New South Wales Consolidated Acts New South Wales Consolidated Acts
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts--this ActRetirement Villages Amendment Act 2004Retirement Villages Amendment Act 2008any Act that amends this Act
(1A) For the avoidance of doubt, any such provision may, if the regulations so provide, have effect despite any specified provision of this Act (including a provision of this Schedule).
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as--(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
A reference to the Tribunal in a provision of this Schedule that was inserted before the establishment day (within the meaning of the Civil and Administrative Tribunal Act 2013 ) is a reference to the former Consumer, Trader and Tenancy Tribunal.
In
this Part--
"Code of Practice" means the Retirement Village Industry Code of Practice
prescribed by the Retirement Village Industry Code of Practice Regulation 1995
, as in force immediately before the repeal of that regulation.
"existing contract" means--
(a) a residence contract under the former Act, or
(b) any other contract, agreement, scheme or arrangement by which a person obtained, before the commencement of the former Act, the right to occupy residential premises in a complex that was, at the time the right was obtained, a retirement village within the meaning of this Act (even if it ceased to be such a retirement village before the commencement of this Act or the former Act).
(1) An existing contract in respect of a retirement village within the meaning of this Act that is in force on the commencement of this clause is taken to be a residence contract.
(2) Any other contract, agreement, scheme or arrangement in force on the commencement of this clause under which, under the former Act, the administering authority of a retirement village provides services to a resident of the village is taken to be a service contract.
(3) A contract that, by operation of this clause, is taken to be a village contract continues in force until it is terminated in accordance with this Act.
A village rule that was in force in a retirement village under the Code of Practice immediately before the repeal of the Retirement Village Industry Code of Practice Regulation 1995 is taken to be a village rule made under this Act.
(1) For the purposes of section 20 of this Act--(a) audited accounts provided in accordance with clause 40 of the Code of Practice are taken to be accounts audited as referred to in Division 6 of Part 7 of this Act, and(b) draft budgets provided, and the final budgets developed, under clause 41 of the Code of Practice are taken to be statements of proposed expenditure and statements of approved expenditure, respectively.
(2) The draft budget provided, and final budget developed, under clause 41 of the Code of Practice for the financial year that is current on the commencement of Part 7 of this Act are also taken to be statements of proposed expenditure and statements of approved expenditure, respectively, for the purposes of that Part.
For the purposes of sections 25 and 33 of this Act, the document required to be provided under clause 20 of the Code of Practice is taken to be a disclosure statement.
A disputes committee convened under clause 44 of the Code of Practice that is in existence on the commencement of section 125 of this Act is taken to be a mechanism established for the purpose of attempting to resolve disputes as referred to in that section.
Any proceedings to terminate the right of occupation of a resident of a retirement village that were instituted under the former Act and not determined before the repeal of that Act are to be determined as if this Act had not been enacted.
A resident of a retirement village under the former Act who permanently left his or her residential premises before the commencement of this Act is taken to have permanently vacated the premises for the purposes of this Act.
Division 7 of Part 9 applies to goods left in a retirement village by a resident under a residence contract terminated before the commencement of this clause, and not finally dealt with before that commencement, in the same way as it applies to goods left in a retirement village by a resident under a residence contract terminated after that commencement.
A reference in an existing contract to the payment of--
(a) a deferred management fee, or
(b) a deferred fee,is taken to be a reference to the payment of a departure fee.
A delegation in force under section 11 of the former Act immediately before the commencement of section 189 continues in force on and after that commencement and is taken to be a delegation of the Director-General under that section.
For the purposes of Part 10, a former occupant who permanently vacated his or her residential premises in a retirement village before the commencement of this clause is taken to have permanently vacated the premises on that commencement.
(1) Section 198 (3) extends to a village contract entered into before the commencement of that subsection.
(2) If, before the commencement of this clause, any legal proceedings in relation to a retirement village had been commenced but were not finally determined (being proceedings to which the operator and a resident or residents of the village are parties), the resident or residents concerned are not liable to pay such part of the operator's costs in relation to the proceedings as are incurred, or may reasonably be apportioned to such of the proceedings as take place, after that commencement.
(3) Subclause (2) has effect despite the provisions of any village contract, whether entered into before or after the commencement of this clause.
(4) However, subclause (2) does not apply in respect of any costs awarded in favour of the operator and against a resident or residents of the retirement village in legal proceedings.
In this Part--
"2008 amending Act" means the Retirement Villages Amendment Act 2008 .
Except as otherwise provided by this Part or the regulations, an amendment made by the 2008 amending Act extends to a village contract that was in force immediately before the commencement of that amendment.
(1) This clause applies to a former occupant of residential premises in a retirement village who is the registered interest holder in relation to those premises and who had vacated the premises before the commencement of section 152 (3) (as inserted by the 2008 amending Act).
(2) If a former occupant of residential premises in a retirement village was still liable to pay recurrent charges in respect of those premises immediately before the commencement of section 152 (3) (as inserted by the 2008 amending Act), a reference in section 152 (3) (a) to 42 days immediately after the former occupant permanently vacated the premises is to be read as a reference to 42 days after that commencement.
(3) In this clause, a reference to recurrent charges is a reference to recurrent charges in respect of general services.
(1) This clause applies to a former occupant of residential premises in a retirement village who is not a registered interest holder in relation to those premises and who had vacated the premises before the amendment of section 153 (2) (e) by the 2008 amending Act.
(2) If a former occupant of residential premises in a retirement village was still liable to pay recurrent charges in respect of those premises immediately before the amendment of section 153 (2) (e) by the 2008 amending Act, a reference in that paragraph to the date that is 42 days after the date on which the former occupant otherwise permanently vacated the premises is to be read as a reference to--(a) the date that is 42 days after the commencement of this clause, or(b) the date that is 6 months after the former occupant delivered up vacant possession of those premises to the operator,whichever date occurs first.
(3) In this clause, a reference to recurrent charges is a reference to recurrent charges in respect of general services.
In this
Division,
"outstanding deficit" means the total deficit in the annual accounts of a
retirement village that accrued on or before the end of a financial year of
the retirement village occurring most recently before 23 November 2006.
(1) The operator of a retirement village may--(a) make good the whole, or any part, of any outstanding deficit from any funds, other than recurrent charges, available to the operator, or(b) propose that the residents of the village make good the whole, or any part, of any outstanding deficit--(i) by making special additional payments, or(ii) from any surplus in the annual accounts of the retirement village in any financial year.
(2) The residents of a retirement village may, by special resolution, consent to a proposal under subclause (1) (b) (i) or (ii).
(3) A proposal under subclause (1) (b) may only be put to the residents of the retirement village once.
(4) Despite section 120B (as inserted by the 2008 amending Act), if the residents of a retirement village consent to a proposal under subclause (1) (b) (ii), the operator of the retirement village may make good the whole, or any part, of that outstanding deficit from a surplus in the annual accounts of the village in accordance with the proposal.
(5) The regulations may prescribe expenditure or circumstances resulting in, or contributing to, the outstanding deficit in respect of which the operator is prevented from making a proposal under subclause (1) (b) (i) or (ii).
(6) Nothing in this clause authorises the making good of the whole or any part of an outstanding deficit by using money from the capital works fund.
(1) If a retirement village has an outstanding deficit on or after 23 November 2011 or such later date as may be prescribed by the regulations, the operator may apply to the Tribunal for (and the Tribunal may make) an order specifying--(a) the amount of any such deficit that is to be made good by the operator of the retirement village, and(b) the amount of any such deficit that is to be made good by the residents of the retirement village, and(c) the date by which any such deficit is to be made good.
(2) In making an order under this clause, the Tribunal must give consideration to such matters as may be prescribed by the regulations.
(3) If the operator of the retirement village does not apply to the Tribunal for an order under this clause within 30 days after 23 November 2011, or such later date as may be prescribed by the regulations, the operator must make good the whole of the outstanding deficit.
In this
Division--
"capital replacement fund" means a capital replacement fund established under
section 95 (as in force immediately before its substitution by the 2008
amending Act).
"capital works fund" means a capital works fund established under section 99
(as substituted by the 2008 amending Act).
"maintenance fund" means a maintenance fund established under section 100 (as
in force immediately before its substitution by the 2008 amending Act).
Section 95 (as substituted by the 2008 amending Act) does not apply in respect of any capital replacement or maintenance carried out, or caused to be carried out, by a resident of a retirement village before the commencement of that amendment.
(1) On the substitution of Division 2 of Part 7 by the 2008 amending Act, any capital replacement fund existing immediately before that substitution is dissolved.
(2) Any funds held in a capital replacement fund for a retirement village that is dissolved by subclause (1) are to be paid to the operator of the retirement village.
(3) Any maintenance fund for a retirement village existing immediately before the repeal of Division 3 of Part 7 by the 2008 amending Act is taken, on that repeal, to be a capital works fund.
(1) Except as provided by this clause, section 101, as substituted by the 2008 amending Act, does not apply in respect of the sale of an item of capital before the substitution of that section.
(2) A resident of a retirement village may, by notice in writing to the operator of the village, advise that this clause applies to a specified item of capital owned by the resident if--(a) the item was purchased from the operator of the village on or after 23 November 2006, and(b) but for the purchase of the item, it is an item for which the operator would be responsible (within the meaning of section 92, as substituted by the 2008 amending Act).
(3) On the giving of such a notice to the operator of a retirement village--(a) ownership of the item of capital referred to in the notice is transferred to the operator, and(b) the resident is entitled to receive a payment equal to the amount the resident paid for the item.
(4) A payment that a resident is entitled to receive under this clause is required to be made at the same time as the operator is required to make a payment to the resident under section 44D (2), 180 (2) or 181 (2) as the case may be.
(5) The operator of a retirement village may apply to the Tribunal for (and the Tribunal may make) an order, reducing the amount to which a resident is entitled under subclause (3) (b), having regard to the condition of the item of capital concerned.
(6) An application made by an operator under subclause (5) may relate to more than one item of capital or more than one notice under this clause.
(1) This clause applies to any contract, agreement or scheme between the operator of a retirement village and a resident of the retirement village that--(a) purports to pass responsibility for the maintenance or replacement of an item of capital for which the operator is responsible (within the meaning of section 92) to the resident, and(b) was entered into before the substitution of section 101.
(2) Except as provided by this clause, section 101 does not apply in respect of a contract, agreement or scheme to which this clause applies.
(3) A resident who is a party to a contract, agreement or scheme to which this clause applies may give notice in writing to the operator who is a party to the contract, agreement or scheme that the resident intends section 101 (2) to apply to the contract, agreement or scheme.
(4) On the giving of the notice, section 101 (2) and (3) are taken to extend to the contract, agreement or scheme, but only in relation to anything required to be done under the contract, agreement or scheme after the giving of the notice.
(5) A notice may only be given under this clause within the period of 3 months immediately after the commencement of section 101.
(6) A reference in this clause to section 101 is a reference to that section as substituted by the 2008 amending Act.
(1) A statement of proposed expenditure or a statement of approved expenditure under this Act (as in force immediately before the repeal of the definition of
"statement of approved expenditure" in section 4 (1)) is taken, on that repeal, to be a proposed annual budget or approved annual budget respectively.
(2) An amendment made by the 2008 amending Act does not affect expenditure from recurrent charges of a retirement village that was approved, in accordance with this Act, by the residents of the retirement village before the commencement of that amendment. Any such expenditure may be made after that commencement from the recurrent charges of the retirement village.
(1) An amendment made to section 18 (1) by the 2008 amending Act does not apply to or in respect of a person if the operator of a retirement village was aware, before the commencement of that amendment, that the person was a prospective resident or was acting on behalf of a prospective resident.
(2) However, the operator of a retirement village must provide any such person with a general inquiry document within 14 days after the commencement of that amendment.
(3) An amendment made to section 18 (3) by the 2008 amending Act does not apply to a request or expression of interest made before the commencement of that amendment.
An amendment made to section 24 (1) by the 2008 amending Act does not extend to an agreement entered into before the commencement of that amendment.
Section 41A (as inserted by the 2008 amending Act) does not apply to any renovations or alterations of fixtures or fittings that were commenced, but not completed, before the insertion of that section.
(1) Division 2 of Part 5 (as inserted by the 2008 amending Act) extends to a village contract entered into before the insertion of that Division.
(2) For the avoidance of doubt, the end of the settling-in period with respect to a village contract to which Division 2 of Part 5 applies because of subclause (1) is the later of--(a) the day that is 90 days after the date on which the resident is entitled to occupy the residential premises concerned under the residence contract for the premises, or(b) if the resident occupies the premises before the day specified in paragraph (a), the day that is 90 days after the resident first occupies the residential premises, or(c) such date as may be agreed to by the operator and the resident.
For the purposes of section 70A (as inserted by the 2008 amending Act), any term of office concluded before the commencement of that section is disregarded.
Section 72A (as inserted by the 2008 amending Act) applies to each financial year for a retirement village ending after the insertion of that section and extends to a financial year of a retirement village that ended within the 2 months occurring immediately before that insertion.
(1) An amendment made to this Act by the 2008 amending Act does not affect the casting of a vote by means of a proxy in force immediately before the commencement of the amendment.
(2) However, any such proxy expires at the end of the financial year of the retirement village commencing after the commencement of the amendment.
Section 104 (2) (as substituted by the 2008 amending Act) applies to a village contract that is referred to in that subsection and was in existence before that substitution on and from the date that the village contract was last varied before that substitution.
An amendment made to section 118 by the 2008 amending Act does not apply to the quarterly accounts for a retirement village in respect of a quarter that had ended before the commencement of the amendment.
(1) An amendment made by the amending Act extends to a village contract that was in force immediately before the commencement of the amendment, except as provided by this clause.
(2) The amendments to section 152 made by the amending Act do not apply to a former occupant of residential premises in a retirement village until the beginning of the first financial year for the retirement village commencing on or after 1 July 2021.
(3) If relevant residential premises are for sale immediately before the commencement of section 182AB, as inserted by the amending Act, the prescribed period is taken to commence on--(a) the date on which the section commences, or(b) if the former occupant does not intend to move out of the premises while the premises are for the sale--the date, on or after the commencement of the section, on which the former occupant gives written notice to the operator of that fact.
(4) Part 10AA, Division 3, as inserted by the amending Act, does not apply to a former occupant of residential premises in a retirement village who, immediately before the commencement of the Division, has entered an aged care facility after permanently vacating the premises.
(5) In this clause--
"amending Act" means the Retirement Villages Amendment Act 2020 .
"relevant residential premises" means residential premises of a former occupant to whom section 182AB, as inserted by the amending Act, applies.
(1) This clause applies to a former occupant of residential premises in a retirement village who is--(a) a registered interest holder in respect of the premises, and(b) liable to pay a
"recurrent charges payment" , being recurrent charges payable in relation to general services under section 152 after the former occupant has permanently vacated the residential premises.
(2) A former occupant to whom this clause applies may request an operator of the retirement village make a recurrent charges payment from the prescribed component of the former occupant's exit entitlement.
(3) A request must--(a) be made in a form approved by the Secretary, and(b) include the information prescribed by the regulations.
(4) An operator to whom a request is made must make the recurrent charges payment from the prescribed component of the former occupant's exit entitlement within 14 days after the request is first made.
(5) However, an operator is not required to make a recurrent charges payment from the prescribed component of the former occupant's exit entitlement if--(a) the former occupant ceases to be liable to pay the recurrent charge under section 152, or(b) the former occupant makes a written request to the operator to cease making the recurrent charges payment from the prescribed component of the former occupant's exit entitlement.
(6) To avoid doubt--(a) an operator must pay any part of the former occupant's exit entitlement that is not paid towards a recurrent charges payment to the former occupant in accordance with section 180, and(b) a former occupant to whom this clause applies is not prevented from applying for an exit entitlement order after 1 July 2021 merely because of this clause.
(7) This clause ceases to have effect at the beginning of 1 July 2021.
(8) In this clause--
"exit entitlement" and
"prescribed component" have the same meanings as in Part 10AA of the Act.
"prescribed period" means the period commencing on the commencement of Schedule 1[13[#93] to the Retirement Villages Amendment Act 2020 and ending on 30 June 2021.