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)

Aged Care Act 1997 (Cth)

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

Fair Trading Act 2010 (WA)

Jetties Act 1926 (WA)

Planning and Development Act 2005 (WA)

Retirement Villages Act 1992 (WA)

Retirement Villages Regulations 1992 (WA)

Strata Titles Act 1985 (WA)

Transfer of Land Act 1893 (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:

1. The factual context;
2. Areas of factual dispute;
3. The relief sought;
4. Approach to construction of s 22 of the RV Act;
5. What is a 'retirement village' and a 'retirement village scheme' under the RV Act?
6. Do the statutory charge and the memorial form part of a 'retirement village scheme'?
7. The operation of s 22;
8. Section 22 does not apply in the present case;
9. Other issues interests relevant to the exercise of discretion by the Court in granting approval;
10. 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:

1. 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.
2. 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.
3. 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]

1. 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;
2. 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
3. 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;

(c) the elements of a 'retirement village scheme' and a 'retirement village' 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;

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

119 In my view, neither the memorial nor any statutory charge in respect of the land in a retirement village form part of the 'retirement village scheme' for the purposes of the RV Act, for two reasons.

120 First, as I have already observed, the definition of a 'retirement village scheme' is comprehensive, and does not suggest that the scheme is comprised of elements apart from the three discussed above in par [82] to [85].

121 Secondly, neither the existence of a statutory charge, nor the lodgement of a memorial, are prerequisites for the existence of a retirement village scheme. Although the definition of a 'retirement village scheme' requires that a resident has paid an entry premium, the existence of a retirement village scheme does not depend on the existence of a right to the repayment of that premium. Accordingly, it is possible (though perhaps not common) for a retirement village scheme to exist even though no statutory charge will exist in respect of the land used for or in connection with that scheme.

122 Similarly, a failure by an owner of a retirement village to lodge a memorial in accordance with s 15(3) of the RV Act will constitute an offence,[89] but will not mean that a retirement village scheme will not exist. (In fact, it is clear that the existence of a retirement village (and thus of a retirement village scheme) is what gives rise to the requirement to lodge the memorial[90]).

123 In my view, the existence of a statutory charge, and the registration of a memorial, over the land in a retirement village are practical consequences which may arise following the establishment of a 'retirement village scheme' and of a 'retirement village' under the RV Act. However, they do not, in my view, form part of a 'retirement village scheme' within the meaning of that term in the RV Act.

7. The proper construction of s 22 of the RV Act

124 Bearing in mind this lengthy discussion of the statutory context I turn now to the construction of s 22 itself. There are four features of s 22 which should immediately be noted.

125 First, the section speaks of the termination of the 'retirement village scheme'. Section 22 is not directed to the existence, or termination, of the retirement village. However, as I explained in par [96], without the existence of a 'retirement village scheme' there cannot be a 'retirement village' for the purposes of the RV Act. Accordingly, if a 'retirement village scheme' is terminated, then although the physical elements of the retirement village (the land and the residential premises) may remain they will no longer constitute a 'retirement village' for the purposes of the RV Act.

126 Secondly, the application under s 22 is not to terminate the scheme itself. Subsection 22(2) makes clear that the application to the Court is to obtain the Court's approval to terminate the scheme.

127 Thirdly, the Court clearly has a discretion as to whether to approve the termination of a retirement village scheme, and if it approves the termination, may make such orders as it thinks necessary to protect the interests of existing residents. That discretion is discussed further below. However, for present purposes, it is to be noted that the Parliament expressly placed the interests of the existing residents at the forefront of the Court's consideration in determining whether to approve a proposed termination.[91] That much is also consistent with the fact that the Parliament required that the Commissioner be a party to any proceedings in which the Court's approval for a termination of a retirement village scheme is sought.[92] (In the latter respect, it is not difficult to envisage that some of the residents of a retirement village for reasons of advanced age, poor health or infirmity, or limited resources may not be in a position to put before the Court all relevant matters concerning the interests of existing residents, or other considerations relevant to whether a scheme should be terminated. Although the Commissioner does not act for the residents, the role of the Commissioner as a party will be important in ensuring that all relevant considerations are drawn to the attention of the Court.)

128 Fourthly, s 22(1) constitutes a prohibition on the termination of a retirement village scheme. However, that prohibition applies only in the circumstances described, namely while a person who has been admitted to occupation of residential premises under the scheme remains in occupation of those premises.

129 What neither s 22 nor any other provision of the RV Act expressly addresses, however, is how a retirement village scheme is terminated, and what are the practical consequences of such a termination. In order to discern the intended meaning and operation of s 22 it is necessary to consider the answers to these questions. In this section of my reasons, I address the following issues:

(b) What are the practical consequences of the termination of a retirement village scheme?

(c) The construction of s 22 of the RV Act having regard to the purpose of the RV Act as a whole.

(a) How is a retirement village scheme terminated?

130 Retirement Care's case was that a retirement village scheme could be terminated if the elements of the statutory definition of a retirement village scheme were no longer present. Its submission was that the termination of a retirement village scheme would be brought about by the intention of the owner of the land in the retirement village, together with the approval of the Court (if required by s 22).

131 Counsel for the Schedule A defendants submitted that although a retirement village scheme would cease to exist upon the removal of its constituent elements, in that situation the question of a termination would not arise and there would be no need for the Court's approval.[93] He accepted the possibility of a unilateral termination of a retirement village scheme by the owner of the land in the retirement village (with the Court's approval, if required),[94] although he submitted that that could not be achieved without the repayment of any residents' entry premiums.[95]

132 However, counsel for the Schedule A defendants submitted that s 22 was primarily directed to the situation where the owner of the retirement village, and most of the residents of a retirement village, agreed that a retirement village scheme should no longer operate.[96] He submitted that in that situation, and following consultation with all stakeholders, the owner could come to the Court to seek its approval to terminate the scheme, notwithstanding that a minority of the residents of the village did not agree with that course.[97]

133 Counsel for the Commissioner noted that the RV Act is silent on how a retirement village scheme may be terminated. He did not contend that a unilateral termination of a retirement village scheme was not possible. However, counsel for the Commissioner submitted that a retirement village scheme could not come to an end simply because the elements of the definition of a scheme were no longer met. Counsel for the Commissioner submitted that a scheme would continue to exist until such time as it was terminated in accordance with s 22.

134 Section 22 of the RV Act uses the words 'be terminated' and 'termination'. The meaning of the word 'terminate' is 'bring to an end, put an end to'.[98] Having regard to the definition of 'retirement village scheme' and to the use of the words 'terminated' and 'termination' in s 22, in my view s 22 contemplates the situation where action will be taken to bring about the result that there will no longer be in place a scheme (that is, a programme of action or plan or policy) which involves all three elements referred to in the definition of 'retirement village scheme'.

135 It is clear that the termination must be effected by the owner of the retirement village. As I explained in par [80] and [81] a retirement village scheme will come into existence because the owner of land on which residential premises are located implements a scheme which contains the three elements referred to in the definition of a 'retirement village scheme'. By the same token, the termination of a retirement village scheme will be brought about because the owner of the land in question stops implementing that programme of action or plan or policy.

136 In so far as the submissions by counsel for the Schedule A defendants may be understood to suggest that the intention of the residents of a retirement village would be relevant to bringing the termination into effect (as opposed to whether the termination should be permitted to take place) I am unable to accept that submission. As I have already observed, it is only necessary to obtain the approval of the Court for a termination of a retirement village scheme if a person admitted to occupation of residential premises under the scheme remains in occupation. There is otherwise no prohibition on the termination of a retirement village scheme without the approval of the Court. In the situation where no residents admitted to occupation while the scheme was in place remained in occupation, only the owner's intention or conduct could be relevant in bringing about the termination. It is difficult to see why the residents' intentions or, more correctly, their desires or preferences could actually bring about the termination, although clearly the views of the residents, and their interests, will be relevant to the question whether the Court should exercise its discretion to approve the termination.

(iii) What does 'admitted to occupation of residential premise under the scheme' mean?

137 Section 22 applies when at least one resident 'admitted to occupation of residential premises under the scheme' remains in occupation. The reference to 'admitted to occupation' in my view encompasses the variety of means contemplated in the definition of a 'retirement village scheme' by which a person may enter occupation of residential premises.

138 As for the meaning of the words 'admitted to occupation under the scheme', as I have already observed, the definition of 'retirement village scheme' does not require that all residents pay an entry premium. Accordingly, once a retirement village scheme comes into operation, so that at least one person has paid an entry premium in consideration for admission as a resident of the retirement village, other residents may take up occupation of premises in the retirement village without the payment of an entry premium, and yet will still enjoy the benefits of the regulation of the retirement village under the RV Act.

139 That in turn has a consequence for the operation of s 22 of the RV Act. Once a retirement village scheme has come into existence, and for so long as any resident (who commenced living in the retirement village after the commencement of the scheme) continues to live there, the approval of the Court to terminate the retirement village scheme will be required.

(iv) When and how may a termination of a retirement village scheme take place?

140 The fact that the Court's approval for termination of a scheme is only required if a resident under the scheme remains in occupation indicates that it would be open to the owner of a retirement village to wait until there were no longer any residents living in a retirement village, before 'terminating' the retirement village scheme without the approval of the Court. At that point, there will no longer be a retirement village scheme in any event because residential premises will no longer be occupied, and the other requirements for a retirement village scheme under the RV Act will no longer be met. As I explain below, at that point it would be open to the owner of the land to apply for the cancellation of the memorial over the land under s 15(8) of the RV Act.

141 The submissions of counsel for the Schedule A defendants traversed the possibility that a retirement village scheme could be terminated with the agreement of the residents of a retirement village, and the repayment of any entry premiums to residents who had a right to repayment. As I have already observed, the right to the repayment of an entry premium is not an element of, or precondition for, the existence of a retirement village scheme under the RV Act. Accordingly, even if all residents who had such a right to repayment were repaid, that would not result in the termination of a retirement village scheme, and it would still be necessary for the owner to obtain the approval of the Court while any residents remained in occupation who had commenced occupation under the scheme.

142 How, then, can a retirement village scheme be terminated? It is not necessary to canvas all the theoretical possibilities for how a termination of a retirement village scheme may be brought about. It seems to me, however, that the most likely situation will arise where the owner of a retirement village no longer wants to pursue a retirement village scheme, and wants to be able to use the residential premises and the land in the retirement village without the regulation of the RV Act. The owner of a retirement village may, for example, decide that it no longer wants to provide residential premises for occupation by retired persons, or primarily by retired persons, or may want to lease or sell the residential premises in the future without any requirement for any resident to pay an entry premium. A scheme of providing residential accommodation for the community generally (rather than for retired persons or predominantly retired persons) would not constitute a retirement village scheme under the RV Act. Similarly, a scheme for providing residential accommodation to persons (even retired persons) none of whom has paid an entry premium, is not a retirement village scheme under the RV Act. And leasing or selling land within a geographical area or complex for private residential accommodation (assuming all other legal requirements to do so could be met) without any particular scheme (or policy or plan) for doing so is not different from selling land in a housing estate or selling or leasing units in a strata complex.

143 It appears likely that bringing about the termination of a retirement village scheme would, in practical terms, ordinarily take some time. The requirement for the Court's approval to terminate a retirement village scheme appears intended to enable the owner of the retirement village to take the steps required to bring about the termination of the scheme, so that at some future point in time there will no longer be a retirement village scheme (and thus a retirement village) on the land.

(b) What are the consequences of a termination of a retirement village scheme?

144 Within the present factual context, the proposed termination of a retirement village scheme gives rise to three questions, namely:

(i) what are the consequences of termination (if any) for residence contracts and service contracts?

(ii) what are the consequences of termination (if any) for any statutory charge and memorial in respect of the land in the retirement village?

(iii) what are the consequences of termination (if any) for the application of the RV Act?

(i) what are the consequences of termination (if any) for residence contracts and service contracts?

146 It will be apparent from what I have already said about the elements of a retirement village scheme that in my view the termination of such a scheme will not, of itself, have any bearing on the residence contracts and service contracts which may exist between the individual residents of a retirement village and the owner of the retirement village. Those contracts will continue according to their terms. I did not understand any of the parties to advance any contrary view.

(ii) what are the consequences of termination (if any) for any statutory charge and memorial in respect of the land in the retirement village?

147 There was, however, a difference between the parties as to the effect of the termination of a retirement village scheme on any statutory charge over the land in the retirement village, and on the memorial over the land in the retirement village.

A. The parties' submissions in relation to the effect of termination on the statutory charge

148 As I have noted above, counsel for Retirement Care submitted that the termination of a retirement village scheme would necessarily terminate the statutory charge as well, because without a 'retirement village scheme' there would no longer exist land in a 'retirement village' to which the charge could apply. He submitted that a statutory charge only comes into existence by virtue of the provisions of the RV Act, and that what the legislature had given it could also take away as a result of the termination of a retirement village scheme. Counsel for Retirement Care accepted, however, that the impact of termination of a retirement village scheme on a statutory charge would be a matter to which the Court would give close consideration in determining whether its approval should be given to the termination of the scheme.

149 I understood the primary position adopted by counsel for the Schedule A defendants to be that a retirement village scheme should not be terminated, or alternatively that approval should not be given for its termination, without the repayment of all entry premiums to residents. If that repayment occurred, counsel submitted that the land in the retirement village would no longer be subject to any statutory charge. Counsel for the Schedule A defendants submitted that it was not open to the owner of a retirement village to effectively alter the security to which the statutory charge attached, by altering the land used in the retirement village in the manner proposed by Retirement Care.

150 Counsel for the Commissioner submitted that any statutory charge on the land in a retirement village would remain unless extinguished by the repayment of the entry premium which it secured, or by the sale of the land as contemplated in s 21 of the LV Act. Accordingly, his submission was that the termination of a retirement village scheme would have no bearing on the existence of the statutory charge over the land in the retirement village. Counsel for the Commissioner submitted that the implication of Retirement Care's case was that it was within the power of the owner of a retirement village (subject to the Court's approval) to alter the subject matter of any statutory charge which applied to the land in that retirement village. However, he submitted that the statutory charge under s 20 gave rise to a proprietary right, and that the presumption that legislation does not interfere with vested proprietary interests would apply in this case,[99] with the result that s 22 should not be construed in this way.

B. The termination of a retirement village scheme does not, of itself, extinguish a statutory charge

151 The statutory charge in s 20 is a creature of the RV Act. There is authority that the presumption that legislation does not interfere with proprietary interests does not apply in the construction of a statute which interferes with statutory rights, rather than vested proprietary interests.[100] In any event, there can be no question that the Parliament could specify the means by which a statutory charge under the RV Act will be extinguished, on the basis that what the Parliament has given, it may take away.

152 The question is whether s 20(1) should be construed as operating both to create the statutory charge, and to provide for the extinguishment of the charge when the land to which the charge attaches is no longer land in a retirement village. In my view, the answer to that question is reached not by the application of a presumption, but by a construction of the words in s 20(1), considered in their context (including s 20 as a whole, and s 21, together with the purpose of the RV Act).

153 In my view, the terms of s 20 and s 21 of the RV Act suggest that a statutory charge will only be extinguished in two circumstances. First, the charge will be extinguished if the resident is repaid the entry premium (because the charge arises from the right of a resident to repayment of a premium. If that premium is repaid, the right to repayment is extinguished.) Secondly, the charge will be extinguished if the land in the retirement village is sold pursuant to an order of the Court under s 21 of the RV Act (which will result in the payment to the resident, out of the proceeds of the sale, of an amount equivalent to the entry premium, or part thereof).[101]

154 There is nothing in the RV Act which expressly indicates that if a retirement village scheme is terminated, so that there could no longer be said to exist any land in a retirement village, that that would mean that all statutory charges would cease to exist in respect of the land in question.

155 One of the difficulties in the submission made by Retirement Care is that it is not at all clear how a statutory charge which applies to the land to secure the repayment of the entry premium, would simply cease to exist if that land no longer formed part of a retirement village, if there had been no repayment of the entry premium. It would be a most surprising outcome if a charge for the security of the payment of a debt - and which is given priority over other encumbrances, and survives changes in ownership of the land - were to simply evaporate, if there was a change in the status of the land to which the charge applied, and irrespective of whether the debt secured by the charge was repaid.

156 Such an outcome would be all the more surprising given that the purpose of the RV Act (which is discussed below at [166] to [173]) is predominantly to protect the residents of retirement villages, and the clear purpose of s 20 is to protect the interests of those residents who have a right to repayment of the whole or part of their entry premium (which may represent a very significant amount of money). Although in the present case Retirement Care proposes to 'reestablish' a retirement village scheme on Lot 888 immediately after the termination of the existing retirement village scheme, that course of events would not, in an ordinary case, occur following the termination of a retirement village scheme under the RV Act. In such a case, termination of a scheme - on Retirement Care's case - would terminate the statutory charge under s 20, leaving residents with no security for their right to repayment of the entry premium. In my view the extinguishment of the statutory charge under s 20, (without the repayment of the debt it secures) upon the termination of a retirement village scheme would be wholly antithetical to the protective purposes of the RV Act.

157 For these reasons, in my view, s 20(1) of the RV Act on its proper construction does not operate so that a statutory charge will cease to exist if a retirement village scheme is terminated.

158 Having said that, however, there are some indications that the Parliament contemplated that any statutory charge would apply to the land in question while it was being used for a retirement village scheme. The enforcement provisions in s 21 of the RV Act contemplate enforcement of the charge by the sale of the land only if the resident has first brought proceedings against the 'administering body for the time being of the land charged'.[102] Furthermore, land which is charged under s 20(1) continues to be liable to the charge despite any change in the ownership of the land, and the charge is enforceable 'against any administering body for the time being of the land'.[103] Similarly, in determining whether to permit enforcement of a statutory charge by the sale of land, the Court must take into account the interests of the other residents of the retirement village.[104] Clearly, the Parliament contemplated that enforcement of the charge would only be possible while an administering body of a retirement village was in existence, while other residents were residing in the retirement village, and thus while a retirement village scheme was in place. The latter considerations suggest that it was not within the Parliament's contemplation that a retirement village scheme would be terminated while there remained an extant liability for the repayment of an entry premium, secured by a statutory charge.

159 Although s 22 does not preclude the termination of a retirement village scheme while a statutory charge remains in place, s 22(3) makes clear that the interests of existing residents of a retirement village will be at the forefront of the Court's consideration in relation to whether to grant approval for the termination of a retirement village scheme. As I explain at [189] to [193], had it been necessary for me to decide the point in this case, I would not have been prepared to exercise my discretion to grant approval for the termination of the Scheme without the repayment of all entry premiums to which existing residents were entitled.

C. The parties' submissions in relation to the effect of termination of a retirement village scheme on a memorial

160 There was also a difference between the parties as to the effect of termination of a retirement village scheme on the memorial over the land used as a retirement village. Retirement Care's position was that upon termination of a retirement village scheme, the owner of the scheme would be able to apply to the Registrar pursuant to s 15(8) of the RV Act for the cancellation of the memorial, because once the scheme was terminated, no part of the land could be said to be used, or proposed to be used, as a 'retirement village' as defined in the RV Act.

161 Counsel for the Commissioner submitted that the cancellation of the memorial was a step which was quite independent of the termination of a retirement village scheme. He submitted that the cancellation of the memorial required an application to be made to the Registrar under s 15(8) of the RV Act, and that the requirement that 'no part of the land to which a memorial relates is still used, or proposed to be used, as a retirement village' would only be satisfied if there were no longer any residents living in the retirement village.

D. The termination of a retirement village scheme does not, of itself, affect a memorial over the land in the retirement village

162 I now turn to the memorial required to be lodged under s 15 of the RV Act. In my view, the termination of a retirement village scheme does not, of itself, have any direct bearing on the continued registration of the memorial on the Register in respect of the land in the retirement village. The only means by which a memorial may be cancelled under the RV Act is by an application to the Registrar under s 15(8) of the RV Act. In order to cancel the memorial, the Registrar will need to be satisfied of the matters referred to in s 15(8). In a situation where there were no longer any residents living in the retirement village, where all entry premiums had been repaid, where the owner of the retirement village had no intention of continuing to operate the retirement village scheme, and where the retirement village scheme was therefore terminated, evidence of those matters could be put before the Registrar to enable the Registrar to be satisfied that 'no part of the land to which [the] memorial relates is still used, or proposed to be used, as a retirement village'.

163 In other cases in which the termination of a retirement village scheme was effected with the approval of the Court, the Court's order granting approval and any other orders made to protect the interests of existing residents would clearly be highly relevant to the Registrar's decision as to whether to cancel the memorial.

(iii) what are the consequences of termination (if any) for the application of the RV Act

164 For the reasons outlined above the termination of a retirement village scheme will have the result that the residential premises and appurtenant land will no longer constitute a retirement village. That in turn will have the consequence that the provisions of the RV Act will no longer apply to the residential premises and land, or to the residents of the former retirement village. It is not necessary for present purposes to canvas the impact of that change, but as I explain below, the provisions of the RV Act confer significant benefits and protections on the residents of retirement villages. The loss of those benefits and protections by residents would clearly be a factor for consideration in determining whether the Court's approval should be granted for the termination of a retirement village scheme.

(c) The construction of s 22 of the RV Act having regard to the purpose of the RV Act as a whole.

165 The construction of the words in s 22, having regard to their ordinary meaning, and to the surrounding context, including the meaning and operation of other provisions in the RV Act, suggests that the termination of a retirement village scheme would not, of itself, have any impact on the existence of the memorial over the land in the retirement village or on any statutory charges which apply to that land. However, in construing s 22 of the RV Act having regard to the surrounding context, it is also appropriate to consider the purpose of the RV Act as a whole, and the purpose of s 22 within the context of that overall purpose.

166 In recent years, there has been an increase in the provision of private residential accommodation (of various kinds) for older people in village, or residential complex, settings. As the facts of the present case demonstrate, these accommodation arrangements are entered into by older people at a time in their lives when many of them will need or desire the assurance of long term security in relation to their living arrangements, when many of them will not have any significant bargaining power in negotiating the terms on which accommodation is offered, and when many of them will no longer be working either at all, or on a full time basis, and may not have a significant income stream, so that the provision of a large lump sum by way of an entry premium may assume an even greater financial significance than it otherwise would.

167 These were among the very concerns which led to the enactment of the RV Act. In the speech given by Mrs Henderson, then the Minister for Consumer Affairs, on the second reading of the Retirement Villages Bill 1991, the Minister observed:[105]

Over the past 10 years resident funded accommodation has become more heavily marketed. Retirement villages offer varying levels of resident support, from complete self care to supervised hostels and full-time nursing homes, often within the one complex. The promotion and advertising of villages appeals to seniors' needs for a low maintenance lifestyle with guaranteed security of tenure, [and] smooth and efficient administration providing a safe, financially viable investment. ...

Timely and well planned regulation of the industry will bring confidence and credibility. It will protect both the residents and the industry from future problems ... . With the rapidly aging population, dramatic growth in this industry is expected in the coming years. This growth must be built on a stable and secure base. ...

Over recent years, the retirement village industry has been characterised by diversity of legal and financial arrangements, as well as of the range, standards and cost of the facilities provided. Because of this choices are often difficult to make. For many seniors this is a most vulnerable time of life. Contracts between residents and village management are often lengthy and complex. By necessity these contracts include a great deal of detail. For many older people purchasing a place in a retirement village is their last major financial transaction. The decisions they make must suit their individual circumstances. ...

Achieving a sense of balance has been important in developing this legislation. Effective consumer safeguards are a central feature and the experiences in other states have been valuable. Yet the level of regulation must not be so excessive as to stifle desirable growth in the industry. ...

Penalties are built into the Bill to protect residents' rights of tenure. The owner of a retirement village is restricted in the ways in which a village can be used for other purposes. This is achieved in the Bill by means of a memorial which must be lodged on the title, restrictions in the manner of lifting the memorial and by a statutory charge which is linked to the memorial. ...

168 The RV Act is thus an example of consumer protection legislation: many of its provisions are designed to afford protection in various ways to the residents of retirement villages. At the same time, the regulation of retirement villages provides some certainty for the owners and administering bodies of retirement villages as to their obligations and rights, which is no doubt important given what may be a long-term and very significant investment in establishing a retirement village. For the owner of the land in the retirement village, for the administrator of the retirement village scheme, and for the residents themselves, the application of the RV Act has significant consequences.

169 I have already mentioned some of these consequences (that is, the statutory charge, and the registration of the memorial). For present purposes, it is not necessary to attempt a comprehensive summary of the ways in which the RV Act (and the Regulations made under the RV Act) regulates the conduct of retirement villages, or provides for the rights and obligations of owners and administering bodies of retirement villages.[106] It suffices to note four ways in which the RV Act protects residents and prospective residents of retirement villages.

170 First, the RV Act requires that the owner of a retirement village provide certain information to prospective residents prior to their entry into a residence contract, and prescribes a 'cooling off' period in which a resident may rescind a residence contract after entering into the contract and before entering into occupation of residential premises in a retirement village.[107]

171 Secondly, the RV Act secures the right of a resident of a retirement village to reside in the residential premises in the retirement village. It does so in two ways. The first is that the successor in title of the owner of the land used for the retirement village will be bound by any contract entered into between the owner and a resident of the retirement village.[108] In addition, a resident's right of occupation of residential premises in a retirement village cannot be terminated other than in specified circumstances, namely if the resident dies or abandons the premises, if the contract is terminated by the resident in accordance with the contract or under the RV Act, if the holder of a security in respect of the premises becomes entitled to vacant possession, or if the residence contract is terminated by the State Administrative Tribunal.[109] Residents are also protected by a prohibition on proceedings brought by the administering body of a retirement village to obtain recovery of possession of residential premises occupied by a resident of that retirement village, and a prohibition on persons entering residential premises occupied by a resident, for the purposes of recovering possession, other than pursuant to an order of a court or the Tribunal.[110]

172 Thirdly, the RV Act gives the State Administrative Tribunal jurisdiction to deal with a variety of disputes between residents of a retirement village and the administering body in respect of that retirement village, including disputes arising in relation to a service contract,[111] certain disputes arising under or in relation to residence contracts (such as disputes over the transfer of a resident from one form of accommodation with a retirement village to another form of accommodation[112]) and applications by an administering body to terminate a resident's right to occupy on various grounds.[113]

173 Finally, the RV Act prohibits any attempt to contract out of the provisions of the RV Act.[114]

(ii) The purpose of the RV Act and its implications for the construction of s 22

174 Given that the termination of a retirement village scheme would have the consequence that the RV Act would no longer apply, it is perhaps not surprising that the Parliament prohibited a termination without the approval of the Court in circumstances where residents of the retirement village admitted to occupation under the scheme remain in occupation.[115]

175 Nevertheless, s 22 does contemplate the possible termination of a retirement village scheme, notwithstanding that residents remain in occupation. There is, therefore, something of a balance being struck in s 22, between the ability of an owner to bring to an end a scheme which the owner no longer wishes to pursue, and the interests of any remaining residents of the retirement village who will be affected (at the very least by the fact that the RV Act will no longer apply) if the scheme is terminated. Although clearly the RV Act seeks to strike a balance between the rights and obligations of owners and residents, the balance falls heavily in favour of the protection of the interests of the residents of retirement villages, particularly in the long term certainty and security of their accommodation.

176 What is apparent from the provisions and purpose of the RV Act as a whole is that the Parliament intended that once a retirement village came into existence under the RV Act, so that the terms of that Act applied to regulate the rights and obligations of the owner, the administering body and the residents, the circumstances in which the RV Act would be rendered inapplicable would be limited. In that way, the interests of residents in the certainty and security of their accommodation would be secured. Within that context, an expansive construction of s 22 - in terms of the implications of the termination of a scheme, or the circumstances in which a termination will occur, would not promote the purpose and object of the RV Act.

177 The meaning of s 22 which I have drawn from the ordinary meaning of the words used in s 22 (including those words defined in the RV Act), considered within the context of the provisions of the RV Act as a whole, leads to the conclusion that the termination of a retirement village scheme will occur in the confined circumstances when the owner of the retirement village no longer wishes to pursue a plan or policy involving residential premises which meets the elements in the definition of 'retirement village scheme' in the RV Act, and will have no direct bearing on any statutory charges in respect of the land in the retirement village or on the memorial over that land. That meaning appears to be consistent with the purpose of the RV Act.

8. Section 22 does not apply in the present case

178 Retirement Care's case was that the relief it sought was able to be granted because what it proposes constitutes a termination of the Scheme. As I have already noted, the basis for that view is that the Scheme encompasses Lots 888 and 889, but that because Retirement Care no longer intends to operate a retirement village scheme on both Lots, the Scheme which presently exists would be terminated. Retirement Care's case then proceeded on the basis that if the Scheme were terminated over both Lots there would no longer be a 'retirement village' for the purposes of the RV Act on both Lots 888 and 889. Because a statutory charge under the RV Act applies only in respect of land in the retirement village, the Charges would from that point no longer apply to Lots 888 and 889. However, as Retirement Care would immediately have an intention to operate a retirement village scheme on Lot 888, Lot 888 would immediately constitute buildings and land used for a retirement village scheme, and thus would constitute a retirement village for the purposes of the RV Act. As a statutory charge arises from an obligation to repay entry premiums (which obligation would remain unchanged) and because a statutory charge applies to land in a retirement village, the statutory charges would thereafter apply to Lot 888.

179 Because Retirement Care does not propose to cease operating a retirement village scheme but to use only Lot 888 for that purpose, counsel for the Commissioner submitted that Retirement Care's application for approval of the termination of the Scheme was simply a device to secure Retirement Care's objective of freeing Lot 889 of the Charges and of the Memorial, so as to facilitate the sale of Lot 889. Retirement Care's case is that s 22 of the RV Act can be used to achieve that outcome.

180 The Commissioner submitted that although s 22 of the RV Act did not expressly contemplate an application of the kind brought by Retirement Care, there was no reason why s 22 could not be used for the purpose of such an application. Ultimately, the Commissioner did not take a position on whether the Court should grant or refuse approval for the termination of the Scheme. However counsel for the Commissioner submitted that the approval of the Court, if given, should be conditional upon the preservation of the first priority for the Charges vis-à-vis any other encumbrance pertaining to Lot 888.

181 As I understood his submissions, counsel for the Schedule A defendants submitted that s 22 was intended to operate when there were no residents who continued to reside at the Retirement Village or when a minority of residents refused to agree to the termination of a scheme. However, he also accepted that it was possible for s 22 to be relied upon for an application of the kind made by Retirement Care. Counsel for the Schedule A defendants submitted that even if s 22 was capable of application in the circumstances of this case, approval for the termination of the Scheme should be refused in the exercise of the Court's discretion.

(b) Retirement Care's application does not involve a termination of the Scheme

182 The analysis of the RV Act, and of the elements of s 22 in particular, which I have undertaken above, point to the conclusion that what Retirement Care seeks to do in this case does not involve a termination of the Scheme, and accordingly, that this is not a case to which s 22 applies. My reasons for that conclusion are as follows.

183 Retirement Care clearly intends to continue to implement a scheme for retired persons under which those persons occupy residential premises pursuant to contracts granting a right of occupation, and it will continue to be the case that some of those residents will have paid an entry premium to which a repayment right applies. In other words, all of the elements of a retirement village scheme which are presently met in the Scheme will continue to be met. In truth, what is intended is not a termination of the Scheme at all. The Scheme will continue unchanged.

184 Although Retirement Care does not wish to use Lot 889 for or in connection with the Scheme, the Land itself does not form part of the Scheme. Accordingly, Retirement Care's intention to cease using Lot 889 for or in connection with the Scheme cannot bring about the termination of the Scheme.

185 I accept the Commissioner's submission that what Retirement Care in fact wants to do is to excise Lot 889 from the Retirement Village, and to remove the Memorial and the Charges (without repaying the entry premiums) from Lot 889. Section 22 of the RV Act is not concerned with the termination of a retirement village, and neither s 22 nor any other section of the RV Act permits Retirement Care to excise land from a retirement village.

186 For the reasons I have set out above, the termination of a retirement village scheme would not ordinarily occur while statutory charges remained in place but in any event, termination would not, of itself, extinguish those charges.

187 Quite apart from the Charges, the termination of the Scheme would not, of itself, involve the cancellation of the Memorial. The removal of the Memorial would require steps being taken by the Registrar, following satisfaction of the criteria in s 15(8) of the RV Act. However, the Memorial has been registered over the whole of the Land, and thus presently is registered on the title to both Lot 888 and Lot 889. Retirement Care's intention is that the entirety of Lot 888 will still be used for the Retirement Village. Furthermore, by virtue of the existence of the Charges, it is not possible to say that no part of Lot 889 is 'used or proposed to be used as a retirement village'. That is because Lot 889 forms part of the security to which the Charges attach, and in my view Lot 889 is therefore land which is being used for or in connection with the Scheme. Accordingly, there does not appear to be any basis upon which Retirement Care could suggest that 'no part of the Land (to which the Memorial relates) is still used, or proposed to be used, as a retirement village' so as to seek the cancellation of the Memorial.[116]

188 Given that a termination of the Scheme would not extinguish the Charges or of itself cancel the Memorial, the relief sought by Retirement Care in proposed order 2 could not be granted. That being the case, there is an element of futility about Retirement Care's application.

9. Other issues - interests relevant to the exercise of discretion by the Court in granting approval under s 22 of the RV Act

189 For completeness I should note that even if I am wrong in my conclusion that s 22 does not apply because Retirement Care's proposed variation does not involve the termination of the Scheme, I would not have been prepared to grant approval for the termination of the Scheme, having regard to the existence of the Charges in respect of the Land.

190 Section 22 clearly gives the Court a discretion as to whether to approve the termination of a retirement village scheme. That discretion is unconfined in its terms. The factors which may be taken into account in the exercise of that discretion are similarly unconfined, save in so far as there may be found in the subject matter, scope and purpose of the RV Act some implied limitation on the factors to which the Court may legitimately have regard.[117]

191 The fact that the Court may approve the termination but with such orders as it thinks necessary to protect the interests of existing residents conveys the Parliament's intention that the protection of the interests of existing residents should be at the forefront of the Court's consideration of whether to grant approval for the termination of a scheme, and if so, as to whether any orders should be made to protect the interests of the residents. It was common ground between the parties that the interests of the existing residents were the paramount consideration in the exercise of the Court's discretion. However, no party suggested that that was the only consideration to which the Court could, or should, have regard.

192 All of the parties accepted that the existence of the Charges was a consideration relevant to the Court's exercise of discretion under s 22 of the RV Act. As I have indicated above, Retirement Care's position was that the Charges would be extinguished on the termination of the Scheme, because there would no longer be land in a retirement village to which they would attach. However, its case was that the commencement of a retirement village scheme in respect of Lot 888 would mean that the Charges would immediately apply to Lot 888. Counsel for Retirement Care submitted that there would be no overall adverse impact on the security offered by the Charges for the repayment of the entry premiums because the evidence established that the value of Lot 888 would considerably exceed the quantum of Retirement Care's liability to repay the entry premiums. He also submitted that there would be no loss of priority for the Charges as a result of the means by which Retirement Care proposed to bring the termination of the Scheme into effect.

193 These submissions were not without their attractions, particularly in view of the value of Lot 888 as compared with the quantum of Retirement Care's outstanding liability for the repayment of entry premiums. However, the fact remains that it was no part of the proposed variation that Retirement Care would immediately repay the entry premiums. Having regard to the view I have taken of the RV Act, that is the only way (other than as a result of the sale of the Land pursuant to an order of the Court) by which the Charges can be extinguished. As a consequence, the Court could not grant proposed order 2 of the relief sought. That would not achieve the result that Retirement Care seeks, and it was clear that the relief sought was sought as a package.

194 In the exercise of my discretion, this consideration alone would have warranted the refusal of Retirement Care's application for approval for the termination of the Scheme.

195 My conclusions in respect of the issues raised by this action are, in summary, as follows.

196 The termination of a retirement village scheme to which s 22(1) of the RV Act refers is the termination of a scheme which features the three elements set out in the definition of 'retirement village scheme' in s 3(1) of the RV Act. Although land in a retirement village will clearly be occupied under, or used for or in connection with, such a scheme, the scheme itself does not include that land. Nor does a retirement village scheme itself encompass either the memorial lodged in respect of the land used as the retirement village, or any statutory charges which may apply to that land under the RV Act.

197 Consequently, the termination of a retirement village scheme under s 22 will be effected when the owner of a retirement village determines to cease operating a scheme comprising all three elements in the definition of a retirement village scheme.

198 The approval of the Court will only be required for the termination of a scheme when a resident who entered into occupation of premises under the scheme remains in occupation. If no residents remain in occupation, the Court's approval for a termination will not be required.

199 The termination of a retirement village scheme will necessarily have the result that there will no longer exist a 'retirement village' for the purposes of the RV Act, so that the RV Act will no longer apply to regulate the rights and obligations of the owner, administering body and residents of the retirement village.

200 The termination of a retirement village scheme will not, of itself, extinguish any statutory charge over the land used as the retirement village. However, a scheme will not, ordinarily, be terminated if the owner of the retirement village remains subject to an outstanding liability to repay an entry premium or part thereof.

201 The termination of a retirement village scheme will not, of itself, result in the cancellation of the memorial over the land used as the retirement village. However, the fact of the termination of the scheme (and if appropriate, any approval given by the Court for that termination) will be relevant to the Registrar's consideration of an application to cancel the memorial under s 15(8) of the RV Act.

202 The termination of a retirement village scheme will not, of itself, have any bearing on the existing contractual relationships between the owner or administering body of the retirement village and the residents of the retirement village.

203 In determining whether to approve the termination of a retirement village scheme, the Court has a wide discretion. It is not necessary to determine the factors which may be relevant to the exercise of that discretion, save to make two observations. First, the interests of existing residents will be at the forefront of the Court's consideration in exercising that discretion. Secondly, if a statutory charge applies to the land in the retirement village, and if it is not proposed that that charge be extinguished by repayment, the continued existence of the charge would ordinarily weigh very heavily against the exercise of discretion to approve the termination of the retirement village scheme. It does not appear to have been contemplated by the Parliament that a scheme could be terminated without the repayment of the statutory charge.

204 The Court clearly has a wide discretion as to the making of such orders as it thinks necessary to protect the interests of existing residents.

205 In the present case, what is proposed by Retirement Care does not, in fact, constitute the termination of the Scheme, so that the Court's power under s 22 of the RV Act is not enlivened. However, even if I am wrong in that conclusion, so that what is proposed in fact constitutes the termination of the Scheme, I would not grant approval for the termination in view of the fact that Retirement Care remains subject to an obligation to repay the entry premiums or part thereof, so that the Charges apply to the Land. In those circumstances, the relief sought in paragraph 2 of the proposed orders could not be granted. The proposed orders were sought as a package and were not pursued separately.

206 The RV Act does not contain any provision which permits the owner of a retirement village to excise part of the land from a retirement village in a manner which will enable the memorial to be cancelled in respect of that part of the land. Nor does the RV Act contain any provision which would enable the statutory charges which apply to the land to be modified or varied to reflect a change in the land in the retirement village. Whether the RV Act should permit those changes to occur involves questions of policy which are properly matters for the legislature.

[1] Until December 2011, the Land was described as Lot 2237 on Deposited Plan 123689 which comprised Certificate of Title Volume 570 Folio 44A. Its present description on the Register of Land Titles is referred to in [13] below.

[2] Regis is a wholly owned subsidiary of Fairway Investment Holdings Pty Ltd.

[3] Letter from Shane Nelson, Deputy Commissioner of Titles to Principal Registrar of Supreme Court of Western Australia, dated 12 April 2008; see also ts 48, 145, 148.

[4] Volume 2780 folio 887 in respect of Lot 888, which now bears the street address 118 Monash Avenue Nedlands, and Volume 2780 Folio 888 in respect of Lot 889, which now bears the street address of 56 Smyth Road Nedlands.

[5] Exhibit D, Witness Statement of Michael Brian Horwood dated 28 August 2012, at [43]; Chronology of Events agreed as between Retirement Care and Schedule A defendants.

[6] Exhibit D, Witness Statement of Michael Brian Horwood dated 28 August 2012, at [43].

[7] The carriageway is marked as C1 on Deposited Plan 59743.

[8] In accordance with the provisions of the RV Act. Retirement Care also entered into a deed poll to this effect.

[9] In response to Retirement Care's Notice to Admit Facts dated 30 August 2012, the Commissioner admits that Retirement Care is obliged to repay entry premiums in an amount not exceeding $4.4 million. The Schedule A defendants admitted that Retirement Care is obliged to repay entry premiums in an amount not exceeding $5 million.

[11] See Valuation report dated 10 October 2012.

[14] Mortgage K369504, lodged 8 October 2007.

[15] Winter and Salvation Army (WA) Property Trust [2012] WASAT 17.

[16] First Defendant's Amended Defence at [2] and [8]; Schedule A defendants' Amended Defence at [3].

[19] Exhibit Q, Supplementary Witness Statement of Brett William Shea dated 21 November 2012, at [5].

[20] Exhibit J, Supplementary Witness Statement of Brett William Shea dated 16 November 2012, at [8].

[21] Exhibit J, Supplementary Witness Statement of Brett William Shea dated 16 November 2012, at [6] and [7].

[22] Section 5(2)(a) of the RV Act requires that the administering body of the retirement village be an 'approved provider' as defined in the AC Act in relation to the residential premises used or intended to be used as a place of residence by a resident of the retirement village.

[23] The term 'administering body' is defined in RV Act s 3(1) to mean 'the person by whom, or on whose behalf, the retirement village is administered and includes a person (other than a resident) who is the owner of land within the retirement village'.

[24] Note that no party went so far as to contend that any part of the RV Act was rendered inapplicable or invalid in its application to the aged care facilities on Lot 888 by virtue of the existence of the AC Act as a whole, or particular provisions within that Act.

[25] See the Prayer for the Relief in the Amended Statement of Claim.

[26] Minute of Plaintiff's Relief Sought dated 21 November 2012.

[27] Counsel for Retirement Care proposed that Retirement Care could take two courses of action to achieve this result. First, counsel submitted that Retirement Care could first lodge a new Memorial over Lot 888, then register a discharge of the Mortgage, then apply for the cancellation of the Memorial over Lot 889 (with a notation on the titles for Lots 888 and 889 to the effect that the earlier Memorial was extinguished in respect of those Lots) and lastly lodge a new mortgage over Lot 888 in the same terms as the existing Mortgage. Alternatively, counsel submitted that Retirement Care could apply for the cancellation of the Memorial over Lot 888 and Lot 889, then register a discharge the Mortgage, then lodge a new Memorial over Lot 888 and then lodge a new mortgage over Lot 888 in the same terms as the existing Mortgage.

[28] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ); AB v Western Australia [2011] HCA 42; (2011) 281 ALR 694, 697, 700, 703 (French CJ, Gummow, Hayne, Kiefel & Bell JJ).

[29] Interpretation Act 1984 (WA) s 18.

[33] Plaintiff's Outline of Submissions (Updated to Include Trial Book References) dated 14 November 2012 at [14], [18] and [19].

[34] Plaintiff's Outline of Submissions (Updated to Include Trial Book References) dated 14 November 2012 at [21].

[35] Plaintiff's Outline of Submissions (Updated to Include Trial Book References) dated 14 November 2012 at [22].

[36] Schedule A defendants' Outline of Submissions dated 16 November 2012 at [5].

[37] Schedule A defendants' Outline of Submissions dated 16 November 2012 at [7].

[38] Schedule A defendants' Outline of Submissions dated 16 November 2012 at [10].

[39] First Defendant's Outline of Submissions dated 15 November 2012 at [32].

[40] First Defendant's Outline of Submissions dated 15 November 2012 at [32].

[41] First Defendant's Outline of Submissions dated 15 November 2012 at [33].

[42] First Defendant's Outline of Submissions dated 15 November 2012 at [41].

[43] First Defendant's Outline of Submissions dated 15 November 2012 at [42].

[44] First Defendant's Outline of Submissions dated 15 November 2012 at [43].

[45] First Defendant's Outline of Submissions dated 15 November 2012 at [45].

[46] First Defendant's Outline of Submissions dated 15 November 2012 at [45].

[47] See for example Sheriff Gordon Mines Ltd v FCT [1977] VicRp 42; [1977] VR 342, 353; Douglas v Tickner (1994) 49 FCR 509, 519; Gardner v The Queen (2003) 39 MVE 308; and see DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, 2011) at [6.61].

[48] Macquarie Dictionary (4th ed, 2005).

[51] To date, no regulations have been promulgated for this purpose.

[52] The term 'resident' is defined in s 3(1) of the RV Act to mean in relation to a retirement village, a person who has been admitted to occupation of residential premises in accordance with a retirement village scheme and includes a spouse or de facto partner of such a person who is residing with that person or who was residing with that person at the time of his or her death.

[53] See the definition of 'recurrent charge' in RV Act s 3(1).

[55] See, for example, RV Act s 15 and s 16.

[56] Macquarie Dictionary (4th ed, 2005).

[57] See, for example, Jetties Act 1926 (WA) [s 4(1) and (1a)]; Strata Titles Act 1985 (WA) s 11; Transfer of Land Act 1893 (WA) s 167A, s 229A; Residential Tenancies Act 1987 (WA) s 3, Planning and Development Act 2005 (WA) s 121.

[58] See, for example, the definitions of 'residence contract', 'resident' and 'retirement village scheme' in RV Act s 3(1).

[59] See, for example, RV Act s 3(1) (definition of 'residential premises' which refers to the occupation of land, and to the use of the physical premises) and to s 5(2) (which refers to the use of residential premises).

[60] See, for example, RV Act s 15(3) and s 15(4) (the requirement to lodge a memorial, which applies when land is proposed to be used for the purposes of a retirement village, and before any residence contract is entered into); see also s 13(12) (the requirement for the owner to provide documents to a person five days before entering into a residence contract).

[62] This appears to be a reference to s 19(3) - (6) of the RV Act.

[63] No part of, or interest in, a retirement village has been prescribed for the purposes of the RV Act.

[64] Cinema Plus Ltd (administrators appointed) v Australia and New Zealand Bank Group Ltd [2000] NSWCA 195; (2000) 49 NSWLR 513 at 521 (Spigelman CJ).

[65] Bailey v New South Wales Medical Defence Union [1995] HCA 28; (1995) 184 CLR 399, 445 - 446 (McHugh and Gummow JJ).

[66] See, for example, Payne v Esdaile (1888) 13 App Cas 613, 622 - 623 (Lord Herschell).

[67] Bailey v New South Wales Medical Defence Union [1995] HCA 28; (1995) 184 CLR 399, 446 (McHugh and Gummow JJ).

[68] See National Provincial and Union Bank of England v Charnley [1924] 1 KB 431 at 449 - 450 (Atkin LJ).

[69] Associated Alloys Pty Ltd v CAN 001 452 106 Pty Ltd (in liq) [2000] HCA 25; (2000) 202 CLR 588 at 595 - 596 (Gaudron, McHugh, Gummow and Hayne JJ).

[70] 'Residence contract' is defined in RV Act s 3(1) to mean 'a contract, agreement, scheme or arrangement which creates or gives rise to a right to occupy residential premises in a retirement village, and may take the form of a lease or licence'.

[75] See RV Act s 19(3). These time frames for repayment of the entry premium apply only in the circumstances referred to in s 19(5), namely when a residence contract has been terminated in accordance with the terms of that contract, and the resident does not have the right to appoint an agent for the purpose of disposing of the resident's interest in the retirement village.

[76] See RV Act s 19(4). The definition of 'administering body' in s 3(1) refers to 'the person by whom, or on whose behalf, the retirement village is administered and includes a person ... who is the owner of land within the retirement village'.

[80] Under the TL Act s 4(1) the term encumbrances 'includes all prior estates interests rights claims and demands which can or may be had made or set up in to upon or in respect of the land, and a dealing that is registered under this Act'.

[81] Under the TL Act s 184 where the Commissioner of Titles is satisfied 'that any right or interest notified as an encumbrance ... have been fully satisfied extinguished or otherwise determined and no longer affects the land comprised in the certificate the Commissioner may either direct a statement to that effect signed by the Registrar to be endorsed on the certificate or permit any subsequent certificate dealing with the same land to be registered free from such encumbrance'.

[84] Under the RV Act s 15(3) a memorial must contain information prescribed under the Retirement Villages Regulations 1992. That prescribed information includes that date on which the memorial was lodged (see regulation 6) which may have a bearing on the priority afforded to any statutory charge over the land: see RV Act s 15(3) and 15(4).

[85] RV Act s 15(7). Regulation 6(a) of the Retirement Villages Regulations 1992 requires that the memorial contain a description of the land.

[86] Retirement Villages Regulations 1992 (WA) Reg 6.

[87] See RV Act s 20(3) which refers to an entry premium paid 'after the time within which a memorial in respect of the land to which the charge relates is required to be lodged under section 15'.

[90] See RV Act s 15(4) which refers to the owner of 'retirement village' land.

[93] Schedule A defendants' Outline of Submissions dated 16 November 2012 at [38].

[95] Schedule A defendants' Outline of Submissions dated 16 November 2012 at [40].

[98] Macquarie Dictionary (4th ed, 2005).

[99] See, for example, Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363 at 373 (Griffith CJ); R and R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603 at 619 - 620 (French CJ), and see generally the discussion in D. Pearce and R. Geddes, Statutory Interpretation in Australia, 7th ed, at [5.22].

[100] See Young v Owners of Strata Plan 3529 [2001] NSWSC 1135; (2001) 54 NSWLR 60 at [20] (Santow J).

[105] Parliament of Western Australia, Parliamentary Debates, Legislative Assembly, 16 May 1991 at 2049 - 2051.

[106] I note that the regulation effected by the RV Act is not the only form of statutory regulation applicable to retirement villages. Regulations made pursuant to the Fair Trading Act 2010 (WA) extensively prescribe the rights and obligations of residents of retirement villages, and administering bodies of retirement villages, in a variety of ways: see Fair Trading (Retirement Villages Interim Code) Regulations 2012 (WA) and Fair Trading (Retirement Villages Interim Code) Regulations 2013 (WA).

[109] RV Act s 17(1). Applications for termination may be made by the administering body of a retirement village in certain circumstances: see RV Act s 58, 59, 62 and 63.

[116] In view of this conclusion it is unnecessary to deal with another issue which arose in the course of submissions, namely whether the existence of the easement over Lot 889 (see par [28] above) which burdens Lot 889 for the benefit of Lot 888 means that Lot 889 is used for or in connection with the Scheme.

[117] Minister for Aboriginal Affairs and Anor v Peko Wallsend Limited and Ors [1986] HCA 33; (1986) 162 CLR 1 at 40 (Mason J).