with as little formality and technicality, as is 24
consistent with a fair and proper consideration of the issues before 25
it. 26
s 180 96 s 183
Retirement Villages
(2) In conducting the hearing, the tribunal-- 1
(a) is not bound by the rules of evidence; and 2
(b) may inform itself of any matter in the way it considers 3
appropriate; and 4
(c) may decide the procedures to be followed for the hearing. 5
(3) However, the tribunal must comply with this part and any procedural 6
rules prescribed by regulation. 7
of issue 8
Amendment
180.(1) The tribunal may at any stage of the hearing of a retirement 9
village issue amend the particulars of the issue in the way it considers 10
appropriate-- 11
(a) if asked by the party who lodged the dispute notice or applied for 12
a tribunal order; or 13
(b) on its own initiative if the parties to the issue agree. 14
(2) For this Act, the amended issue is taken to be the issue. 15
to be decided by majority of tribunal 16
Questions
181.(1) A retirement village issue before the tribunal must be decided by 17
a majority of the tribunal members. 18
(2) However, a question of law must be decided by the chairperson. 19
to keep records of proceedings 20
Tribunals
182.(1) The tribunal must keep a record of its proceedings. 21
(2) The record may be kept in the way the tribunal considers appropriate. 22
of tribunal 23
Powers
183.(1) At the hearing of a retirement village issue, the tribunal may-- 24
(a) require a person to give evidence on oath; and 25
(b) proceed in the absence of a party to the issue; and 26
s 184 97 s 185
Retirement Villages
(c) by written notice ("attendance notice"), require a person to 1
attend the hearing at a specified time, date and place-- 2
(i) to give evidence; or 3
(ii) to produce a specified document or thing. 4
(2) The tribunal may adjourn the hearing from time to time. 5
of documents 6
Inspection
184.(1) If a document or thing is produced to the tribunal at the hearing, 7
the tribunal may-- 8
(a) inspect the document or thing; and 9
(b) make copies of, photograph, or take extracts from, the document 10
or thing if it is relevant to the hearing. 11
(2) The tribunal may also take possession of the document or thing, and 12
keep it while it is necessary for the hearing. 13
(3) While it keeps a document or thing, the tribunal must permit a person 14
otherwise entitled to possession of the document or thing to inspect, make 15
copies of, photograph, or take extracts from, the document or thing, at the 16
reasonable time, date and place the tribunal decides. 17
18
Offences--hearings
185.(1) A person served with an attendance notice must not-- 19
(a) fail, without reasonable excuse, to attend as required by the notice; 20
or 21
(b) fail, without reasonable excuse, to continue to attend as required 22
by the chairperson until excused from further attendance. 23
Maximum penalty--40 penalty units. 24
(2) A person appearing as a witness at the hearing must not-- 25
(a) fail to take an oath or make an affirmation when required by the 26
chairperson; or 27
(b) fail, without reasonable excuse, to answer a question the person is 28
required to answer by a tribunal member; or 29
s 186 98 s 188
Retirement Villages
(c) fail, without reasonable excuse, to produce a document or thing 1
the person is required to produce by an attendance notice. 2
Maximum penalty--40 penalty units. 3
incrimination 4
Self
186.(1) It is a reasonable excuse for a person to fail to answer a question 5
or to produce a document if answering the question or producing the 6
document might tend to incriminate the person. 7
(2) Subsection (1) does not apply to a document the person is required to 8
keep under this Act. 9
or misleading information 10
False
187.(1) A person must not state anything to the tribunal that the person 11
knows is false or misleading in a material particular. 12
Maximum penalty--100 penalty units. 13
(2) A complaint against a person for an offence against subsection (1) is 14
sufficient if it states the statement made was false or misleading to the 15
person's knowledge. 16
or misleading documents 17
False
188.(1) A person must not give to the tribunal a document containing 18
information the person knows is false or misleading. 19
Maximum penalty--100 penalty units. 20
(2) Subsection (1) does not apply to a person who, when giving the 21
document-- 22
(a) informs the tribunal, to the best of the person's ability, how it is 23
false or misleading; and 24
(b) gives the correct information to the tribunal if the person has, or 25
can reasonably obtain, the correct information. 26
(3) A complaint against a person for an offence against subsection (1) is 27
sufficient if it states the document was false or misleading to the person's 28
knowledge. 29
s 189 99 s 190
Retirement Villages
of tribunal 1
Contempt
189. A person must not-- 2
(a) insult the tribunal or a tribunal member; or 3
(b) deliberately interrupt the tribunal's hearing of a retirement village 4
issue; or 5
(c) create or continue or join in creating or continuing, a disturbance 6
in or near a place where the tribunal is conducting the hearing; or 7
(d) do anything that would be contempt of court if the tribunal were a 8
judge acting judicially. 9
Maximum penalty--100 penalty units. 10
Division 2--Tribunal orders 11
orders generally 12
Tribunal
190.(1) The tribunal may make the orders the tribunal considers to be just 13
to resolve a retirement village issue. 14
(2) Without limiting subsection (1) or sections 191 to 193, the tribunal 15
may make any 1 or more of the following orders-- 16
(a) an order for a party to the issue to do, or not to do, anything 17
(an "enforcement order"); 18
(b) an order requiring a party to the issue to pay an amount (including 19
an amount of compensation) to a specified person (a "payment 20
order"); 21
(c) an order that a party to the issue is not required to pay an amount 22
to a specified person; 23
(d) if the issue is a retirement village dispute-- 24
(i) an order setting aside the mediation agreement between the 25
parties to the dispute; or 26
(ii) an order giving effect to a settlement agreed on by the parties 27
to the dispute. 28
(3) An order may specify a time for compliance with it. 29
s 191 100 s 192
Retirement Villages
(4) If the person against whom the order is made is not present when the 1
order is made, the chief executive must serve a copy of the order on the 2
person as soon as practicable after it is made. 3
orders under section 168 4
Tribunal
191.(1) This section applies if a resident applies for a tribunal order under 5
section 168.23 6
(2) In making the order, the tribunal must be satisfied that the actual or 7
threatened removal, deprivation or restriction mentioned in the application-- 8
(a) is, or would be, a breach of the resident's residence contract; or 9
(b) is not, or would not be, reasonably justified. 10
(3) Without limiting subsection (2), the tribunal in deciding the 11
application may have regard to the rights and interests of all persons who 12
may be affected if the order is made. 13
(4) The order may be made on the conditions and for the period the 14
tribunal decides is appropriate. 15
orders under section 169 16
Tribunal
192.(1) This section applies if a resident applies for a tribunal order under 17
section 169.24 18
(2) In setting a contract aside, the tribunal may make the orders it 19
considers appropriate including, for example, the following-- 20
(a) an order that the scheme operator refund to the resident the 21
ingoing contribution or another amount paid under the contract; 22
(b) an order that the scheme operator compensate the resident for 23
damages or loss caused by the contravention. 24
23 Section 168 (Resident's right to apply for an order if threatened with removal,
deprivation or restriction)
24 Section 169 (Resident may apply for order if given false or misleading
documents)
s 193 101 s 194
Retirement Villages
orders under section 170 1
Tribunal
193.(1) This section applies if a resident applies for a tribunal order under 2
section 170.25 3
(2) In ordering a scheme operator to pay the exit entitlement to the former 4
resident, the tribunal must base the exit entitlement on the following-- 5
(a) if the resale value of the right to reside in the unit has been agreed 6
under section 60 or 6726--that value; or 7
(b) if the resale value of the right to reside in the unit has not been 8
agreed--the resale value of the right to reside in the unit decided 9
by the tribunal under subsection (3). 10
(3) For subsection (2)(b), the tribunal must obtain an independent 11
valuation of the right to reside in the unit from a valuer. 12
of particular tribunal orders 13
Enforcement
194.(1) This section applies if the tribunal makes an enforcement order. 14
(2) The person in whose favour the order is made may enforce the order 15
by-- 16
(a) filing in the District Court registry-- 17
(i) a copy of the order certified by the chief executive to be a 18
true copy; and 19
(ii) the person's affidavit about the failure of the person against 20
whom the order is made to comply with the order; and 21
(b) serving a copy of each of the documents mentioned in 22
paragraph (a) on the person against whom the order was made. 23
(3) If the registrar of the District Court is satisfied there has been, and still 24
exists, a failure to comply with the order, the registrar must endorse a 25
certificate of noncompliance on the copy of the order. 26
25 Section 170 (Former resident may apply for order for payment of exit
entitlement)
26 Section 60 (Scheme operator and former resident to agree on resale value of
accommodation unit), section 67 (Updating agreed resale value)
s 195 102 s 195
Retirement Villages
(4) The endorsed order is taken to be a properly entered order of the 1
District Court and may be enforced accordingly. 2
(5) A court fee is not payable for the filing or endorsement of the order. 3
requiring payments 4
Orders
195.(1) This section applies if the tribunal makes a payment order. 5
(2) The order may be made to take effect immediately or on the failure of 6
a party to comply with another order made by the tribunal. 7
(3) The person to whom payment is to be made under the order may 8
enforce the order by-- 9
(a) filing in the appropriate court's registry nearest the place where 10
the person ordered to make the payment lives or carries on 11
business-- 12
(i) a copy of the order certified by the chief executive to be a 13
true copy; and 14
(ii) the person's affidavit about the failure of the person against 15
whom the order is made to pay the amount under the order; 16
and 17
(b) serving a copy of each of the documents mentioned in paragraph 18
(a) on the person against whom the order was made. 19
(4) If the registrar of the court is satisfied there has been, and still exists, a 20
failure to comply with the order, the registrar must endorse a certificate of 21
noncompliance on the copy of the order. 22
(5) The endorsed order is taken to be a properly entered judgment of the 23
court and may be enforced accordingly. 24
(6) A court fee is not payable for the filing or endorsement of the order. 25
(7) In this section-- 26
"appropriate court", for an order, means the court having jurisdiction to 27
order the payment of the amount required to be paid by the order. 28
s 196 103 s 201
Retirement Villages
of tribunal to be complied with 1
Orders
196. A person must not fail to comply with a tribunal order unless the 2
person has a reasonable excuse. 3
Maximum penalty--100 penalty units. 4
order final and binding 5
Tribunal's
197. A tribunal order is final and binding on each party to the retirement 6
village issue, whether or not the party has appeared or been represented at 7
the tribunal's hearing. 8
right to question tribunal's hearing and order 9
Restricted
198. A tribunal's hearing of the retirement village issue and the tribunal's 10
order must not be questioned in a proceeding other than a proceeding based 11
on an error of law. 12
3--Other provisions 13
Division
to pay own costs 14
Parties
199. Each party to a retirement village issue must bear the party's own 15
costs of the tribunal's hearing of the issue. 16
to witness 17
Allowance
200. A witness who appears before a tribunal in the conduct of the 18
hearing of a retirement village issue is entitled to the allowance prescribed 19
by regulation for attendance at the hearing or, if no allowance is prescribed, 20
the reasonable allowance decided by the chairperson. 21
of application 22
Withdrawal
201.(1) A person may, by written notice given to the chief executive, 23
withdraw an application given by the person to the chief executive-- 24
(a) to refer a retirement village dispute to a tribunal; or 25
s 202 104 s 203
Retirement Villages
(b) for an order by a tribunal. 1
(2) The notice may be given before or after a tribunal has started hearing 2
the matter. 3
(3) The chief executive must advise the tribunal, if appointed, and the 4
other parties to the matter of the withdrawal as soon as practicable after 5
receipt of the notice. 6
ART 12--COMPOSITION AND FUNCTIONS OF 7
P
TRIBUNAL 8
1--Tribunal panel 9
Division
of members of tribunal panel 10
Appointment
202. The Governor in Council may appoint as members of a panel of 11
retirement village tribunal members (the "tribunal panel")-- 12
(a) 1 or more persons who-- 13
(i) have been Supreme or District Court judges; or 14
(ii) are lawyers of at least 5 years standing; and 15
(b) the number of representatives of scheme operators and residents 16
of retirement villages the Governor in Council considers 17
necessary for this Act. 18
of appointment 19
Duration
203.(1) A tribunal panel member must be appointed for a term not longer 20
than 3 years. 21
(2) A tribunal panel member may resign by signed notice of resignation 22
given to the Minister. 23
s 204 105 s 208
Retirement Villages
of appointment 1
Conditions
204.(1) A tribunal panel member is to be paid the remuneration and 2
allowances decided by the Governor in Council. 3
(2) A tribunal panel member holds office-- 4
(a) on the conditions stated in this Act; and 5
(b) the other conditions decided by the Governor in Council. 6
from office 7
Removal
205. The Governor in Council may remove a tribunal panel member 8
from office, by written notice given to the member, if the Governor in 9
Council considers the member-- 10
(a) is incapable of properly discharging the functions of a tribunal 11
member; or 12
(b) is unfit to hold the office. 13
Division 2--Composition of retirement village tribunals 14
of retirement village tribunals 15
Composition
206. A tribunal is to consist of the following tribunal members-- 16
(a) a person appointed under section 202(a); 17
(b) a representative of scheme operators; 18
(c) a representative of residents of retirement villages. 19
20
Chairperson
207. The tribunal member mentioned in section 206(a) is the chairperson 21
of the tribunal to which the member is appointed. 22
function 23
Tribunal's
208. A tribunal's function is to hear retirement village issues that-- 24
s 209 106 s 211
Retirement Villages
(a) are within a tribunal's jurisdiction; and 1
(b) it is appointed to hear. 2
jurisdiction 3
Tribunal's
209.(1) A tribunal has jurisdiction to hear retirement village issues, other 4
than a retirement village dispute-- 5
(a) about an issue between the parties that-- 6
(i) is the subject of arbitration; or 7
(ii) has been the subject of an award (interim or final) in an 8
arbitration proceeding; or 9
(iii) is before, or has been decided by, a court; or 10
(b) if the amount, value or damages in dispute is more than the 11
monetary limit of the District Court within the meaning of the 12
District Court Act 1967, section 68.27 13
(2) For subsection (1)(a)(i), a retirement village dispute is only the 14
subject of arbitration if the arbitration proceeding has started. 15
general powers 16
Tribunal's
210.(1) A tribunal may do all things necessary or convenient to be done 17
for, or in relation to, the performance of its function. 18
(2) Without limiting subsection (1), a tribunal has the powers conferred 19
on it by this Act. 20
of hearings between tribunals and courts 21
Transfer
211.(1) If a proceeding about a retirement village issue is started in a 22
court and a tribunal has jurisdiction to hear the issue, the court may, on the 23
application of a party, order that the proceeding be removed to a tribunal. 24
27 District Court Act 1967, section 68 (District Courts' civil jurisdiction)
s 212 107 s 213
Retirement Villages
(2) If a tribunal considers that a retirement village issue being, or about to 1
be, heard by the tribunal should be heard by a court, the tribunal may order 2
that the issue be removed, wholly or partly, to a court. 3
PART 13--OTHER PROVISIONS FOR MEDIATION 4
CONFERENCES AND TRIBUNAL HEARINGS 5
Division 1--Privilege and immunity 6
protection and immunity allowed 7
Ordinary
212.(1) A mediator or tribunal member has, in the performance of the 8
mediator's or member's function, the same protection and immunity as a 9
Supreme Court judge carrying out the functions of a judge. 10
(2) A party appearing at a mediation conference or tribunal hearing of a 11
retirement village issue has the same protection and immunity as a party to a 12
proceeding before the Supreme Court. 13
(3) A lawyer appearing at a mediation conference or tribunal hearing of a 14
retirement village issue has the same protection and immunity as a lawyer 15
appearing for a party in a proceeding before the Supreme Court. 16
(4) A person appearing at a mediation conference or tribunal hearing of a 17
retirement village issue as a witness has the same protection and immunity 18
as a witness appearing in a proceeding before the Supreme Court. 19
(5) A document produced at, or used for, a mediation conference or 20
tribunal hearing of a retirement village issue has the same protection as a 21
document produced at or used for a proceeding before the Supreme Court. 22
made during hearing of retirement village issue 23
Admissions
213.(1) Evidence of anything said in a mediation conference for a 24
retirement village dispute is not admissible in any proceeding before any 25
court or a tribunal. 26
s 214 108 s 215
Retirement Villages
(2) Evidence of anything said in a tribunal hearing of a retirement village 1
issue is not admissible in any proceeding before any court. 2
(3) Subsections (1) and (2) do not apply to a proceeding-- 3
(a) about an offence or other misconduct that happens during the 4
mediation conference or hearing; or 5
(b) in which the falsity or misleading nature of the thing said is 6
relevant. 7
Division 2--General 8
of other jurisdictions 9
Exclusion
214.(1) On and after an application about a retirement village issue under 10
part 9 or 10 is given to the chief executive, the issue must not be referred to 11
arbitration or heard by any court. 12
(2) Subsection (1) does not apply if-- 13
(a) the application is withdrawn; or 14
(b) a proceeding about the issue in dispute was started in a court 15
before the application was given to the chief executive and the 16
proceeding has not been removed to a tribunal; or 17
(c) an application for an order in the nature of an injunction about the 18
issue is made to a court; or 19
(d) the tribunal orders the issue to be removed to a court under 20
section 209. 21
22
Register
215.(1) The chief executive must keep a register of mediators, tribunal 23
panel members and retirement village issues. 24
(2) The register of retirement village issues must contain the following 25
particulars for each issue-- 26
(a) the date the dispute notice, application to refer the dispute to a 27
tribunal or application for an order by the tribunal was given to the 28
chief executive; 29
s 216 109 s 217
Retirement Villages
(b) the names of the parties; 1
(c) the subject matter of the issue; 2
(d) the results of the mediation process; 3
(e) the results of the tribunal's hearing, including any tribunal order. 4
(3) The chief executive must-- 5
(a) keep the register open for inspection by members of the public at 6
the department's head office when the office is open to the public; 7
and 8
(b) permit a person to take extracts from the register or, on payment 9
by a person of the fee prescribed under a regulation, give the 10
person a copy of the register or part of it. 11
on discharge of tribunals' function 12
Reports
216.(1) Within 2 months after the end of each financial year, a tribunal 13
member nominated by the chief executive must give a report to the chief 14
executive on each tribunal's discharge of its function throughout the year. 15
(2) The report must include details of all matters that-- 16
(a) the member becomes aware of during the discharge of the 17
tribunal's function; and 18
(b) significantly affect relationships between scheme operators and 19
residents. 20
executive's responsibility 21
Chief
217. For the efficient and proper administration of this Act, the chief 22
executive-- 23
(a) is responsible for ensuring scheme operators and residents are 24
advised about the practices and procedures of the department, 25
mediators and tribunals; and 26
(b) may advise scheme operators and residents about potential 27
retirement village issues. 28
s 218 110 s 220
Retirement Villages
ART 14--MISCELLANEOUS 1
P
offence proceedings 2
Starting
218. A proceeding for an offence against this Act must be started 3
within-- 4
(a) 1 year after the offence is committed; or 5
(b) 6 months after the offence comes to the complainant's 6
knowledge, but within 2 years after the offence is committed. 7
and authority 8
Appointments
219.(1) It is not necessary to prove in a proceeding under this Act-- 9
(a) the chief executive's appointment; or 10
(b) an inspector's appointment; or 11
(c) the authority of the chief executive or an inspector to do anything 12
under this Act. 13
(2) Subsection (1) does not apply if reasonable notice is given to the party 14
relying on the appointment or authority that the appointment or authority is 15
to be challenged. 16
provisions 17
Evidentiary
220.(1) This section applies to a proceeding under this Act. 18
(2) A signature purporting to be the signature of the chief executive or an 19
inspector is evidence of the signature it purports to be. 20
(3) A certificate purporting to be signed by the chief executive or an 21
inspector and stating any of the following matters is evidence of the 22
matter-- 23
(a) a particular retirement village scheme has or has not been 24
registered at a time stated in the certificate; 25
(b) the documents relating to a particular retirement village scheme 26
that are or were, at a time stated in the certificate, included in the 27
register under this Act; 28
s 221 111 s 223
Retirement Villages
(c) on a stated day, a stated person was given a stated notice under 1
this Act; 2
(d) a stated fee or other amount is payable by a stated person to 3
someone else and has not been paid; 4
(e) any matter within the control or knowledge of the chief executive 5
and relevant to the proceeding. 6
(5) A certificate signed by the chief executive and stating that a stated 7
document is a copy of a financial or other record, contract or document is 8
evidence of the matter. 9
remedies not exclusive 10
Act's
221. Nothing in this Act prevents a party to a residence contract from 11
seeking or enforcing another remedy the party may have under another law. 12
from liability 13
Protection
222.(1) An official does not incur civil liability for an act done, or 14
omission made, honestly and without negligence under this Act. 15
(2) If subsection (1) prevents civil liability attaching to an official, the 16
liability attaches instead to the State. 17
(3) In this section-- 18
"official" means-- 19
(a) the chief executive; or 20
(b) an employee of the department. 21
for acts or omissions of representatives 22
Responsibility
223.(1) Subsections (2) and (3) apply in a proceeding for an offence 23
against this Act. 24
(2) If it is relevant to prove a person's state of mind about a particular act 25
or omission, it is enough to show-- 26
s 224 112 s 224
Retirement Villages
(a) the act was done or omitted to be done by a representative of the 1
person within the scope of the representative's actual or apparent 2
authority; and 3
(b) the representative had the state of mind. 4
(3) An act done or omitted to be done for a person by a representative of 5
the person within the scope of the representative's actual or apparent 6
authority is taken to have been done or omitted to be done also by the 7
person, unless the person proves the person could not, by the exercise of 8
reasonable diligence, have prevented the act or omission. 9
(4) In this section-- 10
"representative" means-- 11
(a) of a corporation--an executive officer, employee or agent of the 12
corporation; or 13
(b) of an individual--an employee or agent of the individual. 14
"state of mind" of a person, includes-- 15
(a) the person's knowledge, intention, opinion, belief or purpose; and 16
(b) the person's reasons for the intention, opinion, belief or purpose. 17
officers must ensure corporation complies with Act 18
Executive
224.(1) The executive officers of a corporation must ensure the 19
corporation complies with this Act. 20
(2) If a corporation commits an offence against a provision of this Act, 21
each of the corporation's executive officers also commits an offence, 22
namely, the offence of failing to ensure that the corporation complies with 23
the provision. 24
Maximum penalty--the penalty for the contravention of the provision by an 25
individual. 26
(3) Evidence that the corporation has been convicted of an offence against 27
a provision of this Act is evidence that each of the executive officers 28
committed the offence of failing to ensure that the corporation complies 29
with the provision. 30
(4) However, it is a defence for an executive officer to prove-- 31
s 225 113 s 228
Retirement Villages
(a) if the officer was in a position to influence the conduct of the 1
corporation in relation to the offence, the officer exercised 2
reasonable diligence to ensure the corporation complied with the 3
provision; or 4
(b) the officer was not in a position to influence the conduct of the 5
corporation in relation to the offence. 6
report on operation of Act 7
Annual
225. The department's annual report for a financial year must include a 8
report on the operation of this Act during the year. 9
of forms 10
Approval
226. The chief executive may approve forms for use under this Act. 11
power 12
Regulation-making
227.(1) The Governor in Council may make regulations under this Act. 13
(2) In particular, a regulation may-- 14
(a) provide for the fees payable under this Act; or 15
(b) create offences and prescribe penalties of not more than 16
20 penalty units for each offence. 17
ART 15--TRANSITIONAL AND SAVINGS 18
P
PROVISIONS 19
retirement village schemes 20
Existing
228.(1) An existing retirement village scheme is taken to be registered 21
under this Act if, at the commencement of this section the scheme was 22
approved under the repealed Act and the approval is in force. 23
s 229 114 s 229
Retirement Villages
(2) The chief executive must promptly give the scheme operator of the 1
existing retirement village scheme a registration certificate in the approved 2
form. 3
(3) The scheme operator must, within 6 months after the 4
commencement-- 5
(a) give the chief executive the following-- 6
(i) the public information document for the retirement village; 7
(ii) the particulars mentioned in section 27(2)(a);28 and 8
(b) give each resident of the retirement village a written statement 9
detailing the changes to the resident's residence contract required 10
by this Act. 11
Maximum penalty for subsection (3)--540 penalty units. 12
exempt organisations and retirement villages 13
Existing
229.(1) An exemption given to an organisation or an existing retirement 14
village under the repealed Act and in force at the commencement of this 15
section continues under this Act and is to be read with the changes 16
necessary to adapt its operation to the provisions of this Act. 17
(2) If the exemption operated to exclude a person or retirement village 18
from the operation of a provision of the repealed Act, the exemption 19
continues to operate to exclude the person or village from the operation of a 20
corresponding provision of this Act, other than this provision. 21
(3) The exemption remains subject, after the commencement, to any 22
condition or time limitation that applied to the exemption immediately 23
before the commencement. 24
(4) The exemption expires 2 years after the commencement of this 25
section. 26
(5) Despite subsections (1) to (3), a regulation may prescribe provisions 27
of this Act to which the exemption does not apply. 28
28 Section 27 (Application for registration of a retirement village scheme)
s 230 115 s 230
Retirement Villages
certain existing charges 1
Releasing
230.(1) This section applies if the land of an existing retirement village 2
was subject to a statutory charge under section 33 of the repealed Act 3
immediately before its repeal and either-- 4
(a) the existing retirement village is not a retirement village for this 5
Act; or 6
(b) a person's right to reside in the existing retirement village depends 7
on the person holding a registered lease over a part of the 8
retirement village land. 9
(2) The operator of the existing retirement village may apply to the chief 10
executive to release the charge. 11
(3) The application must be in writing and state the particulars of a 12
ground mentioned in subsection (1) on which it is made. 13
(4) The chief executive's decision whether or not to release the charge 14
must be made within 60 days of the later of-- 15
(a) the day the application is received; or 16
(b) if the particulars with the application do not conform with the 17
requirements of subsection (3) and the chief executive requests 18
further particulars, the day the particulars are given. 19
(5) If the chief executive decides to release the charge-- 20
(a) the chief executive must, as soon as practicable after making the 21
decision, give the registrar of titles written notice that the charge is 22
released; and 23
(b) on receipt of the notice, the registrar must register the release of 24
the charge. 25
(6) If the chief executive refuses to release the charge, the chief executive 26
must give the operator a signed notice stating-- 27
(a) the reasons for the refusal; and 28
(b) the operator may appeal against the decision under section 29. 29
(7) Sections 29 to 33, other than section 30(1)(b), apply to an appeal 30
under subsection (6)(b) as if the decision to refuse to release the charge were 31
a decision to refuse an application to register a retirement village. 32
s 231 116 s 233
Retirement Villages
of balance where separate funds maintained 1
Apportionment
231.(1) This section applies if immediately before the commencement of 2
this section a scheme operator of an existing retirement village maintains 3
separate funds for the retirement village for-- 4
(a) capital replacement; and 5
(b) maintenance and repairs. 6
(2) The scheme operator must, within 90 days after the commencement 7
of this section, transfer the balance in those funds to-- 8
(a) for a fund mentioned in subsection (1)(a)--the capital 9
replacement fund; or 10
(b) for a fund mentioned in subsection (1)(b)--the maintenance 11
reserve fund. 12
Maximum penalty for subsection (2)--200 penalty units. 13
of balance where single fund maintained for 14
Apportionment
maintenance and repairs 15
232.(1) This section applies if immediately before the commencement of 16
this section a scheme operator of an existing retirement village maintains a 17
single fund for maintenance and repairs for the retirement village. 18
(2) The scheme operator must, within 90 days after the commencement 19
of this section, transfer the balance in the fund to the maintenance reserve 20
fund. 21
Maximum penalty for subsection (2)--200 penalty units. 22
of balance where single fund maintained for capital 23
Apportionment
replacement and maintenance and repairs 24
233.(1) This section applies if immediately before the commencement of 25
this section a scheme operator of an existing retirement village maintains a 26
single fund for capital replacement and maintenance and repairs for the 27
retirement village. 28
s 234 117 s 235
Retirement Villages
(2) The scheme operator must, within 90 days after the commencement 1
of this section, transfer the balance in the fund to the capital replacement 2
fund and the maintenance reserve fund in the proportion that the amount 3
decided by the quantity surveyor under section 92 as expected capital 4
replacement costs is to the amount decided by the quantity surveyor under 5
section 98 as expected maintenance costs.29 6
7
Example--
8
If there is $600 000 in an existing fund for capital replacement and maintenance
9
and repairs for the retirement village and the quantity surveyor has decided the
10
amounts required under sections 92 and 98 as $500 000 and $250 000 respectively,
11
out of the $600 000 available, $400 000 is to be transferred to the capital
12
replacement fund and $200 000 is to be transferred to the maintenance reserve fund.
Maximum penalty for subsection (2)--200 penalty units. 13
regulations 14
Existing
234.(1) The regulations in force under the repealed Act immediately 15
before the commencement of this section-- 16
(a) continue in force under this Act, subject to amendment or repeal 17
by a regulation under this Act; and 18
(b) are to be read with the changes necessary to make them consistent 19
with this Act and adapt their operation to the provisions of this 20
Act. 21
(2) The regulations expire 1 year after the commencement. 22
by-laws 23
Existing
235.(1) A by-law made under the repealed Act and in force immediately 24
before the commencement of this section continues in force under this Act, 25
subject to amendment or repeal by a by-law under this Act. 26
29 Section 92 (Amount of capital replacement fund), section 98 (Amount of
maintenance reserve fund)
s 236 118 s 238
Retirement Villages
(2) Despite section 129, 30 if there is an inconsistency between a by-law 1
made under section 129(1) and by-law made before 1 November 1989 (an 2
"existing by-law") and in force immediately before the commencement of 3
this section, the existing by-law prevails to the extent of the inconsistency. 4
Villages Act 1988 references 5
Retirement
236. In an Act or document, a reference to the Retirement Villages Act 6
1988 may, if the context permits, be taken as a reference to this Act. 7
PART 16--REPEAL AND AMENDMENT 8
9
Repeal
237. The Retirement Villages Act 1988 is repealed. 10
1 11
Amendment--sch
238. Schedule 1 amends the Act mentioned in it. 12
13
30 Section 129 (Residents may make, change or revoke by-laws)
119
Retirement Villages
SCHEDULE 1 1
�
CT AMENDED 2
A
section 238 3
FAIR TRADING ACT 1989 4
1. Section 5, definition "price", `description and the cost of obtaining 5
credit'-- 6
omit, insert-- 7
`description, the cost of obtaining credit and an ingoing contribution 8
under the Retirement Villages Act 1999'. 9
10
120
Retirement Villages
SCHEDULE 2 1
�
DICTIONARY 2
section 4 3
"accommodation unit" means the part of a retirement village in which a 4
resident has an exclusive right to reside. 5
"annual meeting" means an annual meeting called under section 130. 6
"approved form" see section 226. 7
"approved provider" means an approved provider under the Aged Care 8
Act 1997 (Cwlth). 9
"capital improvement" see the rulings of the Commissioner for Taxation 10
under the Income Tax Assessment Act 1936 (Cwlth) dealing with 11
capital improvement.31 12
"capital items" include the following-- 13
(a) all buildings and structures located in the retirement village and 14
owned by the scheme operator, including the communal facilities, 15
amenities and accommodation units, other than items that are a 16
resident's contracted responsibility; 17
(b) all plant, machinery and equipment used in the operation of the 18
village; 19
20
Examples for paragraph (b)--
21
Communal hot water and air conditioning services, kitchen and dining room
22
equipment, community facility furnishings, gardening equipment, village bus or
23
transportation services.
(c) all village infrastructure owned by the scheme operator. 24
25
Examples for paragraph (c)--
26
Roadways, pathways, drainage, sewerage mains, landscaping, electrical
27
distribution systems, water services and connections and distribution systems.
31 The rulings are available from the Australian Taxation Office.
121
Retirement Villages
SCHEDULE 2 (continued)
"capital replacement fund" see section 17. 1
"capital replacement fund contribution" see section 18. 2
"conviction" for part 5, division 1, see section 87. 3
"cooling-off period", for a residence contract, means a 14 day period 4
starting on the day the contract is made. 5
"dispute notice" see section 156. 6
"excluded contract" means a written contract between an approved 7
provider and a person under which-- 8
(a) the approved provider provides the person with residential care; 9
and 10
(b) the approved provider meets the responsibilities of an approved 11
provider stated in the Aged Care Act 1997 (Cwlth), chapter 4 12
whether or not the approved provider is entitled to receive a 13
residential care subsidy.32 14
"executive officer", of a corporation, means a person who is concerned 15
with, or takes part in, the corporation's management, whether or not 16
the person is a director or the person's position is given the name of 17
executive officer. 18
"existing residence contract" see section 11. 19
"existing retirement village" means a retirement village existing 20
immediately before the commencement of this Act. 21
"exit entitlement" see section 16. 22
"exit fee" see section 15. 23
"former resident" includes-- 24
(a) a person who, personally or for someone else, entered into a 25
residence contract to secure the person's or other person's right to 26
reside in a retirement village; and 27
(b) the former resident's personal representative. 28
32 Aged Care Act 1997, (Cwlth), chapter 4 (Responsibilities of approved providers).
122
Retirement Villages
SCHEDULE 2 (continued)
"freehold interest" means a fee simple interest in a lot under the Land Title 1
Act 1994. 2
"general services" see section 12(2). 3
"ingoing contribution" see section 14. 4
"insolvent under administration" for part 5, division 1 see section 87. 5
"leasehold interest" means an interest created by an instrument of lease for 6
a lot under the Land Title Act 1994. 7
"maintenance", of a capital item, see the rulings of the Commissioner for 8
Taxation under the Income Tax Assessment Act 1936 (Cwlth) dealing 9
with maintenance of capital items.33 10
"maintenance reserve fund" see section 19. 11
"maintenance reserve fund contribution" see section 20. 12
"manager", of a retirement village, means the person in charge of its day to 13
day operation. 14
"mediation agreement" see section 162. 15
"mediator" means a person who is-- 16
(a) accredited as a mediator under the Dispute Resolution Centres Act 17
1990, section 19;34 or 18
(b) approved as a mediator under the Uniform Civil Procedure Rules 19
1999; or 20
(c) approved as a mediator by the Bar Association of Queensland or 21
the Queensland Law Society Incorporated. 22
"personal services" see section 12(3). 23
"public information document" see section 13. 24
"quarter" means the 3 month period ending on 31 March, 30 June, 25
30 September or 31 December. 26
33 The rulings are available from the Australian Taxation Office.
34 Dispute Resolution Centres Act 1990, section 19 (Mediators)
123
Retirement Villages
SCHEDULE 2 (continued)
"real estate agent" means a real estate agent licensed under the Auctioneers 1
and Agents Act 1971. 2
"registered", for part 6, division 2, see section 115. 3
"registered company auditor" means a person registered as an auditor, or 4
taken to be registered as an auditor, under the Corporations Law, 5
part 9.2. 6
"relevant conviction" for part 5, division 1, see section 87. 7
"repairs", to a capital item, see the rulings of the Commissioner for 8
Taxation under the Income Tax Assessment Act 1936 (Cwlth) dealing 9
with repairs to capital items.35 10
"repealed Act" means the repealed Retirement Villages Act 1988. 11
"replacement", of a capital item, see the rulings of the Commissioner for 12
Taxation under the Income Tax Assessment Act 1936 (Cwlth) dealing 13
with replacement of capital items.36 14
"residence contract" see section 10. 15
"resident"-- 16
(a) see section 9; and 17
(b) for part 3, division 4, see section 51. 18
"residential care" has the meaning given by the Aged Care Act 1997 19
(Cwlth). 20
"residential care subsidy" has the meaning given by the Aged Care Act 21
1997 (Cwlth). 22
"residents committee" means a committee established under section 126. 23
"retirement village" see section 5. 24
"retirement village dispute" see section 21. 25
"retirement village issue" see section 22. 26
35 The rulings are available from the Australian Taxation Office.
36 The rulings are available from the Australian Taxation Office.
124
Retirement Villages
SCHEDULE 2 (continued)
"retirement village land" see section 6. 1
"retirement village scheme" see section 7. 2
"retirement village scheme operator" see section 8. 3
"scheme" means a retirement village scheme. 4
"scheme operator" means a retirement village scheme operator. 5
"security" means an interest, mortgage or other charge in or over land. 6
"service agreement" see section 12. 7
"services charge" means a charge payable by a resident for a general or 8
personal service under a residence contract. 9
"sold", for a right to reside in an accommodation unit, means when a 10
contract for the sale of the right is settled. 11
"special resolution", at a resident's meeting, means a resolution passed-- 12
(a) at the meeting of which the residents are given at least 21 days 13
written notice stating the intention to propose the resolution as a 14
special resolution; and 15
(b) by a majority of at least three-quarters of the residents entitled to 16
vote and voting personally at the meeting or by postal ballot. 17
"termination date", for part 3, division 5, see section 56. 18
"tribunal" means a tribunal appointed under section 171. 19
"tribunal panel" see section 202. 20
"valuer", for part 3, division 5, see section 70. 21
22
23
� State of Queensland 1999
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