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Consumer Affairs Legislation Further Amendment Bill 2014

TABLE OF PROVISIONSClause Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 3

PART 2—AMENDMENT OF OWNERS CORPORATIONS ACT 2006 4

3 Obligations of initial owner 44 Appointment and removal of manager 45 New section 119A inserted 4

119A Contract of appointment of manager 46 Duties of manager 67 New sections 122A and 122B inserted 8

122A Disclosure of beneficial relationship with supplier 8122B Disclosure of commission, payment or other benefit 10

8 Report 119 New Part 8A inserted 12

PART 8A—RETIREMENT VILLAGES 12

143A Application 12143B Fees 12143C Rules of owners corporation 13

10 VCAT may hear and determine disputes 1411 Eligibility for registration 1412 New section 182A inserted 15

182A Permission to be registered as manager despite criminal record 15

13 Automatic cancellation of registration 1614 New sections 186A and 186B inserted 18

186A Permission to continue to be registered as manager despite criminal record 18

186B Conditions on permission 1915 Repeal of section 199 20

PARLIAMENT OF VICTORIA

571523B.I-18/8/2014 BILL LC INTRODUCTION 18/8/20141

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16 New section 199 inserted 20199 Application of Australian Consumer Law and Fair

Trading Act 2012 20

PART 3—AMENDMENT OF RETIREMENT VILLAGES ACT 1986 22

17 Definitions 2218 Residence right not to be created unless retirement village notice

is lodged 2619 New section 10 inserted 27

10 Act applies to land until notice removed 2720 Repeal of section 12 2721 Resident to be given certain documents 2722 Cooling-off period 2723 In-going contribution to be held in trust 2724 New section 25A inserted 28

25A Early release of in-going contributions 2825 Section 27 substituted 29

27 Reference in this Part to residents 2926 Extinguishment of charge 2927 Purchaser and manager to enter into contract 3028 Annual meeting 3129 Proceedings at annual meetings 3130 Residents committee 3231 By-laws 3332 Increases in maintenance charge 3333 New section 38AA inserted 33

38AA Formula for calculation of adjusted maintenance charge 3334 Maintenance charges—former non-owner residents 3535 Payments to owner residents 3536 Cancellation of retirement village notices 3537 New section 39A inserted 37

39A Notices and charges recorded in error 3738 New sections 47 and 48 substituted 37

47 Transitional provision—Extinguishment of charge relating to residential care facilities—Consumer Affairs Legislation Further Amendment Act 2014 37

48 Transitional provision—Cancellation of notices relating to residential care facilities—Consumer Affairs Legislation Further Amendment Act 2014 39

39 Repeal of redundant Schedule heading 42

PART 4—AMENDMENT OF SALE OF LAND ACT 1962 43

40 What is a terms contract? 43

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40

PART 5—AMENDMENT OF VETERANS ACT 2005 44

41 Minister to seek advice of the Victorian Veterans Council 4442 New sections 33A and 33B inserted 44

33A Amendment to trust deed of patriotic fund 4433B Amalgamation of patriotic funds 45

43 Transfer of patriotic funds outside the State 4644 New section 36A inserted 47

36A Validation of transfers made without prior approval 47

PART 6—AMENDMENT OF AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012 49

45 Prohibited debt collection practices 49

PART 7—REPEAL 50

46 Repeal of amending Act 50═══════════════

ENDNOTES 51

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A Bill for an Act to amend the Owners Corporations Act 2006, the Retirement Villages Act 1986, the Sale of Land Act 1962, the

Veterans Act 2005 and the Australian Consumer Law and Fair Trading Act 2012 and for other purposes.

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to amend the Owners Corporations Act 2006—

(i) to better regulate the managers of owners corporations; and

(ii) to make particular provisions in relation to owners corporations incorporated in relation to land used or to be used for

Introduced in the Council



PARLIAMENT OF VICTORIA

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the purposes of a retirement village; and

(b) to amend the Retirement Villages Act 1986—

(i) to clarify the interaction between that Act and the Owners Corporations Act 2006 in relation to retirement villages with owners corporations; and

(ii) to clarify the operation of that Act, in particular, in relation to the obligations of managers and owners of retirement village land and to remove anomalies and improve the terminology used in that Act; and

(iii) to provide for the early release of deposits and part payments paid by non-owner residents; and

(iv) to update the formula for the adjustment of maintenance charges and relocate that formula within that Act; and

(v) to extend indefinitely the period in which an application may be made in relation to a retirement village with premises falling within the definition of residential care facilities to extinguish the charge and remove the retirement village notice in relation to the land on which the premises are situated; and

(c) to amend the Sale of Land Act 1962 to clarify when a contract for the sale of land is a terms contract; and

(d) to amend the Veterans Act 2005—

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s. 1

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(i) to enable the Director to consent to the amendment of the trust deeds of patriotic funds; and

(ii) to provide for the approval by the Minister and the Director of the interstate transfer of assets from patriotic funds, subject to certain limits; and

(iii) to provide for the validation of certain transfers of assets from patriotic funds; and

(iv) to provide for the amalgamation of two or more patriotic funds; and

(e) to amend the Australian Consumer Law and Fair Trading Act 2012 to provide that a communication for the purposes of complying with any provision of the National Credit Code is not a prohibited debt collection practice.

2 Commencement

(1) This Part, sections 15 and 16, Part 3 (other than sections 23, 24 and 28), Part 4, Part 5, Part 6 and Part 7 come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision referred to in subsection (2) does not come into operation before 1 April 2015, it comes into operation on that day.

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s. 2s. 2

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PART 2—AMENDMENT OF OWNERS CORPORATIONS ACT 2006

3 Obligations of initial owners. 3

See:Act No.69/2006.Reprint No. 1as at16 August 2012and amendingAct Nos78/2013, 33/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

In section 68(3) of the Owners Corporations Act 2006—

(a) for "the majority of the lots" substitute "a lot to which is, or lots to which are, attached the majority of the lot entitlements of the lots";

(b) for "5 years" substitute "10 years".

4 Appointment and removal of manager

After section 119(1) of the Owners Corporations Act 2006 insert—

"(1A) A person must not be appointed as a manager for a period exceeding 3 years except in the prescribed circumstances.".

5 New section 119A inserted

After section 119 of the Owners Corporations Act 2006 insert—

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"119A Contract of appointment of manager

(1) A contract of appointment of a manager of an owners corporation must not include any term that requires the owners corporation—

(a) to pass a special resolution, a unanimous resolution or any other resolution requiring more than a simple majority; or

(b) to convene a general meeting of the owners corporation; or

(c) to take any other prescribed step—

to revoke the appointment.

(2) A contract of appointment of a manager of an owners corporation must not include any of the following—

(a) a term allowing the manager to renew the contract at its option;

(b) a term requiring—

(i) a prescribed owners corporation to give 3 months' or more notice; or

(ii) any other owners corporation to give one month's or more notice—

of its intention to revoke the appointment of the manager;

(c) a term providing for the renewal of the contract if the owners corporation fails to give notice, in accordance with the terms of the contract, of its intention not to renew the contract;

(d) a term that fetters the ability of the owners corporation to refuse consent to an assignment of the contract, other

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than a requirement that such consent must not be withheld unreasonably.

(3) A term referred to in subsection (1) or (2) that is included in a contract of appointment is void.

(4) If an owners corporation fails to give notice of its intention to renew a contract of appointment as required by the contract, the contract is taken to have been renewed on the basis that it is terminable by either party giving to the other party in writing—

(a) at least one month's notice; or

(b) if shorter notice is provided in the contract, that shorter notice—

of its intention to terminate the contract.

(5) If a contract of appointment requires that consent to the assignment of the contract must not be withheld unreasonably, the withholding of consent to the assignment to a person who is a full member of a professional body or association approved by the Director is presumed to be unreasonable.".

6 Duties of manager

(1) In section 122(1) of the Owners Corporations Act 2006—

(a) in paragraph (c), for "other person." substitute "other person; and";

(b) after paragraph (c) insert—

"(d) must take reasonable steps to ensure that any goods and services procured by the manager on behalf of the owners corporation are procured at competitive prices and on competitive terms; and

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(e) must not exert pressure on any member of the owners corporation to influence the outcome of a vote or election held by the owners corporation.".

(2) In section 122(2) of the Owners Corporations Act 2006—

(a) in paragraph (b), for "the manager." substitute "the manager; and";

(b) after paragraph (b) insert—

"(c) subject to subsection (3), must hold money held on trust for separate owners corporations in separate bank accounts; and

(d) must comply as soon as practicable with any reasonable request made by an owners corporation to provide copies of statements for accounts containing money held by the manager on trust for the owners corporation for any period within 3 years immediately preceding the request.".

(3) After section 122(2) of the Owners Corporations Act 2006 insert—

"(3) A manager may hold money held on trust for separate owners corporations in the same bank account if—

(a) the owners corporations are in the same plan of subdivision and each has consented to the money being held in the account together with the funds of the other owners corporations; or

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(b) the account is a statutory trust account held by—

(i) a licensed real estate agent under the Estate Agents Act 1980; or

(ii) a legal practitioner under the Legal Profession Act 2004; or

(iii) a licensed conveyancer under the Conveyancers Act 2006.".

7 New sections 122A and 122B inserted


"122A Disclosure of beneficial relationship with supplier

(1) For the purposes of this section, a manager has a beneficial relationship with the supplier of goods or services if the supplier is—

(a) the manager; or

(b) an associate of the manager; or

(c) a body corporate of which the manager, or an associate of the manager, is a member; or

(d) a corporation over which the manager (either individually or jointly with associates), or an associate of the manager, can exercise control; or

(e) a corporation of which the manager, or an associate of the manager, is an executive officer; or

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(f) in the case of a manager that is a corporation—an executive officer of that corporation or an associate of an executive officer of that corporation; or

(g) the trustee of a discretionary trust of which the manager, or an associate of the manager, is a beneficiary; or

(h) a member of a firm of which the manager, or an associate of the manager, is also a member.

(2) The manager of an owners corporation must disclose any beneficial relationship with a supplier with whom a contract is proposed to be entered into for the supply of goods or services to the owners corporation.

(3) Disclosure required under subsection (2) must—

(a) be given by written notice to the chairperson of the owners corporation; and

(b) subject to subsection (4), be given—

(i) immediately upon the manager becoming aware that the proposed contract is with a supplier with whom the manager has a beneficial relationship; and

(ii) before the contract is entered into.

(4) If, because of an emergency situation, it is necessary for the manager to enter into a contract and it is not reasonably practicable for the manager to disclose a beneficial relationship in accordance with subsection (3), the manager must disclose the relationship to the owners corporation as

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soon as practicable after the contract is entered into.

(5) A manager who fails to make a disclosure in accordance with this section breaches the duty of a manager under section 122(1)(c) unless—

(a) the manager was not, and could not reasonably be expected to be, aware of the beneficial relationship with the supplier before the contract was entered into; and

(b) the manager disclosed the relationship to the owners corporation immediately after becoming aware of the beneficial relationship.

(6) In this section—

associate, of a person, means—(a) an employee of the person; or

(b) a spouse, domestic partner, parent, brother, sister or child of the person or the person's representative; or

(c) a child of the spouse or domestic partner of the person or the person's representative;

control has the meaning given by section 50AA of the Corporations Act;

executive officer means any person, howsoever described and whether or not the person is a director of the corporation, who is concerned, or takes

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part, in the management of the corporation.

122B Disclosure of commission, payment or other benefit

(1) This section applies to a contract for the supply of goods or services to an owners corporation under which the manager of the owners corporation is entitled to receive (other than from the owners corporation) a commission, payment or other benefit.

(2) Before a contract to which this section applies is entered into, the manager must give written notice to the chairperson of the owners corporation disclosing the commission, payment or other benefit.

(3) If the contract is an insurance contract and the commission that the manager is entitled to receive is a percentage of the premium payable under the contract—

(a) the manager may disclose the percentage of the premium rather than the actual amount of the commission; and

(b) where the contract is renewed, the manager must make further disclosures of the commission only if the percentage of the premium increases.

(4) A manager who fails to make a disclosure required under this section is presumed to have breached the duty of a manager under section 122(1)(c).".

8 Report

(1) For section 126(2) of the Owners Corporations Act 2006 substitute—

"(2) The report must include—

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(a) details of the professional indemnity insurance held by the manager in compliance with section 119(5); and

(b) details of receipts and disbursements of trust monies in the relevant year, unless those details are included in the relevant financial statements prepared under section 34; and

(c) the amounts of commissions, payments and other benefits received by the manager in relation to contracts for goods or services supplied to the owners corporation during the relevant year.".

(2) After section 126(2) of the Owners Corporations Act 2006 insert—

"(3) For the purposes of subsection (2)(c), if the amount of a commission or other benefit cannot be reasonably ascertained, the manager must include in the report the manager's best estimate of the amount.".

9 New Part 8A inserted


"PART 8A—RETIREMENT VILLAGES

143A Application

(1) This Part applies to an owners corporation incorporated in respect of land used or to be used for the purposes of a retirement village within the meaning of the Retirement Villages Act 1986.

(2) A term used in this Part that is defined in section 3(1) of the Retirement Villages Act

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1986 has the same meaning given by that section.

143B Fees

(1) Despite Division 7 of Part 4, the owner of retirement village land used or to be used for the purposes of the retirement village, or a close associate of the owner, who has a majority of lot entitlements of the owners corporation is not entitled to vote on—

(a) a resolution levying fees under section 23; or

(b) a special resolution levying extraordinary fees under section 24.

Note

Under section 3(1) of the Retirement Villages Act 1986, retirement village land does not include land in respect of which residence rights are estates in fee simple (ie land occupied by a resident as a private residence).

(2) In the case of a special resolution referred to in subsection (1)(b), any reference in Division 7 of Part 4 to the total lot entitlements of all the lots affected by the owners corporation is to be read as a reference to those lot entitlements excluding the lot entitlements of the owner.

143C Rules of owners corporation

(1) Despite section 138(1) and (2), the rules of the owners corporation may only be made, amended or revoked by special resolution passed in accordance with the Retirement Villages Act 1986.

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(2) At a meeting of the residents of the retirement village in which a special resolution referred to in subsection (1) is being considered, the manager or the owner must not—

(a) participate in the consideration of the special resolution, except to the extent resolved by the residents present at the meeting; or

(b) vote on the special resolution.

(3) Subsection (2) does not prevent the manager or the owner convening a meeting of the residents of the retirement village to consider the making, amendment or revocation of the rules of the owners corporation.

__________________".

10 VCAT may hear and determine disputes

(1) In section 162 of the Owners Corporations Act 2006 insert—

(a) in paragraph (c), for "owners corporation." substitute "owners corporation; or";

(b) after paragraph (c) insert—

"(d) a term of the contract of appointment of a manager, including whether the term is fair.".

(2) At the end of section 162 of the Owners Corporations Act 2006 insert—

"(2) For the purposes of subsection (1)(d), in determining a dispute or matter relating to whether the term of the contract of

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appointment of a manager is a fair term, VCAT must have regard to Part 2-3 of the Australian Consumer Law (Victoria) as if a reference in that Part to a consumer contract were a reference to a contract of appointment of a manager.".

11 Eligibility for registration

(1) In section 179(c) of the Owners Corporations Act 2006, for "corporate." substitute "corporate; or".

(2) After section 179(c) of the Owners Corporations Act 2006 insert—

"(d) the person or, if the person is a corporation, a director of that corporation, has within the last 10 years been convicted or found guilty of—

(i) an offence involving fraud, dishonesty, drug trafficking or violence punishable by a term of imprisonment for 3 months or more; or

(ii) an offence that, if committed in Victoria, would constitute an offence referred to in subparagraph (i).

Note

Despite paragraph (d), a person to whom that paragraph applies may be granted permission to be registered under this Part if the Business Licensing Authority is satisfied that it is not contrary to the public interest to do so. See section 182A.".



"182A Permission to be registered as manager despite criminal record




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(1) A person to whom section 179(d) applies may apply to the Business Licensing Authority for permission to be registered as a manager.

(2) An application under subsection (1) must—

(a) be in the form approved by the Business Licensing Authority; and

(b) contain the information required by the Business Licensing Authority; and

(c) be accompanied by the documents required by the Business Licensing Authority; and

(d) be accompanied by the prescribed fee (if any).

(3) In considering an application under this section, the Business Licensing Authority may do one or more of the following—

(a) conduct any inquiries it thinks fit;

(b) require the applicant to provide any further information that the Authority thinks fit in the manner required by the Authority;

(c) seek advice and information on the application from any other person or body as it thinks fit.

(4) The Business Licensing Authority may refuse to consider the application if the applicant—

(a) does not provide any further information required by the Authority; or

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(b) does not give consent to the Authority to obtain that information within a reasonable time after the requirement is made.

(5) The Business Licensing Authority may permit the applicant to be registered under this Part if it is satisfied that it is not contrary to the public interest for it to do so.".

13 Automatic cancellation of registration

At the end of section 186 of the Owners Corporations Act 2006 insert—

"(2) Subject to section 186A, a person's registration as a manager is automatically cancelled 30 days after the person, or if the person is a corporation, a director of the corporation, is convicted or found guilty of—

(a) an offence involving fraud, dishonesty, drug trafficking or violence punishable by a term of imprisonment of 3 months or more; or

(b) an offence that, if committed in Victoria, would constitute an offence referred to in paragraph (a).

(3) For the purposes of subsection (2), the conviction or finding of guilt of the person takes effect on the later of—

(a) if the person appeals against the conviction or finding of guilt—

(i) the day on which the conviction or finding is upheld or confirmed; or

(ii) the day on which leave to appeal is refused; or

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(b) in any other case—at the end of the period during which the person may appeal against the conviction or finding of guilt.

(4) If a person whose registration would otherwise be cancelled by subsection (2) applies for permission under section 186A to continue to be registered as a manager within the 30 day period referred to in subsection (2), the person's registration is only automatically cancelled if the application is withdrawn or is refused by the Business Licensing Authority.".



"186A Permission to continue to be registered as manager despite criminal record

(1) A person to whom section 186(2) applies may, within the 30 day period referred to in that section, apply to the Business Licensing Authority for permission to continue to be registered as a manager.

(2) An application under subsection (1) must—

(a) be in the form approved by the Business Licensing Authority; and

(b) contain the information required by the Business Licensing Authority; and

(c) be accompanied by the documents required by the Business Licensing Authority; and




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(d) be accompanied by the prescribed fee (if any).

(3) In considering an application under this section, the Business Licensing Authority may do one or more of the following—

(a) conduct any inquiries it thinks fit;

(b) require the applicant to provide any further information that the Authority thinks fit in the manner required by the Authority;

(c) seek advice and information on the application from any other person or body as it thinks fit.

(4) The Business Licensing Authority may refuse to consider the application if the applicant—

(a) does not provide any further information required by the Authority; or

(b) does not give consent to the Authority to obtain that information within a reasonable time after the requirement is made.

(5) The Business Licensing Authority may permit the applicant to continue to be registered under this Part if it is satisfied that it is not contrary to the public interest for it to do so.

186B Conditions on permission

(1) In giving its permission under section 182A or 186A, the Business Licensing Authority may impose any conditions it considers appropriate to ensure the ongoing protection of the public interest.




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(2) The Business Licensing Authority may at any time impose conditions in respect of the permission or vary or revoke any conditions it has previously imposed.

(3) A person to whom permission has been given must comply with any conditions imposed in respect of the permission.

Penalty: 25 penalty units.

(4) If the Business Licensing Authority is satisfied that any condition imposed in respect of a permission has been contravened or not complied with, it may revoke the permission.

(5) Before taking action under this section, the Business Licensing Authority may seek and use information and advice from any person or body or other sources as it thinks fit.".

15 Repeal of section 199

Section 199 of the Owners Corporations Act 2006 is repealed.

16 New section 199 inserted

After the heading to Part 13 of the Owners Corporations Act 2006 insert—

"199 Application of Australian Consumer Law and Fair Trading Act 2012

(1) Part 6.4 of the Australian Consumer Law and Fair Trading Act 2012 (except sections 152, 153 and 175) extends and applies (with any necessary modifications) to this Act as if any reference in that Part to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act.




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(2) Sections 125, 195 and 196 and Part 8.2 (except section 213) of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act.

(3) For the purposes of subsection (2)—

(a) section 210 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference in that section to Part 3.1 or Part 6.3 of the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act;

(b) section 212 of the Australian Consumer Law and Fair Trading Act 2012 applies as if a reference to prescribed proceedings were a reference to—

(i) proceedings for an offence against a provision of this Act (except an offence applied by subsection (1)); or

(ii) proceedings on an application for an injunction under section 201, 202 or 203 of the Australian Consumer Law and Fair Trading Act 2012 (as applied by subsection (2)) against a person alleged to have contravened a provision of this Act (except an offence applied by subsection (1)); or




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(iii) proceedings on an application for an order under section 216, or for damages under section 217, of the Australian Consumer Law and Fair Trading Act 2012 (as applied by subsection (2)).".

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PART 3—AMENDMENT OF RETIREMENT VILLAGES ACT 1986

17 Definitionss. 17

See:Act No.126/1986.Reprint No. 6as at11 June 2009and amendingAct Nos1/2010, 13/2010, 63/2010, 72/2010, 21/2012, 2/2013, 17/2004 and 37/2014.LawToday:www.legislation.vic.gov.au

In section 3(1) of the Retirement Villages Act 1986—

(a) for the definition of annual meeting substitute—

"annual meeting means an annual meeting convened under section 33;";

(b) for the definition of close associate substitute—

"close associate, of a person, means—

(a) in the case of a natural person—

(i) the spouse, domestic partner, parent, child or sibling of the person; or

(ii) the parent, child or sibling of the spouse or domestic partner of the person; or

(iii) a body corporate of which the person (or a person referred to in subparagraph (i) or (ii)) is a director or secretary; and

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(b) in the case of a body corporate—

(i) a director or secretary of the body corporate or of a related body corporate (within the meaning of the Corporations Act); or

(ii) the spouse, domestic partner, parent, child or sibling of that director or secretary; or

(iii) the parent, child or sibling of the spouse or domestic partner of that director or secretary; or

(iv) a related body corporate; and

(c) in either case, an agent or employee of the person;";

(c) for the definition of committee substitute—

"committee means the residents committee elected under section 36;";

(d) for the definition of in-going contribution substitute—

"in-going contribution means—

(a) a payment, other than the payment of rent, made—

(i) by way of donation because of an understanding between a person and an owner or manager to the effect that, on the making of the donation, the person will be entitled to become a resident of the village; or

(ii) in consideration of acquiring shares in a company, if those




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shares confer on the holder the right to become a resident of a retirement village; or

(iii) in consideration of the right to become a resident; or

(iv) by a prospective owner resident in consideration for the purchase of a unit owned by a current owner resident or by the owner of retirement village land—

whether paid by or on behalf of the person who wishes to become a resident and whether paid in a lump sum or by instalments; or

(b) any deferred obligation of a non-owner resident to make a payment referred to in paragraph (a) other than an obligation to pay an amount on permanent departure from a retirement village that is calculated by reference to the period, or part of the period, during which the resident resided in the retirement village;";

(e) for the definition of maintenance charge substitute—

"maintenance charge means any of the following payable by a resident—

(a) a recurring charge for the provision of goods and services by an owner or manager;

(b) a recurring charge for capital purposes levied by a manager;




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(c) a recurring charge for the provision of goods and services by an owners corporation (other than an owners corporation incorporated in respect of a retirement village) in relation to facilities located on the common property of the owners corporation to which the resident is entitled under a management contract;";

(f) for the definition of owner substitute—

"owner means a person who alone or with others—

(a) in relation to retirement village land in an identified folio under the Transfer of Land Act 1958 or retirement village land not under the operation of that Act—is the owner of an estate in fee simple, whether the person is the beneficial owner or holds the land on trust or subject to an equity of redemption or similar right; and

(b) in relation to retirement village land under the operation of the Transfer of Land Act 1958 (other than retirement village land in an identified folio under that Act)—is registered as the proprietor of an estate in fee simple;";

(g) for the definition of prescribed period substitute—

"prescribed period means the period of 12 months ending 3 months before the




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date on which the annual meeting is to be held;";

(h) in the definition of residence documents, in paragraph (e), after "owner" insert "or manager";

(i) in the definition of residence right, for "residential hostel" substitute "residential, hostel";

(j) for the definition of resident substitute—

"resident means a retired person who lives or proposes to live in a retirement village;";

(k) for the definition of retirement village land substitute—

"retirement village land means land used or to be used for the purposes of a retirement village other than any part of such land—

(a) on which a residential care facility is situated; or

(b) in respect of which the residence rights are—

(i) estates in fee simple held as registered proprietors under the Transfer of Land Act 1958; or

(ii) in any other case, legal estates in fee simple;";

(l) insert the following definition—

"residents meeting, of a retirement village, means a meeting that residents living at

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the retirement village are entitled to attend and participate in and includes an annual meeting of the residents;".

18 Residence right not to be created unless retirement village notice is lodged

After section 8(1) of the Retirement Villages Act 1986 insert—

"(1A) For the purposes of subsection (1), a retirement village notice is lodged under section 9 in respect of a retirement village if the notice relates to retirement village land used or to be used for the purposes of the retirement village.Note

Retirement village land does not include estates in fee simple.".

19 New section 10 inserted

After section 9 of the Retirement Villages Act 1986 insert—

"10 Act applies to land until notice removed

(1) Subject to section 46, this Act applies to land in relation to which a retirement village notice has been lodged unless and until the notice is cancelled under section 39.

(2) Subsection (1) applies even if the land to which the notice relates is no longer used as a retirement village.".

20 Repeal of section 12

Section 12 of the Retirement Villages Act 1986 is repealed.

21 Resident to be given certain documents

For section 19(2)(d) of the Retirement Villages Act 1986 substitute—




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"(d) any other residence document that has not already been given to the resident.".

22 Cooling-off period

In section 24(4) of the Retirement Villages Act 1986, for "under this section" substitute "under subsection (2)".

23 In-going contribution to be held in trust

For section 25(1) of the Retirement Villages Act 1986 substitute—

"(1) This section does not apply to—

(a) any part of an in-going contribution paid as deposit money to which sections 24 and 25 of the Sale of Land Act 1962 apply; or

(b) the balance of the purchase price of vacant land payable to the vendor when the purchaser becomes entitled to a transfer or conveyance of the land.".



"25A Early release of in-going contributions

(1) This section does not apply to any part of an in-going contribution paid as deposit money to which sections 24 and 25 of the Sale of Land Act 1962 apply.Note

Section 27 of the Sale of Land Act 1962 applies to the early release of deposit money to which sections 24 and 25 of that Act apply.

(2) Subject to subsection (3), a resident may, in writing, authorise an estate agent or legal practitioner to release any in-going contributions received from the resident to




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the owner in the owner's own right or as the owner directs.

(3) An authorisation may only be given under subsection (2) if the residence contract in relation to which payment of the in-going contribution has been made is not subject to any condition that operates for the benefit of the resident.".

25 Section 27 substituted

For section 27 of the Retirement Villages Act 1986 substitute—

"27 Reference in this Part to residents

In this Part (other than section 32), a reference to a resident of a retirement village is to be read as including a reference to—

(a) a former resident of the retirement village; and

(b) if a person, who while a resident of the retirement village, has died—the person's legal personal representative.".

26 Extinguishment of charge

(1) After section 32(2) of the Retirement Villages Act 1986 insert—

"(2A) Before applying for a declaration that the charge is extinguished, the owner must serve notice of the application—

(a) on all residents of the land to which the application relates; and

(b) on each former resident to whom a refundable in-going contribution is owed in relation to the land; and




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(c) if a refundable in-going contribution is owed to the estate of a person—on the administrator or executor of the person's estate.

(2B) The notice must be in writing—

(a) stating that the owner intends to apply for a declaration under this section; and

(b) explaining the consequences of the making of the declaration; and

(c) stating that each person on whom the notice is served may make submissions to the Director within 60 days after service of the notice.".

(2) For section 32(3)(b)(ii) of the Retirement Villages Act 1986 substitute—

"(ii) the owner has served notice of the application in accordance with this section; and".


"(4A) The Director may waive any or all of the requirements applying to an application under subsection (2) in relation to retirement village land if—

(a) under section 209(4)(a) of the Supported Residential Services (Private Proprietors) Act 2010, the premises located on the land are taken to be a supported residential service registered under that Act; and

(b) pursuant to section 209(4)(b)(ii) of that Act, the proprietor of the premises has arranged for the premises to cease to be recorded in the register kept under section 38J of this Act.".

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(4) In section 32(6)(b) of the Retirement Villages Act 1986, for "all the residents notice" substitute "notice of the application".

27 Purchaser and manager to enter into contract

After section 32E(2) of the Retirement Villages Act 1986 insert—

"(2A) The owner resident must include a notice on the front page of the contract for sale of the premises stating that under this Act the contract is conditional on the purchaser entering into a management contract with the manager of the retirement village on or before the completion of the purchase.

Penalty: 50 penalty units.".

28 Annual meeting

At the end of section 33 of the Retirement Villages Act 1986 insert—

"(2) The manager must give to each resident at least 14 days' notice of the annual meeting that—

(a) specifies the date, time and place of the meeting; and

(b) indicates the general nature of each item of business to be considered at the meeting; and

(c) if requested by the resident, includes copies of the statements to be presented at the meeting.

Penalty: 10 penalty units.".

29 Proceedings at annual meetings

(1) In section 34(1) of the Retirement Villages Act 1986—




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(a) for "must prepare and present to the annual meeting a statement in writing, signed by the owner" substitute "must ensure that a written statement is prepared and presented to the annual meeting, signed by the owner or the manager";

(b) in paragraph (a) omit "to residents of the village".

(2) Section 34(2) of the Retirement Villages Act 1986 is repealed.

(3) In section 34(3)(d) of the Retirement Villages Act 1986, for "any proposed increases" substitute "any increases and any proposed increases".

(4) In section 34(4) of the Retirement Villages Act 1986, for "at the annual meeting held in the year immediately before the year in which the statement is to be presented" substitute "at an annual meeting".


"(4A) A special resolution referred to in subsection (4) may be passed—

(a) at the annual meeting held in the year immediately before the year in which the statement prepared under subsection (3) is to be presented; or

(b) at the annual meeting to which the statement is presented.".

30 Residents committee

(1) For section 36(1) of the Retirement Villages Act 1986 substitute—

"(1) The residents of a retirement village may elect a residents committee to represent the




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interests of the residents of the village.".

(2) In section 36(3) of the Retirement Villages Act 1986, for "by a meeting of residents" substitute "at a residents meeting".

(3) For section 36(6) of the Retirement Villages Act 1986 substitute—

"(6) The residents committee may convene a residents meeting other than an annual meeting.Note

Under section 33, an annual meeting of the residents must be convened by the manager of the retirement village.".

(4) Section 36(8) of the Retirement Villages Act 1986 is repealed.

31 By-laws

In section 37(4) of the Retirement Villages Act 1986, for "the meeting of residents" substitute "a residents meeting".

32 Increases in maintenance charge

(1) In section 38(1) of the Retirement Villages Act 1986, in the definition of adjusted maintenance charge, for "the regulations" substitute "section 38AA".

(2) In section 38(4) of the Retirement Villages Act 1986, for "a meeting of the residents" substitute "a residents meeting".

33 New section 38AA inserted





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"38AA Formula for calculation of adjusted maintenance charge

(1) The adjusted maintenance charge for a relevant financial year for an existing retirement village or a new retirement village that has been in operation for at least one relevant financial year must be determined in accordance with subsection (2).

(2) For the purposes of subsection (1), the adjusted maintenance charge must be determined for each relevant financial year for the retirement village in accordance with the formula—

A × BC

where—

A is—

(i) subject to subparagraph (ii), the adjusted maintenance charge for the previous relevant financial year for the village; or

(ii) in the case of a new retirement village that has been in operation for only one relevant financial year, the maintenance charge for that relevant financial year for the village;

B is the sum of the consumer price index numbers for each of the reference periods ending in the previous relevant financial year for the village;

C is the sum of the consumer price index numbers for each of the reference periods ending in the relevant financial year immediately preceding the




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previous relevant financial year for the village.

(3) The amount obtained by the application of the formula set out in subsection (2) may be rounded to the nearest multiple of 10 cents.

(4) In this section—

consumer price index means the all groups consumer price index for Melbourne in original terms published by the Australian Bureau of Statistics;

relevant financial year means in respect of a retirement village, a period that consists of 12 consecutive months commencing on the date fixed by the manager of the retirement village.".

34 Maintenance charges—former non-owner residents

In section 38B(3) of the Retirement Villages Act 1986, for "a resident of the village" substitute "a non-owner resident of the village".

35 Payments to owner residents

In the heading to section 38I of the Retirement Villages Act 1986, for "owner residents" substitute "former residents".

36 Cancellation of retirement village notices


"(2A) Before applying for a declaration that the notice is cancelled, the owner must serve notice of the application—

(a) on all residents of the land to which the application relates; and




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(b) on each former resident to whom a refundable in-going contribution is owed in relation to the land; and

(c) if a refundable in-going contribution is owed to the estate of a person—on the administrator or executor of the person's estate.

(2B) The notice must be in writing—

(a) stating that the owner intends to apply for a declaration under this section; and

(b) explaining the consequences of the making of the declaration; and

(c) stating that each person on whom the notice is served may make submissions to the Director within 60 days after service of the notice.".

(2) For section 39(3)(b)(ii) of the Retirement Villages Act 1986 substitute—

"(ii) the owner has served notice of the application in accordance with this section; and".


"(4A) The Director may waive any or all of the requirements applying to an application under subsection (2) in relation to retirement village land if—

(a) under section 209(4)(a) of the Supported Residential Services (Private Proprietors) Act 2010, the premises are taken to be a supported residential service registered under that Act; and




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(b) pursuant to section 209(4)(b)(ii) of that Act, the proprietor of the premises has arranged for the premises to cease to be recorded in the register kept under section 38J.".

(4) In section 39(6)(b) of the Retirement Villages Act 1986, for "on all residents, former residents and their legal personal representatives notice" substitute "notice of the application".



"39A Notices and charges recorded in error

(1) This section applies if the Registrar of Titles has recorded on the title to an estate held in fee simple by an owner resident—

(a) a retirement village notice; or

(b) a charge.

(2) On the application of the owner resident, the Registrar of Titles may delete the recording from the Register.".

38 New sections 47 and 48 substituted

For sections 47 and 48 of the Retirement Villages Act 1986 substitute—

"47 Transitional provision—Extinguishment of charge relating to residential care facilities—Consumer Affairs Legislation Further Amendment Act 2014

(1) If premises that were part of a retirement village, immediately before the commencement of section 3 of the 2005 Amendment Act, come to be taken not to be part of the retirement village, by virtue of the operation of section 46(c) or (d), the owner




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of the land on which the premises are situated may apply to the Director for a declaration that the charge, in so far as it applies to the land on which the premises are situated, is extinguished.

(2) An application under subsection (1)—

(a) must be in writing; and

(b) must include a statutory declaration signed by the owner of the land and stating that—

(i) the land is no longer used as a retirement village; and

(ii) the owner has served notice of the application on—

(A) all residents of the premises; and

(B) all residents of the retirement village of which the premises was formerly a part; and

(C) each former resident of that retirement village to whom a refundable in-going contribution is owed in relation to the retirement village land; and

(D) if a refundable in-going contribution is owed to the estate of a person—on the administrator or executor of the person's estate—




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explaining the consequences of making the declaration, in a form approved by the Director; and

(iii) the owner has no knowledge of any proceedings by a resident to obtain payment of a refundable in-going contribution or to enforce the charge; and

(c) must include a copy of the notice given to the residents referred to in paragraph (b); and

(d) if so required by the Director, must include any information that is reasonably necessary to establish the boundaries of the land to which the application relates and the use to which that land is put.

(3) The Director may grant or refuse an application under this section.

(4) On an application made in accordance with this section the Director may by instrument declare that a charge is extinguished in so far as it applies to the land to which the application relates if the Director is satisfied that the land is no longer a part of land used as a retirement village.

(5) If in respect of land charged under this Part there is produced to the Registrar of Titles a copy of the instrument in which the Director has made a declaration that the charge is extinguished, to the extent that it applies to the land that is the subject of an application under this section, the Registrar of Titles may delete any recordings of the charge from the Register or make a recording in the Register of the extinguishment of the charge.




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48 Transitional provision—Cancellation of notices relating to residential care facilities—Consumer Affairs Legislation Further Amendment Act 2014

(1) If premises that were part of a retirement village immediately before the commencement of section 3 of the 2005 Amendment Act come to be taken not to be part of that village, by virtue of the operation of section 46(c) or (d), the owner of the land on which the premises are situated may apply to the Director for a declaration that the notice, in so far as it applies to the land on which the premises are situated, is cancelled.

(2) An application under subsection (1)—

(a) must be in writing; and

(b) must include a statutory declaration signed by the owner of the land stating that—

(i) the land to which the application relates is no longer used as a retirement village; and

(ii) the owner has served on—

(A) all residents of the premises; and

(B) all residents of the retirement village of which the premises was formerly a part; and

(C) each former resident of that retirement village to whom a refundable in-going contribution is owed in relation to the retirement village land; and




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(D) if a refundable in-going contribution is owed to the estate of a person—the administrator or executor of the person's estate—

notice in writing explaining the consequences of making the declaration, in a form approved by the Director; and

(iii) the owner has no knowledge of any proceedings by a resident to obtain payment of a refundable in-going contribution or to enforce the charge; and

(c) must include a copy of the notice given to the residents referred to in paragraph (b); and

(d) if so required by the Director, must include any information that is reasonably necessary to establish the boundaries of the land to which the application relates and the use to which the land is put.

(3) The Director may grant or refuse an application under this section.

(4) On an application made in accordance with this section the Director may, by instrument published in the Government Gazette, declare that the retirement village notice to which the application relates is cancelled, in so far as it applies to the land to which the application relates, if the Director is satisfied that—

(a) the land is no longer a part of land used as a retirement village; and




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(b) the owner has served on all residents, former residents and their legal personal representatives notice in accordance with this section.

(5) If there is produced to the Registrar of Titles a copy of the Government Gazette in which the Director has published a declaration that a retirement village notice is cancelled, to the extent that it applies to the land that is the subject of an application under this section, the Registrar of Titles may delete any recordings of the notice from the Register or make a recording in the Register of the cancellation of the notice.".

39 Repeal of redundant Schedule heading

The heading "SCHEDULES" after section 54 of the Retirement Villages Act 1986 is repealed.

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PART 4—AMENDMENT OF SALE OF LAND ACT 1962

40 What is a terms contract?s. 40

See:Act No.6975.Reprint No. 15as at24 January 2013and amendingAct Nos92/1990, 35/2012, 17/2014, 33/2014 and 37/2014.LawToday:www.legislation.vic.gov.au

(1) In section 29A(1)(b) of the Sale of Land Act 1962, for "possession or occupation of the land" substitute "possession of the land or to the receipt of rents and profits".

(2) After section 29A(1) of the Sale of Land Act 1962 insert—

"(1A) A payment made by a purchaser under a contract for the sale of land following a default by the purchaser or agreed to by the purchaser and vendor in anticipation of a default by the purchaser does not count as a payment for the purpose of subsection (1)(a).".

(3) In section 29A(2) of the Sale of Land Act 1962, for the definition of deposit substitute—

"deposit means any part of the purchase price that the contract (including the contract as varied by written agreement between the parties after initial execution) specifies as being a deposit and provides must be paid, whether by one or more payments, within a specified period, not exceeding 60 days, after the execution of the contract;".

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__________________

Part 7—Repeal



PART 5—AMENDMENT OF VETERANS ACT 2005

41 Minister to seek advice of the Victorian Veterans Council

s. 41See:Act No.98/2005.Reprint No. 1as at23 October 2008and amendingAct Nos19/2009 and 21/2012.LawToday:www.legislation.vic.gov.au

(1) For the heading to section 26 of the Veterans Act 2005 substitute—

"Advice of the Victorian Veterans Council to the Minister".

(2) After section 26(3) of the Veterans Act 2005 insert—

"(4) The Minister may seek the advice of the Victorian Veterans Council in relation to the transfer outside the State of assets forming part of a patriotic fund that may be approved by the Minister under section 36(5)(b).".


After section 33 of the Veterans Act 2005 insert—

"33A Amendment to trust deed of patriotic fund

(1) Subject to subsection (2), on the written application of the trustees of a patriotic fund, the Director may approve—

(a) the amendment of the trust deed of the patriotic fund; or

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(b) the adoption of a new trust deed of the patriotic fund.

(2) The Director must not approve the amendment of a trust deed or the adoption of a new trust deed unless the amendment or the new trust deed (as the case may be) is consistent with, and does not alter, the objects and purposes of the patriotic fund.

(3) On the approval by the Director under subsection (1), a trust deed has effect as amended or adopted.

33B Amalgamation of patriotic funds

(1) The trustees of two or more patriotic funds may apply to the Director for approval to be amalgamated as a single patriotic fund.

(2) An application under subsection (1) must be in writing and include—

(a) for each of the patriotic funds proposing to be amalgamated—

(i) the details required to be specified under section 33(9); and

(ii) a schedule of assets held by the patriotic fund; and

(b) for the patriotic fund to be formed on the proposed amalgamation—the details required to be specified under section 33(3); and

(c) any other prescribed particulars.

(3) The Director may approve an application under subsection (1) to amalgamate two or more patriotic funds as a single patriotic fund by notice in writing to the trustees of each of the patriotic funds that applied for the amalgamation.




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(4) On the amalgamation of two or more patriotic funds (the amalgamating funds) under this section—

(a) a new patriotic fund is established on the terms referred to in subsection (2)(b); and

(b) the amalgamating funds are subsumed into that new patriotic fund; and

(c) the property of each amalgamating fund vests in the trustees of the new patriotic fund—

(i) to be held subject to the terms of the new patriotic fund; and

(ii) by force of this provision, without the necessity for any conveyance, transfer or assignment.

(5) Any property vested in the trustees of a patriotic fund by reason of subsection (4)(c) vests subject to any restriction, limitation, mortgage, charge, security interest, encumbrance, lien, lease, covenant, contract or liability to which the property was subject immediately before it was vested by reason of subsection (4)(c).

(6) A reference in a will to a patriotic fund that has amalgamated under this section must, unless the will otherwise provides, be construed as a reference to the patriotic fund formed by the amalgamation.".

43 Transfer of patriotic funds outside the State

After section 36(4) of the Veterans Act 2005 insert—

"(5) Despite subsection (1), the trustees of a patriotic fund may, without the approval of




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the Governor in Council, transfer assets forming part of the patriotic fund to the trustees or corporation referred to in that subsection if—

(a) the approval of the Director is obtained and the value of the assets does not exceed—

(i) the amount prescribed in any prescribed period of time for the purposes of this paragraph; or

(ii) if no amount is prescribed, $1000 in any 6 month period; or

(b) the approval of the Minister is obtained and the value of the assets does not exceed—

(i) the amount prescribed in any prescribed period of time for the purposes of this paragraph; or

(ii) if no amount is prescribed, $5000 in any 6 month period.".


After section 36 of the Veterans Act 2005 insert—

"36A Validation of transfers made without prior approval

(1) This section applies if the transfer of all or any of the assets of a patriotic fund requiring the approval of the Governor in Council, the Minister or the Director under section 34, 35 or 36 occurred before that approval was obtained.

(2) The Governor in Council, on the recommendation of the Minister, may validate the transfer if satisfied that, had




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approval for the transfer been sought before the transfer, the approval would have been given by the Governor in Council under section 35 or 36.

(3) The Minister may validate the transfer if satisfied that, had approval for the transfer been sought before the transfer, the approval would have been given by the Minister under section 36.

(4) The Director may validate the transfer if satisfied that, had approval for the transfer been sought before the transfer, the approval would have been given by the Director under section 34, 35 or 36.

(5) Subject to subsection (6), if the transfer of assets of a patriotic fund is validated under this section, all acts, matters and things done by the trustees with respect to, for the administration of, and for the purpose of the transfer that occurred before the validation was given are, and are taken always to have been, valid and effectual for all purposes as if approval had been given before the transfer.

(6) Subsection (5) does not exempt any trustee from civil or criminal liability for any breach of trust or other unlawful act, whether by omission or commission, for which the trustee was legally responsible before the validation was given.".

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PART 6—AMENDMENT OF AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012

45 Prohibited debt collection practicess. 45

See:Act No.21/2012and amendingAct Nos21/2012, 81/2012, 9/2013, 57/2013, 16/2014, 17/2014, 37/2014 and 47/2014.LawToday:www.legislation.vic.gov.au

In section 45(2)(m)(iii) of the Australian Consumer Law and Fair Trading Act 2012 omit "section 88 of".

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Part 7—Repeal



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PART 7—REPEAL

46 Repeal of amending Act

This Act is repealed on 1 April 2016.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

═══════════════




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ENDNOTES

By Authority. Government Printer for the State of Victoria.

Endnotes





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