Retirement Villages Act 2003

1: Title
This Act is the Retirement Villages Act 2003.
1: Preliminary provisions
2: Commencement
1: Part 2 sections 38 to 47 Part 4 sections 94 to 100 sections 107 to 110 Schedules 1 to 4
2: The rest of this Act comes into force on 1 February 2004.
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(1) 1 October 2006 Retirement Villages Act Commencement Order 2006 Section 2(1) 1 May 2007 Retirement Villages Act Commencement Order (No 2) 2006 Section 2(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
3: Purpose
The purpose of this Act is—
a: to protect the interests of residents and intending residents of retirement villages:
b: to enable the development of retirement villages under a legal framework readily understandable by residents, intending residents, and operators:
c: for the purposes in paragraphs (a) and (b),—
i: to promote understanding of the financial and occupancy interests of residents and intending residents of retirement villages:
ii: to provide an industry-focused regulatory and monitoring regime for retirement villages in which compliance costs are minimised:
iii: to provide external oversight of the conditions of entry into, and the continuing operations of, retirement villages:
iv: to introduce requirements and procedures necessary to give effect to the regulatory and monitoring regime referred to in subparagraph (ii):
v: to provide an environment of security and protection of rights for residents of retirement villages:
vi: to confer on the Registrar of Retirement Villages and the Retirement Commissioner powers, functions, and duties relating to this Act.
3A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 3A inserted 13 January 2020 section 6 Regulatory Systems (Housing) Amendment Act 2019
4: Act to bind the Crown
This Act binds the Crown.
5: Interpretation
In this Act, unless the context otherwise requires,— accounting period section 5 Financial Reporting Act 2013 advertisement
a: means any publication to the public or to any section of the public or to any individual of any words, whether written or printed, spoken, or in any electronic form, or of any pictorial representation or design or device, used to promote a retirement village,—
i: that is authorised or instigated by, or on behalf of, the operator or promoter of the retirement village; or
ii: that is prepared with the co-operation of, or by arrangement with, the operator or promoter of that village; and
b: includes a disclosure statement applicable auditing and assurance standard section 5 Financial Reporting Act 2013 applicable financial reporting standard section 5 Financial Reporting Act 2013 balance date section 41 Financial Reporting Act 2013 capital sum
a: any lump sum or sums payable for the right to occupy the unit (other than a sum that is a bond or rent within the meaning of section 2
b: any periodical payment for the right to occupy the unit that, in respect of the period for which it is payable, substantially exceeds the total of—
i: the amount that would be payable as a market rent for the unit under the Residential Tenancies Act 1986
ii: the lesser of the value of any services or facilities supplied to the resident during that period or the cost to the operator of that supply during that period code of practice section 89 code of residents' rights Schedule 4 court deed of supervision
a: means the document setting out the terms and conditions on which a statutory supervisor is appointed under section 38
b: includes a deed of participation relating to the supervision of a retirement village entered into before the commencement of section 38 Securities Act 1978 disclosure statement
a: contains all the information that it is required to contain by Schedule 2
b: states that it is a disclosure statement for the purposes of this Act facilities financial product section 7 financial statements section 6 Financial Reporting Act 2013 former resident
a: who was a resident of a retirement village on or after the date on which this section comes into force; and
b: whose occupation right agreement has since terminated generally accepted accounting practice section 8 Financial Reporting Act 2013 hospital care institution section 58(4) intending resident
a: who has within the last 3 months,—
i: indicated to an operator of a retirement village or the operator's agent that he or she is interested in becoming a resident of the retirement village; or
ii: had discussions with the operator or the operator's agent about entering into an occupation right agreement; and
b: in respect of whom the operator or the operator's agent has a current address, or sufficient other contact details to enable the operator to send notices to that person lawyer section 6 Minister occupation right agreement
a: confers on any person the right to occupy a residential unit within a retirement village; and
b: specifies any terms or conditions to which that right is subject offer of occupation operator
a: a person who is, or will be, liable to fulfil all or any of the obligations under occupation right agreements to residents of the village:
b: a holder of a security interest who is exercising effective management or control of the retirement village:
c: a receiver of the property comprising the retirement village, or the liquidator of the person to whom either of paragraph (a) or paragraph (b) applies promoter
a: means a person who is instrumental in the development of a retirement village in respect of which occupation rights are offered to the public; and
b: if a body corporate, includes every person who is a director of that body corporate; but
c: does not include a person—
i: acting solely in his or her professional capacity; or
ii: who has ceased to have any involvement with the village qualified auditor section 35 Financial Reporting Act 2013 register Schedule 1 registered document Schedule 1 Registrar section 87 resident
a: a person who enters into an occupation right agreement with the operator of a retirement village:
b: a person who, under an occupation right agreement, is, for the time being, entitled to occupy a residential unit within a retirement village, whether or not the agreement is made with that person or some other person:
c: if the occupation right agreement so provides or with the consent of the operator of the retirement village, the spouse , civil union partner, or de facto partner residential unit or unit rest home section 58(4) Retirement Commissioner Retirement Income Act 1993 retirement village section 6 security interest Property Law Act 2007 services
a: gardening, repair, or maintenance services:
b: nursing or medical services:
c: the provision of meals:
d: shops and other services for the provision of goods:
e: laundry services (not being the provision of facilities for residents to carry out their own laundry):
f: services (for example, hairdressing services) for the personal care of residents:
g: transport services:
h: services for recreation or entertainment:
i: security services:
j: other services for the care or benefit of residents statutory manager Corporations (Investigation and Management) Act 1989 statutory supervisor section 38 Section 5 accounting period inserted 1 April 2014 section 113 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 5 applicable auditing and assurance standard inserted 1 April 2014 section 113 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 5 applicable financial reporting standard inserted 1 April 2014 section 113 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 5 balance date inserted 1 April 2014 section 113 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 5 financial product inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 5 financial statements inserted 1 April 2014 section 113 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 5 generally accepted accounting practice inserted 1 April 2014 section 113 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 5 lawyer substituted 1 August 2008 section 348 Lawyers and Conveyancers Act 2006 Section 5 qualified auditor inserted 1 April 2014 section 113 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 5 resident amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 5 security interest replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
6: Meaning of retirement village
1: In this Act, but subject to subsections (2) to (6), retirement village
a: a resident's right of occupation of any residential unit is provided by way of freehold or leasehold title, crosslease title, unit title, lease, licence to occupy, residential tenancy, or other form of assurance, for life or any other term; or
b: the form of the consideration for that right is a lump sum payment or deduction, or a contribution or a payment in kind of any form, a periodic payment or deduction, or any combination of such payments or deductions, whether made before, during, or after occupancy; or
c: the consideration is actually paid or agreed to be paid by a particular resident or particular residents or on behalf of that resident or those residents, or by another person for the benefit of that resident or those residents; or
d: the resident makes an additional payment or periodical payment (for example, a service fee) for any services or facilities or access to such services or facilities; or
e: the services or facilities, or both, are provided by the owner of the property, building, or other premises, or by any other person under an arrangement with the operator of the village.
2: A retirement village includes any common areas and facilities to which residents of the retirement village have access under their occupation right agreements.
3: Despite subsections (1) and (2), if 1 or more of the residential units referred to in subsection (1) are located in a rest home or hospital care institution, the only parts of that rest home or hospital care institution that comprise, or are included in, the retirement village are—
a: the residential unit or units themselves; and
b: the common areas and facilities within the rest home or hospital care institution (if any) to which the resident or residents of the unit or units have access only by reason of their occupation right agreement.
4: For the avoidance of doubt, the following are not retirement villages for the purposes of this Act:
a: owner-occupied residential units registered under the Unit Titles Act 2010
i: similar residential units that are not intended to provide accommodation predominantly for retired people and their spouses or partners; or
ii: residential units occupied under tenancies to which the Residential Tenancies Act 1986
b: boarding houses, guest houses, or hostels:
c: halls of residence associated with educational institutions.
5: Whether or not a property or building is, or any other premises are, a retirement village must be determined according to the nature, substance, and economic effect of the operation of the property, building, or premises and other facts, and independently of its or their form or description in any document.
6: For the avoidance of doubt,—
a: a property, building, or other premises does not cease to be a retirement village by reason only that persons in their retirement cease to predominate amongst residents of the village:
b: a retirement village does not include any land or building that is under development as a retirement village, or as part of a retirement village, that is not occupied by any resident.
7: This section must be read in conjunction with section 103 Section 6(4)﻿(a) amended 20 June 2011 section 233(1) Unit Titles Act 2010
7: Obligations of operator
If obligations are imposed on the operator of a retirement village by this Act,—
a: each operator of that retirement village must perform the obligation or ensure that it is performed; and
b: each director or trustee of that operator and the person appointed as the manager of the village must take all reasonable steps to ensure that the obligation is performed.
8: Operator and director, trustee, or office holder of operator not to be exempt from liability
1: This section applies to any provision in any agreement or other document that directly or indirectly has the effect of involving the residents of a retirement village in—
a: exempting any operator or any director, trustee, or office holder of an operator from any liability that, by virtue of any rule of law, would otherwise attach to him or her in respect of any negligence, default, breach of duty, or breach of trust of which he or she may be liable in relation to the retirement village; or
b: indemnifying any such operator or director, trustee, or office holder against any such liability.
2: Except as provided in subsection (3), any provision to which this section applies is void.
3: Nothing in subsection (2) deprives any operator or director, trustee, or office holder of an operator, of any exemption or right to be indemnified in respect of anything done or omitted to be done by him or her while any such provision was in force if the exemption or indemnity was in existence on or before the day on which this section comes into force.
9: Power of court to grant relief in proceedings for negligence, etc
1: Subsection (2) applies if, in any civil proceeding for negligence, default, breach of duty, or breach of trust against an operator or director, trustee, or office holder of an operator in connection with a retirement village, it appears to the court hearing the case that—
a: the person is or may be liable in respect of the negligence, default, breach of duty, or breach of trust; but
b: the person has acted honestly and reasonably; and
c: having regard to all the circumstances of the case, the person ought fairly to be excused for the negligence, default, breach of duty, or breach of trust.
2: If this subsection applies, the court may relieve the person referred to in subsection (1), either wholly or partly, from the person's liability on any terms that the court thinks fit.
2: Registration, occupation right agreements, and related requirements and rules
Registration of retirement villages
10: Retirement villages to be registered
1: The operator of a retirement village must ensure that it is registered.
2: The operator of a retirement village must lodge with the Registrar an application for registration in the prescribed form together with the following:
a: the form of the disclosure statement or statements, which must—
i: be complete, apart from personal information relating to particular residents or particular occupation right agreements; and
ii: disclose whether any holder of a security interest to whom section 12(1)﻿(b)
b: a full legal description of the part of the property, building, or premises comprising the retirement village, together with—
i: copies of any records of title, plans, deeds, leases, or other documents evidencing that description; and
ii: the address of the holder of any security interest registered against any of those records of title
c: unless the operator of the retirement village is exempt, under section 41
d: the form of the occupation right agreement; and
e: the prescribed fee for registration or an application for approval to pay the prescribed fee by arrangement; and
f: any other matter prescribed by regulations.
3: The Registrar must—
a: not register any retirement village if, in the opinion of the Registrar, the application or any information supplied contains a statement that is false or misleading or omits any material particular:
b: register the retirement village if the operator has complied with subsection (2)
4: The Registrar may refuse to consider an application for registration or an amendment to registered documents if arrangements for the payment of prescribed fees are not in place.
5: After registering a retirement village, the Registrar must allocate a month to the retirement village for the purpose of delivering the annual return required by section 13
6: This section is subject to section 12 Section 10(2)﻿(b)﻿(i) replaced 12 November 2018 section 250 Land Transfer Act 2017 Section 10(2)﻿(b)﻿(ii) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 10(3)﻿(b) amended 15 December 2005 section 3 Retirement Villages Amendment Act 2005
11: Registration is not approval
Registration of a retirement village does not imply approval by the Registrar or the Crown of the retirement village or any of the matters in the application.
12: Registration of existing retirement villages
1: If a retirement village has 1 or more residents at the commencement of this section,—
a: an application for registration must be lodged under section 10
b: the operator must seek the written consent to the registration of the village of any person who—
i: was a holder of a security interest in the village on 31 December 2002; and
ii: has not, since that date, obtained any new security interest in the village or agreed to any increase—
A: in the term of the security interest; or
B: if the holder offers a credit facility (for example, an overdraft), in the maximum sum secured by that security interest; or
C: if any other sum is secured by the security interest, in the sum secured by that security interest:
c: the operator must include the written consent of that person with the application for registration, if that consent is given:
d: no offer of occupation may be made after the expiry of 12 months from the day on which this section comes into force unless the retirement village is registered under this Act.
2: If the holder of a security interest to whom subsection (1)﻿(b) applies fails or refuses to consent to the registration of a retirement village,—
a: the operator of the village must promptly notify the statutory supervisor of the village (if there is one), and every resident and intending resident, of that failure or refusal and its effect:
b: that failure or refusal does not prevent the registration of the village as a retirement village, or affect the obligation of the operator to apply for registration of the village.
3: Nothing in this section exempts any operator from the obligation to issue a disclosure statement that complies with this Act to any intending resident after the commencement of this section.
4: The operator of a retirement village to which subsection (1) applies must issue a disclosure statement that complies with this Act to every resident, within 12 months after the date on which this section comes into force.
13: Annual return
1: An operator of a retirement village must ensure that there is delivered to the Registrar each year, for registration, during the month allocated to the retirement village for the purpose, an annual return for that village signed by the operator or by a solicitor or qualified statutory accountant (within the meaning of section 5(1)
2: The annual return must be in the prescribed form and must contain the prescribed information for the prescribed period.
3: The annual return that is delivered for registration must be accompanied by—
a: the certificate referred to in section 16
b: a copy of the audited financial statements prepared by the operator under section 35B section 35F
ba: a copy of the audited financial statements prepared by the operator under section 35C
c: if the operator is not exempt, under section 41
i: the operator has supplied to the supervisor a copy of the financial statements of the operator and, if section 35C
ii: the information contained in the annual return is, to the best of the supervisor's knowledge and belief, accurate; and
d: the prescribed fee for filing an annual return or an application to pay that prescribed fee by arrangement.
4: The annual return must be dated as at a day within the month in which the return is required to be delivered to the Registrar, and the information required to be contained in it must be accurate as at that date.
5: Despite subsection (1), a retirement village need not make an annual return in the calendar year of its registration. Section 13(1) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Section 13(3)﻿(b) replaced 1 April 2014 section 114(1) Financial Reporting (Amendments to Other Enactments) Act 2013 Section 13(3)﻿(ba) inserted 1 April 2014 section 114(1) Financial Reporting (Amendments to Other Enactments) Act 2013 Section 13(3)﻿(c)﻿(i) replaced 1 April 2014 section 114(2) Financial Reporting (Amendments to Other Enactments) Act 2013
14: Registrar may alter register
The Registrar may alter the register if the annual return contains any of the following information that is different from the information entered on the register:
a: an address of the registered office of the retirement village:
b: an address for service of the retirement village:
c: a postal address of the retirement village.
15: Registration to be continuous
Every retirement village that is registered remains registered unless the Registrar suspends or cancels its registration.
16: Certification of registered documents
An operator of a retirement village must, in the prescribed form and within the prescribed periods, lodge a certificate with the Registrar confirming that each registered document (other than a document that has been replaced by another registered document) is correct and current and, in the opinion of the persons signing the certificate, not likely to mislead or deceive any resident, intending resident, or the public.
17: Operator to notify change of circumstances and documentation
1: The operator of a registered retirement village must, in the prescribed form (if any), notify the Registrar and the statutory supervisor of the village (if there is one) of—
a: any material change to any of the registered documents before that document or changed document is published or made available to any resident, any intending resident, or the public; and
b: any material change to the information contained in any registered document; and
c: any change of circumstances that makes any registered document likely to be misleading or deceptive to any resident, any intending resident, or the public; and
d: any change—
i: of any operator of the retirement village (whether as a result of the sale or other disposal of the retirement village or otherwise); or
ii: of the controlling interests in any operator of the retirement village (whether as a result of the sale of shares in the operator or otherwise); or
iii: to the name or address of any operator of the retirement village.
2: Nothing in subsection (1) prevents an operator of a retirement village from—
a: notifying the Registrar of any change to a registered document or to the information in a registered document that is not required to be notified under subsection (1):
b: complying with subsection (1)﻿(a) or (b) or (d) by lodging with the Registrar an amended or new document in place of a registered document together with the appropriate prescribed form (if any).
3: If notice is given to the Registrar under subsection (1) or subsection (2)﻿(a), the Registrar may—
a: amend the registered document accordingly or add the document to the register; or
b: require a new document to be lodged under section 10(2)
c: if section 18(1) Suspension of registration
18: Suspension of registration
1: The Registrar may suspend the registration of any retirement village if he or she considers that—
a: any registered document is likely to mislead or deceive any resident, any intending resident, or the public; or
b: the operator is failing to comply with this Act or any regulations made under this Act; or
c: any prescribed fee required to be paid by the operator of the retirement village is not paid.
2: The Registrar must give notice of the suspension to the operator of the retirement village and to the statutory supervisor of the village (if there is one), and that notice must specify—
a: the reason for the suspension; and
b: the steps required to be undertaken by the operator to have the suspension lifted.
3: Once the operator of a retirement village has received notice of its suspension of registration, the operator, while the suspension is in force,—
a: must take all reasonable steps to withdraw any advertisement or offer of occupancy relating to the retirement village:
b: must not enter into any occupation right agreement relating to the retirement village with any person. Cancellation of registration
19: Cancellation of registration
1: The Registrar must cancel the registration of a retirement village if the Registrar—
a: receives a request in writing for cancellation from the operator of that retirement village in the prescribed form; and
b: is satisfied that the requirements of subsection (2) (if applicable) and subsection (3) have been complied with; and
c: is satisfied that the village has ceased to operate as a retirement village or will do so on cancellation of its registration.
2: If there is more than 1 operator of the retirement village, the request in writing must be made by all operators of the village.
3: Except as provided in section 23 section 18
4: No operator may request the cancellation of the registration of any retirement village that has any residents unless—
a: all residents of the village have received independent legal advice about the effects of cancellation of registration; and
b: at least 90% of those residents have consented in writing to that cancellation.
5: The Registrar must give notice of the cancellation of registration to the operator or operators of the village and to the statutory supervisor of the village (if there is one).
20: Further requirements as to registration and keeping registers
Every operator of a retirement village and the Registrar must comply with the applicable provisions of Schedule 1 Memorials
21: Memorial on
records of title
1: The Registrar must notify the Registrar-General of Land of the registration of a retirement village, and of any change to the property, building, or premises comprising the retirement village notified to the Registrar in accordance with section 13 section 17
2: The notification must contain a description of the land that comprises the retirement village and identifies the particular records of title section 12(1)﻿(c)
3: The Registrar-General of Land must note on every record of title Subject to section 22 of the Retirement Villages Act 2003 (which provides priority for the rights of residents ahead of the rights of holders of security interests)
4: The Registrar-General of Land must, when the memorial referred to in subsection (3) is noted, give notice of the memorial to the holder of any security interest registered against the record of title Section 21 heading amended 12 November 2018 section 250 Land Transfer Act 2017 Section 21(2) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 21(3) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 21(4) amended 12 November 2018 section 250 Land Transfer Act 2017
22: Effect of memorial
1: If a memorial is entered under section 21
a: dispose of the retirement village other than as a going concern; or
b: disclaim any occupation right agreement relating to the retirement village as onerous property under section 269 section 117
c: evict any resident or exclude any resident from the use of any facilities or any part of the retirement village to which that resident is ordinarily entitled.
2: Subsection (1) applies whether or not the security interest is registered against the record of title
3: The holder of the security interest, or any receiver or liquidator or statutory manager of property comprising the retirement village or of an operator of the village, may apply to the High Court for an exemption from any requirement of subsection (1), and that exemption may be granted subject to any conditions that the court considers appropriate.
4: This section does not affect—
a: the exercise of any right conferred on any person under an occupation right agreement (including, without limitation, any right to specified services or any right conferred on the operator of a retirement village to terminate the occupation right of a resident or exclude a resident from the use of any facilities or part of the village, or to reduce or cancel services); or
b: the exercise of any specified right by a person who—
i: was the holder of a security interest in the retirement village on 31 December 2002 (being a security interest that continues to secure the payment or repayment of all or any part of a sum secured by it on that date, that has not been paid or repaid); and
ii: has not, since that date, obtained any new security interest in the village or agreed to any increase—
A: in the term of the security interest; or
B: if the holder offers a credit facility (for example, an overdraft), in the maximum sum secured by that security interest; or
C: if any other sum is secured by the security interest, in the maximum sum secured by that interest; and
iii: has failed or refused to consent to the registration of the village.
5: In subsection (4)﻿(b), specified right Section 22(1)﻿(b) amended 3 December 2007 section 445 Insolvency Act 2006 Section 22(2) amended 12 November 2018 section 250 Land Transfer Act 2017
23: Memorial and loss of registration
1: If the registration of a retirement village is cancelled under section 19 section 18
2: The notification must identify the particular records of title
3: Upon receipt of a notice under subsection (1), the Registrar-General of Land must remove a memorial on a record of title section 21 Section 23(2) amended 12 November 2018 section 250 Land Transfer Act 2017 Section 23(3) amended 12 November 2018 section 250 Land Transfer Act 2017 Statutory supervisor to be asked to act as representative
24: Receiver, liquidator, and statutory manager must ask statutory supervisor to represent residents
If a receiver is appointed in respect of property of an operator that includes a retirement village or a liquidator or statutory manager is appointed for an operator, the receiver or liquidator or statutory manager must ask the statutory supervisor of the retirement village (if there is one) to represent the interests of residents in negotiations with the receiver or liquidator or statutory manager concerning the protection of the residents' interests. Offer and advertising prohibited if retirement village not registered
25: No offer of occupation or advertising unless retirement village registered
1: No person may—
a: make, allow to be made, or acquiesce in the making of any offer of occupation or the publication of any advertisement after the expiry of 6 months from the day on which this section comes into force; or
b: make, allow to be made, or acquiesce in the making of any representation that all or part of any property, building, or premises is a retirement village if that representation is included in an advertisement published after the expiry of 6 months from the day on which this section comes into force; or
c: enter into any occupation right agreement after the expiry of 6 months from the day on which this section comes into force— that relates to a retirement village that is not registered under this Act.
2: Subsection (1) does not apply if—
a: the retirement village has never been registered under this Act; and
b: section 12
c: the Securities Act 1978
d: the offer is made and the occupation right agreement is entered into no later than the expiry of 12 months from the day on which this section comes into force.
3: Subsection (1) does not apply to a statement made by, or on behalf of, the promoter of a retirement village if the statement is to the effect that the promoter intends to apply for registration of the village under this Act and to make offers of occupation to the public and the statement contains no information other than—
a: the name of the promoter; and
b: a description of the occupation rights intended to be offered, including a brief description of any rights or privileges to be included in the offer; and
c: a statement of the services or facilities to be provided; and
d: a statement of the total number of occupation rights intended to be offered; and
e: the terms of the intended offer; and
f: a description of the class of persons to whom it is intended the offer will be made; and
g: the date on which the promoter expects the offer will be made. Other restrictions on advertising
26: Operator must ensure that advertisements are not misleading or deceptive
1: Before any advertisement for occupation rights in a retirement village is published, the operator and promoter of the village must take all practicable steps to ensure that the advertisement is not misleading or deceptive.
2: Subsection (1) does not affect the obligations of the operator or promoter under the Fair Trading Act 1986 Occupation right agreements
27: Occupation right agreements
1: No person may make any other person an offer of occupation in a retirement village, or accept an offer by a person to become a resident in a retirement village, except in accordance with an occupation right agreement that contains, in a clear and unambiguous form,—
a: provisions and information of the kind specified in Schedule 3
b: any other provisions required to be specified in an occupation right agreement by this Act or regulations made under this Act; and
c: if the occupation right relates to a residential unit to be built or completed at a later date, a proposed date for completion of that unit.
2: An occupation right agreement may contain—
a: a provision requiring decisions of a majority of residents or a specified proportion of residents greater than a majority to bind all residents, except where this Act or any other enactment requires a specified proportion of residents to give consent in relation to any matter:
b: provisions that differ from the provisions of the current registered form of occupation right agreement, but only if those provisions are no less favourable to the residents concerned than the provisions contained in the registered document.
3: An intending resident must receive independent legal advice before signing the occupation right agreement.
4: The signature of the intending resident on the occupation right agreement must be witnessed by a lawyer.
5: The lawyer who witnesses the signature of an intending resident must certify on the prescribed form (if any) that, before the intending resident signed the agreement, the lawyer explained to that person the general effect of the agreement and its implications.
6: The explanation required to be given by subsection (5) must be given in a manner and in language that is appropriate to the age and understanding of the intending resident.
7: If an occupation right agreement is to be signed by an attorney of an intending resident, or a welfare guardian or manager of the property of an intending resident appointed under the Protection of Personal and Property Rights Act 1988
28: Cooling-off period and cancellation for delay
1: An occupation right agreement must contain a provision allowing a resident (other than a person who is a resident solely because paragraph (c) of the definition of resident applies to that person) to cancel the agreement,—
a: without having to give any reason, by notice given not later than 15 working days after the agreement is signed by the resident; and
b: if the agreement relates to a residential unit to be built or completed at a later date and the residential unit is not finished to the point of practical completion within 6 months after the proposed date for completion of the unit, by notice given at any time after the expiry of that 6-month period.
2: Notice of cancellation—
a: must be in writing and in a form that indicates (irrespective of the exact words used) the intention of the resident to cancel the agreement; and
b: may be given by the resident or any person authorised in writing by the resident to act on his or her behalf.
3: The notice may be given to—
a: the operator; or
b: the real estate agent or other person who dealt with the resident on behalf of the operator when the resident acquired an occupation right, unless the operator has notified the resident that the person has ceased to act on behalf of the operator; or
c: any person who the operator has notified the resident is a person authorised to receive communications on behalf of the operator.
4: The operator is entitled to reasonable compensation for services provided to the resident under the occupation right agreement and for damage to a residential unit or any facilities in the retirement village for which the resident is responsible before the cancellation takes effect.
5: Despite subsection (1), an occupation right agreement may contain a cancellation provision of the kind referred to in subsection (1) that is more favourable to the resident than the provision referred to in subsection (1), but, if the agreement fails to contain any provision of the kind referred to in subsection (1) or contains a provision that is less favourable to the resident than that provision, the agreement is deemed to contain the provision referred to in subsection (1).
29: Deposits and other payments must be independently held
1: Every deposit, progress payment, and other payment made by a resident as payment for an occupation right or future occupation right in a retirement village must be held for the benefit of the resident in an interest-bearing account until settlement of the transaction or cancellation of the occupation right agreement under section 28
a: the statutory supervisor of the retirement village (if there is one); or
b: if there is no statutory supervisor, by a lawyer nominated by both the resident and the operator in a document that is separate from the occupation right agreement.
2: If an occupation right agreement is cancelled under section 28
3: If, at the expiry of the period allowed under section 28
30: Operator must ensure information is provided
1: Before any occupation right agreement can be entered into, the operator must ensure that the intending resident has received
a: a disclosure statement that complies with Schedule 2
b: the residents' code of rights; and
c: the code of practice (if any), and, if the code is not yet in force, a statement in writing that the code is not yet in force and the date on which it comes into force; and
d: a copy of the occupation right agreement.
2: In any proceedings that involve an issue as to whether an intending resident has received the information specified in subsection (1),—
a: it is for the operator to prove that the intending resident received the information or advice; but
b: a written acknowledgement by the intending resident that he or she has received the information is, in the absence of evidence to the contrary, sufficient proof that the resident has received the information or advice. Section 30 heading replaced 30 November 2022 section 112(1) Statutes Amendment Act 2022 Section 30(1) amended 30 November 2022 section 112(2) Statutes Amendment Act 2022
31: Occupation right agreement voidable
1: If an occupation right agreement is entered in contravention of section 18(3) section 25(1) section 27 section 30(1)
2: If a resident exercises the right conferred by subsection (1), the resident is entitled to receive—
a: a refund, without deduction, of—
i: all capital sums paid before or during the resident's occupancy as consideration for right of occupation in the residential unit and all other payments for which services or facilities were not provided:
ii:
iii:
b: interest at the prescribed rate:
c: actual and reasonable costs associated with the voiding of the agreement (for example, legal expenses, and removal costs).
3: Despite subsections (1) and (2),—
a: if the resident and the operator cannot agree when the refund required by subsection (2) is to be made, either party may give a dispute notice under section 53 section 54
b: if an operator receives from a resident a notice purporting to avoid an occupation right agreement for a contravention of section 18(3) section 25(1) section 27 section 30(1)
i: may give a dispute notice under section 54
ii: must take all reasonable steps to remedy the contravention; and
iii: if a dispute notice is given by the operator, is not required to make the refund referred to in subsection (2) while the dispute is unresolved.
4: In subsection (1), the prescribed period
a: in relation to a contravention of section 18(3) section 25(1)
i: a period of 3 years after the date on which the agreement was entered into; or
ii: a period of 6 months after the resident knows, or ought to know, of the contravention:
b: in relation to a contravention of section 27 section 30(1)
i: a period of 1 year after the date on which the agreement was entered into; or
ii: a period of 6 months after the resident knows, or ought to know, of the contravention.
5: For the purposes of this section, a contravention of a particular provision is a contravention of that provision in a substantial respect if—
a: the contravention involves a significant detriment to the resident; or
b: the contravention is otherwise material, and is not solely technical or minor in character; or
c: the contravention involves deliberate misconduct on the part of the operator. Section 31(2)﻿(a)﻿(ii) repealed 15 December 2005 section 5 Retirement Villages Amendment Act 2005 Section 31(2)﻿(a)﻿(iii) repealed 15 December 2005 section 5 Retirement Villages Amendment Act 2005 Code of residents' rights
32: Retirement villages to have code of residents' rights
1: The code of residents' rights set out in Schedule 4
2: Nothing in the code of residents' rights applies to any health services or disability services or any facilities to which the Code of Health and Disability Services Consumers' Rights under the Health and Disability Commissioner Act 1994
33: Distribution of code of residents' rights
1: The operator must ensure that a copy of the code of residents' rights is—
a: given to each intending resident before the person enters into an occupation right agreement; and
b: given to a resident (or his or her nominated representative) on request.
2: A resident is entitled to bring any alleged breach of a right referred to in the code of residents' rights to the attention of 1 or more of the following:
a: the operator of the retirement village:
b: the statutory supervisor of the retirement village (if there is one):
c: the Registrar:
d: the Retirement Commissioner:
e: a disputes panel, in the manner provided in Part 4
3: Subsection (2) does not limit the ability of a resident to bring any alleged breach of a right referred to in the code of residents' rights to the attention of any other person. Other information relevant to occupancy
34: Right to be supplied with information relevant to occupancy
1: Each resident or intending resident of a retirement village has the right to be promptly informed by the operator of the retirement village about any matter that would or might have a material impact on—
a: the occupancy right, or rights to quiet enjoyment, of the resident or intending resident; or
b: the charges levied on the resident or intending resident for his or her occupancy right, or right to services and facilities, within the retirement village.
2: The operator of a retirement village must,—
a: if the village has a statutory supervisor, promptly notify the statutory supervisor and, if the statutory supervisor so directs, each resident and intending resident of the retirement village of the matters referred to in subsection (3); or
b: if the village does not have a statutory supervisor, promptly notify each resident and intending resident of the retirement village of the matters referred to in subsection (3).
3: The matters required to be notified under subsection (2) are—
a: any proposal by the operator to develop or redevelop any part of the land on which the retirement village is situated or to acquire any contiguous land for development:
b: the receipt by the operator of a notice from the Registrar of suspension of the registration of the retirement village:
c: any request by the operator to the Registrar for cancellation of the registration of the retirement village:
d: any decision by the Registrar, under section 41
e: the appointment of a new statutory supervisor:
f: any decision by the Registrar, under section 93
g: any proposed increase in secured liabilities held by any person over any part of the retirement village:
h: any proposed increase in the maximum sum available to the operator of a retirement village under any credit facility:
i: any actual or threatened action by a creditor, mortgagee, or chargeholder in respect of the retirement village against the operator of the retirement village in respect of that person's security or any sum over $1,000:
j: any decision by an insurer to refuse to insure the retirement village or any part of it:
k: any actual or threatened legal proceedings against the retirement village or an operator of the retirement village that affect the interests of any resident or intending resident:
l: any action by a creditor to put the operator or the retirement village in receivership or liquidation.
4: This section does not limit section 32 Schedule 4 Rights of residents in relation to occupancy right
35: No legal impediments to occupation
The operators of a retirement village must ensure that, at the commencement of the resident's occupation right, there is no legal impediment to the occupation of the residential unit for residential purposes. Financial reporting Heading inserted 1 April 2014 section 115 Financial Reporting (Amendments to Other Enactments) Act 2013
35A: Accounting records
1: An operator of a retirement village must ensure that there are kept at all times accounting records that—
a: correctly record the transactions of the operator; and
b: will enable the operator to ensure that the financial statements of the operator and of the retirement village comply with generally accepted accounting practice (if the operator is required to prepare such statements under this Act or any other enactment); and
c: will enable the financial statements of the operator and of the retirement village to be readily and properly audited.
2: The operator of a retirement village must establish and maintain a satisfactory system of control of its accounting records.
3: The accounting records must be kept—
a: in written form in English; or
b: in a form or manner in which they are easily accessible and convertible into written form in English. Section 35A inserted 1 April 2014 section 115 Financial Reporting (Amendments to Other Enactments) Act 2013
35B: Financial statements must be prepared
1: An operator of a retirement village must ensure that, within 5 months after the balance date of the operator, financial statements that comply with generally accepted accounting practice are—
a: completed in relation to the operator and that balance date; and
b: dated and signed on behalf of the operator by 2 directors, trustees, or office holders of the operator.
2: Subsection (1) does not apply to a receiver or liquidator, or a person who has no financial interest in the retirement village. Section 35B inserted 1 April 2014 section 115 Financial Reporting (Amendments to Other Enactments) Act 2013
35C: Financial statements for retirement villages
1: This section applies if—
a: the financial statements of an operator of a retirement village include the activities of—
i: more than 1 retirement village; or
ii: another trading activity that operates independently of the retirement village; and
b: either the statutory supervisor of the retirement village, or, if the operator is exempted under section 41
2: The operator of a retirement village must ensure that, within 5 months after the balance date of the operator, financial statements that comply with generally accepted accounting practice are—
a: completed in relation to the village and that balance date; and
b: dated and signed on behalf of the operator by 2 directors, trustees, or office holders of the operator.
3: The operator of a retirement village must lodge a copy of the financial statements of the operator and each village, within 5 months after the balance date of the operator,—
a: with the statutory supervisor of the retirement village (if there is one); or
b: if the operator is exempted from appointing a statutory supervisor, with the person the Registrar appoints under a condition of that exemption (if any). Section 35C inserted 1 April 2014 section 115 Financial Reporting (Amendments to Other Enactments) Act 2013
35D: Financial statements must be audited
1: The operator of a retirement village must ensure that the financial statements prepared under sections 35B 35C
2: See sections 37 to 39 Financial Reporting Act 2013 Section 35D inserted 1 April 2014 section 115 Financial Reporting (Amendments to Other Enactments) Act 2013
35E: Audit must be carried out in accordance with auditing and assurance standards
1: An auditor must, in carrying out an audit for the purposes of section 35D
2: The auditor's report must comply with the requirements of all applicable auditing and assurance standards. Section 35E inserted 1 April 2014 section 115 Financial Reporting (Amendments to Other Enactments) Act 2013
35F: Non-application of section 35B if alternative financial reporting duties under financial markets legislation
Section 35B subpart 3 of Part 7 section 55 Financial Reporting Act 2013 Section 35F inserted 1 April 2014 section 115 Financial Reporting (Amendments to Other Enactments) Act 2013
35G: Financial reporting offences
An operator of a retirement village commits an offence and is liable on conviction to a fine not exceeding $50,000 if—
a: financial statements required to be prepared by the operator under section 35B 35C
b: financial statements required to be prepared by the operator under section 35B 35C
c: the operator fails to comply with section 35A 35C(3) 35D Section 35G inserted 1 April 2014 section 115 Financial Reporting (Amendments to Other Enactments) Act 2013
3: Retirement Commissioner and statutory supervisors
Retirement Commissioner
36: Retirement Commissioner to monitor, etc, effect of this Act
1: The functions of the Retirement Commissioner in relation to this Act are as follows:
a: to monitor the effects of this Act and the regulations and code of practice made under this Act:
b: to advise on issues relating to retirement villages when requested to do so by the Minister or required by this Act:
c: to promote education about retirement village issues and to publish information about such issues:
d: to collect and publish information relating to any of the functions referred to in this section:
e: to perform any other function conferred by this Act or regulations made under this Act.
2:
3: Every operator of a retirement village must answer any questions and supply any information relating to the retirement village reasonably requested by the Retirement Commissioner for the performance of the Retirement Commissioner's functions.
4: The operator must supply the information within 20 working days of receiving the request or within any further period that the Retirement Commissioner allows. Section 36(2) repealed 21 April 2005 section 10(2) New Zealand Superannuation and Retirement Income Amendment Act 2005 Statutory supervisors
37: Registrar must approve statutory supervisor
Section 37 repealed 1 October 2011 section 64 Securities Trustees and Statutory Supervisors Act 2011
38: Operator must appoint statutory supervisor
1: The operator of a retirement village must appoint a statutory supervisor who holds a licence under the Financial Markets Supervisors Act 2011 section 41
2: The statutory supervisor must be appointed under a deed of supervision between the operator and the statutory supervisor, on the terms and conditions set out in that document.
3: A deed of supervision must contain all information and other matters or provisions that are required to be included in it by regulations made under this Act.
4: Section 38(1) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 38(1) amended 1 October 2011 section 65(1) Securities Trustees and Statutory Supervisors Act 2011 Section 38(4) repealed 1 October 2011 section 65(2) Securities Trustees and Statutory Supervisors Act 2011
39: Registrar's consent required for termination or non-renewal of appointment
1: The Registrar must consent in writing before the operator or the statutory supervisor—
a: terminates the appointment of the statutory supervisor; or
b: elects not to renew the appointment.
2: In the case of termination or election not to renew by the statutory supervisor, the Registrar's consent is not necessary if the statutory supervisor has given the operator 1 year's notice.
3: This section does not apply to the termination of the appointment of a statutory supervisor by the operator under section 23 38 Financial Markets Supervisors Act 2011 Section 39(3) added 1 October 2011 section 66 Securities Trustees and Statutory Supervisors Act 2011 Section 39(3) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
40: Operator must not indemnify or exempt statutory supervisor from liability
1: The operator must not indemnify the statutory supervisor for, or exempt the statutory supervisor from, any liability for breach of duty, breach of trust or other fiduciary obligation, that involves gross negligence, bad faith, or wilful misconduct by the statutory supervisor.
2: An indemnity or agreement contrary to subsection (1) is void.
41: Exemption from requirement for statutory supervisor
1: The Registrar may exempt an operator from appointing a statutory supervisor if the Registrar is satisfied that the criteria for exemption prescribed under section 104
2: An operator applies to the Registrar for an exemption by—
a: completing the prescribed form and delivering it to the Registrar; and
b: paying the prescribed fee.
3: The Registrar may exempt the operator on the terms and conditions, and for the period, that the Registrar thinks appropriate.
4: The Registrar may revoke an exemption, or vary its terms or conditions, if the Registrar is satisfied that—
a: the ground for the exemption no longer applies; or
b: the operator has not complied with its terms and conditions.
5: The Registrar must give notice of the revocation or variation of an exemption as soon as possible to the operator.
42: Duties of statutory supervisor
A statutory supervisor must—
a: provide a stakeholder facility (for example, under section 29(1)
b: monitor the financial position of the retirement village; and
c: report annually to the Registrar and residents on the performance of its duties and the exercise of its powers; and
d: perform any other duties that are imposed by this Act or any other Act, any regulations made under this Act, and any documents of appointment.
43: Powers of statutory supervisor
1: If a statutory supervisor believes the financial position of the retirement village, the security of the interests of the residents, or the management of the retirement village is inadequate, the statutory supervisor may—
a: direct the operator to supply all residents (or their nominated representatives) with the information that the statutory supervisor may specify; or
b: direct the operator to operate the retirement village in a specified manner; or
c: apply to the court for an order under section 43A
2: The statutory supervisor may direct that an advertisement that the statutory supervisor considers is inconsistent with this Act or regulations made under this Act, or the disclosure statement, occupation right agreement, or code of practice, not be published or distributed to the public. Section 43(1)﻿(c) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
43A: Court may make orders
1: The court may, on application by a statutory supervisor under section 43(1)﻿(c)
2: The orders may—
a: amend the provisions of the deed of supervision:
b: impose restrictions on the activities of the operator (including restrictions on advertising) that the court thinks are necessary to protect the interests of the residents:
c: direct that no offer of occupation of the kind specified in the order be made while the order is in force:
d: direct the operator to convene a meeting of the residents (and give any other directions it thinks fit relating to the conduct of that meeting) for the purpose of—
i: having placed before the residents by the statutory supervisor the information or proposal that the court or the statutory supervisor thinks necessary or appropriate and that relates to the residents' interests; and
ii: obtaining the opinions or directions of the residents:
e: give directions in relation to the conduct of any meeting convened in accordance with paragraph (d):
f: stay any civil actions or civil proceedings before the court by or against the statutory supervisor or the operator:
g: restrain the transfer of an interest in all or any part of the retirement village:
h: appoint a receiver or manager of the property that constitutes the retirement village (with any powers that the court orders):
i: remove a receiver or manager of the property that constitutes the retirement village:
j: give any other directions that the court considers necessary to protect the interests of the residents or the public.
3: The court may vary or cancel an order made under this section.
4: In exercising its powers under this section, the court must have regard to the interests of all creditors of the operator. Section 43A inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
44: Public statement by statutory supervisor
The Registrar may authorise a statutory supervisor to make a public statement concerning the financial position, security of the interests of residents, or management of the retirement village if the Registrar and the statutory supervisor believe it is in the interests of residents or potential or intending residents to do so.
45: Liability for loss limited
A statutory supervisor is not liable for any loss suffered by any resident or other person as a result of any action taken under section 43 section 44
46: Statutory supervisor may require information
1: The statutory supervisor may require the operator to provide information relating to the financial position, security of the interests of residents, or management of the retirement village to the statutory supervisor.
2: The operator must provide the information within 10 working days of receiving the request. Auditor must answer questions and supply information
47: Auditor must answer questions and supply information
1: The auditor of a retirement village must comply, at the operator's expense, with any reasonable request by the statutory supervisor, the Registrar, or the Retirement Commissioner that the auditor answer questions or provide other information in relation to the retirement village.
2: The auditor must comply within 20 working days after receiving the request or within the further period that the person making the request allows.
4: Dispute resolution, enforcement, and penalties
Dispute resolution
48: Interpretation
In this Part,— applicant section 52 dispute resolution resident
a: a resident of a retirement village; or
b: a former resident respondent section 52
49: Resident's rights may be exercised by personal representative
Any right conferred by this Part on a resident may be exercised by his or her personal representative.
50: Types of dispute procedures
In any retirement village there are 2 forms of dispute procedure: a complaints facility and dispute resolution.
51: Complaints facility
The operator must operate and make known to the residents of a retirement village a facility for dealing with complaints by the residents.
52: Resident or operator may require dispute resolution
1: A resident or the operator may require that a dispute be resolved by a disputes panel by giving the other party or parties a dispute notice.
2: A resident may not require resolution of a dispute (other than a dispute referred to in section 53(3)
a: the dispute has earlier been referred to the complaints facility; and
b: 20 working days have elapsed since referral to the complaints facility.
3: An operator may not require resolution of a dispute by a disputes panel unless—
a: the operator has notified the resident concerned of the dispute; and
b: the operator has made reasonable efforts to resolve the dispute with the resident; and
c: 20 working days have elapsed since the resident was notified.
53: Types of dispute for which resident may give dispute notice
1: A resident may give a dispute notice for the resolution of a dispute concerning any of the operator's decisions—
a: affecting the resident's occupation right or right to access services or facilities; or
b: relating to changes to charges for outgoings or access to services or facilities imposed or payable under the resident's occupation right agreement; or
c: relating to the charges or deductions imposed as a result of the resident's occupation right coming to an end for any reason or relating to money due to the resident under the resident's occupation right agreement following termination or avoidance under section 31
d: relating to an alleged breach of a right referred to in the code of residents' rights or of the code of practice.
2: Nothing in subsection (1) enables a resident to give a dispute notice concerning any health services or disability services, or any facilities to which the Code of Health and Disability Services Consumers' Rights under the Health and Disability Commissioner Act 1994
3: A resident may give a dispute notice for resolution of a dispute concerning the operator's breach of the resident's occupation right agreement or code of practice in disposing of a residential unit in a retirement village formerly occupied by the resident.
4: A resident may give a dispute notice for the resolution of a dispute affecting the resident's occupation right between the resident and any other person who is—
a: another resident of the retirement village; or
b: in another resident's residential unit with that other resident's permission.
54: Types of dispute for which operator may give dispute notice
1: An operator may give a dispute notice concerning any of the matters referred to in section 53(1)﻿(a) to (c)
2: An operator may give a dispute notice concerning the operation of section 31(1) and (2) section 18(3) section 25(1) section 27 section 30(1)
55: Operator must notify statutory supervisor of certain disputes
1: The operator must forward to the statutory supervisor (if there is one) a copy of a dispute notice as soon as practicable after the dispute notice has been given if—
a: the operator considers that the outcome of the dispute may affect—
i: a significant number of the retirement village's residents; or
ii: the general operation of the village; or
iii: the operator's rights and obligations under the deed of supervision; or
b: the dispute notice has been given under section 53(3)
2: The operator must, immediately after forwarding a dispute notice to the statutory supervisor, advise the parties to the dispute that the statutory supervisor has been notified of the dispute.
3: This section does not limit the right of a resident to inform the statutory supervisor of, or otherwise involve the statutory supervisor in, a dispute to which the resident is a party and for which a dispute notice may be given.
56: Form of dispute notice
1: A dispute notice must—
a: be written; and
b: identify the decision or decisions, or matters, in respect of which it is made; and
c: identify the person or persons in respect of whom it is made, if not the operator; and
d: state the grounds on which it is made; and
e: state the efforts that have been made to resolve the dispute.
2: A dispute notice is valid if it substantially complies with subsection (1).
57: Time for giving dispute notice
1: A dispute notice must be given within 6 months after the dispute was first referred to the complaints facility or, in the case of a dispute notice given
2: However, a dispute notice may be given after 6 months if the parties to the dispute agree.
3: A resident must not give a dispute notice for a dispute under section 53(3)
4: This section does not affect, and is not affected by, the responsibilities of an operator under the provisions of the code of practice relating to the disposal of vacant residential units. Section 57(1) amended 15 December 2005 section 6 Retirement Villages Amendment Act 2005
58: Retirement Commissioner approves persons eligible for appointment to disputes panel
1: The Retirement Commissioner must maintain and publish a list of persons whom the Commissioner has approved for appointment as a member of a disputes panel.
2: The Retirement Commissioner's approval may be—
a: general, for appointment to any disputes panel; or
b: specific, for appointment to a particular disputes panel; or
c: on the terms and conditions that the Commissioner thinks appropriate.
3: The Retirement Commissioner's approval may be for a limited period, but in any event not longer than 5 years.
4: The Retirement Commissioner must remove the name of a person from the list if that person,—
a: in the Commissioner's opinion, is unable to perform the duties of a member of a disputes panel; or
b: has died; or
c: had been adjudicated bankrupt; or
d: has requested the removal of his or her name; or
e: has been on the list for more than 5 years; or
f: for any other sufficient reason should not, in the Commissioner's opinion, be appointed to a disputes panel.
5: The Retirement Commissioner may restore a person to the list whose name has been removed under subsection (4) if the Commissioner again approves that person for appointment as a member of a disputes panel.
59: Operator must appoint disputes panel
1: The operator must appoint a disputes panel to resolve a dispute for which a dispute notice has been given.
2: The operator must appoint the panel within 20 working days after—
a: the operator has received the dispute notice, in the case of a notice given by a resident; or
b: the operator has given a resident the dispute notice, in the case of a notice given by the operator.
60: Composition of disputes panel
1: The operator must appoint 1 or more independent persons to form the disputes panel.
2: The operator must consult the other parties to the dispute before making an appointment.
3: A person must not be appointed a member of a disputes panel unless that person's name appears on the Retirement Commissioner's list under section 58(1)
4: In the case of a dispute referred to in section 53(3)
a: the operator must appoint at least 3 members to the panel; and
b: one of the members must be a retired Judge or have held a practising certificate as a barrister or solicitor for at least 7 years; and
c: the person referred to in paragraph (b) must chair the panel.
61: Disputes panel must disclose interests and previous involvement
1: A person asked by an operator to become a member of a disputes panel to resolve a dispute must disclose to the operator—
a: every interest that the person has in the operator, other than the interest the person has in the operator because the operator is responsible for engaging and paying the person to resolve the dispute; and
b: any association between that person and any resident who is involved in the dispute.
2: A member of a disputes panel to which an operator proposes to allocate a dispute for resolution must disclose to the operator any previous involvement that the member has had in the dispute other than as a member of the disputes panel.
62: Operator's duties to secure independence of disputes panel
1: An operator must not appoint as a member of a disputes panel—
a: a person employed or engaged, or who was formerly employed or engaged, by the operator in any other capacity; or
b: a person who discloses to the operator any interest in the operator other than the interest the person has in the operator because the operator is responsible for engaging and paying the person to resolve the dispute; or
c: if the operator is a religious or charitable organisation, a person who is or has been an office holder in that organisation.
2: An operator must appoint the members of a disputes panel on contracts for services.
3: An operator must not include in a member of a disputes panel's contract any term or condition that could have the effect, directly or indirectly, of influencing the disputes panel or that member, when conducting a dispute resolution, in favour of—
a: the operator; or
b: any particular resident or other person involved in the dispute.
4: An operator must not appoint a disputes panel to resolve a dispute that contains as a member any person who discloses to the operator any previous involvement in the dispute other than as a member of the disputes panel.
63: Meaning of previous involvement in dispute
1: For the purposes of sections 61 62 previous involvement
2: Subsection (1) does not limit the meaning of previous involvement
64: Conduct of hearing
The disputes panel may conduct the dispute resolution in any manner it thinks fit, but it must comply with any other relevant provision of this Act and any regulations made under this Act.
65: Hearing must be held
1: In the course of conducting a dispute resolution, the disputes panel must hold a hearing unless—
a: the applicant withdraws the dispute resolution notice; or
b: the applicant and respondent agree not to have a hearing; or
c: the panel refuses to hear the dispute.
2: The parties to the dispute are entitled to be present and heard at the hearing.
3: The disputes panel must hold the hearing at a time and place that is—
a: agreed to by the applicant, the respondent, and the disputes panel; or
b: decided on by the disputes panel, if those persons do not agree.
4: The disputes panel must take all practicable steps to ensure that notice of the time and place of the hearing is given—
a: to every person entitled to be present and heard at the hearing; and
b: at least 7 days before the date of the hearing.
66: Panel may refuse to hear dispute
1: A disputes panel may refuse to hear, or continue to hear, a dispute if the panel considers, after consulting with the parties,—
a: that the dispute is frivolous or vexatious or an abuse of process; or
b: that the dispute should be heard by a court of law; or
c: that the panel should not hear it for any other sufficient reason.
2: When the panel consults the parties on a proposal to exercise any of its powers under subsection (1), the panel must advise the parties of the effect and implications of the proposal.
3: If the panel refuses to hear, or to continue to hear, a dispute under subsection (1)﻿(b), the panel must refer the dispute to the nearest office of the
4: The District Court
a: must hear and determine the dispute as if it were a disputes panel, and has all the powers and duties of a disputes panel under this Act:
b: in respect of any matter not otherwise provided for, may hear and determine the dispute in accordance with the District Court Act 2016 District Court Rules 2014
5: The panel at its discretion may award costs for the hearing to the point that the panel refuses to continue to hear the dispute, and must take into account the conduct of the parties.
6: If the panel refuses to hear, or continue to hear, a dispute under subsection (1)﻿(c), the operator must appoint another panel to hear the dispute.
7: Any person against whom costs are awarded under this section must pay them within 28 days of the decision to award them. Section 66(3) amended 1 March 2017 section 261 District Court Act 2016 Section 66(4) amended 1 March 2017 section 261 District Court Act 2016 Section 66(4)﻿(b) amended 1 March 2017 section 261 District Court Act 2016 Section 66(7) added 15 December 2005 section 7 Retirement Villages Amendment Act 2005
67: Evidence and attendance
1: The disputes panel may admit any relevant evidence at the hearing from any person, whether or not the evidence would be admissible in a court and whether or not the person is present at the hearing.
2: The disputes panel may decline to receive any evidence from any person who is not present but, before doing so, must give the relevant party a reasonable opportunity to arrange to have the person attend the hearing or an adjourned hearing.
3: The disputes panel may make a decision even though a person entitled to be present and heard at the hearing did not attend it unless, before the disputes panel makes the decision,—
a: the person gives the disputes panel a reasonable excuse for the person's non-attendance; and
b: the disputes panel considers that a decision should not be made until the person has been heard.
4: The disputes panel may allow 1 or more parties to be represented, whether by counsel or otherwise, and to question the other party as it considers appropriate, having regard to—
a: the nature of the dispute; and
b: the amounts or matters involved; and
c: the implications for the party of an adverse finding; and
d: the ability of the party to address issues personally.
68: Matters that disputes panel must take into account in deciding certain disputes
The matters that a disputes panel must take into account in deciding a dispute referred to in section 53(3)
a: the relevant real estate market; and
b: the age and condition of the retirement village; and
c: the effect of the panel's decision on other residents of the retirement village and on the financial stability of the village.
69: Powers of disputes panel
1: A disputes panel may—
a: amend an occupation right agreement so that it complies with any applicable code of practice or section 27(1)
b: order any party to comply with its obligations under an occupation right agreement or the code of practice, or to give effect to a right referred to in the code of residents' rights; or
c: in the case of a dispute with the operator concerning the liability for, or payment of, any monetary amount, order the operator or, as the case may be, the resident to pay or refund all or part of the amount in dispute; or
d: in the case of a dispute where the operator is not a party to the dispute,—
i: order a party to return to the other party specific property not exceeding $1,000 in value; or
ii: order a party to pay the other party an amount by way of compensation not exceeding $1,000; or
e: not impose any other obligation other than in relation to the payment of costs on any party.
2: For the avoidance of doubt, a disputes panel may amend an occupation right agreement to comply with a provision of the code of practice from which the operator of the retirement village is exempted from complying, but the disputes panel must make the amendment subject to that exemption while it is in force.
70: Additional powers of disputes panel in certain disputes
1: In a dispute referred to in section 53(3)
a: an order that the operator must market the residential unit concerned in a particular way, or at a particular price:
b: an order that the operator must pay the resident a sum in compensation:
c: an order that the operator must pay the resident interest calculated in accordance with (or on a basis that ensures it does not exceed interest calculated in accordance with) Schedule 2
d: an order that the operator,—
i: if the resident has a legal or equitable estate or interest in the residential unit, must buy the resident's estate or interest at a price and within the time fixed by the panel; or
ii: in any other case, must pay the resident a sum fixed by the panel within a time fixed by the panel as if the operator had disposed of the residential unit.
2: The panel must not make an order under subsection (1)﻿(d) unless it has considered the alternative orders it could make and is satisfied that none is appropriate.
3: The powers in subsection (1) are additional to the panel's powers under section 69
4: The panel may, in relation to an order under subsection (1),—
a: suspend the operation of the order until a specified date:
b: adjourn the hearing to a specified date to review an order or orders that it has made. Section 70(1)﻿(c) replaced 1 January 2018 section 29 Interest on Money Claims Act 2016
71: Record of decision
1: The disputes panel must record in writing its findings on material issues of fact and the reasons for its decision resolving a dispute.
2: The panel must give each party, and the operator (if the operator is not a party to the dispute), a copy of the record of the decision signed by the presiding member of the panel.
3: The operator must keep the record for at least 5 years and make it available to the statutory supervisor and the Retirement Commissioner on request.
72: Effect and enforcement of dispute resolution decisions
1: A dispute resolution decision in relation to a dispute with an operator is binding on the applicant and the respondent.
2: A dispute resolution decision in relation to a dispute with another resident or person living with another resident is binding on the applicant and the respondent.
3: Subsections (1) and (2) do not prevent any action by way of judicial review.
4: An order made by a disputes panel—
a: has effect and is enforceable as if it were an order of—
i: the District Court if the District Court
ii: the High Court in any other case:
b: if it is an order to pay money, creates a judgment debt. Section 72(4)﻿(a)﻿(i) amended 1 March 2017 section 261 District Court Act 2016
73: Effect of vacancy in panel membership
Except in the case of a single member disputes panel, the death, resignation, or unavailability of a member of a disputes panel does not prevent the remaining member or members of the panel from making a decision resolving a dispute.
74: Costs on dispute resolution
1: The operator that appoints a disputes panel is responsible for meeting all the costs incurred by the disputes panel in conducting a dispute resolution, whether or not the operator is a party to the dispute.
2: Whether or not there is a hearing, the disputes panel may—
a: award the applicant costs and expenses if the disputes panel makes a dispute resolution decision fully or substantially in favour of the applicant:
b: award the applicant costs and expenses if the disputes panel does not make a dispute resolution decision in favour of the applicant but considers that the applicant acted reasonably in applying for the dispute resolution:
c: award any other person costs and expenses if the disputes panel makes a dispute resolution decision fully or substantially in favour of that person:
d: in a dispute where the operator is not a party to the dispute, award to the operator, by way of refund, all or part of the costs incurred by the disputes panel in conducting a dispute resolution.
3: The disputes panel must make a decision whether to award costs and expenses under this section and the amount of any award—
a: after having regard to the reasonableness of the costs and expenses and the amount of any award incurred by the applicant or other person in the circumstances of the particular case; and
b: after taking into account the amount or value of the matters in dispute, the relative importance of the matters in dispute to the respective parties, and the conduct of the parties; and
c: in accordance with, and subject to any limitations prescribed in, any regulations made under this Act for the purpose.
4: Any person against whom costs and expenses are awarded under this section must pay them within 28 days of the decision to award them.
75: Appeal to District or High Court
1: Any party to a dispute resolution may appeal against the decision of the disputes panel or District Court resolving the dispute.
2: The appeal is to—
a: the District Court if the District Court
b: in the case of a dispute referred to the District Court section 66(3)
c: the High Court in any other case.
3: The appeal must be heard by the court in accordance with the directions made by the court after the appeal has been filed.
4: The court must hear the appeal by rehearing the dispute.
5: The appeal must be filed in the appropriate court within 20 working days after the disputes panel has made the decision.
6: The decision of the court hearing the appeal is final, and there is no further appeal. Section 75(2)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 75(2)﻿(b) amended 1 March 2017 section 261 District Court Act 2016 Enforcement and penalties
76: Jurisdiction of High Court
In accordance with sections 79 to 86
a: appeals from criminal proceedings in the District Court section 79
b: applications for injunctions under section 80
c: applications for orders under sections 81 82 1986 No 5 s 37 Section 76(a) amended 1 March 2017 section 261 District Court Act 2016
77: Jurisdiction of District Court
In accordance with sections 79 to 86
a: proceedings for offences against section 79
b: applications for orders under sections 81 82 1986 No 5 s 38
78: Jurisdiction of Disputes Tribunal
In accordance with sections 76 to 83 the Disputes Tribunal established under section 4 section 82(3)﻿(c) to (e) 1986 No 5 s 39 Section 78 amended 1 March 2017 section 261 District Court Act 2016
79: Contraventions of certain provisions an offence
1: Every person commits an offence who, without reasonable excuse, contravenes any of sections 12 18(3) 22(1) 25(1) 32 33(1) 35 38(1) 39 97(3) section 41 section 93
a: in the case of a person other than a body corporate, to a fine not exceeding $30,000; or
b: in the case of a body corporate, to a fine not exceeding $100,000.
2: Every person commits an offence who, without reasonable excuse, contravenes any of sections 17 19(3) 26(1) 27(1) 28(1) 29 30(1) 34(2) 59(2) 92(2) 98(5)
a: in the case of a person other than a body corporate, to a fine not exceeding $15,000; or
b: in the case of a body corporate, to a fine not exceeding $50,000.
3: Every person commits an offence who, without reasonable excuse, contravenes any of sections 13 16 70(2) 95(2) 96(4) 98(2) and (3)
a: in the case of a person other than a body corporate, to a fine not exceeding $5,000; or
b: in the case of a body corporate, to a fine not exceeding $10,000.
4: Every auditor of a retirement village commits an offence who fails to comply with any reasonable request made under section 47
5: Every operator of a retirement village commits an offence who fails to comply with any reasonable request made under section 46
6: Every person commits an offence who, without reasonable excuse, contravenes any other provision of this Act and is liable on
7: Proceedings under this section may be commenced at any time within 3 years after the matter giving rise to the contravention arose. 1986 No 5 s 40 Section 79(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 79(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 79(3) amended 13 January 2020 section 7(1) Regulatory Systems (Housing) Amendment Act 2019 Section 79(3) amended 13 January 2020 section 7(2) Regulatory Systems (Housing) Amendment Act 2019 Section 79(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 79(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 79(5) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 79(6) amended 1 July 2013 section 413 Criminal Procedure Act 2011
80: Injunctions may be granted by court for contravention of certain provisions
1: The court may, on the application of the Registrar, a statutory supervisor of a retirement village, or any other person, grant an injunction restraining a person from engaging in conduct that constitutes or would constitute any of the following:
a: a contravention of any of sections 25 to 33
b: an attempt to contravene any of those provisions:
c: aiding, abetting, counselling, or procuring any other person to contravene any of those provisions:
d: inducing, or attempting to induce, any other person, whether by threats, promises or otherwise, to contravene any of those provisions:
e: being in any way directly or indirectly knowingly concerned in, or party to, the contravention by any other person of any of those provisions:
f: conspiring with any other person to contravene any of those provisions.
2: The court may, at any time, rescind or vary an injunction granted under this section.
3: If an application is made to the court under this section for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the court may,—
a: if it is satisfied that the person has engaged in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
b: if, in the opinion of the court, it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind.
4: An injunction referred to in subsection (3) may be granted whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
5: If an application is made to the court under this section for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the court may,—
a: if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
b: if, in the opinion of the court, it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind.
6: To avoid doubt, an injunction referred to in subsection (5) may be granted—
a: whether or not the person has previously engaged in conduct of that kind; and
b: whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. 1986 No 5 s 41
81: Order to disclose information or publish advertisement
1: If, on the application of the Registrar, a statutory supervisor of a retirement village, or any other person, the court is satisfied that a person has engaged in conduct constituting a contravention of sections 18(3) 25 26
a: an order requiring that person, or any other person involved in the contravention, to disclose, at that person's own expense, to the public, or to a particular person or to persons included in a particular class of persons, in any manner specified in the order, any applicable information or applicable information of any kind that is specified:
b: an order requiring that person, or any other person involved in the contravention, to publish, at that person's own expense, in any manner and at any times that are specified in the order, corrective statements the terms of which are specified in, or are to be determined in accordance with, the order.
2: In subsection (1), applicable information 1986 No 5 s 42
82: Other orders
1: The court may make all or any of the orders referred to in subsection (3) if, in any proceedings under sections 79 to 86
a: a contravention of any of sections 25 to 33
b: aiding, abetting, counselling, or procuring the contravention of any of those provisions; or
c: inducing by threats, promises, or otherwise the contravention of any of those provisions; or
d: being in any way directly or indirectly knowingly concerned in, or party to, the contravention of any of those provisions; or
e: conspiring with any other person in the contravention of any of those provisions.
2: The court may make all or any of the orders referred to in subsection (3), whether or not it grants an injunction or makes any other order under this Part.
3: For the purposes of subsection (1), the court may make the following orders:
a: an order declaring the whole or any part of an occupation right agreement made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct referred to in subsection (1), or of a collateral arrangement relating to that occupation right agreement, to be void and, if the court thinks fit,—
i: to have been void from the beginning; or
ii: at all times on and after any date, before the date on which the order is made, that is specified in the order:
b: an order varying that occupation right agreement or arrangement in any manner that is specified in the order and, if the court thinks fit, declaring the agreement or arrangement to have had effect as so varied on and after any date, before the date on which the order is made, that is specified in the order:
c: an order directing the person who engaged in the conduct referred to in subsection (1) to refund money or return property to the person who suffered the loss or damage:
d: an order directing the person who engaged in the conduct referred to in subsection (1) to pay to the person who suffered the loss or damage the amount of the loss or damage:
e: an order directing the person who engaged in the conduct referred to in subsection (1), at that person's own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage. 1986 No 5 s 43(1), (2)
83: Monetary limits and exercise of jurisdiction
1: In the exercise of its jurisdiction under section 82 the District Court
a: make any order under section 82(3) 350,000
b: make an order under section 82(3)﻿(b) 350,000
c: make an order under section 82(3)﻿(c) 350,000
d: make an order under section 82(3)﻿(d) 350,000
e: make an order under section 82(3)﻿(e) 350,000
2: In the exercise of its jurisdiction under section 82 the Disputes Tribunal
a: make an order under section 82(3)﻿(c) $30,000
b: make an order under section 82(3)﻿(d) $30,000
c: make an order under section 82(3)﻿(e) $30,000
3: 1986 No 5 s 43(3), (4), (4A) Section 83(1) amended 1 March 2017 section 261 District Court Act 2016 Section 83(1)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 83(1)﻿(b) amended 1 March 2017 section 261 District Court Act 2016 Section 83(1)﻿(c) amended 1 March 2017 section 261 District Court Act 2016 Section 83(1)﻿(d) amended 1 March 2017 section 261 District Court Act 2016 Section 83(1)﻿(e) amended 1 March 2017 section 261 District Court Act 2016 Section 83(2) amended 1 March 2017 section 261 District Court Act 2016 Section 83(2)﻿(a) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 83(2)﻿(b) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 83(2)﻿(c) amended 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018 Section 83(3) repealed 29 October 2019 section 340(2) Tribunals Powers and Procedures Legislation Act 2018
84: General provisions relating to section 82 orders
1: An application under section 82(1)
2: An order made under section 82(3)﻿(a) or (b) sections 79 to 86
3: Nothing in section 82 section 83 subpart 5
4: For the purposes of sections 81 82 court the District Court and also, for the purposes of section 82, the Disputes Tribunal
5: Nothing in section 82 section 83 section 317 1986 No 5 s 43(5)–(9) Section 84(3) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 84(4) amended 1 March 2017 section 261 District Court Act 2016
85: Defences
1: It is a defence to a prosecution for an offence against section 79
a: that the contravention was due to a reasonable mistake; or
b: that the contravention was due to reasonable reliance on information or legal advice supplied by another person; or
c: that—
i: the contravention was due to the act or default of another person, or to an accident or to another cause beyond the defendant's control; and
ii: the defendant took reasonable precautions and exercised due diligence to avoid the contravention.
2: For the purposes of subsection (1)﻿(b) and (c), another person
a: a servant or agent of the defendant (other than a lawyer); or
b: if the defendant is a body corporate, a director, servant, or agent of the defendant (other than a lawyer).
3: It is a defence to a prosecution for an offence against section 79 sections 80 to 86
a: that the defendant's business is publishing or arranging for the publication of advertisements; and
b: that the defendant received the advertisement or the information contained in the advertisement, as the case may be, in the ordinary course of that business and did not know and had no reason to suspect that the publication of the advertisement or the publication of the advertisement containing that information, as the case may be, would constitute a contravention of the provision. 1986 No 5 s 44(1), (2), (4)
86: Finding in proceedings to be evidence
In any application for an order against a person under section 82 section 80 section 81 section 79 the District Court
a: prima facie evidence of that fact; and
b: may be proved by production of a document under the seal of the High Court or District Court, as the case may be, in which the finding was made. 1986 No 5 s 46 Section 86 amended 1 March 2017 section 261 District Court Act 2016
5: Registrar of Retirement Villages, code of practice, and miscellaneous matters
Registrar of Retirement Villages
87: Appointment of Registrar
1: There must be a Registrar of Retirement Villages who must be appointed under the Public Service Act 2020
2: The person holding office as Registrar of Companies under the Companies Act 1993 Section 87(1) amended 7 August 2020 section 135 Public Service Act 2020
88: Power of Registrar to delegate
1: The Registrar may from time to time, in writing, delegate to any person all or any of the functions, duties, and powers exercisable by the Registrar under this Act, except this power of delegation.
2: Subject to any general or special directions given or conditions attached at any time by the Registrar, the person to whom any functions, duties, or powers are delegated under this section must perform and may exercise those functions, duties, and powers in the same manner and with the same effect as if they had been conferred on that person directly by this section and not by delegation.
3: Every person purporting to act under any delegation under this section is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.
4: Any delegation under this section may be made to a specified person or to persons of a specified class, or may be made to the holder or holders for the time being of a specified office or specified classes of offices.
5: Every delegation under this section is revocable in writing at will, and no such delegation prevents the exercise of any function, duty, or power by the Registrar.
6: Every delegation under this section, until revoked, continues in force according to its tenor, even if the Registrar by whom it was made has ceased to hold office. Code of practice
89: Code of practice must be prepared and published
1: The Minister may approve one of the draft codes of practice submitted to the Minister by any retirement village, group of retirement villages, or association of operators of a retirement village as the code of practice applicable to all retirement villages, after considering any recommendations of the Retirement Commissioner made in accordance with subsection (2).
2: Before making a recommendation to the Minister for the purposes of subsection (1), the Retirement Commissioner must consider any recommendations by any groups of persons or bodies that, in the opinion of the Retirement Commissioner, represent the interests of—
a: operators of retirement villages; or
b: residents or intending residents; or
c: statutory supervisors; or
d: other persons.
3: The Minister is not obliged to approve a draft code of practice submitted under subsection (1) that the Minister considers is incomplete or inappropriate or that fails to comply with the requirements of subsection (5) or Schedule 5
4: If no draft code of practice acceptable to the Minister has been submitted under subsection (1) before 1 January 2005, the Minister must prepare and approve
a: the Retirement Commissioner; and
b: any groups of persons or bodies that, in the opinion of the Minister, represent the interests of operators of retirement villages, residents or intending residents, statutory supervisors, or other persons.
5: A draft code of practice submitted under subsection (1) or a code of practice prepared under subsection (4) must—
a: specify rules of practice in relation to every matter that the code is required by Schedule 5
b: be consistent with the rights referred to in the code of residents' rights.
6: A code of practice is secondary legislation ( see Part 3
7: That Act applies as if—
a: the Minister were the maker of the code; and
b: the code were made by the Minister approving it. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (6). Legislation Act 2019 requirements for secondary legislation referred to in subsection (6) Publication The maker must publish in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 The Ministry of Foreign Affairs and Trade considers that the secondary legislation may have international transparency obligations under the CPTPP s 75 LA19 ss 74(2) 75 Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 89(4) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 89(6) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 89(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
90: Duration and variation of code of practice
1: The code of practice—
a: comes into force,—
i: in the case of the first code of practice, 1 year after it is approved under section 89(1) or (4)
ii: in the case of any subsequent code of practice approved under section 89(1) in accordance with the Legislation Act 2019
b: continues in force until a subsequent code of practice approved under section 89(1)
2: An operator of a retirement village may elect to be bound by a code of practice that is not yet in force, by giving notice of that election to—
a: the Registrar; and
b: the statutory supervisor of the village (if there is one); and
c: every resident and intending resident of the retirement village.
3: If an operator elects, under subsection (2), to be bound by a code of practice that is not yet in force,—
a: that code must for all purposes be treated as if it were in force in respect of that operator and the retirement village to which the election relates; and
b: any earlier code of practice ceases to apply to that operator and the retirement village to which the election relates.
4: The code of practice approved under section 89(1) or (4)
a: the Retirement Commissioner; and
b: any groups of persons or bodies that, in the opinion of the Minister, represent the interests of operators of retirement villages, residents or intending residents, statutory supervisors, or other persons.
5: An instrument that varies a code of practice is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 The Ministry of Foreign Affairs and Trade considers that the secondary legislation may have international transparency obligations under the CPTPP s 75 LA19 ss 74(2) 75 Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 90(1)﻿(a)﻿(ii) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 90(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
91: Retirement Commissioner to provide publication information
1: Before making any recommendation under section 89 section 90(4)
a: the places at which the public may inspect or obtain, without charge,—
i: the draft code of practice under consideration; or
ii: the proposed variation under consideration:
b: the last date on which the Retirement Commissioner will receive written submissions on the draft code of practice or variation (which date must not be less than 1 month after the date of the publication of the notice).
2: The Retirement Commissioner must also ensure that the information required to be given by public notice under subsection (1) can be accessed by the public at a website maintained by the Commissioner.
92: Status of code of practice
1:
2: While a code of practice is in force, it—
a: must be complied with by—
i: every operator of a retirement village:
ii: every receiver or liquidator or statutory manager of an operator or the property of the operator; and
b: is enforceable as a contract by a resident and prevails over any less favourable provision in his or her occupation right agreement; and
c: must be given effect to in any occupation right agreement offered to a resident.
3: Nothing in a code of practice applies to any health services or disability services or facilities to which the Code of Health and Disability Services Consumers' Rights under the Health and Disability Commissioner Act 1994
4: The operator of a retirement village must make a copy of the code of practice available to every resident and intending resident on request.
5: Subsection (2) is subject to section 93 Section 92(1) repealed 28 October 2021 Secondary Legislation Act 2021
93: Exemption from requirement to comply with code of practice
1: The Registrar may exempt an operator from complying with any provision of the code of practice if the Registrar is satisfied that the criteria for exemption prescribed under section 105
2: An operator applies to the Registrar for an exemption by—
a: completing the prescribed form and delivering it to the Registrar; and
b: paying the prescribed fee.
3: The Registrar may exempt the operator on the terms and conditions, and for any period (not exceeding 2 years), that the Registrar thinks appropriate in the particular circumstances.
4: The Registrar may revoke an exemption, or vary its terms or conditions, if the Registrar is satisfied that—
a: the ground for the exemption no longer applies; or
b: the operator has not complied with its terms and conditions.
5: The Registrar must give notice of the revocation or variation of an exemption as soon as possible to—
a: the statutory supervisor (if there is one); and
b: the operator. Registered office of retirement village
94: Registered office
1: A retirement village must always have a registered office in New Zealand.
2: The registered office of a retirement village at a particular time is the place that is described as its registered office in the register maintained under Schedule 1
3: The description of the registered office must—
a: state the address of the registered office; and
b: if the registered office is at the offices of any firm of
i: that the registered office of the retirement village is at the offices of that firm or person; and
ii: particulars of the location in any building of those offices; or
c: if the registered office is not at the offices of any such firm or person but is located in a building occupied by persons other than the retirement village, state particulars of its location in the building. 1993 No 105 s 186 Section 94(3)﻿(b) amended 1 July 2015 section 17 Financial Reporting Amendment Act 2014 Change of registered office
95: Change of registered office
1: The operators of a retirement village may change the registered office of the retirement village at any time.
2: Notice in the prescribed form of the change must be given to the Registrar for registration.
3: The change in the registered office takes effect on a date stated in the notice, not being a date earlier than 5 working days after the notice is registered. 1993 No 105 s 187 Address for service of retirement village
96: Address for service
1: A retirement village's address for service at any particular time is the address that is described as its address for service in New Zealand in the register maintained under Schedule 1
2: A retirement village's address for service must not be at a postal centre or document exchange.
3: The operators of a retirement village may change the address for service of the retirement village at any time.
4: Notice in the prescribed form of the change must be given to the Registrar for registration.
5: A change of address for service takes effect on a date stated in the notice, not being a date that is earlier than 5 working days after the notice is registered. 1993 No 105 s 193 Registrar's powers of inspection
97: Registrar's powers of inspection
1: The Registrar or a person authorised by the Registrar may,—
a: for the purpose of—
i: ascertaining whether a retirement village or operator complies, or has complied, with this Act
ii: ascertaining whether the Registrar should exercise any of his or her rights or powers under this Act
iii: detecting offences against this Act
b: if, in the Registrar's opinion, it is in the public interest to do so,—
i: inspect and take copies of relevant documents; or
ii: take possession of relevant documents and remove them from the place where they are kept, and retain them for a reasonable time, for the purpose of taking copies; or
iii: retain relevant documents for a period that is, in all the circumstances reasonable, if there are reasonable grounds for believing that they are evidence of the commission of an offence.
2: Nothing in this section affects the Tax Administration Act 1994 Data and Statistics Act 2022
3: A person must not obstruct or hinder the Registrar or a person authorised by the Registrar while exercising a power conferred by subsection (1).
4: In this section relevant document
a: the retirement village; or
b: money or other property that is, or has been, managed, supervised, controlled, or held in trust by or for the retirement village.
5: Nothing in this section requires any person to produce a document if that person could refuse to produce that document in proceedings on the grounds of any privilege available in a court of law. Section 97(1)﻿(a)﻿(i) amended 1 April 2014 section 116 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 97(1)﻿(a)﻿(ii) amended 1 April 2014 section 116 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 97(1)﻿(a)﻿(iii) amended 1 April 2014 section 116 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 97(2) amended 1 September 2022 section 107(1) Data and Statistics Act 2022
98: Disclosure of information and reports
1: Subsection (2) applies if a person authorised by the Registrar for the purpose of section 97
a: obtained a document or information in the course of making an inspection under that section; or
b: prepared a report in relation to an inspection under that section.
2: If this subsection applies, a person must, if directed to do so by the Registrar, give the document, information, or report to—
a: the Minister; or
b: the chief executive of the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act; or
c: the official assignee, for the purposes of the bankruptcy of an operator of a retirement village; or
d: any person authorised by the Registrar to receive the document, information, or report for the purposes of this Act or in connection with the exercise of powers conferred by this Act; or
e: a liquidator for the purposes of the liquidation of a retirement village or an operator of a retirement village.
3: A person authorised by the Registrar for the purposes of section 97
a: obtained a document or information in the course of making an inspection under that section; or
b: prepared a report in relation to an inspection under that section— must give the document, information, or report to the Registrar when directed to do so by the Registrar.
4: Subsection (5) applies if a person authorised by the Registrar for the purposes of section 97
a: obtained a document or information in the course of making an inspection under that section; or
b: prepared a report in relation to an inspection under that section.
5: A person to whom this subsection applies must not disclose that document, information, or report except—
a: in accordance with subsection (2) or subsection (3); or
b: subject to the approval of the Registrar, with the consent of the person to whom it relates; or
c: subject to the approval of the Registrar, for the purposes of this Act or in connection with the exercise of powers conferred by this Act; or
d: to the extent that the information, or information contained in the document or report, is available under any Act or in a public document; or
e: subject to the approval of the Registrar, to a liquidator for the purposes of the liquidation of a company or the assets of an overseas company; or
f: in the course of criminal proceedings.
99: Certain provisions of Companies Act 1993 apply
1: Sections 364 388 to 392
2: Sections 368 to 372 section 97
100: Deeds of participation
If a deed of participation relating to the supervision of a retirement village that was entered into before the commencement of section 38
101: Regulations
1: The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:
a: regulating advertising undertaken in connection with the promotion of retirement villages and the terms and form of disclosure statements to be used for the purposes of this Act:
b: specifying the matters to be included in applications for registration and the documents required to accompany those applications:
c: prescribing interest on amounts for which interest is required to be paid:
d: specifying matters to be included in occupation right agreements:
e: specifying information, provisions, and matters to be included in a deed of supervision:
f: conferring any powers or duties on the Retirement Commissioner or statutory supervisors or both:
g: regulating the manner in which disputes panels must conduct their hearings:
h: specifying the matters for which fees and charges must be paid under this Act or regulations made under this Act:
i: prescribing forms for the purposes of this Act:
j: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Without limiting the generality of subsection (1)﻿(a), regulations may be made under that provision—
a: prescribing the information, statements, certificates, documents, or other matters that must or must not be contained in, or endorsed on, or attached to, advertisements or disclosure statements, either generally or in respect of any specified class of advertisement or disclosure statement; or
b: prohibiting or restricting the use in advertisements or disclosure statements of prescribed words, information, statements, sounds, and images, graphics, or other matters, either generally or in respect of any specified class of advertisement or disclosure statement; or
c: prescribing requirements as to the layout or method of presentation of any advertisement, or disclosure statement and the size of type used in those advertisements or disclosure statements, either generally or in respect of any specified class of advertisement or disclosure statement.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 101(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
102: Fees and charges
1: Without limiting the generality of section 101
a: fees or other amounts payable to the Registrar or the Registrar-General of Land in respect of the performance of functions and the exercise of powers under this Act or regulations made under this Act:
b: amounts payable to the Registrar by way of penalty for failure to deliver a document within the time prescribed by this Act or regulations made under this Act:
c: fees or other amounts payable to the Registrar or the Registrar-General of Land in respect of any other matter under this Act or regulations made under this Act.
2: The Registrar or the Registrar-General of Land may refuse to perform a function or exercise a power until the prescribed fee or amount is paid.
3: Regulations made under section 101(1)﻿(h)
4: Any fee or amount payable to the Registrar or the Registrar-General of Land is recoverable in any court of competent jurisdiction as a debt due to the Crown. Validation of fees Heading inserted 25 May 2022 section 25 Companies Office Registers Funding Validation Act 2022
102A: Validation of fees used to recover costs of other Companies Office registers, etc
1: This section applies to a fee—
a: that—
i: is or was payable or purportedly payable on or before 30 June 2022 under any of the Acts listed in subsection (4) or any regulations made under any of those Acts; and
ii: was (or is or will be) used in whole or in part to recover the costs or a share of the costs of the Registrar in operating 1 or more registers under this Act or in exercising or performing any other powers, functions, and duties under this Act or any regulations made under this Act; or
b: that—
i: is or was payable or purportedly payable on or before 30 June 2022 under this Act or any regulations made under this Act; and
ii: was (or is or will be) used in whole or in part to recover the costs or a share of the costs of 1 or more registers operated under any of the Acts listed in subsection (5) or in exercising or performing the powers, functions, and duties of a Registrar under any of those Acts or any regulations made under any of those Acts.
2: The fee is and always has been validly imposed.
3: Money received by the Registrar of any register maintained by the Companies Office in payment of the fee—
a: is and always has been lawfully collected and applied; and
b: may continue to be applied on and after 1 July 2022 to recover costs referred to in subsection (1)﻿(a)﻿(ii) and (b)﻿(ii).
4: The Acts are—
a: the Auditor Regulation Act 2011
b: the Building Societies Act 1965
c: the Companies Act 1993
d: the Financial Markets Conduct Act 2013
e: the Financial Reporting Act 1993
f: the Financial Service Providers (Registration and Dispute Resolution) Act 2008
g: the Friendly Societies and Credit Unions Act 1982
h: the Incorporated Societies Act 1908
i: the Insolvency Practitioners Regulation Act 2019
j: the Limited Partnerships Act 2008
k: the Personal Property Securities Act 1999
l: the Securities Act 1978
5: The Acts are—
a: the Auditor Regulation Act 2011
b: the Building Societies Act 1965
c: the Charitable Trusts Act 1957
d: the Companies Act 1993
e: the Financial Markets Conduct Act 2013
f: the Financial Reporting Act 1993
g: the Financial Reporting Act 2013
h: the Financial Service Providers (Registration and Dispute Resolution) Act 2008
i: the Friendly Societies and Credit Unions Act 1982
j: the Incorporated Societies Act 1908
k: the Incorporated Societies Act 2022
l: the Industrial and Provident Societies Act 1908
m: the Insolvency Practitioners Regulation Act 2019
n: the Limited Partnerships Act 2008
o: the New Zealand Business Number Act 2016
p: the Personal Property Securities Act 1999
q: the Securities Act 1978
6: In this section,— Companies Office
a: the former Department of Justice:
b: the former Ministry of Commerce:
c: the former Ministry of Economic Development:
d: the Ministry of Business, Innovation, and Employment fee
a: includes any penalty or overdue fee imposed, or interest charged, in relation to an unpaid or overdue fee; and
b: in relation to the Insolvency Practitioners Regulation Act 2019 section 81 Section 102A inserted 25 May 2022 section 25 Companies Office Registers Funding Validation Act 2022
103: Regulations defining retirement villages
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, declare specified property, buildings, or other premises, or property, buildings, or other premises of a specified class, to be or not to be a retirement village for the purposes of this Act.
2: The Minister must not recommend the making of any Order in Council under subsection (1) unless, in the opinion of the Minister, the Order in Council is necessary—
a: to prevent the avoidance of obligations under this Act as a consequence of any scheme or arrangement; or
b: to clarify whether—
i: specific property, buildings, or other premises; or
ii: property, buildings, or other premises of a specified class— whose status is in doubt are or are not a retirement village.
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 103(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
104: Regulations prescribing criteria for exemptions under section 41
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing criteria for the grant of exemptions under section 41
2: The Minister must not recommend the making of any Order in Council under subsection (1) unless, in the opinion of the Minister, the regulations will enable the grant of an exemption from the requirement to appoint a statutory supervisor only in circumstances where the appointment of a statutory supervisor is unnecessary for the protection of residents' interests or undesirable.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 104(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
105: Regulations prescribing criteria for exemptions under section 93
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing criteria for the grant of exemptions under section 93
2: The Minister must not recommend the making of an Order in Council under subsection (1) unless, in the opinion of the Minister, the regulations will enable the grant of an exemption from the requirement to comply with a provision or provisions of the code of practice only in circumstances where compliance with the provision or provisions that are the subject of the exemption is unnecessary for the protection of residents' interests or undesirable.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 105(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
105A: Regulations exempting from provisions of Trusts Act 2019
1: The Governor-General may, by Order in Council, make regulations exempting any trust, trustee, statutory supervisor, operator, or other person, or any class of trust or person, from the application of any provision or provisions of the Trusts Act 2019
2: Regulations may only be made under this section on the recommendation of the Minister, and the Minister may make a recommendation only if satisfied that—
a: the application of the provision or provisions of the Trusts Act 2019
b: having regard to the purpose and principles of the Trusts Act 2019 Trusts Act 2019
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 105A inserted 30 January 2021 section 184 Trusts Act 2019 Section 105A(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
106: Notices
1: Any notice under this Act may be given to any person by delivering it to that person either personally or by leaving it at, or sending it to, the person's last known or usual place of residence or business.
2: If a notice addressed to a person at the person's last known or usual place of residence or business is posted, it is deemed, in the absence of evidence to the contrary, to have been received at the time when it would in the ordinary course of post be delivered.
107: Acts not to apply
1: Neither Parts 3 4 Residential Tenancies Act 1986
a: applies to—
i: any offer of occupation; or
ii: any occupation right agreement; or
iii: any advertisement for occupation of a retirement village; or
b: applies to any rights or obligations on a resident or operator of a retirement village acting in that capacity.
2: Subsection (1) does not exempt any person from the application of any provision of Parts 3 4
a: in relation to the offer of any financial products (other than a financial product arising out of a matter referred to in subsection (1)﻿(a))—
i: in the retirement village; or
ii: by any operator of a retirement village; or
b: in relation to an offer of financial products to any person who is already a resident and who is not obliged to acquire the products by an occupation right agreement. Section 107(1) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 107(2) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
108: Amendment to Corporations (Investigation and Management) Act 1989
Amendment(s) incorporated in the Act(s)
109: Amendments to Financial Reporting Act 1993
Amendment(s) incorporated in the Act(s)
110: Amendment to Securities Act 1978
Amendment(s) incorporated in the Act(s)