AUSTRALIAN CAPITAL TERRITORY

Fair Trading Act 1992

RETIREMENT VILLAGES INDUSTRY 
CODE OF PRACTICE

Published by the Director of Consumer Affairs
for the Australian Capital Territory
November 1999

This Code of Practice commenced on 3 November 1999 by virtue of Regulation 4(h) of the Fair Trading Regulations which was inserted by the Fair Trading Regulations (Amendment) Subordinate Law No 27 of 1999 notified in Weekly Gazette No 44 on 3 November 1999.

CONTENTS

PART 1 - PRELIMINARY	
Division 1 - Interpretation and application	
Interpretation	
Agreement and voting rights	
Application of the Code	
Administration	
Division 2 - Objectives of the Code	
Objectives	
General Principles	
PART 2 - RIGHTS AND RESPONSIBILITIES OF RESIDENTS AND MANAGEMENT	
Division 1 - Basic Rights and Responsibilities	
Resident Privacy	
Autonomy over personal and financial affairs	
Sound management	
A Resident's right to membership of organisations	
Management to facilitate resale	
Division 2 - Resident Input to Village Management	
General principles guiding retirement village management	
Structures for resident input	
Resident input into budget	
Village rules	
PART 3 - DISCLOSURE IN ADVERTISING AND SALES PROMOTION	
Disclosure in advertising and sales promotion	
Prospective resident entitled to detailed information and proposed contract in advance	
Information to be provided by management to every prospective resident	
A resident's obligation to obtain information	
Development consent	
Aged care facilities	
Proposed facilities and services	
PART 4 - CONTENT OF CONTRACTS	
General requirements	
Cooling-off period	
Matters to be included in residence contract	
Accommodation plans and details	
Refund entitlements	
Termination by management	
Termination by residents	
Retirement Village Industry Code of Practice	
PART 5 — DISPUTE RESOLUTION	
Division 1 - Costs	
Costs of Dispute Resolution	
Division 2 - Resolution Of Disputes Within The Village	
Disputes Committee	
Applications to Disputes Committee	

Division 3 - Termination By Management	
Termination of a resident's right to occupy	
Notice of management's intention make an application	
Applications before the Contract Referee	
Decision of the Contract Referee	
Effect of decision to terminate resident's right to occupy	
Division 4 - Resolution Of Budget Impasse	
Budget Impasse	
Applications before the Budget Referee	
Decision of the Budget Referee	
PART 6 - CODE ADMINISTRATION COMMITTEE	
Code Administration Committee	
Code Administration Committee to appoint Independent Referees	
PART 7 - TRANSITIONAL PROVISIONS	
Transitional Application	
Transitional Arrangements	
PART 8 - MISCELLANEOUS PROVISIONS	
Code Handbook	
SCHEDULE A - INFORMATION TO BE PROVIDED IN WRITING BY MANAGEMENT	
SCHEDULE B - RESIDENT'S CHECKLIST	

PART 1 - Preliminary

Division 1 - Interpretation and application

Interpretation
1. In this Code, unless the contrary intention appears:

"Budget Referee" means the independent referee appointed by the Director for the purposes of Division 4 of Part 5 of the Code;

"Contract Referee" means the independent referee appointed by the Director for the purposes of Division 3 of Part 5 of the Code;

"Development Application" means an application for approval of a development under the Land (Planning and Environment) Act 1991;

"Director" means the Director of Consumer Affairs for the Australian Capital Territory or his or her nominee;

“Disputes Committee” means the Committee established under Division 2 of Part 5 of the Code;

“management” in relation to a retirement village, means the person by whom, or on whose behalf, the retirement village is administered and includes a person (other than a resident) who owns land within the village;

"residence contract" means a contract, agreement, scheme or arrangement by which a person obtains or maintains the right to occupy residential premises in a retirement village, and includes:

(a)	a lease;

(b)	a licence to occupy; 

(c)	a right conferred by shares;

(d)	a management agreement; or

(e)	an agreement for sale, or a conveyance, of property that is subject to the Unit Titles Act;

 “resident” means a person who occupies residential premises in a retirement village under a residence contract;

“residential premises” means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence; 

"resident funded' means residential care funded by the resident and not subsidised;

“retirement village” means an existing or proposed complex, or part of a complex, comprising residential premises (other than residential aged care facilities covered by  the Commonwealth Aged Care Act 1997) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons; 

"Unit Titles Act " means the Unit Titles Act 1970;

“village rules” means the rules with which residents of a retirement village are expected to comply by management, and includes any regulations (to which the residents are subject) in force under the Unit Titles Act; and

“working day” means a day other than a Saturday, Sunday or public holiday.

Agreement and voting rights
2. (1) In this Code, unless the contrary intention appears, "agree" means reach agreement by simple majority of votes cast by residents in accordance with this clause.

(2) Before any vote is taken, management shall ensure that residents receive appropriate notice, having regard to the circumstances of the village, including:

(a)	the number of residents; and 

(b)	the urgency of the issue to be determined.

(3) Only one vote may be exercised per residential premises, regardless of the number of residents occupying it.

(4) Where a matter is put to a vote:

(a)	the vote count is made on votes cast by those present in person or by proxy;

(b)	there is no casting vote;

(c)	subject to the Unit Titles Act and the village rules, a quorum shall be constituted by three residents present in person; and

(d)	the outcome of the vote binds all residents, notwithstanding that a resident may not have voted.

(5) Where the budget is the subject of the vote, agreement can only be reached in relation to the budget as a whole; individual components of the budget cannot be separated for the purposes of the vote. 

Application of the Code
3. (1) Subject to Part 7, the provisions of the Code are mandatory and apply to all, including the Crown, who promote, develop, sell or manage retirement villages or are residents of retirement villages in the Australian Capital Territory.

(2) No contract, scheme, agreement or arrangement shall operate to exclude any obligation imposed, or right granted, under this Code and where a provision of a residence contract is inconsistent with a provision of the Code, the residence contract shall be read as though the relevant provision of the Code is included in the contract.

 (3) Subject to subclause (5), a residence contract in force at the time of the commencement of the Code shall continue to apply, but after the end of the period of six months after the Code commences, any provisions of the Code shall prevail over any inconsistent provisions of the residence contract and the contract shall be read as though the relevant provisions of the Code were included in the contract.

(4) In relation to retirement villages that are subject to the Unit Titles Act, the Code is intended to supplement that existing regulatory scheme by providing further regulation that is specifically relevant to retirement villages.

(5) Notwithstanding any other provisions in this Code, subclauses 11(2)(b), 24(1), 28(3), 29(3) and 30(5) do not apply in respect of residence contracts in force at the time of the commencement of the Code.

Administration
4. The Code shall be administered by the Director.

Division 2 - Objectives of the Code

Objectives
5. The objectives of the Code are to:

(a)	promote fair trading practices in the provision of retirement villages and related services;

(b)	ensure that the well-being, rights and interests of residents, together with the rights and interests of management are given due consideration;

(c)	ensure appropriate standards of conduct are maintained in retirement villages;

(d)	promote confidence in the retirement village industry by ensuring that  services are provided in an ethical and professional manner and recognising the value of  residents  actively participating in decision-making process which affect them;

(e)	ensure the disclosure of all relevant information, including contractual documentation, to persons who are considering entering retirement villages,;

(f)	ensure the preservation of a resident’s right of privacy and autonomy over his or her own personal and financial affairs, including his or her own property, and clarify the rights and obligations of residents and management;

(g)	enable resident input, where desired by residents, into the management of retirement villages; and

(h)	establish appropriate dispute resolution mechanisms.

General Principles
6. The general principles guiding all those involved in the management and provision of retirement villages and related services are that:

(a)	the freedom of decision and action of each resident must be recognised and given due consideration in the relationship between a resident and the management of a retirement village;

(b)	the relationship of a resident with his or her family and past and present community is important and must be recognised.  This recognition must take account of the cultural, religious and linguistic background of the resident;

(c)	a resident must be treated fairly, and not be subjected to abuse or exploitation;

(d)	a resident has the right to autonomy over his or her, personal and financial affairs, including his or her own property; and

(e)	management must not engage in any harsh or oppressive conduct.

Part 2 - Rights aND RESPONSIBILITIES of Residents and Management

Division 1 - Basic Rights and Responsibilities

Resident Privacy
7. (1)  A resident has a basic right to privacy in personal accommodation which must be respected by management and other residents.

(2) Management and residents have the responsibility of facilitating a resident's quiet enjoyment of both their personal accommodation and any communal amenities.

Autonomy over personal and financial affairs
8. (1) A resident has a right to autonomy over his or her own personal and financial affairs, including his or her own property.

(2) A resident shall be given access to any personal file created about him or her by the management of a retirement village.

Sound management
9. (1) Residents, management and their representatives must recognise the basic need for the management of the retirement village to be conducted in a cost effective and financially prudent manner.

(2) Management must ensure that all financial accounts for the retirement village have been prepared in accordance with recognised accounting standards.

A Resident's right to membership of organisations
10. Management must not restrict the right of a resident to participate in any organisation of retirement village residents.

Management to facilitate resale
11. (1) Where a resident wishes to sell property that is subject to the Unit Titles Act, management shall, to the extent that management has the power to affect the sale of property, endeavour to facilitate the sale occurring as expeditiously as practicable, having regard to the following factors:

(a)	the resident's preferred timeframe for the completion of the sale; and

(b)	any substantial or extraordinary effect that the timing of the sale, or the sale price, may reasonably be expected to have on the value of other property within the village, having regard to market conditions.

(2) Where a resident wishes to sell property that is subject to the Unit Titles Act and management has the exclusive right to sell the property on behalf of the resident:

(a)	management shall not engage in a market practice that favours the sale of a unit owned by management over the sale of the unit owned by the resident; and

(b)	any exclusive right by management to sell the property shall cease if that property is not sold within 12 months of management receiving the resident's written notice of intention to sell. 

Division 2 - Resident Input to Village Management

General principles guiding retirement village management
12. The management structures established in a retirement village must be directed to ensuring that the following principles are adhered to:

(a)	resident input into the management of the retirement village is to be facilitated;

(b)	the freedom of decision and action of residents is to be restricted as little as possible; and

(c)	every resident is entitled to choose the extent to which the resident participates in the affairs of the retirement village.

Structures for resident input
13. (1) Management must, in consultation with residents, create appropriate structures for resident input and must consult with residents if it proposes to change those structures.

(2) Such structures must allow for:

(a)	management to present to residents the budget for the operation of the village for the following financial year and facilitate resident input into that budget in accordance with clause 14;

(b)	an annual meeting of residents at which residents:

(i)	shall be given the opportunity to consider and agree upon the budget for the following financial year; and 

(ii)	may discuss and decide the matters in subclause 15(2) of the Code;

(c)	residents to have input into and agree to any change to services or facilities which may involve increased costs to residents;

(d)	residents to have input into and agree to any change to services or facilities which may lead to loss of amenity by the residents;

(e)	residents to have input into and agree to proposals for the upgrading of buildings, fixtures or fittings where the residents are financing either the whole, or part, of the capital or recurrent costs of the work; and

(f)	residents to be provided with the audited accounts of the village against budget within four months of the end of each financial year.

Resident input into budget
14. (1) Management must supply residents with information on financial performance in the current financial year together with a draft budget for the coming financial year within a reasonable time prior to the beginning of the coming financial year.

(2) The draft budget should contain at least the following:

(a)	sufficient information to explain any increase in fees or charges;

(b)	information about the cost of services;

(c)	information about the special purpose dispute resolution charge levied in accordance with clause 32;

(d)	a general maintenance workplan; and

(e)	where appropriate, details of any upgrading or expansion of facilities and changes or additions to existing services.

(3) The final budget must be developed out of consultations between management and residents.

(4) Management must, as far as practicable, operate the village on the basis of the last agreed budget until any proposed budget has been agreed to by the residents of the village or a Budget Referee. 

Village rules
15. (1) A retirement village shall have a set of village rules.

(2) Residents must have input into and agree to the content of village rules and any subsequent amendment of, or addition to, the village rules.

(3) The village rules must accord with the general principles stated in clause 6 and must not purport to derogate from any rights or obligations provided for under the Code.

Part 3 - Disclosure IN ADVERTISING AND SALES PROMOTION

Disclosure in advertising and sales promotion
16. All advertising, promotional or sales material provided by the management of a retirement village about the village, whether in written or oral form must be:

(a)	written in clear, concise and plain language;

(b)	truthful, accurate and not misleading or deceptive;

(c)	consistent with the provisions of this Code; and

(d)	consistent with the Fair Trading Act 1992 and the Unit Titles Act.

Prospective resident entitled to detailed information and proposed contract in advance
17. (1) Management shall provide a prospective resident with detailed information, as required by clause 18, and a residence contract shall not be signed prior to five working days after that information has been provided, unless otherwise agreed by both parties in writing.

(2) Management shall provide a copy of the proposed residence contract to a prospective resident and the contract shall not be signed prior to five working days after the contract has been provided, unless otherwise agreed by both parties in writing.

Information to be provided by management to every prospective resident
18. (1) Management must make the following information available to every prospective resident of the retirement village:

(a)	a list of all fees and charges payable by the resident to enter the village;

(b)	a list of all periodical charges or fees payable by the resident, including:

 (i)	a clear outline of the method used to calculate those charges or fees and the method used to determine any variation; and

(ii)	if different methods are used to calculate fees and charges for different services, items or entitlements, a list of those methods;

(c)	a clear description of when each fee or charge is payable by the resident and what penalties, if any, will be imposed if the resident fails to pay his or her fees or charges when due;

(d)	a description of each of the services (including any personal care services and unit title services) provided for those fees;

(e)	a list of any additional or optional personal care or other services which are available to residents, a description of the party providing such services and, if available, the price for each service as indicated by the service provider;

(f)	where a service is to be provided by management or an independent agency on behalf of management, details of any potential restrictions on access to the service, such as eligibility requirements or waiting lists;

(g)	where a village offers a range of accommodation, such as self-care and hostel (low care) places, details of the costs and arrangements associated with moving to and living in the alternative accommodation, including any on-going fees and charges related to the vacant residential premises;

(h)	if the village is

(i)	already operating: a detailed budget relating to the operation of the retirement village (including information regarding the future maintenance of the village) for the current financial year; and

(ii)	still under construction: a projected budget;

(i)	if there are circumstances in which the operating budget of the retirement village may be used to fund facilities outside the village, a statement that:

(i)	identifies those facilities; and 

(ii)	details the extent to which the operating budget can be used for that purpose, including any limits on the amount of such funding.

(j)	written information as required by Schedule A to the Code;

(k)	a copy of the checklist set out in Schedule B to the Code; and

(l)	a copy of the village rules (including articles of the body corporate under the Unit Titles Act) applicable to the retirement village.

(2) Management must also make available to every prospective resident of the retirement village a clear explanation of the refund entitlement, if any, of a resident, if the residence contract is terminated, including the following:

(a)	any fees or commissions charged by management on termination of a contract;

(b)	details of the method used to calculate any such fees or commissions and any refund entitlement; and

(c)	sufficient details to enable a prospective resident to forecast the likely return due after approximately 1, 2, 5 and 10 years.

(3) The information must provide sufficient detail to allow a comparison to be made between the financial packages offered by different retirement villages.

(4) In the case of a property subject to the Unit Titles Act, management shall provide the owner of such property with a copy of the management agreement within five working days of a request by the owner.

A resident's obligation to obtain information
19. Residents should:

(a)	inform themselves about the residence contract and any other contracts relating to their residence in the retirement village; and

(b)	consider obtaining independent legal advice before signing any documents.

Development consent
20. (1) No sales promotion of a retirement village shall be undertaken unless a lease of Territory Land has been granted in respect of the village site and the lease contains a clause which permits the proposed development.

(2) Subclause (1) does not preclude the carrying out of a market survey prior to any sales promotion.

(3) If a Development Application must be approved before a retirement village:

(a)	can be built or operated; or

(b)	can engage in further development of its operations or premises,

a resident or a potential resident shall be entitled to a full refund of any consideration paid under a residence contract, in relation to the retirement village or the further development as the case may be, if that Development Application is not approved.

(4) Where a Development Application must be approved before a retirement village:

(a)	can be built or operated; or

(b)	can engage in further development of its operations or premises,

any sales promotion in relation to that retirement village shall identify the nature of the approval required and specify that a resident or potential resident is entitled to a full refund of the consideration specified in subclause (3) should that Development Application not be approved.

(5) Where a condition of an approved development includes a requirement that the developer provide certain services for the life of the development, that requirement must be disclosed to the prospective resident.

Aged care facilities
21. (1) If any promotional material or sales material provided by the management of a retirement village contains any reference to residential aged care facilities, the following requirements must be satisfied:

(a)	before such facilities are promoted as being available or associated with a retirement village any relevant approvals must be obtained from the relevant Territory or Commonwealth government department;

(b)	the promotional or sales material provided must contain the following words:

“You should be aware that access to residential aged care facilities is subject to your being assessed as eligible to receive  residential care under the Commonwealth Aged Care Act 1997 and a place for you cannot be guaranteed”.

(2) Paragraph (1)(b) does not apply to material provided in relation to residential care facilities that are fully resident-funded.

Proposed facilities and services
22. If any promotional or sales material gives rise to a reasonable expectation that certain facilities or services will be provided in relation to the village, the material must include a statement of any conditions on which the realisation of any of those facilities or services depends and state any proposed time-frames.

Part 4 - Content of Contracts

General requirements
23. A residence contract must:

(a)	be written in clear, concise and plain language and must not contain misleading or deceptive statements;

(b)	fully disclose all of the arrangements which will apply in relation to a resident’s occupation of the retirement village; and

(c)	fully disclose the legal basis of occupancy and the type and length of tenure secured by the resident;

(d)	be consistent with the provisions of the Code; and

(e)	be consistent with the provisions of all relevant legislation, including the Fair Trading Act 1992 and the Unit Titles Act.

Cooling-off period
24. (1) A residence contract must provide for a “cooling-off” period commencing the day after the contract is signed and ending at the expiration of the number of working days (being not less than five) specified in the contract.

(2) During the cooling-off period, a resident may withdraw from the residence contract without loss or penalty by giving notice in writing to management or its agent.

(3) The resident waives the cooling-off period if he or she takes up occupation of the premises during the cooling-off period.

Matters to be included in residence contract
25. A residence contract must provide for all matters in respect of which management is required to provide information to a prospective resident under clause 18.

Non-party Residents

26. (1) For the purposes of this Part, a "non-party resident" means a resident who is not a party to a residence contract.

(2) A residence contract must specify the circumstances, if any, in which a resident may permit a non-party resident to  reside in his or her  residential premises. 

(3) Where, under a residence contract, a non-party resident may occupy residential premises, the residence contract must provide detailed information on the rights and responsibilities of the non-party resident, including provision regarding the rights of the non-party resident in the case where the resident:

(a)	has his or her right to occupy the residential premises  terminated in accordance with Division 3 of Part 5; 

(b)	dies or abandons the premises; or 

(c)	terminates the residence contract.

(4) Where a non-party resident may occupy residential premises under a residence contract, subject to any contrary provision in that contract, the non-party resident shall comply with the village rules and the provisions of Part 5 of this Code apply to any dispute which may arise in relation to the application of those rules.

(5) Subject to subclause (4), management or a non-party resident may seek the assistance of the Director to enforce, under section 36 of the Fair Trading Act 1992, 
any relevant provisions of the residence contract under which that person is permitted to reside in residential premises.

Accommodation plans and details
27. (1) The residence contract documents must include or be accompanied by:

(a)	plans showing the location, floor area and significant dimensions of the accommodation;

(b)	plans showing the location, floor areas and other features of any separate carport, garage, storage areas or other area allocated to the resident; and

(c)	plans showing the development boundaries in which self-care units are located.

(2) The fixtures, fittings and furnishings which are to be provided must be listed in the contract documents.

(3) Any items for which maintenance will be the resident’s responsibility, or which are not covered by maintenance fees payable by the resident, must be so identified.

Refund entitlements
28. (1) If the residence contract provides for a refund, it must set out in full the method of calculation of the refund, the time for its payment and any relevant conditions on its payment.

(2) If there is to be no refund, the contract must specify that fact.

(3) Any refund entitlement which is calculated according to the period of occupancy must be calculated on a daily basis.

Termination by management
29. (1) The residence contract must contain:

(a)	an explanation of management's ability to terminate the resident's right to occupy residential premises (and, consequently, the residence contract) in accordance with Division 3 of Part 5 of the Code; and

(b)	a statement to the effect that a purported termination by management has no effect unless a decision allowing the termination has been obtained from a Contract Referee.

(2) Where a deferred fee or other charge is payable by a resident on departure, sale, or other termination of a residence contract, the amount of the fee or charge, or the basis for its determination, must be clearly set out in the residence contract.

(3) Any fee or charge that is subject to subclause (2) is to be calculated on a daily basis.

Termination by residents
30. (1) The residence contract shall specify all the circumstances in which the residence contract may be terminated by the resident.

(2) The residence contract shall address the rights and obligations of management, residents and any non-party residents in the case where a resident dies or abandons the premises. 

(3) The maximum notice of intention to terminate a contract that may be required of a resident is one month's written notice.

(4) If the residence contract is terminated by the resident, any refund, and any other money due under the contract, must be paid to that resident within the time required by this clause.

(5) Subject to subclause (6), the payment of the refund and other money must be made as soon as practicable but no later than six months after the former resident vacates the premises or any shorter time required by the contract.

(6) The payment of the refund and other money must not in any circumstances be made later than 14 days after the next resident takes up occupation of the premises.

Retirement Village Industry Code of Practice
31. (1) Management must specifically draw  to the resident's attention the existence of this Code before the resident signs the residence contract.

(2)  The residence contract must:

(a)	refer to the rights of residents to have disputes dealt with by the dispute resolution mechanisms established under this Code and the availability of mediation; and

(b)	draw the resident's attention to the provisions of this Code relating to the involvement of residents in management. 

PART 5 — Dispute Resolution

Division 1 - Costs

Costs of Dispute Resolution
32. (1) The costs of establishing and maintaining the dispute resolution processes under this Part of the Code shall be met from a special purpose dispute resolution fund raised by an annual fee levied on residents.

(2) All other costs shall be borne by the party incurring them.

Division 2 - Resolution Of Disputes Within The Village

Disputes Committee
33. (1) Management is required to establish a standing Disputes Committee to hear disputes that arise within a retirement village.

(2) The Disputes Committee is to have three members:

(a)	one person appointed by residents;

(b)	one person appointed by management; and

(c)	a chair appointed by agreement between the resident and management appointees.

(3) The residents and management of the retirement village must agree upon and establish a charter for the Disputes Committee that specifies, but is not limited to, the following:

(a)	the process to be followed by the Committee in determining disputes;

(b)	the length of appointments of members of the Committee; and

(c)	whether disputes are determined by majority or by unanimous decision.

(4) The charter for the Disputes Committee must be consistent with the dispute resolution processes of this Part.

(5) A member of a Disputes Committee shall not be liable for anything done or omitted to be done in good faith in or in connection with the exercise or purported exercise of any duties conferred on him or her under this Code.

Applications to Disputes Committee 
34. (1) Where a dispute arises within the charter of the Disputes Committee, a resident, a group of residents or management may apply to the Disputes Committee to have the matter heard.

(2) The Disputes Committee shall meet as soon as practicable after being notified of a dispute and shall, subject to subclause (3), decide the dispute in accordance with its charter.

(3) Where the nature of the dispute or any other circumstances of the case make it inappropriate or undesirable for the dispute to be determined by the Disputes Committee, the Disputes Committee shall decline to determine the matter and refer the dispute to mediation.

(4) Where the Disputes Committee determines a dispute, it shall advise the parties, in writing, of its decision within 30 days of receiving notice of the dispute. 

(5) Where the Disputes Committee decides the dispute or the matter has been successfully resolved by mediation, all parties shall be bound by the Committee’s decision or the mediation agreement and take all reasonable steps to put it into effect within a reasonable period of time.

Division 3 - Termination By Management

Termination of a resident's right to occupy
35. (1) A resident's right to occupy residential premises shall only be terminated by management in accordance with this Division.

(2) Management shall give the resident 14 days written notice, in accordance with clause 36, of its intention to make an application to the Contract Referee for a decision to allow the termination.

(3) Management may lodge with the Director a written application, to be determined by the Contract Referee, for termination of the resident's right to occupy residential premises on any of the following grounds:

(a)	that the resident's physical or mental health is such as to make the residential premises unsuitable for occupation by the resident;

(b)	that the resident has breached the residence contract or village rules and has failed to rectify the breach;

(c)	that the resident has intentionally or recklessly caused or permitted, or is likely to intentionally or recklessly cause or permit, serious damage to the residential premises or injury to the management, an employee of management or another resident; or

(d)	that the management would, in the special circumstances of the application, suffer undue hardship if the resident's right to occupy was not terminated.

(4) The Director shall, within 14 days of an application being lodged, appoint a Contract Referee from the panel of eligible persons appointed under Clause 44 to hear the application and refer it to him or her.

Notice of management's intention make an application
36. (1) A notice of intention to make an application under clause 35 must: 

(a)	clearly set out the grounds for the application;

(b)	clearly state that the resident's right to occupy residential premises cannot be terminated without the decision of a Contract Referee under clause 38 of the Code to allow the termination; and 

(c)	refer to the relevant provisions of the Code.

(2) Where termination is being sought because of a breach of the residence contract or village rules, a notice of intention to terminate given by the management must specify the breach.

Applications before the Contract Referee
37. (1) The Contract Referee may determine the procedure to be followed in determining an application made by management under clause 35.

(2) In considering the application, the Contract Referee is not bound by the rules of evidence but may inform him or herself on any matter relevant to the application in such manner as is reasonable and appropriate.

(3) The Contract Referee shall conduct the hearing of the application with as little formality and technicality, and with as much expedition, as is reasonably possible.

(4) In considering the application the Contract Referee is bound by the rules of natural justice.

Decision of the Contract Referee
38. (1) After considering an application made by management under clause 35, the Contract Referee shall decide whether or not it is reasonable to allow the termination of the resident's right to occupy residential premises by management.

(2) Where the Contract Referee decides the application, he or she shall prepare a written statement of reasons for the decision and provide it to the Director for distribution to the parties.

(3) Where the Contract Referee decides an application, all parties shall be bound by the Contract Referee’s decision and take all reasonable steps to put the decision into effect.

Effect of decision to terminate resident's right to occupy
39. Where management has initiated the termination of a resident's right to occupy residential premises and the Contract Referee has allowed that termination under clause 38, the residence contract is terminated and management must pay the resident any money to which the resident is entitled under the contract within one month of the termination or within 14 days of the next resident taking occupation, whichever happens first. 

Division 4 - Resolution Of Budget Impasse

Budget Impasse
40. (1) Where residents and management cannot agree to a final budget, management shall refer the budget to a Budget Referee by lodging a written application with the Director.

(2) The Director shall, within 14 days of an application being lodged, appoint a Budget Referee from the panel of eligible persons appointed under clause 44 and refer the budget to him or her.

Applications before the Budget Referee
41. (1) The Budget Referee may determine the procedure to be followed in determining an application.

(2) In considering the referral, the Budget Referee is not bound by the rules of evidence but may inform him or herself on any matter relevant to the referral in such manner as is reasonable and appropriate.

(3) The Budget Referee shall conduct the hearing of a referral with as little formality and technicality, and with as much expedition, as is reasonably possible.

(4) In considering the referral, the Budget Referee is bound by the rules of natural justice.

Decision of the Budget Referee
42. (1) The Budget Referee shall determine whether or not the budget is reasonable in all circumstances having regard to the objectives of the Code.

(2) The Budget Referee may:

(a)	approve a budget with or without amendments proposed by residents or management; or

(b)	refer the budget back to residents and management with his or her recommendations.

(3) Where residents and management still cannot agree to a budget that has been referred back to them, the Budget Referee may approve the budget without any amendment or with any amendment that he or she considers reasonable having regard to all circumstances and the objectives of the Code.

(4) Where the Budget Referee approves the budget, he or she shall prepare a written statement of reasons for the decision and provide it to the Director for distribution to the parties.

Part 6 - Code Administration Committee

Code Administration Committee
43. (1) There shall be a Code Administration Committee which shall consist of:

(a)	the Director;

(b)	a representative of the retirement village industry appointed by the Director;

(c)	a representative of residents of retirement villages appointed by the Director; and

(d)	such other people as the Director considers necessary for the Code Administration Committee to carry out its functions.

(2) The Chairperson of the Code Administration Committee shall be the Director.

(3) Each member of the Code Administration Committee shall be appointed for a period of two years and shall be eligible for reappointment.

(4) The Code Administration Committee shall meet at least twice each year but may meet more frequently as required.

(5) The Consumer Affairs Bureau shall provide secretariat services to the Code Administration Committee and shall facilitate the supply of appropriate information to the Committee to allow it to perform its functions under this Part.

(6) The Code Administration Committee shall:

(a)	monitor compliance with the Code;

(b)	monitor the operation and administration of the dispute resolution processes created under the Code; and

(c)	advise the Director on policy and procedures to promote the Code within the industry and its recognition by residents.

(7) The Code Administration Committee shall, within three months after the end of each financial year, submit a report to the Minister that shall:

(a)	identify any industry specific problems and recommend changes to inappropriate practices;

(b)	review the effectiveness of the Code and recommend amendments where appropriate;

(c)	provide details of the number of applications lodged under Divisions 3 and 4 of Part 5 of the Code and outline the outcomes of those applications; and

(d)	provide details of the number of principals found to be in breach of the Code and the nature of those breaches.

(8) A member, or former member, of the Code Administration Committee shall not be liable for anything done or omitted to be done in good faith in or in connection with the exercise or purported exercise of any duties conferred on him or her under this Code.

(9) A member, or former member of a Code Administration Committee shall not disclose any confidential or sensitive information acquired by him or her as a consequence of his or her position.

(10) The appointment of a member of the Code Administration Committee is not invalidated, and shall not be called into question, by reason of a defect or irregularity in, or in connection with, the appointment of the member.

(11) Where a member of the Code Administration Committee fails to attend two consecutive meetings of the Committee, without its leave, his or her appointment shall be deemed to have expired and the Director shall appoint a person in the outgoing member's place in accordance with subclause (1).

Code Administration Committee to appoint Independent Referees
44. (1) The Code Administration Committee shall, subject to this clause, appoint:

(a)	a panel of eligible persons to serve as Contract Referees for the purposes of Division 3  Part 5 of the Code; and

(b)	a panel of eligible persons to serve as Budget Referees for the purposes of Division 4 of Part 5 of the Code.

(2) A person shall only be appointed to the panel referred to in paragraph (1)(a) if he or she has been admitted to practise as a barrister or solicitor of an Australian Superior Court for at least five years.

(3) A person shall only be appointed to the panel referred to in paragraph (1)(b) if he or she has been practising as an accountant for at least five years with relevant qualifications from the Institute of Chartered Accountants, the Australian Society of Certified Practising Accountants or the National Institute of Accountants.

(4) The appointment of a person to a panel under subclause (1) is not invalidated, and shall not be called into question, by reason of a defect or irregularity in, or in connection with, the appointment of that person.

(5) Neither a Contract Referee nor a Budget Referee shall be liable for anything done or omitted to be done in good faith in, or in connection with, the exercise or purported exercise of any duties conferred on him or her under this Code.

(6) Where a member of the Code Administration Committee has an interest which could conflict, or appear to conflict, with the proper appointment of a person under this clause, the member shall advise the Committee and the Director of the interest and take no further part in the appointment.

Part 7 - Transitional Provisions

Transitional Application
45. (1) Subject to this Part, a person to whom the Code applies shall, for the first six months after the Code commences, comply with all the provisions of the Code to the extent that the person is reasonably capable of complying.

(2) After the end of that period, all persons to whom the Code applies shall comply with the provisions of the Code.

Transitional Arrangements
46. (1) Management shall, within the first six months of the commencement of the Code, provide all residents with written information as required by Schedule A to the Code.

(2) Until such time as the special purpose dispute resolution fund has been established under clause 32, management shall incur the costs of establishing and maintaining the dispute resolution processes under Part 5 of the Code.

(3) Management and residents shall take any monies paid in accordance with subclause (2) into account when considering the next budget of the retirement village.

Part 8 - MISCELLANEOUS Provisions

Code Handbook
47. The Director may authorise the publication of a handbook that assists management and residents in their understanding of this Code.

SCHEDULE A - INFORMATION To be PROVIDED in writing by MANAGEMENT

In accordance with clause 18 and clause 46, management must provide a resident, or prospective resident, with information, in writing, detailing the following:

1.	Whether a prospective resident is required to supply a medical certificate or report to certify the resident's ability to live independently;

2.	Whether a resident is required to provide documentation of his or her medical condition and medications and which persons shall have access to such documentation;

3.	Any restrictions on a resident  using the unit or village facilities, including restrictions in relation to: 
(a) 	having someone else live with the resident;
(b) 	having visitors, including overnight or short stay guests;
(c) 	car parking; and
(d) 	pets;

4.	Any variation to the living arrangements or fees, charges or commissions payable by a resident in the case where the number of occupants of that unit changes (eg, where the resident's spouse moves out of the unit to an aged care facility).

5.	The arrangements that exist for residents to participate in the management of the village and the making of the village rules;

6.	The Disputes Committee charter of the village;

7.	Whether a resident is protected against a loss of rights should the village be sold to another organisation or otherwise cease to operate;

8.	Any provision that has been, or may reasonably be expected to be made for infrequent items of expenditure such as long term maintenance, major repairs to buildings and capital replacement items;

9.	In the case of a unit subject to the Unit Titles Act, whether there are any restrictions on the resident on the sale of his or her unit;

10.	The management, including any trustees appointed with responsibilities in relation to the village; and

11.	The background and relevant experience of the retirement village's senior management. 

SCHEDULE B - RESIDENT'S CHECKLIST

The following is a list of questions that you should read through carefully and consider before deciding to enter any retirement village.

If, after reading through the list, you are uncertain as to any aspects of the village, or its suitability for you, you should seek further advice.

1.	Have I fully discussed my decision to enter a retirement village with my family, friends or advisers?

2.	If I am considering moving to a retirement village because the housework, gardening and general maintenance has become too much, have I fully considered other options? (For example, obtaining home help or handy person help, or moving to a smaller unit in the same neighbourhood.)

3.	Have I received adequate information about the retirement village I have chosen? Have I shown the documents to my solicitor? Am I satisfied that I fully understand the contract that I am signing?

4.	Do I know that the lifestyle of the village (including social activities and religion) will suit me? Have I spoken to any residents of the village?

5.	What type of public, private or village transport is there and where and when is it available to residents?

6.	Will the village and my unit be readily accessible if I become disabled and need a wheelchair or walking aid? What alternatives do I have if I become too frail to live alone?

7.	Will I need access to an interpreter or any special facilities that cater for disabled residents?  Is access to these facilities available at the village?

8.	Does the village provide an emergency call system and other facilities especially designed for the residents? Do these meet my present and likely future needs?

9.	Have I looked at a number of villages to compare the facilities and financial arrangements?

10.	If the unit is still under construction, do I have a say in the design, construction, finishing or furnishing of the unit? If the unit is already constructed, do I have any right to alter existing fixtures or fittings or to add new fixtures and fittings?

11.	Can I afford to live in the village I have chosen and what are the financial consequences for me if I do not like living in the village and wish to move out?

12.	Do I understand that recouping my refund, or realising any equity that I have, may be delayed pending resale, re‑leasing or re‑licensing the property? Does my contract outline when any refund is due to me after I leave? 

13.	Am I aware of the rights and responsibilities I have under the Retirement Villages Industry Code of Practice?