Supreme Court of WA|2013-05-31|Before: Pritchard J

RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASC 219 (31 May 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASC 219

BETWEEN : RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD

Statutory construction - Construction of 'Retirement Village Scheme' under the Retirement Villages Act 1992 (WA) - Whether statutory charge and memorial form part of a retirement village scheme - Construction of s 22 of the Retirement Villages Act 1992 (WA)

Fair Trading (Retirement Villages Interim Code) Regulations 2012 (WA)

Thirteenth Defendant : Mr J R Birman & Mr T C Young

Nineteenth Defendant : Mr J R Birman & Mr T C Young

Twenty-second Defendant : Mr J R Birman & Mr T C Young

Twenty-third Defendant : Mr J R Birman & Mr T C Young

Twenty-fourth Defendant : Mr J R Birman & Mr T C Young

Twenty-fifth Defendant : Mr J R Birman & Mr T C Young

Twenty-sixth Defendant : Mr J R Birman & Mr T C Young

Twenty-seventh Defendant : Mr J R Birman & Mr T C Young

Twenty-eighth Defendant : Mr J R Birman & Mr T C Young

Twenty-ninth Defendant : Mr J R Birman & Mr T C Young

Thirty-second Defendant : Mr J R Birman & Mr T C Young

Thirty-third Defendant : Mr J R Birman & Mr T C Young

Thirty-fourth Defendant : Mr J R Birman & Mr T C Young

Thirty-fifth Defendant : Mr J R Birman & Mr T C Young

Thirty-sixth Defendant : Mr J R Birman & Mr T C Young

Thirty-eighth Defendant : Mr J R Birman & Mr T C Young

Thirty-ninth Defendant : Mr J R Birman & Mr T C Young

Forty-second Defendant : Mr J R Birman & Mr T C Young

Forty-third Defendant : Mr J R Birman & Mr T C Young

Forty-fourth Defendant : Mr J R Birman & Mr T C Young

Forty-fifth Defendant : Mr J R Birman & Mr T C Young

Forty-sixth Defendant : Mr J R Birman & Mr T C Young

Forty-seventh Defendant : Mr J R Birman & Mr T C Young

Forty-ninth Defendant : Mr J R Birman & Mr T C Young

Fifty-first Defendant : Mr J R Birman & Mr T C Young

Fifty-second Defendant : Mr J R Birman & Mr T C Young

Fifty-third Defendant : Mr J R Birman & Mr T C Young

Fifty-fourth Defendant : Mr J R Birman & Mr T C Young

Fifty-fifth Defendant : Mr J R Birman & Mr T C Young

Fifty-sixth Defendant : Mr J R Birman & Mr T C Young

Fifty-seventh Defendant : Mr J R Birman & Mr T C Young

Fifty-ninth Defendant : Mr J R Birman & Mr T C Young

Sixty-second Defendant : Mr J R Birman & Mr T C Young

Sixty-fourth Defendant : Mr J R Birman & Mr T C Young

Sixty-fifth Defendant : Mr J R Birman & Mr T C Young

Sixty-sixth Defendant : Mr J R Birman & Mr T C Young

Sixty-seventh Defendant : Mr J R Birman & Mr T C Young

Seventy-first Defendant : Mr J R Birman & Mr T C Young

Seventy-second Defendant : Mr J R Birman & Mr T C Young

Seventy-third Defendant : Mr J R Birman & Mr T C Young

Seventy-fourth Defendant : Mr J R Birman & Mr T C Young

Seventy-fifth Defendant : Mr J R Birman & Mr T C Young

Seventy-sixth Defendant : Mr J R Birman & Mr T C Young

1 PRITCHARD J: Since 1 July 2005, Retirement Care Australia (Hollywood) Pty Ltd has been the owner and operator of the Hollywood Retirement Village. The Retirement Village is situated on a large parcel of land at 118 120 Monash Avenue in Nedlands (the Land).[1] The Retirement Village exists pursuant to a 'retirement village scheme' (the Scheme) as defined in the Retirement Villages Act 1992 (the RV Act) and the provisions of the RV Act apply to the Retirement Village.

2 Retirement Care would like to be able to sell part of the Land, while continuing to use the balance of the Land for the Retirement Village (the proposed variation). Some of the residents of the Retirement Village oppose the proposed variation.

3 As a result of the operation of a number of provisions of the RV Act, Retirement Care is unable to pursue the proposed variation unilaterally. At the same time, the RV Act does not contain any provision which expressly permits the proposed variation. As a consequence, Retirement Care has applied to the Court pursuant to s 22 of the RV Act, seeking (amongst other things) the approval of the Court for the termination of the Scheme, and a declaration that immediately upon that termination occurring, there will be a retirement village scheme in respect of the balance of the Land apart from that portion which it wishes to sell. Retirement Care's application is a novel one, and raises a number of difficult questions about the operation of the RV Act applies, and the relief sought by Retirement Care should be refused

4 For the reasons set out below, I have reached the conclusion that this is not a case to which s 22 of the RV Act applies and the relief sought by Retirement Care should be refused.

5 These reasons for decision deal with the following matters:

The factual context;
Areas of factual dispute;
The relief sought;
Approach to construction of s 22 of the RV Act;
What is a 'retirement village' and a 'retirement village scheme' under the RV Act?
Do the statutory charge and the memorial form part of a 'retirement village scheme'?
The operation of s 22;
Section 22 does not apply in the present case;
Other issues interests relevant to the exercise of discretion by the Court in granting approval;
Conclusion.

6 Save for the factual disputes referred to at [53] to [57] below, the facts were not in dispute. Before setting out the factual context for the present dispute in some more detail, however, it is convenient to note the parties to the litigation.

7 Retirement Care is a wholly owned subsidiary of Regis Aged Care Pty Ltd (Regis).[2] Regis' primary area of business is the provision of aged care accommodation.

8 Other than the Commissioner of Consumer Protection (the Commissioner), the Registrar of Titles (the Registrar), and the Commissioner of Titles, the defendants were residents of the Retirement Village when the action was commenced or became residents after the action was commenced.

9 Not all of the residents of the Retirement Village chose to appear, and to participate in, these proceedings, but I am satisfied that all of them were served with the writ and statement of claim and have been afforded the opportunity to participate. Those defendants who are residents of the Retirement Village, and who chose to participate in these proceedings, with the exception of Mr Colton, (the 21st defendant) were represented by a single firm of solicitors, and are referred to herein as the Schedule A defendants. The Schedule A defendants, and Mr Colton, were opposed to the proposed variation. Mr Colton did not attend the trial but made written submissions in the form of letters dated 5 January 2011 and 27 January 2011 which I have taken into account together with the submissions of the other parties.

10 The Commissioner participated in the proceedings, and through counsel made oral and written submissions in relation to legal issues arising in the proceedings.

11 The Registrar and the Commissioner of Titles did not participate in the proceedings, but indicated that they would abide the decision of the Court.[3]

12 Since purchasing the Retirement Village in 2005, Retirement Care has sought and received approval from the Western Australian Planning Commission for a two lot subdivision of the Land. In 2010, a plan of subdivision (Deposited Plan 59743) was made, subdividing the south western corner of the Land (Lot 889) from the balance of the land (Lot 888). In December 2011, a separate certificate of title was issued in respect of each Lot.[4]

13 For completeness, I note that in 2012, Retirement Care was granted approval (subject to compliance with conditions) for a four lot subdivision of the Land.[5] Certificates of title have not been issued in respect of the lots referred to in that subdivision. The pursuit of that subdivision is not relevant to the present application which pertains solely to Lots 888 and 889.

14 Finally, I note that the applicable town planning scheme presently limits the use of Lot 889 to residential premises, for persons aged 55 years or older.[6]

15 Prior to 1 July 2005, the Retirement Village was owned and operated by the Salvation Army (Western Australia) Property Trust. A variety of buildings and facilities were located on the Land when it was purchased by Retirement Care. In the north eastern corner of the Land were located aged care facilities comprising a nursing home and a number of hostels. In the same area were located a day therapy centre, a kiosk, hairdresser, chemist and a supermarket. The aged care facilities remain in the same location.

16 In the north western corner of the Land were located a large number of small individual flats or villas known as independent living units (ILUs) in which residents could live independently. This area of the Village was, and remains, known as Centennial Close.

17 In the south eastern corner of the Land were located a small number of individual ILUs, a number of ILUs in a multi storey building, known as the Wyvern Units, ILUs in a complex known as the Crossleigh Units, a swimming pool and spa.

18 In the south western corner of the Land (on the land which is now Lot 889) were located a number of ILUs, the Warrina Dementia Hostel, an auditorium and medical centre, and a community centre known as Withnell Cottage.

19 Between approximately October 2009 and July 2010, Retirement Care arranged for the demolition of a number of buildings on the Land. Those buildings included buildings used for accommodation and for amenities, including the Warrina Dementia Hostel, the Crossleigh Units, a number of ILUs, the Withnell Cottage, the auditorium and the medical centre.

20 Evidence was given by Mr Michael Horwood, the General Manager of the Property Division of Regis Aged Care Pty Ltd, that Retirement Care's initial intent in pursuing the subdivision of the Land was part of what was known as 'Plan B' which was a plan for the development and construction of a new aged care facility on what has become Lot 889. Mr Horwood's evidence was that Plan B was withdrawn after tenders for the construction of that aged care facility were obtained, because of the high cost of its development.

21 A new plan for redevelopment was then adopted, which was known as 'Masterplan B'. Masterplan B had a number of aspects. The first concerned the aged care facilities in the north eastern part of Lot 888 and comprised the construction of an additional 90 bed wing for an existing aged care facility, the amalgamation and refurbishment of existing aged care facilities into one building offering 197 beds across low care, high care and extra services, and the construction of a new aged care facility offering high care premium additional services. Secondly, Masterplan B contemplated the eventual redevelopment of the site of the Wyvern Units, because those Units were considered too small in size by contemporary standards, yet the cost of refurbishment of the building in which they were located was too high to be economically viable. Accordingly, Masterplan B contemplated that no new residents would be accepted into the Wyvern Units and those residents in the Wyvern Units would be relocated to Centennial Close as and when it became possible to do so. A third aspect of Masterplan B concerned the construction of various works, including a new community centre (to replace amenities that were previously located in the Wyvern building) and a new pool, at Centennial Close where they would be easily accessible by ILU residents.

22 There are now 260 residents living in ILUs in Centennial Close. Although the Wyvern building remains in the southeastern corner of Lot 888, no residents are living in that building.

23 The aged care facilities continue to be located in the northeastern corner of Lot 888. Nearby are located a day therapy centre, supermarket, coffee shop, hairdresser, doctor's rooms and chemist, all of which are available for access by the ILU and aged care residents.

24 Some of the facilities which were previously located in buildings which have been demolished have been relocated. By way of example, three ILUs in Centennial Close have been converted into the new community centre and library. At the time of the hearing Retirement Care was in the process of arranging for the construction of the new pool.

25 The residents who previously resided in buildings on Lot 889, and in the south eastern corner of Lot 888 have been relocated to accommodation in the ILUs located elsewhere on Lot 888.

26 As a result of these changes, the residents of the Retirement Village now live in accommodation which is located only on Lot 888. All of the buildings on Lot 889 have been demolished.

27 Lot 889 is therefore vacant land, apart from a carriageway - the Village Road[7] which is located adjacent to the eastern boundary of Lot 889. The Village Road is the subject of an easement, which amongst other things burdens Lot 889 for the benefit of Lot 888 (the easement).

28 Each of the residents of the Retirement Village live in the Retirement Village pursuant to a 'residence contract' as defined in the RV Act, which gives them a right to occupy as specified in their contract. Not all of the residence contracts are in identical terms.

29 Some of the residence contracts required that the resident pay a premium upon entering the Retirement Village (the entry premium) and in those cases, the residence contract requires that part of the entry premium be repaid on the happening of certain contingencies, when the residence contract comes to an end and the resident ceases to reside at the Retirement Village. When Retirement Care purchased the Retirement Village, it became liable[8] to perform the obligations owed by the Salvation Army to the then residents under their respective residence contracts. Those obligations included the obligation to repay part of the entry premium paid by some of the residents, upon the termination of the residence contract of each of those residents.

30 Since purchasing the Retirement Village, Retirement Care has entered into a number of contracts with residents, on varying terms. Some of those residents have paid an entry premium (and have a contractual right to the repayment of part of their entry premium when the residence contract comes to an end). In more recent times, however, residence contracts offered by Retirement Care have not required the payment of an entry premium.

31 Most residents of the Retirement Village occupy their ILU pursuant to a licence to occupy for life under their residence contract. More recently, however, the residence contracts offered by Retirement Care have granted a shorter term licence to occupy.

32 Under s 20(1) of the RV Act, the obligation to repay an entry premium or part thereof gives rise to a statutory charge over the land in a retirement village. It was not in dispute that the right of some of the residents of the Retirement Village to the repayment of part of their entry premium gave rise to a first ranking charge over the Land, and thus over what are now Lots 888 and 889. As the right to the repayment of each resident's entry premium gives rise to a statutory charge, it was not in dispute that Lots 888 and 889 are in fact subject to a number of statutory charges for the benefit of the individual residents concerned (the Charges).

33 The total value of the entry premiums which Retirement Care is obliged to repay to the residents of the Retirement Village does not exceed $5 million.[9] Retirement Care's case was that the value of Lot 888 is significantly greater than the total amount it is liable to pay by way of the repayment of entry premiums.[10] The undisputed evidence was that Lot 888 alone is valued at $41.2 million.[11]

34 The RV Act requires that where land is, or is proposed to be used for the purposes of a retirement village, the owner of the land must lodge a memorial with the Registrar of Titles.[12] In accordance with this requirement, a memorial was registered over the Land (the Memorial)[13] from September 1992 and when new certificates of title in respect of Lots 888 and 889 were issued, the Memorial remained registered against each certificate of title. The Memorial states that:

The land above described is or is proposed to be used for the purposes of a Retirement Village scheme within the meaning of the Retirement Villages Act 1992.
By virtue of s 20 of the Retirement Villages Act 1992 the Land above described may be subject to a charge securing repayment of money to residents of the Retirement Village.
The provisions of Part 3 of the Retirement Villages Act 1992 apply generally to retirement villages established under the Act.

35 The statutory bases for the Charges and for the Memorial are discussed further at [102], [103] and [113] below.

36 Finally, it was not in dispute that Lots 888 and 889 are encumbered by a mortgage (the Mortgage),[14] which was registered after the Memorial, and which is therefore second in priority to the statutory charges referred to in the Memorial.

(f) The residents' concerns about the proposed variation

37 Evidence was given by four residents of the Retirement Village: Mr Walter Jenkins, Dr June Stephenson, Mr Hubert Minchin and Mrs Mary Winter (the resident witnesses).

38 Counsel for Retirement Care objected to the evidence of the resident witnesses on the ground that their evidence was irrelevant to the issues in dispute. The evidence in chief of each of the resident witnesses (which was set out in the form of a witness statement) was provisionally admitted on the basis that I would determine its relevance in the course of considering the issues in dispute.

39 Some of the resident witnesses' evidence concerned the standard of accommodation in the Retirement Village and Retirement Care's approach to the redevelopment of the Land. The essence of this part of the resident witnesses' evidence, in summary, was that they considered that the standard of accommodation, and the quality of the amenities and the surrounding environment, which were provided while the Salvation Army owned the Retirement Village (and when each of the resident witnesses began living there) were of a high standard, but had declined since Retirement Care bought the Retirement Village. The resident witnesses expressed concerns about the adequacy of the facilities at the Retirement Village following the demolition of buildings, and the construction of new buildings and amenities, to which I have already referred. In addition, the resident witnesses considered that the redevelopment of the Retirement Village had been decided upon without adequate consultation with residents of the Retirement Village.

40 I have taken this evidence into account as background evidence which assists in understanding the subjective concerns of each of the resident witnesses in relation to the proposed variation.

41 This evidence was also said to be relevant to the factors which the Schedule A defendants contended should be taken into account by the Court in determining whether to grant approval for the termination of a retirement village scheme under s 22 of the RV Act. By way of example, one of those factors was said to be whether Retirement Care had breached the residence contracts in a number of respects.

42 For the reasons set out below it has not been necessary for me to resolve the question of the factors which would be relevant to the exercise of this Court's discretion under s 22 of the RV Act. In those circumstances it is not necessary to resolve the question of the relevance of this part of the resident witnesses' evidence. Although it is ordinarily desirable for a trial judge to resolve all of the factual issues in a case, and although Retirement Care disputed a number of aspects of the resident witnesses' evidence, in my view the preferable course in this case is to leave the resolution of the factual issues raised by the resident witnesses' evidence for another day. I have reached that conclusion particularly in view of the nature of the issues involved (for example, allegations of breaches of the residence contracts), the fact that some of those issues have been traversed elsewhere,[15] the fact that even if relevant, some of the issues (such as the alleged breaches of contract) may be resolved on legal rather than factual grounds, and the confined ambit of the evidence.

43 The balance of the resident witnesses' evidence concerned three broad themes: why they opposed the proposed variation and the termination of the Scheme, the circumstances in which some of them moved from ILUs on Lot 889 to ILUs in Centennial Close and their views as to how Lot 889 should be used in future (rather than sold).

44 Mr Jenkins' evidence was that he originally decided to live at the Retirement Village because he understood the entirety of the Land would be used for aged care purposes, that he did not know what Lot 889 would ultimately be used for, and that he was concerned that its use could be detrimental to the lifestyle of the Retirement Village. (I note, however, that in cross examination Mr Jenkins accepted that the zoning requirements applicable to Lot 889 alleviated the concerns he had about who might ultimately live on Lot 889.) In addition, Mr Jenkins' expectation was that if Retirement Care's present application was successful, it would continue to attempt to reduce, or terminate, the remainder of the Scheme.

45 Dr Stephenson opposed the proposed variation and the termination of the Scheme because her preference was that Lot 889 should be used for the building of new facilities for aged care, dementia and nursing home residents, and that it should be retained as part of the Retirement Village, which serviced a large number of people.

46 Mr Minchin was concerned that the real purpose of Retirement Care's application to terminate the Scheme was to concentrate the Retirement Village into Centennial Close and eliminate any possibility that Lot 889 could be used for new facilities or additional ILUs. In addition, Mr Minchin was concerned that if the application was successful, and the Charges were applied only to Lot 888, the value of his security for the repayment of his entry premium would be reduced. He maintained the latter view in cross examination, notwithstanding the disparity between the value of Lot 888 and the total of Retirement Care's liability for the repayment of entry premiums.

47 In addition, Mr Minchin gave evidence that at a meeting of residents in March 2007, a representative of Retirement Care had advised that Retirement Care wished to redevelop the south western corner of the Land (to construct a new aged care facility, a nursing home, a community centre and other facilities, including a medical centre and swimming pool) but could not do so unless all residents living on that part of the Land relocated to the north eastern corner of the Land (that is, to Lot 888). Mr Minchin's evidence was that he and his wife had decided to move from their ILU on Lot 889 to another ILU on Lot 888 because they were keen to see Lot 889 redeveloped in the manner proposed by Retirement Care, and because Retirement Care had indicated that those residents who relocated would be given preferential admission to the new aged care facilities which were constructed.

48 Mrs Winter opposed Retirement Care's application to terminate the Scheme because she considered that the object of its application was to permit the sale of Lot 889 which would exclude its availability for the redevelopment or expansion of the Retirement Village, and would result in the removal of the Charges over Lot 889 (which in her view would reduce the total value of the land securing the repayment of her entry premium). However, in cross examination, and having regard to the value of Lot 888 and of Retirement Care's liability for the repayment of entry premiums, Mrs Winter agreed that she no longer relied upon the latter reason for opposing the termination of the Scheme.

49 Mrs Winter also gave evidence that following the provision of information by Retirement Care in 2007 about its plans for the redevelopment of what is now Lot 889, she agreed to relocate from her ILU on what is now Lot 889 to an ILU on what is now Lot 888. Her evidence was that she was keen for the proposed facilities to be built and therefore agreed to the relocation, and that had she been told that Retirement Care wanted to subdivide the Land for purposes unrelated to the Retirement Village she would not have agreed to move.

50 This is also an appropriate point to mention Mr Colton's submissions. He submitted that Retirement Care's application should be dismissed because Lot 889 had previously been the site of the Warrina Dementia Hostel, which Retirement Care had demolished with the promise that another dementia facility would be built in its stead.

51 In so far as the evidence of the resident witnesses (and Mr Colton's submissions) addressed the reasons why they opposed the proposed variation and their desires or preferences about the future use of Lot 889, I have taken this evidence into account for the purpose of understanding their subjective views about these issues. However, for the reasons given above at [42] it is not necessary to otherwise determine the relevance of this evidence or to make any findings as to whether the witnesses' views should be accepted as an accurate statement of the factual position.

52 In so far as some of the witnesses' evidence addressed why they moved from Lot 889 to Centennial Close, the Schedule A defendants submitted that this evidence was relevant to one of the factors which should be taken into account in the exercise of the Court's discretion under s 22, namely Retirement Care's conduct and whether it had induced residents to move from Lot 889 on the basis of a misrepresentation of its intentions as to the future use of Lot 889. That claim was disputed by Retirement Care. For the reasons given above at [42] it is not necessary to determine the relevance of this evidence or to make any findings about it.

53 On the face of the pleadings, there were, effectively, three areas of factual dispute. The first was whether Retirement Care has breached its obligations to residents of the Retirement Village under the residence contracts, by denying them access to part of the Retirement Village (namely to Lot 889, save for the Village Road) and, or alternatively, by demolishing accommodation and amenities in the Retirement Village without replacing them.

54 A second factual dispute was whether Retirement Care's conduct in relation to the redevelopment of the Land meant that it did not come to the Court with 'clean hands'. In addition to the allegations that Retirement Care had breached residents' contracts, this area of dispute concerned whether Retirement Care had misrepresented to residents the nature of its proposed redevelopment of the Land, and by doing so, induced some residents to move to different accommodation within the Retirement Village under a misapprehension as to what was intended.

55 These two areas of factual dispute were potentially relevant to the considerations bearing upon the exercise of the Court's discretion under s 22 of the RV Act. In view of the conclusions I have reached about the construction of s 22, it is not necessary for me to assess each of the factors said to be relevant to the exercise of discretion under s 22 of the RV Act. For that reason, it is not necessary for me to make findings in relation to the facts bearing on some of those factors.

56 The third area of factual dispute on the pleadings was whether the Land both before and after its subdivision into Lots 888 and 889 has been used for the purpose of the Scheme. In their defences, the Commissioner and the Schedule A defendants pleaded that the Retirement Village and the 'retirement village scheme' extended over the whole of the Land, and now extend over the whole of Lots 888 and 889.[16] In its Reply, Retirement Care pleaded that although from July 2005 the whole of the Land was used for the purposes of a retirement village, at no time from July 2005 was the whole of the Land occupied for the purposes of a retirement village. The basis for this pleading was that part of the Land has been, and since December 2011 part of Lot 888 is, used for aged care facilities, and that the residents of those facilities were not residents of the Retirement Village. Retirement Care also pleaded that some of the buildings on the Land were used for the purposes of those aged care facilities.[17] Retirement Care also says that since December 2009, Lot 889 has not been occupied for the purposes of a retirement village because it has been a vacant lot.[18]

57 Given the conclusion I have reached at par [96] and [97] as to the meaning of the definition of 'retirement village' it is not necessary to resolve questions concerning whether buildings were used or occupied under the Scheme, or whether the Land was occupied or used for or in connection with the Scheme.

58 For completeness, I note that the RV Act does not apply to a resident or prospective resident of a retirement village or to the administering body of that retirement village in the circumstances described in s 5(2) of the RV Act. The effect of s 5(2) was touched upon briefly in submissions, and some evidence was led in relation to the matters referred to in that subsection. Mr Shea gave evidence that the three aged care facilities on Lot 888 are administered under the Aged Care Act 1997 (Cth) (AC Act). Mr Shea confirmed that all of the occupants in the aged care facilities on Lot 888 received the subsidies referred to in s 5(2) of the RV Act.[19] Mr Shea also gave evidence that Retirement Care, and (since June 2012) Regis, provided 'residential care' under the AC Act to the residents of the aged care facilities on Lot 888.[20] It was Mr Shea's evidence that until 17 June 2012, Retirement Care was an 'approved provider' under the AC Act, and that since then, Regis has been the operator of the facilities as an approved provider.[21]

59 There did not appear to be any dispute between the parties that s 5(2) of the RV Act applied so that residents of the aged care facilities were not subject to the RV Act. While that may be the case, it was not entirely clear having regard to Mr Shea's evidence that s 5(2)(a) of the RV Act was satisfied.[22] (In the present case, the 'administering body'[23] for the Retirement Village is Retirement Care, whereas Regis is the approved provider for the aged care facilities on Lot 888.) That issue was not explored in the submissions or the evidence. However, it is unnecessary to determine the question of the application of s 5(2) for present purposes. Even if is assumed that s 5(2) applies, its effect is to exclude the application of the RV Act to the residents and the administering body of the Retirement Village, in so far as they are residents of aged care facilities, and providers of residential premises and residential care, under the AC Act. That does not preclude the conclusion that that part of Lot 888 on which the aged care facilities are located forms part of the Retirement Village for the purposes of the RV Act, and I did not understand counsel for Retirement Care to seek to suggest otherwise.[24]

60 Initially a variety of alternative forms of relief were sought by Retirement Care.[25] However, in the course of the hearing, the relief sought by Retirement Care was confined to the following orders (the proposed orders):[26]

an order granting the approval of the Court for the termination of the retirement village scheme which relates to the Retirement Village on Lot 888 and Lot 889, pursuant to s 22 of the RV Act;
a declaration that the charges under the Memorial have been fully satisfied, extinguished or determined in respect of Lot 889 and no longer affect Lot 889; and
a declaration that immediately from the time that order 1 above takes effect, there is a retirement village scheme being conducted on Lot 888.

61 Although Retirement Care seeks an order granting the Court's approval for the termination of the Scheme, it does not intend to entirely cease conducting a retirement village scheme. Instead, as proposed order 3 makes clear, the proposed variation contemplates that immediately upon the termination of the Scheme, Retirement Care intends to continue to operate the Retirement Village, without any change to the residence contracts pursuant to which existing residents live in the Retirement Village, and by utilising the same premises and facilities for residents as presently exist, but using only the land in Lot 888.

62 As I understand Retirement Care's case, proposed order 2 is intended to serve two purposes. First, the grant of the declaration sought is designed to support an application to the Registrar under the RV Act to cancel the Memorial in respect of Lot 889. Secondly, the declaration is intended to confirm what Retirement Care contends will, in any event, occur upon the termination of the Scheme, namely that the Charges will no longer apply to Lot 889.

63 Retirement Care sought to terminate the Scheme only on the basis that the priority of the Charges over the Mortgage in respect of Lot 888 would be maintained.[27] Mr Horwood gave evidence that the mortgagee is amenable to the preservation of the priority of the Memorial with respect to the Mortgage.

64 In other words, in seeking the relief set out above, Retirement Care seeks to terminate the Scheme, and to immediately replace it with what it sees as another retirement village scheme, but with the result that Lot 889 will no longer be subject to the Charges, and that the Memorial over Lot 889 will be able to be cancelled.

65 The resolution of the issues arising from Retirement Care's application turns on the construction of various provisions of the RV Act. The key provision is, of course, s 22 of the RV Act, which provides:

(1) A retirement village scheme cannot be terminated without the approval of the Supreme Court while a person who has been admitted to occupation of residential premises under the scheme remains in occupation of those premises.

(2) The Commissioner will be a party to any proceedings in which the Supreme Court's approval of the termination of a retirement village scheme is sought.

(3) If the Supreme Court approves the termination of a retirement village scheme it may make such orders as it thinks necessary to protect the interests of existing residents.

66 Some of the terms used in s 22 are defined in the RV Act. Others are not. Determining the meaning of s 22 as a whole, and how it was intended to be applied, therefore requires a consideration of the defined meaning of any terms, and the ordinary meaning of the remaining words in the section, considered within their context. That context includes matters such as the meaning of the language used within the statute when viewed as a whole, the provisions of the statute as a whole and how they work together, and the purpose to which the statute was directed.[28] A construction that would promote the purpose or object underlying the statute is to be preferred to a construction that would not promote that purpose or object.[29]

67 In the analysis which follows, I commence by considering the definition of two key terms used in the RV Act: the definition of a 'retirement village scheme' which is integral to the operation of s 22 itself, and the definition of a 'retirement village'. I then turn to consider the operation of the provisions of the RV Act which relate to statutory charges and memorials, and to consider their relationship with a retirement village scheme under the RV Act.

68 In the light of those conclusions, I then return to consider the meaning and operation of s 22 itself. In doing so I consider the purpose of the RV Act as a whole, how that purpose manifests itself in the ways in which the RV Act regulates retirement villages, and what light that purpose sheds on the intended meaning and operation of s 22.

69 I have undertaken this analysis in rather more detail than would ordinarily be necessary for two reasons. First, the provisions of the RV Act which arise for consideration in this case have not been the subject of any previous judicial consideration, and were the subject of close analysis by all counsel in the course of the hearing. Secondly, having reflected at some length on the helpful submissions of counsel for each of the parties, I find myself unable to entirely agree with the approach taken by any of the parties to the construction of the RV Act and to s 22 in particular. In those circumstances, it is appropriate to explain the reasoning behind my conclusions in some detail.

5. What is a 'retirement village' and a 'retirement village scheme' under the RV Act?

70 In this section of my reasons, I deal with the following matters:

(a) the definitions of a 'retirement village' and a 'retirement village scheme' under the RV Act;

(d) some conclusions about the meaning and operation of the definitions of 'retirement village' and 'retirement village scheme'.

(a) The definitions of a 'retirement village' and a 'retirement village scheme' under the RV Act

71 Except in so far as the RV Act provides otherwise, the RV Act applies to 'retirement villages', whether established before or after the commencement of the RV Act.[30] A 'retirement village' is defined in the RV Act[31] to mean:

retirement village means a complex of residential premises, whether or not including hostel units, and appurtenant land, occupied or intended for occupation under a retirement village scheme or used or intended to be used for or in connection with a retirement village scheme.

72 The term 'retirement village scheme' is pivotal to the operation of the RV Act generally, and to the operation of s 22 itself. The term 'retirement village scheme' is defined in the RV Act[32] to mean:

retirement village scheme or scheme means a scheme established for retired persons or predominantly for retired persons, under which

(a) residential premises are occupied in pursuance of a residential tenancy agreement or any other lease or licence;

(b) a right to occupation of residential premises is conferred by ownership of shares;

(c) residential premises are purchased from the administering body subject to a right or option of repurchase;

(d) residential premises are purchased subject to conditions restricting the subsequent disposal of the premises; or

(e) residential premises are occupied under any other scheme or arrangement prescribed for the purposes of this definition,

but does not include any such scheme under which no resident or prospective resident of residential premises pays a premium in consideration for, or in contemplation of, admission as a resident under the scheme.

73 The parties were all of the view that the Retirement Village is part of a 'retirement village scheme' as defined in the RV Act because it was established for retired persons or predominantly for retired persons, some residential premises in the Retirement Village are occupied pursuant to licences, and some of the residents have paid a 'premium' as defined in the RV Act in consideration for their admission as a resident. However, all of the parties were of the view that the Scheme comprised more these three elements.[33]

74 Counsel for Retirement Care submitted that because a 'retirement village' is defined by reference to premises and land occupied or used (or intended to be occupied or used) for a retirement village scheme, the concept of a 'retirement village' under the RV Act does not, as a matter of substance, connote a different concept from that of a 'retirement village scheme'.[34] He thus submitted that a retirement village scheme will therefore include the three elements referred to in the definition of a retirement village scheme, the buildings and land which make up the retirement village, the statutory charge and the memorial.[35]

75 Counsel for the Schedule A defendants submitted that a retirement village scheme is established when there are residential premises (occupied by retired persons or predominantly by retired persons) and the payment of one or more premiums.[36] Counsel for the Schedule A defendants also submitted that a retirement village comprises the residential premises that are part of the retirement village scheme. Counsel for the Schedule A defendants submitted that the land to which a retirement village scheme extends falls to be determined at the date when the scheme comes into existence,[37]and that the retirement village scheme would continue to exist irrespective of any subdivision or change in the use of that land.[38]

76 Counsel for the Commissioner submitted that the reference to a 'scheme' requires a systematic plan or arrangement for attaining a particular objective.[39] He submitted that for the purpose of the definition of a 'retirement village scheme' that objective is the operation of a complex of residential premises and appurtenant land (a village) for retired persons or predominantly for retired persons.[40] Counsel for the Commissioner submitted that the elements of the retirement village scheme constituted by the retirement village in this case are the complex of residential premises and appurtenant land, Retirement Care as the administering body and owner of the Land, the residents, the occupation of the residential premises in the Retirement Village by the residents pursuant to their residence contracts (which gave them either a licence to occupy for life or a short term licence to occupy), any service contracts between Retirement Care and the residents, the payment of a premium and the premium repayment rights enjoyed by certain of the residents, together with the Charges and the Memorial.[41]

77 In summary, counsel for the Commissioner submitted that in a broad sense, the Scheme in this case comprises the relationships established by the various residence contracts and any service contracts, and includes the land used, or proposed to be used, for the purpose of the Retirement Village as designated in the Memorial, the Charges and the parties' rights and responsibilities under the RV Act and the regulations made under that Act.[42] Counsel for the Commissioner submitted that there may be changes to some parts of the Scheme over time (for example, to the residents, to the administering body or to the terms of the residence contracts).[43] However, he submitted that in one respect the Scheme was fixed. That one respect concerned the land the subject of the Scheme.[44] Counsel for the Commissioner submitted that the land the subject of the Scheme was determined by the Memorial as lodged and registered.[45] Counsel for the Commissioner thus submitted that from the commencement of the Scheme, the Memorial established the boundaries of the land in the Retirement Village which was the subject of the Scheme, and it was this land to which the statutory charges attached.[46]

(c) The elements of a 'retirement village scheme' and a 'retirement village' under the RV Act

78 Four things may be noted about the definition of 'retirement village scheme'.

79 First, the definition sets out what a retirement village scheme means, not what it includes. It therefore appears that the definition is intended to be an exhaustive statement of what constitutes a retirement village scheme for the purposes of the RV Act.[47]

80 Secondly, the definition defines both 'retirement village scheme' and 'scheme' interchangeably. In so far as it refers to a 'scheme' the ordinary and natural meanings of the word 'scheme' include 'a programme of action; a project', a 'policy or plan officially adopted by a company [or] business' and 'any system of correlated things, parts ... or the manner of its arrangement'.[48] In other words, a retirement village scheme (or scheme) under the RV Act is a programme of action or a plan or policy concerning the use of residential premises.

81 Thirdly, as is apparent from the definition of 'retirement village scheme' that programme of action or plan or policy must comprise three elements in order for it to constitute a 'retirement village scheme' for the purposes of the RV Act.

82 The first of these elements is that the scheme must be established for 'retired persons' or predominantly for retired persons. Under the RV Act a 'retired person' is a person who has attained the age of 55 years or is retired from fulltime employment, or a person who is or was the spouse or de facto partner of such a person.[49]

83 The second element of the scheme which makes that scheme a retirement village scheme under the RV Act is that it is a scheme under which 'residential premises' are occupied (clearly, albeit implicitly, by retired persons). Under the RV Act,[50] 'residential premises' means a premises or part of a premises used as a place of residence, and includes a hostel unit. That definition is clearly intended to encompass a wide variety of forms of residential accommodation, and so is capable of encompassing houses, villas, flats or units within a hostel complex, or indeed any other forms of residential accommodation whether comprising the whole or part of an individual premises. These forms of accommodation may cover a spectrum of residents' needs, and so may comprise premises which permit complete, or a high level of, as independent living by the occupants (and which are referred to, unsurprisingly, independent living units (ILUs), through to accommodation which caters for residents with a higher degree of dependency on external assistance in day to day living.

84 In addition, it is apparent from the definition of 'retirement village scheme' that the Parliament has sought to encompass residential premises occupied pursuant to the widest possible variety of legal arrangements, whether pursuant to residential tenancy agreements, leases or licences, or pursuant a right to occupy which derives from the ownership of shares, or from the ownership of the premises subject to conditions concerning the subsequent sale or disposal of the premises. The Parliament has also clearly been concerned to be able to encompass other mechanisms for occupation which might emerge in the future, by the prescription, through regulations, of other sources of a right to occupy residential premises in a retirement village setting.[51]

85 The third element of a scheme which makes that scheme a retirement village scheme under the RV Act is that under the scheme at least one resident or prospective resident[52] pays a premium in consideration for, or in contemplation of, admission as a resident under the scheme. Under the RV Act, a 'premium' is defined in the following way:

premium means a payment (including a gift) made to the administering body of a retirement village in consideration for, or in contemplation of, admission of the person by or on whose behalf the payment was made as a resident in a retirement village (including any such payment made for the purchase of residential premises in a retirement village or for the purchase, issue or assignment of shares conferring a right to occupy any such residential premises) but does not include

(a) any such payment excluded by regulation from the ambit of this definition; or

(b) recurrent charges.

86 As the definition makes clear, this payment is distinct from charges which may be payable by residents, such as for rent or services, on a recurring basis.[53] In some instances, such as the present case, it may be that numerous residents, or all residents, will be required to pay a sum to enter into occupation under the scheme, but in order for a scheme to constitute a retirement village scheme it is not necessary that all residents pay such a premium.

87 Fourthly, a necessary concomitant of this meaning of the word 'scheme' is that the programme of action, or plan or policy which constitutes the scheme must be adopted and implemented by a party. In my view, it is clear that that party must necessarily be the owner[54] of the land in relation to the retirement village, because that person or entity will be in a position to determine the purpose for which the residential premises on the land will be used. That is also consistent with the fact that obligations are imposed on owners of retirement village land prior to entering into any contract which gives rise to a right to occupy residential premises.[55]

88 Four things may be noted about the definition of 'retirement village' in the RV Act.

89 First, the definition of 'retirement village' has two key elements - on the one hand the buildings and appurtenant land which physically make up the retirement village, and on the other hand, the use or intended use for which the buildings and land are to be used. It is that use which transforms a complex of residential premises into something which is regulated under the RV Act. That use must be for the purpose of, or in connection with, a retirement village scheme.

90 Secondly, in so far as the definition of 'retirement village' refers to 'appurtenant' land, the word 'appurtenant' should be given its ordinary meaning of 'belonging, appertaining, pertinent'.[56] The word 'appurtenant' is often used in a statutory context to describe land or premises which pertains to, or is used in connection with, or which is necessary for, the use and enjoyment of other land or premises.[57] In my view, that is its intended meaning in the present context.

91 Thirdly, a question of construction arises in relation to the definition of 'retirement village' as to whether the words 'occupied or intended for occupation ... or used or intended to be used...' apply to both the complex of residential premises, and to the appurtenant land, or whether the definition should be understood as referring to a complex of residential premises occupied or intended for occupation under a retirement village scheme, and appurtenant land used or intended to be used for or in connection with a retirement village scheme.

92 Although it is difficult to envisage that any difference in the operation of the RV Act would arise whichever construction is adopted, the matter was the subject of submissions by the parties, and it is appropriate to deal with it. In my view, the words 'occupied or intended for occupation ...or used or intended to be used for or in connection with a retirement village scheme' should be read as applicable to both the residential premises and the appurtenant land. That is consistent with the fact that the reference to occupation and use appears at the end of the definition, whereas the drafter could have referred to occupation immediately after the words 'a complex of residential premises, whether or not including hostel units'. In addition, although various provisions of the RV Act refer to the occupation of premises,[58] other provisions refer to the occupation of land or to the use of a place.[59] In other words, concepts of occupation and use are used interchangeably with respect to premises and land elsewhere in the RV Act.

93 Fourthly, the definition of 'retirement village' also refers to an intention as to the occupation or use of the premises or land under, or for or in connection with, a retirement village scheme. While Retirement Care and the Commissioner submitted that it was the intention of the owner of the land in question which gave rise to the existence of the retirement village, I understood the Schedule A defendants to submit that the concept of intention encompassed the intention of the residents of the retirement village as well as the owners. The evidence of the resident witnesses (and Mr Colton's submissions) which I have set out above indicates that in so far as those residents have a subjective 'intention' with respect to the use of the Land, that intention is that the whole of the Land (including Lot 889) should be used for or in connection with the Retirement Village. However, I am unable to accept that the intention referred to in the definition of 'retirement village' extends to the intention of the residents themselves. In my view, the intention there referred to is the intention of the owner of the premises and land which make up the retirement village, for the following reasons.

94 The primary reason for the inclusion of the reference to 'intention' seems to be as a means of ensuring that the provisions of the RV Act will apply to premises and land before any residents take up residence. In other words, premises and land can become a 'retirement village' before any residents commence residing there. By ensuring that the premises and land constitute a 'retirement village' once the owner of the land forms an intention that the premises and land be used or occupied under, or for or in connection with, a retirement village scheme, the provisions of the RV Act apply, so that the owner will become subject to a range of obligations in the RV Act which are designed to protect the interests of residents who will live in the retirement village in due course.[60]

95 However, for completeness I note that the concept of 'intention' to occupy or use premises or land for or in connection with a retirement village scheme also appears to have relevance after the scheme is brought to an end. That is because the memorial over land used as a retirement village may be cancelled when the Registrar 'is satisfied that no part of the land to which a memorial relates is still used, or 'proposed' to be used, as a retirement village'.[61] The word 'proposed' clearly requires consideration of the owner's intention with respect to the future use of the land.

(d) Some conclusions about the meaning and operation of the definitions of 'retirement village' and 'retirement village scheme'.

96 It will be apparent from what I have said that in my view a 'retirement village scheme' under the RV Act is the programme of action or plan or policy which contains the three elements to which I have referred. Nothing in the definition of 'retirement village' or in any other provision of the RV Act expressly warrants the conclusion that the land in a retirement village itself forms part of a retirement village scheme. Clearly there is a close relationship between the concept of the 'retirement village scheme' and the land in the retirement village, because there cannot be a 'retirement village' under the RV Act without both the premises and land, on the one hand, and on the other hand, the scheme in connection with which the premises and land are used. Despite their close inter-connection, however, a 'retirement village scheme' and a 'retirement village' are discrete concepts under the RV Act, and cannot be understood interchangeably.

97 The absence of any of the three elements of the definition of 'retirement village scheme' will mean that a residential complex and appurtenant land cannot be said to be used or intended for use under a 'retirement village scheme' and therefore cannot constitute a 'retirement village' for the purposes of the RV Act. So, for example, a complex of residential premises which are not offered for occupation by retired persons (pursuant to a programme of action or plan or policy pursued by the owner of that land) will not be used for a retirement village scheme and thus could not constitute a 'retirement village' for the purposes of the RV Act. Similarly, if a residential complex is occupied by residents, none of whom ever paid an entry premium for the right to occupy those premises, that complex will not be used for a 'retirement village scheme' and will not constitute a 'retirement village' for the purposes of the RV Act.

6. Do the statutory charge and the memorial form part of a retirement village scheme?

98 As I have already noted, counsel for Retirement Care and for the Commissioner submitted that the statutory charges which arise under the RV Act and any memorial registered in respect of the land in a retirement village will form part of the retirement village scheme with respect to that retirement village. In contrast, counsel for the Schedule A defendants submitted that the statutory charge or charges were not a part of a retirement village scheme, but an incident of the existence of such a scheme, and that a memorial is not part of a scheme but serves the function of notification of the existence of a retirement village scheme.

99 For the reasons which follow, I have reached the view that a statutory charge and a memorial do not form part of a retirement village scheme for the purposes of the RV Act.

100 In this section of my reasons, I deal with the following:

(a) the nature and features of the statutory charge under s 20 of the RV Act;

(b) the nature and features of the memorial required to be lodged under s 15(3) of the RV Act;

(a) The nature and features of the statutory charge under s 20 of the RV Act

101 Subsection 20(1) of the RV Act provides that the rights of a resident to the repayment of a premium, or part of a premium, under s 19[62] 'are a charge on the land in the retirement village' (other than residential premises owned by a resident, or any prescribed part of, or interest in, a retirement village[63]).

102 The nature of the statutory charge created pursuant to s 20(1) of the RV Act is not expressly defined in the RV Act. The operation and effect of a statutory charge can only be ascertained through a process of construction of the statute in question.[64] The starting point in that process of construction is the fact that s 20(1) creates something called a 'charge' which invokes 'an institution of the general law and suggests the creation by force of the statute of a security for the payment of a debt'.[65] However, even though a 'charge' created by a statute may bear some similarities with the concept of a charge in the general law, the word 'charge' may be used in a statutory context in a sense which is broader or looser than that of a charge in the general law.[66] It is therefore important to bear in mind that the legal rights conferred under a statutory charge will depend upon the terms of the statute, and may differ in significant respects from that general concept of a charge.[67]

103 The statutory charge created pursuant to s 20(1) of the RV Act bears some similarity to an equitable charge, which refers to a security which arises by agreement between the parties to a transaction whereby property is made available for the purpose of discharging a debt at some stage in the future, but where the creditor gets no immediate legal right in, or any legal right to possession of, that property.[68] The effect of the equitable charge is that the chargee (that is, the creditor) may resort to the charged property only for the purpose of satisfying some liability due to the chargee.[69] The statutory charge under s 20(1) is clearly founded on the existence of the right of repayment of an entry premium pursuant to the terms of a residence contract, and applies to particular property (in this case land in the retirement village) as a form of security for a debt (namely the repayment of an entry premium or part thereof). However, the statutory charge which arises under s 20(1) operates more broadly than an equitable charge in a number of respects.

104 For present purposes, there are eight significant features of the statutory charge created pursuant to s 20(1). First, the statutory charge arises, by force of the RV Act itself, when a resident enters into a residence contract[70] and that residence contract contains a term which provides that an entry premium which is payable by the resident will be repaid in whole or in part on the happening of a contingency (the repayment of the entry premium).[71]

105 Secondly, the charge need not be registered to have effect.[72]

106 Thirdly, in the case where more than one resident in a retirement village pays an entry premium and has a right to the repayment of part of that entry premium, there will arise multiple statutory charges, each of which will protect the interest of a resident to the repayment of his or her entry premium.

107 Fourthly, the statutory charge created by the RV Act secures the repayment of the entry premium by operating as a charge on 'land in the retirement village'. The phrase 'land in the retirement village' is not defined. The definition of 'retirement village' comprises the buildings occupied under, and the 'appurtenant land' occupied under, or used for or in connection with, the retirement village scheme. In my view, the reference to 'land in the retirement village' does not refer only to the 'appurtenant land' referred to in the definition of a 'retirement village'. Rather, the 'land in the retirement village' is intended to encompass all of the land on which the retirement village is situated (that is, its buildings as well as the appurtenant land). That much is clear by virtue of the express exclusion from the land to which the charge attaches of 'any residential premises owned by a resident, or any prescribed parts of, or interests in, a retirement village'.[73]

108 Fifthly, the land which is charged continues to be liable to the charge notwithstanding any change in ownership of that land.[74]

109 Sixthly, the statutory charge does not give rise to any immediate legal right to the land or to possession in the land. The RV Act requires that the repayment of the entry premium must take place within specified time frames.[75] Any amount not repaid may be recovered as a debt from the administering body of the retirement village,[76] and if not recovered, only then is the charge enforceable against the administering body by the resident whose interest in the repayment is protected by the change. That resident may apply to this Court for an order for enforcement of the charge, which will involve the sale of the land charged.[77]

110 Seventhly, in determining if the land the subject of the statutory charge should be sold, the Court must be satisfied not only that the resident has attempted to execute a judgment against the administering body and has been unable to obtain the repayment of the total sum, but must also be satisfied that an order for enforcement would not be contrary to the interests of any of the residents of the retirement village.

111 Eighthly, the efficacy of the security afforded by the statutory charge is secured by the priority given to that charge by the RV Act in respect of other mortgages, charges and encumbrances in respect of the land.[78] As I have already noted, ordinarily (and it is the case in the present case) a statutory charge will have first priority over all other encumbrances over retirement village land.

(b) The nature and features of the memorial required to be lodged under s 15(3) of the RV Act

112 I turn next to the Memorial. There is little in the RV Act which provides an indication of the nature and status of a memorial.

113 I digress to note that notwithstanding that the RV Act requires the registration of a memorial,[79] 'memorials' are not referred to in the Transfer of Land Act 1893 (WA) (the TL Act). As I explain below, one of the purposes served by the requirement for the registration of a memorial is similar to that of the registration of an encumbrance under the TL Act,[80] and the manner in which the memorial may be removed reflects the removal of an encumbrance from the title to land under the TL Act.[81] However, the memorial itself does not constitute an 'estate, interest, right, claim or demand' of the kind referred to in the definition of an 'encumbrance' under the TL Act. Instead, it is the statutory charge under s 20(1) of the RV Act which constitutes the encumbrance, in the sense of the interest, right, claim or demand which may be made in respect of the land. However, because a statutory charge need not be registered to be effective,[82] the memorial serves some of the purposes which would otherwise be served by the registration of the statutory charge.

114 The memorial which is required to be lodged under s 15 of the RV Act serves three purposes. First, the overriding function of the memorial is a notification function. The memorial operates as a notice to the world at large that the land to which the memorial relates is used as a retirement village. That function is important because it alerts all persons who may have dealings with the residents or administering body for the retirement village, or with the land used for the retirement village, that the provisions of the RV Act apply.

115 The memorial also operates as a notice to prospective residents that the land on which the residential premises are located is used for a retirement village for the purposes of the RV Act (with the rights and obligations that that carries for residents of the village) and as a notice that the land may be subject to a statutory charge. The fact that the memorial serves as a notice to prospective residents is apparent from s 16(3) of the RV Act. That section permits a resident to rescind a residence contract if that contract was offered to the resident, or entered into with the resident, without the memorial having first been lodged (with the result that, by implication, the resident was not necessarily fully informed about the implications of residence on the land, given its use for a retirement village, or about the implications for the priority of a statutory charge if the memorial was not lodged in accordance with the RV Act[83]).

116 Further, the memorial serves the function of notifying persons who may have dealings in relation to the land used for the retirement village of the fact that the existence of a retirement village means that a statutory charge may apply to the land, and that any such statutory charge will have priority over subsequent encumbrances.[84] Given that the statutory charge need not be registered to be effective, the memorial may be the only means by which those dealing with the land (apart from residents of the retirement village) may be alerted to the fact that the land may be encumbered by a statutory charge.

117 Secondly, the memorial serves the practical function of identifying the land which is used for, or intended to be used for, the retirement village. That much is clear from the fact that the memorial must be registered on the register in respect of the land.[85] It is also apparent from the prescribed requirements which are to be included in a memorial.[86] The memorial thus constitutes a formal, public statement by the owner which identifies the land which is used, or is proposed to be used, for the retirement village scheme established by the owner. The identification of the land is important in a practical sense because the land identified in the memorial is the land to which the statutory charge will attach.[87]

118 Thirdly, the registration of the memorial is important in delineating the priority of the statutory charge as against all later encumbrances.[88]

(c) Why the statutory charge and the memorial do not form part of a retirement village scheme under the RV Act

RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASC 219 (31 May 2013)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (387 paragraphs)

RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASC 219 (31 May 2013)

Legislation Cited (10)

Cases Cited (11)