Retirement Villages Act 1999 No 81
Current version for 3 January 2014 to date (accessed 29 November 2014 at 00:23)
Part 10A

Part 10A Protection of ingoing contributions paid by residents other than registered interest holders

182A   Application of Part

(1)  This Part applies to a village contract if:
(a)  there has been an ingoing contribution paid by a resident (other than a registered interest holder) under a village contract that includes a provision that entitles the resident to a refund of the whole, or any part, of that ingoing contribution, and
(b)  any such refund exceeds the amount prescribed by the regulations.
(2)  This Part extends to any such village contract that was in force immediately before the commencement of this section.
(3)  Despite subsections (1) and (2), this Part does not apply to a village contract with respect to residential premises in a retirement village that gives rise to the residence right of a registered interest holder.

182B   Creation of charge

(1)  On the date on which a village contract to which this Part applies is entered into with respect to residential premises within a retirement village, there is created by virtue of this section a charge over all land within the retirement village that secures the entitlement to a refund under the contract.
(2)  In the case of a village contract in force immediately before the commencement of this section, any such charge is created on that commencement.
(3)  Nothing in this section creates a charge over land:
(a)  that is not recorded as a retirement village under section 24A, or
(b)  in respect of which a resident is a registered interest holder.

182C   Disposal of land subject to charge

(1)  A person must not dispose of land in respect of which a charge is in force under this Part except pursuant to an order under section 182F.

Maximum penalty: 100 penalty units.

(2)  Subsection (1) does not apply in respect of the disposal of any such land in the course of the sale of a retirement village as a going concern.

182D   Effect of charge on successors in title

A charge that is created over land under this Part is binding on, and is enforceable against, the owner of the land from time to time while the charge is in force.

182E   Application for enforcement of charge

(1)  A person may apply to the Supreme Court for an order under section 182F in relation to land within a retirement village in respect of which the person is a resident or former occupant if:
(a)  the operator of the retirement village has become insolvent or an administrator has been appointed under Division 6 of Part 6, and
(b)  the person is of the opinion that it is unlikely that the operator will be able to refund the part of the ingoing contribution that the applicant is entitled to be refunded under a village contract relating to that retirement village.
(2)  A mortgagee, receiver or administrator of land within a retirement village may apply to the Supreme Court for an order under section 182F in relation to land within a retirement village if:
(a)  the operator of the retirement village has become insolvent or an administrator has been appointed under Division 6 of Part 6, and
(b)  the applicant is of the opinion that it is unlikely that the operator will be able to refund any part of an ingoing contribution that a resident or former resident is entitled to be refunded under a village contract relating to that retirement village.

182F   Order for enforcement of charge

The Supreme Court may, on an application made under section 182E with respect to land within a retirement village:
(a)  order that land within the retirement village, in respect of which a charge is in force, is to be sold, and
(b)  appoint a person to act as the agent for the sale, and
(c)  make a determination as to the entitlements of each of the residents or former occupants of the retirement village, having regard to:
(i)  the refund entitlement of each resident or former occupant under their respective village contracts, and
(ii)  the dates on which charges were created under this Part with respect to those contracts, and
(d)  make such orders relating to the distribution of the proceeds of the sale as the Court thinks fit, having regard to the order that interests are to be satisfied in accordance with section 182G, and
(e)  make such other orders as the Court sees fit.

182G   Priority of interests

For the purposes of any order made under this Part, interests in the land concerned are to be satisfied in the following order:
(a)  the costs of the sale of the land and the applicant’s costs in seeking the order,
(b)  any interest, mortgage, lien or other charge on or over the land created or registered before the creation of a charge under this Part, or otherwise taking priority over a charge over the land that has been created under this Part,
(c)  the entitlements of residents and former occupants of the retirement village arising from village contracts in respect of which a charge over the land has been created under this Part,
(d)  any interest, mortgage, lien or other charge on or over the land created or registered after the creation of a charge over the land under this Part,
(e)  the interest of the registered proprietor of the land immediately before the sale of the land.

182H   Order not to disadvantage residents

The Supreme Court must not make an order under this Part unless satisfied that the order is in the best interests of the majority of the residents of the retirement village.

182I   Removal of charge

A charge over land created under this Part remains in force until:
(a)  the village contract that caused the charge to be created is terminated and all of the operator’s liabilities under that contract have been met, or
(b)  the land is sold in accordance with an order under this Part.
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