Retirement Villages Act 1999 No 81
Current version for 3 January 2014 to date (accessed 25 November 2014 at 04:46)
Part 9

Part 9 Termination of residence contract

Division 1 General principles as to termination of residence contract

129   How and when residence right or contract is terminated

(1)  A residence right arising from a contract relating to residential premises in respect of which the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) terminates only on the completion of the sale of the premises.
(1A)  A residence right arising from a residence contract that is in the form of an assignable lease terminates on the assignment of the lease.
(2)  A residence contract (other than a contract referred to in subsection (1) or (1A)) and the residence right under the contract, terminate:
(a)  on the date on which the resident permanently vacates the premises, being a date that is (except as otherwise provided under this Part) at least one month after the date on which the resident gives the operator written notice of intention to vacate the premises (or such earlier date as the residence contract may allow), or
(b)  on the date on which the resident permanently vacates the premises, or
(c)  on the date on which the resident permanently vacates the premises after receiving notice of the operator’s intention to apply to the Tribunal for an order terminating the resident’s residence contract, or
(d)  on disclaimer (for example, on renunciation by the resident accepted by the operator), or
(e)  on the death of the last surviving resident under the contract, or
(f)  on the date specified by the Tribunal in an order under section 143 declaring that the resident has abandoned the premises, or
(g)  on the date on which the contract is terminated by the Tribunal, or
(h)  if the contract is frustrated:
(i)  on eighth day after the date specified in the notice of termination given under section 132, unless application is made to the Tribunal within the time allowed by that section (or the notice of termination is withdrawn within that time), or
(ii)  on the date specified by the Tribunal, if the Tribunal determines that the contract is frustrated.
(3)  Termination of a residence contract does not affect any other right or obligation of the parties under a village contract.

130   Tribunal cannot terminate certain residence contracts

The Tribunal does not have jurisdiction under this Act:
(a)  to terminate a residence contract if the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the premises concerned, or
(b)  to determine any question as to the title to any land.

131   Notice of intention to seek termination

(1)  If the operator or a resident of a retirement village intends to apply to the Tribunal for an order terminating a residence contract, the intending applicant must give the other party to the contract written notice of that intention, except as otherwise provided by this Act.
(2)  The notice is to be given in the form, and within the time, prescribed by the regulations.
(3)  The Tribunal is not to make an order terminating a residence contract unless it is satisfied that the notice (if required) has been duly given.

132   Termination if residence contract frustrated

(1)  If residential premises in a retirement village are, otherwise than as a result of a breach of a village contract, destroyed or rendered wholly or partly uninhabitable or cease to be lawfully usable for the purpose of a residence or are appropriated or acquired by any authority by compulsory process, the resident or the operator of the village may give immediate notice of termination to the other party to the residence contract relating to the premises concerned (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the premises).
Note. The operator and the resident may choose not to terminate the contract. However, recurrent charges payable in respect of the premises abate according to the degree to which the premises are uninhabitable—see section 111.
(2)  A notice of termination under this section may specify any date as the date on which the resident is to vacate the residential premises.
(3)  If the operator advises the resident (or the resident advises the operator) no later than 7 days after receiving a notice of termination under this section that he or she considers that the premises have not been rendered wholly or partly uninhabitable (as the case may be), either party may apply to the Tribunal for (and the Tribunal may make) an order determining the condition of the premises for the purposes of this section.
(4)  If an application is made to the Tribunal under this section, any notice of termination given under subsection (1) is suspended pending the determination of the Tribunal.
(5)  An application to the Tribunal under this section also operates as an application under section 111.
(6)  A notice of termination under this section may be withdrawn with the consent of both parties at any time before the termination of contract takes effect.

Division 2 Termination by Tribunal on application of either operator or resident

133   Termination on medical grounds

(1)  The operator of a retirement village or a resident of the village may apply to the Tribunal for an order terminating the residence contract of the resident if the operator or resident concerned is of the opinion that residential premises occupied by the resident are unsuitable for occupation by that resident because of his or her physical or mental incapacity.
(2)  The Tribunal may, on application under this section, make an order terminating the residence contract, but only if:
(a)  it is of the opinion that the residential premises occupied by the resident are unsuitable for occupation by the resident because of the resident’s physical or mental incapacity, and
(b)  having considered the circumstances of the case, it is of the opinion that it is otherwise appropriate to make an order terminating the residence contract.
(3)  The Tribunal must not form an opinion under subsection (2) (a) unless it has considered a medical report with respect to the resident prepared by a medical practitioner nominated by the resident or, if such a report is not supplied or a nomination is not made, has given the resident a reasonable opportunity to supply such a report or make such a nomination.
(4)  The Tribunal is entitled to form an opinion under subsection (2) regardless of who made the application for the order to terminate the residence contract.
(5)  In determining whether to terminate a residence contract under this section, the Tribunal may:
(a)  with the consent of the resident, request the Director-General of the Department of Health or any other person or any body to prepare a report with respect to the resident’s physical or mental capacity, and
(b)  have regard to any such report and any other report prepared on behalf of the resident or the operator, and
(c)  have regard to any terms of the residence contract relating to the transfer of the resident to other residential premises.
Note. A report referred to in paragraph (a) might be requested, for example, from a body known as an Aged Care Assessment Team.
(6)  If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned.

134   Termination on grounds of breach of village contract or rules

(1)  The operator of a retirement village may apply to the Tribunal for an order terminating the residence contract of a resident of the village who breaches any village contract between the resident and the operator or breaches a village rule.
(2)  A resident of a retirement village may apply to the Tribunal for an order terminating his or her residence contract if the operator breaches any village contract between the resident and the operator or breaches a village rule.
(3)  The Tribunal may, on application made under this section, make an order terminating the residence contract, but only if it is satisfied that:
(a)  the breach, in the circumstances of the case, is such as to justify termination of the contract, or
(b)  persistent breaches by the resident or operator concerned are, in the circumstances of the case, such as to justify termination of the contract.
(4)  If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned.
(5)  If the Tribunal forms the opinion, in the course of proceedings under this section, that a village rule is unjust, unconscionable, harsh or oppressive, it may make an order:
(a)  setting aside the rule, or
(b)  modifying the operation of the rule, either in its application to the operator or to a resident (or to some or all of the residents) of the retirement village concerned.

Division 3 Termination by Tribunal on application of operator

135   Termination on grounds of resident’s causing serious damage or injury

(1)  The Tribunal may, on application by the operator of a retirement village, make an order terminating a residence contract if it is satisfied that the resident has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit:
(a)  serious damage to any part of the village, or
(b)  injury to the operator or an employee of the operator or any other resident.
(2)  If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned.
(3)  An application under this section may be made whether or not the operator has given notice of his or her intention to apply to the Tribunal under this section for an order terminating the residence contract.

136   Termination on grounds of upgrade or change of use

(1)  The Tribunal may, on application by the operator of a retirement village, make an order terminating a residence contract if it is satisfied that:
(a)  for the purpose of improving the village, the operator intends to carry out such substantial works in the village as require vacant possession of the residential premises concerned, or
(b)  it is appropriate that the land on which the village is situated should be used for a purpose other than a retirement village.
(2)  However, the Tribunal is not to make an order terminating a residence contract under this section unless it is also satisfied that:
(a)  the operator has given the resident at least 12 months’ written notice of the operator’s intention to make an application under this section, and
(b)  development consent and any other necessary approvals to carry out the works or use the land for the other purpose have been obtained, and
(c)  the operator has obtained (or made available) for the resident alternative accommodation:
(i)  that is of approximately the same standard as, and requires no greater financial outlay on the part of the resident than, the residential premises the subject of the residence contract, and
(ii)  that is acceptable to the resident or reasonably ought to be acceptable to the resident.
(3)  If the Tribunal makes an order terminating a residence contract under this section, the Tribunal:
(a)  must fix in the order a date by which the resident must vacate the residential premises concerned, and
(b)  must specify in the order the penalty that the operator will incur if the works are not substantially commenced, or action to facilitate the use of the land for the other purpose not taken, within 6 months after the date fixed under paragraph (a), and
(c)  may order the operator to allow the resident to return to the residential premises, under a contract identical to the contract being terminated, on completion of the works, and
(d)  may make such other orders (including an order that the operator pay to the resident compensation for the resident’s loss of rights under the residence contract) as it thinks fit.

Division 3A Termination by Supreme Court on application of administrator

136A   Termination on grounds of retirement village ceasing to operate

(1)  The Supreme Court may, on application by the administrator of a retirement village appointed under Division 6 of Part 6, make an order terminating the village contracts with respect to the retirement village if the Court is satisfied there is no reasonable prospect of finding a new operator for the retirement village.
(2)  If the Court makes an order under this section, the Court:
(a)  must, insofar as the order relates to residence contracts, fix in the order a date by which the residents who are affected by the order must vacate their residential premises in the village, and
(b)  may order an operator or former operator (other than an administrator appointed under Division 6 of Part 6) to pay compensation to each resident affected by the order for the resident’s loss of rights under a village contract, and
(c)  may make such other orders as it thinks fit.

Division 4 Suspension or refusal of orders for termination

137   Tribunal may suspend or refuse order for termination

(1)  The Tribunal may suspend the operation of an order fixing a date by which a resident of a retirement village must vacate residential premises if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused by the order to:
(a)  the resident, or
(b)  other residents or the operator of the retirement village.
(2)  The Tribunal may, as a condition of the suspension of the operation of an order for possession, require the resident to pay to the operator an occupation fee specified by the Tribunal for the period for which the order for possession is suspended.
(3)  The Tribunal may refuse to make an order terminating a residence contract if it is satisfied that:
(a)  the operator was wholly or partly motivated to terminate the contract by the fact that:
(i)  the resident had applied or proposed to apply to the Tribunal for an order, or
(ii)  the resident had complained to a governmental authority or had taken some other action to secure or enforce his or her rights as a resident, or
(iii)  an order of the Tribunal was in force in relation to the resident and the operator, or
(b)  in the case of an application under section 134—the resident or operator who had breached the village contract or village rule remedied the breach concerned.

Division 5 Recovery of possession of premises

138   Prohibition on certain recovery proceedings in courts

An operator of a retirement village does not have standing to commence proceedings in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises in the village (except as mortgagee of the premises).

139   Operator not to recover possession of premises except by order

(1)  A person must not (whether acting on his or her own behalf or on behalf of another):
(a)  enter, or attempt to enter, residential premises within a retirement village, or
(b)  remove, or attempt to remove, a resident from residential premises within a retirement village, or
(c)  take any other action that is intended, or is likely, to cause a resident to vacate residential premises within a retirement village,
for the purpose of recovering possession of the residential premises otherwise than in accordance with this or any other Act or law.

Maximum penalty: 200 penalty units.

(2)  (Repealed)
(3)  A court before which proceedings for an offence under this section are brought may (in addition to any other penalty) order the person who committed the offence or any person on whose behalf that person acted to pay to the person entitled (or formerly entitled) to occupy the premises concerned such compensation as it thinks fit.

140   Enforcement of orders for possession

(1)  If the Tribunal makes an order fixing a date for vacation of residential premises in a retirement village and the order (or a condition of suspension of the order) is not complied with, the operator of the village may apply to the Tribunal for (and the Tribunal may issue) a warrant authorising a sheriff’s officer to enter the residential premises and to give possession to the operator.
(2)  An order for possession of residential premises in a retirement village made by the Tribunal is not to be enforced otherwise than under the authority of a warrant issued under this section.
(3)–(7)  (Repealed)

141   Liability of resident remaining in possession

(1)  If a resident of a retirement village fails to comply with an order made by the Tribunal fixing a date for vacation of residential premises, the resident is liable to pay compensation to the operator of the retirement village for any loss caused to the operator by that failure.
(2)  The operator must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by the taking of those steps.
(3)  The Tribunal may, on application by the operator, order the resident to pay to the operator such compensation (including compensation for loss of recurrent charges) as it thinks fit.

Division 6 Abandonment of premises

142   Application of Division

(1)  This Division applies only in respect of residential premises in a retirement village that are the subject of a residence contract under which the resident is not entitled to any repayment of his or her ingoing contribution, or other payment, on termination of the contract.
(2)  However, this Division does not apply in respect of residential premises that are occupied by a resident who is a registered interest holder in respect of the premises.

143   Abandoned premises

(1)  The Tribunal may, on application by the operator of a retirement village, make an order that declares that residential premises occupied by a resident of the retirement village were abandoned by the resident on a day specified in the order.
(2)  However, the Tribunal is not entitled to make an order under this section merely because the resident has died.
(3)  The resident is taken to have abandoned the residential premises on the specified day.

144   Right of operator to compensation where resident abandons premises

(1)  If a resident of a retirement village abandons his or her residential premises, the resident is liable to pay compensation to the operator of the retirement village for any loss (including loss of recurrent charges) caused to the operator by the abandonment.
(2)  The operator must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by the taking of those steps.
(3)  The Tribunal may, on application by the operator, order the resident to pay to the operator such compensation (including compensation for loss of recurrent charges) as it thinks fit.

Division 7 Uncollected goods

145   Application of Division

This Division does not apply to or in respect of residential premises that are occupied by a resident who is a registered interest holder in respect of the premises.

146   Delivery of uncollected goods

(1)  If a residence contract is terminated and goods are left on the residential premises by a former resident of a retirement village:
(a)  the former resident, or
(b)  any other person having an interest in the goods,
may apply to the Tribunal for an order for the delivery of the goods into the former resident’s or the other person’s possession.
(2)  The Tribunal may, on application under subsection (1), make any one or more of the following orders:
(a)  an order for the delivery of the goods into the former resident’s or the other person’s possession,
(b)  an order directing the former resident or the other person to pay any reasonable costs incurred by the operator of the retirement village in connection with the removal, storage or delivery of the goods.

147   Disposal of uncollected goods

(1)  If a residence contract is terminated and goods are left on the residential premises concerned by the former resident, the operator of the retirement village may:
(a)  apply to the Tribunal for an order under this section, or
(b)  sell or dispose of the goods in accordance with the regulations.
(2)  Before making such an application, or selling or disposing of the goods, the operator must, if he or she has a forwarding address for the former resident of the premises, send notice of his or her intention to the former resident (or to the executor or administrator of the estate of the former resident).
(3)  The Tribunal may, on application by an operator under this section, make any one or more of the following orders (but only if it is satisfied that the operator has given, or was not able to give, the notice required by subsection (2)):
(a)  an order authorising the removal, destruction or disposal of the goods,
(b)  an order authorising the sale of the goods,
(c)  an order as to the manner of the sale of the goods,
(d)  an order as to the proceeds of the sale of the goods.
(4)  A purchaser of goods sold by an operator in accordance with an order of the Tribunal or the regulations acquires a good title to the goods in defeasance of the interest of the former resident or any other person who has an interest in the goods.
(5)  An operator of a retirement village must not sell, remove, destroy or dispose of goods referred to in subsection (1) otherwise than as provided by this section.

Maximum penalty (subsection (5)): 20 penalty units.

148   Liability of operator

(1)  An operator does not incur any liability in respect of the delivery, removal, destruction, disposal or sale of goods in accordance with an order of the Tribunal under this Division or in accordance with the regulations.
(2)  However, if the operator deals with the goods otherwise than in accordance with such an order or the regulations, any person who has an interest in the goods may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to pay compensation to the applicant.
Top of page