Div 7Resolution of disputes

Division 7—Resolution of disputes 45—Dispute resolution policy (1) The operator of a retirement village must have a written policy in relation to resolution of disputes between the operator and residents of the retirement village (a dispute resolution policy). (2) A dispute resolution policy must comply with any requirements prescribed by the regulations. (3) A copy of a dispute resolution policy must be provided, on request, to a resident of the retirement village (and must be so provided within 5 business days of the making of the request). (3a) In the event of a dispute between the operator of a retirement village and a resident, the operator must take all reasonable steps to resolve the dispute in accordance with the dispute resolution policy of the retirement village unless— (a) the resident, at the time of the dispute, agrees to take steps to resolve the dispute otherwise than in accordance with the dispute resolution policy; or (b) exceptional circumstances exist in relation to which the Tribunal has granted permission to apply to the Tribunal under section 46. (4) An operator who fails to comply with this section is guilty of an offence. 46—Application to Tribunal for resolution of retirement village dispute (1) A party to a retirement village dispute may apply to the Tribunal for resolution of the dispute. (2) However— (a) an application should not be made to the Tribunal unless— (i) the parties have made reasonable attempts to resolve the dispute in accordance with the operator's dispute resolution policy, or in accordance with an agreement under section 45(3a), and such attempts have failed to resolve the dispute; or (ii) the Tribunal has granted permission to apply, and permission is only to be granted in relation to exceptional circumstances in which an urgent application is warranted; and (b) an application must not be made to the Tribunal in relation to an act or omission that occurred more than 4 years before the day on which the application is made except with the permission of the Tribunal. (3) If, on application under subsection (1), the Tribunal finds that— (a) a party to the dispute has breached, or failed to comply with, a provision of this Act, a residence contract or a residence rule; or (b) an operator has acted in a harsh or unconscionable manner, the Tribunal may— (c) restrain the breach or failure to comply with this Act, a residence contract or residence rule; or (d) require action to comply with this Act or action in performance of a residence contract or residence rule; or (e) order the payment of an amount determined by the Tribunal as an amount payable under this Act, a residence contract or residence rule; or (f) order the payment of compensation for loss or injury (other than personal injury) caused by a breach of this Act, a residence contract or rule or a failure to comply with this Act, a residence contract or rule; or (g) require an operator to vary or reverse a decision or the effect of an act of the operator; or (h) order that a residence rule, or a provision of a residence rule, is void or modified as specified in the order; or (i) order a party to the dispute to refrain from future action of a kind specified in the order; or (j) avoid ab initio, or modify, terms or conditions of an agreement between an operator and a resident; or (k) require an operator to repay to a resident any amount paid by the resident pursuant to a term or condition of an agreement (that has been avoided or modified by the Tribunal); or (l) make any other order the Tribunal considers appropriate in the circumstances (including consequential or ancillary orders). (5) The Tribunal may refuse to determine an application under this section if the Tribunal considers that it is appropriate to do so for any reason. (6) The Tribunal may make an order under this section notwithstanding that it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which that remedy would not otherwise be available. (7) However, a member of the Tribunal who is not a legally qualified member (within the meaning of the South Australian Civil and Administrative Tribunal Act 2013) cannot make an order under subsection (6) without the approval of the President or a Deputy President of the Tribunal. (8) The Tribunal may make ancillary or incidental orders for the purposes of proceedings under this section. (8a) Without derogating from any other provision of this section, the Tribunal may, in connection with an application to the Tribunal under this section, make an order (a restraining order) restraining a person from engaging in conduct of a kind described in the order if the Tribunal is satisfied that— (a) there is a risk that the person will engage in the conduct; and (b) the conduct, if engaged in, will result in a breach of this Act, a residence contract or a residence rule. (8b) If a restraining order is made against a person without giving them a reasonable opportunity to respond to the proposed order, the Tribunal must allow the person a reasonable opportunity to satisfy it that the order should not continue in operation. (8c) A person must not contravene a restraining order. Maximum penalty: $50 000 or imprisonment for 2 years. (9) A dispute as to the payment of an exit entitlement may also be brought before a court competent to hear and determine a claim founded on contract for the amount in dispute. (10) This section does not derogate from— (a) the other provisions of this Act that relate to applications to the Tribunal; and (b) the jurisdiction of a court, or of another tribunal constituted by law. (11) In this section— resident of a retirement village includes a former resident of a retirement village.