Amana Living Incorporated v Commissioner of Titles

[2024] WASC 45

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   AMANA LIVING INCORPORATED -v- COMMISSIONER OF TITLES [2024] WASC 45

CORAM:   WHITBY J

HEARD:   ON THE PAPERS

DELIVERED          :   27 FEBRUARY 2024

FILE NO/S:   CIV 1991 of 2023

BETWEEN:   AMANA LIVING INCORPORATED

Plaintiff

AND

COMMISSIONER OF TITLES

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Retirement Villages Act 1992 (WA) - Requirement to lodge a memorial under s 15(3) - Definition of 'Retirement Villages' and 'Retirement Village Scheme' pursuant to s 3 - Whether facilities operating on parcel of land subject to memorial are subject to the Retirement Villages Act - Memorial lodged in error over separate 'retirement villages' and 'retirement village schemes' - Transfer of Land Act 1893 (WA) - Correction of error under s 188(3) of the Transfer of Land Act

Legislation:

Aged Care Act 1997(Cth)
Aged Care Quality and Safety Commission Act 2018 (Cth)
Associations Incorporations Act 1987 (WA)
Retirement Villages Act 1992 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Jackson McDonald
First Defendant	:	No appearance
Second Defendant	:	No appearance

Case(s) referred to in decision(s):

Amana Living Incorporated v Commissioner of Titles [2019] WASC 203

Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219

Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80

WHITBY J:

1. Up until 2014, those within the retirement village industry were of the understanding that a single memorial could be lodged over the land on which multiple and separate retirement villages operated.  This was an incorrect understanding.  The unintended consequence is that the residents of each separate retirement village have the benefit of statutory charges over all of the parcels of land encumbered by the single memorial.

2. Amana Living Incorporated (Amana) seek orders to disencumber several parcels of land over which two memorials have been lodged to correct this misunderstanding. 

3. For the reasons that follow, I make those orders.

Amana's application

1. By its originating summons dated 31 August 2023, Amana seeks the following orders:

   1.A declaration that the Register maintained under section 48 of the Transfer of Land Act 1893 (WA) contains errors in respect of:

   1.1Memorial F013481 (within the meaning of section 15 of the Retirement Villages Act 1992 (WA)), which erroneously purports to aggregate under a single memorial multiple, separate 'retirement villages' (within the meaning of section 3 of the Retirement Villages Act 1992 (WA)) established and operating or formerly operated on multiple, separate parcels of land, and;

   1.2the correspondingly endorsed certificates of title set out in the First Schedule, which certificates of title erroneously indicate that the land the subject of the certificates of title:

   1.2.1.is part of a single 'retirement village' (within the meaning of section 3 of the Retirement Villages Act 1992 (WA)) also comprising each of the other parcels of land endorsed by the respective single memorial, and;

   1.2.2may be encumbered by such unregistered statutory charges as may arise under section 20(1) of the Retirement Villages Act 1992 (WA) in respect of any 'premiums' paid by residents or former residents of other, separate retirement villages also erroneously the subject of a single memorial.

   2.A declaration that the Register maintained under section 48 of the Transfer of Land Act 1893 (WA) contains errors in respect of:

   2.1Memorial G139747 (within the meaning of section 15 of the Retirement Villages Act 1992 (WA)), which erroneously purports to aggregate under a single memorial multiple, separate 'retirement villages' (within the meaning of section 3 of the Retirement Villages Act 1992 (WA)) established and operating or formerly operated on multiple, separate parcels of land; and

   2.2the correspondingly endorsed certificates of title set out in the Second Schedule, which certificates of title erroneously indicate that the land the subject of the certificates of title:

   2.2.1is part of a single 'retirement village' (within the meaning of section 3 of the Retirement Villages Act 1992 (WA)) also comprising each of the other parcels of land endorsed by the respective single memorial, and;

   2.2.2may be encumbered by such unregistered statutory charges as may arise under section 20(1) of the Retirement Villages Act 1992 (WA) in respect of any 'premiums' paid by residents or former residents of other, separate retirement villages also erroneously the subject of a single memorial.

   3.A declaration that section 188(3) of the Transfer of Land Act 1893 (WA) empowers the First Defendant to direct the Second Defendant, and the Second Defendant to comply with such direction, to correct the errors in the Register by:

   3.1expunging Memorial F013481 from all of those certificates of title which Memorial F013481 currently endorses (which are listed in the First Schedule); and

   3.2expunging Memorial G139747 from all of those certificates of title which Memorial G139747 currently endorses (which are listed in the Second Schedule).

   4.A declaration that the Plaintiff is required, on or before the expunging of Memorial F013481, to lodge new and separate registrable memorials over each parcel of land described in the Third Schedule under section 15 of the Retirement Villages Act 1992 (WA).

   5.There be no orders as to costs.

2. The certificates of title presently endorsed by Memorial F013481, lodged on 15 October 1992 and listed in the schedule to the originating summons are:[1]

   1.The land upon which the 'Dorothy Genders' retirement village operates at 99 McCabe Street, Mosman Park, more particularly described in Certificate of Title Volume 2121 Folio 796;

   2.The land upon which the 'Frederick Guest' retirement village and aged care facility operates at 25 Gleddon Road, Bull Creek, more particularly described in Certificate of Title Volume 1570 Folio 157;

   3.The land upon which the 'Hale' retirement village and aged care facility operates at 37 Waverley Road, Coolbellup, more particularly described in Certificate of Title Volume 2159 Folio 307;

   4.The land upon which the 'Muschamp' retirement village and aged care facility operates at 173 Wilson Street, South Kalgoorlie, more particularly described in Certificate of Title Volume 1748 Folio 631;

   5.The land upon which the 'James Brown' aged care facility operates at 171 Albert Street, Osborne Park, more particularly described in Certificate of Title Volume 2118 Folio 929;

   6.The land upon which the 'Thomas Scott' aged care facility operates at 63 Ypres Road, Camillo, more particularly described in Certificate of Title Volume 2887 Folio 774; and the land upon which the 'Lefroy' aged care facility operates at 22 Lefroy Road, Bull Creek, more particularly described in Certificate of Title Volume 1865 Folio 125.

   [1] First Olynyk Affidavit, Annexure JAO-1, pages 27 - 30, Memorial F013481 Map.

3. The certificates of title presently endorsed by Memorial G139747, lodged on 29 March 1996 and listed the schedule to the originating summons are:[2]

   1.The land upon which the 'Kinross' aged care facility operates at 71 Kinross Drive, Kinross, more particularly described in Certificate of Title Volume 2765 Folio 496;

   2.The land upon which the 'St Georges' aged care facility operates at 2 Essex Street, Bayswater, more particularly described in Certificate of Title Volume 2034 Folio 371; and

   3.The land upon which the 'Lefroy' aged care facility operates at 28 Lefroy Road, Bull Creek, more particularly described in Certificate of Title Volume LR3000 Folio 664.

   [2] First Olynyk Affidavit, Annexure JAO-11, pages 179 - 182, Memorial G139747 Map.

The parties

1. The Commissioner of Titles (the first defendant) and the Registrar of Titles (the second defendant) have advised that they do not intend to enter an appearance in the proceedings.[3]

   [3] Second Olynyk Affidavit, [14], [22], Annexure JAO-2, pages 17 - 19; Annexure JAO-4, pages 25 - 27.

The evidence

1. Amana rely upon the following evidence in support of its application:

   (1)Affidavit of Jade Ashlee Olynyk affirmed 23 August 2023 (First Olynyk Affidavit);

   (2)Affidavit of David John Spinks sworn 3 July 2023 (Spinks Affidavit).

   (3)Affidavit of Rita Sheridan affirmed 30 August 2023 (Sheridan Affidavit);

   (4)Affidavit of Jennifer Helen Williams sworn 1 December 2023 (Williams Affidavit); and.

   (5)Supplementary affidavit of Jada Ashlee Olynyk affirmed 6 December 2023 (Second Olynyk Affidavit).

Background

1. Amana (previously Anglican Homes Incorporated), a not-for-profit organisation incorporated in 1979 under the now repealed Associations Incorporation Act 1987 (WA), provides aged care and retirement living services in Western Australia.[4]

   [4] Sheridan Affidavit, Annexure RS-1, pages 27 - 31.

2. In 1992, Amana provided accommodation categorised as self-care units, hostel units and nursing bed homes.[5] This accommodation is referred to as 'independent living units' or 'self-care units' and made up the retirement village accommodation provided by Amana.[6]

   [5] Sheridan Affidavit, Annexure RS-8, page 83.

   [6] Sheridan Affidavit, Annexure RS-8, page 83; Spinks Affidavit, [4].

3. Amana currently operates 17 retirement villages throughout Western Australia.[7]

   [7] Sheridan Affidavit, [17].

4. In addition to retirement villages, Amana provides aged care services in accordance with the Aged Care Act 1997 (Cth) (ACA). These services take the form of nursing homes, permanent accommodation with 24‑hour care and day centres which provide respite care for people living with dementia.[8]

   [8] Williams Affidavit, [8], [13], [30], [33] - [34].

5. Amana currently operates 14 nursing homes and 6 respite day clubs.[9]

   [9] Williams Affidavit, [8], [30].

Memorial F013481

1. Memorandum F013481 was lodged on 15 October 1992 by Anglican Homes Incorporated (as Amana was then known) over 8 parcels of land.[10]

   [10] First Olynyk Affidavit, Annexure JAO-1, pages 27 - 30.

2. Memorandum F013481 Notation 1 states:[11]

   The land above described is or is proposed to be used for the purposes of a Retirement Village scheme within the meaning of the Retirement Villages Act 1992.

   [11] First Olynyk Affidavit, Annexure JAO-1, pages 27 - 30.

3. Notation 2 states:[12]

   By virtue of section 20 of the Retirement Villages Act 1992 the Land above described may be subject to a charge securing repayment of money to residents of the Retirement Village.

   [12] First Olynyk Affidavit, Annexure JAO-1, pages 27 - 30.

4. The 'land above described' in F013481 included the following 8 parcels:

Volume/Folio53	Location54	Name55
1873/176	Osborne Park	James Brown
1865/125	Bull Creek	Lefroy Care Centre
1748/631	South Kalgoorlie	Muschamp
1570/157	Bull Creek	Frederick Guest
1608/940	Mosman Park	Dorothy Genders
1768/056	Coolbellup	Hale
1768/057	Coolbellup	Hale
1643/411	Camillo	Thomas Scot

Memorial G139747

1. Memorandum G139747 was lodged on 29 March 1996 by Anglican Homes Incorporated (as Amana was then known) over 3 parcels of land.[13]

   [13] First Olynyk Affidavit, Annexure JAO-1, pages 27 - 30.

2. Memorandum G139747 Notation 1 states:[14]

   The land above described is or is proposed to be used for the purposes of a Retirement Village scheme within the meaning of the Retirement Villages Act 1992.

   [14] First Olynyk Affidavit, Annexure JAO-1, pages 27 - 30.

3. Notation 2 states:[15]

   By virtue of section 20 of the Retirement Villages Act 1992 the Land above described may be subject to a charge securing repayment of money to residents of the Retirement Village.

   [15] First Olynyk Affidavit, Annexure JAO-1, pages 27 - 30.

4. The 'land above described' in G139747 included the following 3 parcels:

Volume/Folio152	Location153	Name154
2021/114	Kinross	Kinross
2024/371	Bayswater	St Georges
LR3000/664	Bull Creek	Lefroy Day Centre

Applicable Legal Principles

1. This is the fourth case involving a single memorial lodged in respect of multiple separate retirement villages to come before this court. The other three cases are: Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection (Retirement Care),[16] Swancare Group Inc v Commissioner for Consumer Protection (Swancare)[17] and Amana Living Incorporated v Commissioner of Titles (Amana Case).[18]

   [16] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [90].

   [17] Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80 [147].

   [18] Amana Living Incorporated v Commissioner of Titles [2019] WASC 203 [37] - [41], [45] - [46].

2. Amana does not challenge the reasoning in Swancare, Retirement Care and the Amana Case. [19]

Retirement villages governed by the Retirement Villages Act 1992 (WA)(RVA)

[19] Plaintiff's Outline of Submissions dated 15 December 2023 [9].

1. Retirement villages are distinct and separate from aged care facilities. Retirement villages are intended for retirees who can live independently but desire a communal environment to share facilities and amenities. Their operation in Western Australia is governed by the RVA.[20]

   [20] Department of Mines, Industry Regulation and Safety, 'Retirement villages - Seniors housing guide' Publication,>

   A retirement village is defined by RVA s 3(1):

   A complex of residential premises, whether or not including hostel units, and appurtenant land, occupied or intended for occupation under a retirement village scheme or used or intended to be used for or in connection with a retirement village scheme.

2. In Retirement Care, Pritchard J (as her Honour then was) said:[21]

   [T]he word 'appurtenant' should be given its ordinary meaning of 'belonging, appertaining, pertinent' [… Macquarie Dictionary (4th ed, 2005)]. The word 'appurtenant' is often used in the statutory context to describe land or premises which pertains to, or is used in connection with, or which is necessary for, the use and enjoyment of other land or premises… In my view, that is its intended meaning in the present context.

   [21] Retirement Care [90].

3. RVA s 3(1) defines 'retirement village scheme' as

   [A] scheme established for retired persons or predominantly for retired persons, under which -

   (a)residential premises are occupied in pursuance of a residential tenancy agreement or any other lease or licence;

   (b)a right to occupation of residential premises is conferred by ownership of shares;

   (c)residential premises are purchased from the administering body subject to a right or option of repurchase;

   (d)residential premises are purchased subject to conditions restricting the subsequent disposal of the premises; or

   (e)residential premises are occupied under any other scheme or arrangement prescribed for the purposes of this definition,

   but does not include any such scheme under which no resident or prospective resident of residential premises pays a premium in consideration for, or in contemplation of, admission as a resident under the scheme.

4. RVA s 3 defines residential premises as:

   any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence and includes a hostel unit.

5. As per RVA s 20, a resident's right to repayment of all or part of a 'premium' paid is secured against the 'land in the retirement village' by a statutory charge.

6. The purpose of a memorial is to notify persons who may deal with land in a retirement village that a charge may exist in respect of the land by operation of RVA s 20.

7. Amana accepts that it is not possible, pursuant to the RVA, for Amana to lodge a single memorial in respect of different parcels of land to the extent that they are used for separate 'retirement villages'.

Aged care facilities governed by the ACA

1. Aged care facilities are facilities which provide care to those who are not capable of living independently.[22] Their operation in Western Australia is governed by the Commonwealth legislation including the ACA.

   [22] ACA; sch 1.

2. The ACA sch 1 defines 'care' as:

   services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently.

3. The ACA governs various forms of aged care as apparent from the definition of 'care' above, including 'residential care', 'home care', and 'flexible care'.[23]

   [23] ACA; sch 1.

4. Aged care facilities are excluded from the operation of the RVA by s 5(2):

   (2)This Act does not apply to a resident or prospective resident of a retirement village or to the administering body of that retirement village if -

   (a)the administering body is an 'approved provider' as defined in the Aged Care Act 1997 Schedule 1 of the Commonwealth in relation to the residential premises used or intended to be used as a place of residence by the resident or prospective resident; and

   (b)the administering body provides, or is to provide, the resident or prospective resident with 'residential care' as defined in the Aged Care Act 1997 section 41-3 of the Commonwealth; and

   (c)the resident or prospective resident is receiving, or is entitled to receive, residential care in respect of which the administering body is eligible for a 'residential care subsidy' as defined in the Aged Care Act 1997 Schedule 1 of the Commonwealth.

5. Therefore, the RVA does not apply to an aged care facility if it is an 'approved provider' providing 'residential care' to residents where the administering body is eligible for a 'residential care subsidy'.

6. As per ACA sch 1, an approved provider has the same meaning as in the Aged CareQuality and Safety Commission Act 2018 (Cth).

7. Age Care Quality and Safety Commission Act 2018 (Cth) s 7 outlines that a person or body is an 'approved provider' if:

   a)the person or body 

   i)has been approved as a provider of aged care under section 63D; or

   ii)is taken, under paragraph 63F(2)(a), to be an approved provider; and

   b)the approval of the person or body is in effect.

8. Aged Care Quality and Safety Commission Act 2018 (Cth) s 63D outlines that the Commissioner must decide whether a person or body is an 'approved provider' by considering their suitability to provide aged care.

Issues to be determined

1. The factual issues to be determined for both Memorial F013481 and G139747 are:

   (1)What facilities operating on the parcels of land subject to each memorial are subject to the RVA?  (Where it is found that a parcel of land the subject of the memorial operates a facility that is not subject to the RVA, the remaining issues (2 and 3) fall away).

   (2)Was there a single 'complex of residential premises … and appurtenant land' taking in all the parcels of land the subject of the memorial, or were there separate complexes aggregated under a single memorial?; and

   (3)Was there a single overarching 'retirement village scheme' pursuant to which multiple 'retirement villages' were established.

What facilities operating on the parcels of land subject to each memorial are subject to the RVA?

Memorial F013481

1. In 1992, the facilities operating on the relevant parcels of land subject to memorial F013481 were as follows:[24]

   (1)Dorothy Genders Village which operated 33 'self-care units';

   (2)Frederick Guest Village which operated 40 'self-care units;

   (3)Hale Village which operated 50 'self-care units;

   (4)Muschamp Village which operated 35 'self-care units and 40 'hostel units';

   (5)Thomas Scott which operated 20 'self-care units' and 40 'hostel units';

   (6)James Brown which operated 60 'hostel units'; and

   (7)Lefroy Care Centre which operated 36 'hostel units'.

   [24] Sheridan Affidavit, Annexure RS-8, page 83.

1. Since 1992, the range accommodation and care services on some of those facilities have changed.[25]

   [25] Plaintiff's Outline of Submissions dated 15 December 2023 [50].

2. As at the date of these reasons:

   (1)Dorothy Genders operates independent living units;[26]

   (2)Frederick Guest Village, Hale Village and Muschamp Village each operate independent living units and nursing homes. However, the operation of aged care facilities is separate from the retirement villages despite operating on the same parcels of land;[27] and

   (3)Thomas Scott, James Brown and Lefroy Care Centre operate nursing homes.[28]

   [26] Sheridan Affidavit, [17].

   [27] Sheridan Affidavit, [17], [93] - [99]; Williams Affidavit, [8], [10], [13] [28] - [29].

   [28] Sheridan Affidavit, [113] - [114]; Williams Affidavit, [8], [10], [13].

3. With respect to the 'self-care units' on Thomas Scott operating in 1992, between 2013 and 2016 Amana took steps to decommission the retirement village.  This took several years because Amana waited for the residents to vacate their units.[29]

   [29] Sheridan Affidavit, Annexure RS-66 and RS-67.

4. In relation to the nursing homes currently in operation on the Thomas Scott, James Brown and Lefroy Care Centre sites:

   (1)Amana is an approved provider of residential aged care services by the Aged Care Quality and Safety Commission.[30]

   (2)Amana is eligible to receive a 'residential care subsidy' from the Commonwealth Government for each resident receiving residential aged care services at Thomas Scott, James Brown and Lefroy Care Centre.[31]

   [30] Williams Affidavit, [10], [15] - [16].

   [31] Williams Affidavit, [16] - [23], Annexure JHW-4, pages 20 - 24.

5. In accordance with the exclusion contained in s 5(2) of the RVA, the residential aged care services provided at Thomas Scott, James Brown and Lefroy Care Centre are not subject to the RVA. As such, Memorial F013481 incorrectly records that land upon which Thomas Scott, James Brown and Lefroy Care Centre are operating is used as a retirement village and is the subject of a statutory charge.

6. Therefore, in relation to Memorial F013481, only the following facilities are subject to the RVA:

   (1)Dorothy Genders;

   (2)Frederick Guest;

   (3)Hale; and

   (4)Muschamp.

7. The remaining issues must be determined in relation to each of these facilities.  However, the remaining issues fall away for the Thomas Scott, James Brown and Lefroy Care Centre facilities.

Memorial G139747

1. In 1996, the facilities operating on the relevant parcels of land subject to memorial G139747 were:[32]

   (1)Kinross facility which operated 40 hostel units, 3 occupying residents and employed 43 staff;

   (2)St Georges facility which operated 10 hostel units, 60 nursing home places, 70 occupying residents and employed 99 staff; and

   (3)Lefroy Day Centre facility was used as a respite centre with 61 respite care clients and employed 25 staff.

   [32] Sheridan Affidavit, Annexure RS-36, pages 730 - 731.

2. There were no 'self-care units' with respect to the Kinross, St Georges or Lefroy Day Centre.

3. As at the date of these reasons:

   (1)Kinross and St Georges operate as nursing homes;[33]

   (2)Lefroy Day Centre operates as a respite day club for people with dementia. [34]

   [33] Williams Affidavit, [24] - [25].

   [34] Williams Affidavit, [34].

4. At no point since their construction, have the facilities on Kinross, St Georges or Lefroy Day centre operated as a retirement village.

5. In relation to the nursing home facilities on Kinross and St Georges:

   (1)Amana is an approved provider of residential aged care services by the Aged Care Quality and Safety Commission.[35]

   (2)Amana is eligible to receive a 'residential care subsidy' from the Commonwealth Government for each resident receiving residential aged care services at Thomas Scott, James Brown and Lefroy Care Centre. [36]

   [35] Williams Affidavit, [34].

   [36] Williams Affidavit, [35].

6. In accordance with the exclusion contained in RVA s 5(2), the services provided at Kinross and St Georges are not subject to the RVA. Therefore, Memorial G139747 incorrectly suggests that the Kinross and St Georges land is currently used as a retirement village.

7. Lefroy Day Centre is open between the hours of 9 am to 5 pm, Monday to Friday and occasionally on the weekends.  The centre provides care and activities for dementia patients, who are then required to leave the centre when it closes for the day.  There are no accommodation facilities to enable patients to stay overnight.[37]

   [37] Williams Affidavit, [44], Annexure JHW-14, pages 88 - 92; Annexure JHW-15, pages 127 - 128.

8. The care provided at Lefroy Day Centre is captured by the ACA as respite care:[38]

   residential care or flexible care (as the case requires) provided as an alternative care arrangement with the primary purpose of giving a carer or a care recipient a short-term break from their usual care arrangement….

   [38] ACA; sch 1.

9. Amana is registered by the Commonwealth Department of Health and Aged Care and accredited by the Aged Care Quality and Safety Commission to provide respite care services.

10. The services provided at the Lefroy Day Centre do not fall within the definition of 'retirement village,' as they do not provide a place 'intended for residence'.  As such, Memorial G139747 incorrectly suggests that the Lefroy Day Centre land is currently used as a retirement village.

11. As a result, none of the facilities operating on the parcels of land subject to Memorial G139747 are subject to the RVA.  Therefore, the remaining issues for determination fall away in respect of all of these facilities.

12. Whilst the RVA does not apply to Thomas Scott, James Brown and the Lefroy Care Centre parcels, the remaining issues for determination must still be determined for the parcels of land that operate retirement villages (namely Dorothy Genders, Frederick Guest, Hale and Muschamp).

Was there a single 'complex of residential premises … and appurtenant land' taking in all the parcels of land the subject of the memorial, or were there separate complexes aggregated under a single memorial?

Memorial F013481

1. Amana relies upon the following evidence to establish that each of  Dorothy Genders, Frederick Guest, Hale and Muschamp were separate 'retirement villages':

   (1)the distance between complexes;

   ·   The distance between Muschamp retirement village and Dorothy Genders retirement village is approximately 622 km.[39]

   [39] Memorial F013481 Map.

   ·   Even as between the Perth complexes there is, for example, approximately 15 km between Frederick Guest retirement village and Dorothy Genders.[40]

   [40] Memorial F013481 Map.

   (2)The circumstances surrounding the lodgement of Memorial F013481;

   ·   Board minutes from the Anglican Homes Incorporated (now Amana) dated 12 October 1992 note Board approval of the common seal on a 'Retirement Village Memorial.' The resolution lists the 8 parcels of land subject of Memorial F013481.[41]

   [41] Sheridan Affidavit, Annexure RS-14, page 240.

   ·   The RVA commenced in July 1992. Owners of retirement village land were required to lodge memorials over that land within three months of the RVA's commencement.[42]

   [42] Section 15(4), RVA.

   ·   Mr Spinks, the preparer of Memorial F013481, deposes that whilst he has no specific recollection of Memorial F013481, he does remember preparing memorials during 1992 for Anglican Homes Incorporated to comply with the RVA.[43]

   [43] Spinks Affidavit, Annexure DJS-1, page 5, Spinks Affidavit, [6] - [12].

   ·   Mr Spinks deposes that during his time as an accountant for Anglican Homes Incorporated, between 1989 and 1995, his recollection is that each of the retirement village sites were operated independently of each other with separate operating budgets, costs centres and reports on income and expenditure.[44]

   [44] Spinks Affidavit, [3] - [5].

   ·   Mr Spinks does not know why Memorial F013481 was prepared to include multiple sites.[45]

   [45] Spinks Affidavit, [5], [16] - [17].

   ·   Counsel for Amana submits that an inference can be drawn that the intention in executing Memorial F013481 was to comply with the then new RVA.[46]

   [46] Plaintiff's Outline of Submissions dated 15 December 2023 [50].

   (3)Hale being simultaneously encumbered by two different memorials;

   ·   Hale House at 37 Waverly Road, Coolbellup is simultaneously encumbered by both Memorial F70711 and Memorial F013482.[47]

   [47] First Olynyk Affidavit, Annexure JAO-9, pages 123 - 130.

   ·   Hale House was established in 1969. In 1992 Hale House was a 50-unit independent living facility accommodating 54 residents.[48] By 1994, a 40-unit hostel had been completed at the complex. Residents were to pay entry premiums, bringing it within the definition of a 'retirement village scheme'. 

   [48] Sheridan Affidavit, Annexure RS-8, page 83.

   ·   In 1992, Hale House was situated upon three parcels of adjacent land. One of the parcels was owned by the Perth Diocesan Trustees and the remaining two were owned by Amana. The parcel owned by Perth Diocesan Trustees was encumbered by F70711 with 11 other parcels.[49] The parcels owned by Amana were encumbered by Memorial F013481 along with 6 other parcels of land.[50]

   [49] First Olynyk Affidavit, Annexure JAO-9, pages 123 - 130.

   [50] First Olynyk Affidavit, Annexure JAO-1, pages 27 - 30.

   ·   The transfer of ownership of the entirety of the Hale House to Amana was effectuated by a deed between Perth Diocesan Trustees, the State Housing Commissioner and Amana in 1993.[51]

   [51] Sheridan Affidavit, Annexure RS-21, page 333 - 334.

   ·   In 1997, all the certificates of title comprising Hale House were cancelled and amalgamated to form a single parcel.[52] This single parcel was the encumbered by two memorials under the RVA: Memorial F70711 and Memorial F013482.

   [52] First Olynyk Affidavit, [28(e)], Annexure JAO-9, pages 133 - 140.

   ·   Counsel for Amana submits that the fact that both Memorials encumber a separate retirement village is not consistent with a view that all of those retirement villages encumbered constitute a single retirement village complex.[53]

   [53] Plaintiff's Outline of Submissions dated 15 December 2023 [92].

   (4)Distinct administrative management of the complexes;

   ·   Amana treated each of the retirement villages as separate administrative units.

   ·   As at 1992, the different villages had widely varied staffing ratios between complexes.[54]

   [54] Sheridan Affidavit, Annexure RS-8, page 83.

   ·   As at present day, 7 village managers oversee the operation of each of Amana's retirement villages across the relevant complexes. Where a manager is responsible for management of more than one village, their management must remain separate and independent.[55]

   [55] Sheridan Affidavit, [64] - [70].

   (5)Distinct financial management of the complexes;

   ·   Since 1989 at least, Amana has treated management of separate retirement villages as financially independent units.[56]

   [56] Spinks Affidavit, [3] - [5].

   ·   Sites with self-care units historically had a larger budget, and sites which offered more than one service had a budget for each service type. For example, in 1991, Thomas Scott operated a 'hostel' and 'self-care units.' The reported income and expenditure for Thomas Scott was separate for the retirement village and 'hostel'.[57]

   [57] Sheridan Affidavit, Annexure RS-7, page 71.

   ·   At present:

   (i)Amana prepares annual operating budgets for each retirement village within its portfolio. The annual operating budget is specific to that retirement village and does not include expenses that relate to other retirement villages within the portfolio.[58]

   [58] Sheridan Affidavit, [70].

   (ii)Amana provides reports to residents that are tailored to the expenses and income incurred at each retirement village, based off reports generated using unique identifying codes for each village.[59]

   [59] Sheridan Affidavit, [80] - [86].

   (iii)Village managers are paid as an expense of the respective village they work in. In circumstances where a village manager works at more than one village, their wages are paid from each village by apportioning the time spent at each village.[60]

   [60] Sheridan Affidavit, [74] - [76].

   (6)Leasing and rental arrangements;

   ·   Dorothy Genders, Frederick Guest, Hale and Muschamp have life lease agreements, or resident funded agreements which may entitle residents to a refund of a 'premium' upon exit, namely.[61]

   · The residents of Thomas Scott, James Brown and Lefroy Care Centre do not have a right to repayment of a 'premium' under the RVA as their residential agreements are governed by the ACA.

   ·   Counsel for Amana submits that residents who are entitled to a 'premium' should have those 'premiums' secured against the land on which that retirement village operates only.[62]

   (7)Separate identities;

   ·   Each retirement village operates under separate names. This is indicative of each retirement village being treated as a separate administrative unit.[63]

   [61] Sheridan Affidavit, [28], [32], [36].

   [62] Plaintiff's Outline of Submissions dated 15 December 2023 [92].

   [63] Amana Case [44]

2. In Swancare, Pritchard J, in finding that the retirement villages were separate, said:[64]

   [I]t will be a question of fact and degree whether there are separate complexes (and thus separate retirement villages).

   …the complex of residential premises and appurtenant land comprising each village is, and has always been, geographically separate…

   …the complexes of residential premises at each location has always had its own facilities, and its own social club, for residents.

   …those responsible for SwanCare's management and control treated the complexes as discrete retirement villages.

   [64] Swancare [66] - [68].

3. Upon application of the principles in Swancare, which I reiterated in the Amana Case, the facts clearly establish that each of Dorothy Genders, Frederick Guest, Hale and Muschamp, being the subject of Memorial F013481 were separate 'retirement villages'.

Was there a single overarching 'retirement village scheme' pursuant to which multiple 'retirement villages' were established?

F013481

1. In both Swancare and the Amana Case, the question of whether a 'single retirement village scheme' (defined in s 3(1) RVA) can regulate multiple distinct retirement villages was left open. The question did not require answering as, in the words of Pritchard J:[65]

   the evidence supports the conclusion that the retirement villages on the Bentley land and the Carlisle land have always been occupied under, and used for or in connection with, separate retirement village schemes.

   [65] Swancare [73].

2. In this instance, the individual retirement villages are similar to those in the Amana Case. In any event, there is no evidence that Amana had any plan in the nature of a 'retirement village scheme.' 

3. I find that the facts relied upon by Amana support the conclusion that there is not a single unifying 'retirement village scheme' which applies to Dorothy Genders, Frederick Guest, Hale and Muschamp subject to Memorial F013481.

Conclusion and correction of the Register

1. In relation to Memorial F013481, I find that:

   (1)Amana operates the following facilities on the parcels of land the subject of Memorial F013481:

   (i)retirement villages pursuant to the RV Act on the parcels of land representing Dorothy Genders, Frederick Guest, Muschamp Village and Hale (with Frederick Guest, Muschamp and Hale also having residential aged care facilities pursuant to the AC Act on site); and

   (ii)residential aged care facilities pursuant to the AC Act on the parcels of land representing Thomas Scott, James Brown and Lefroy Care Centre;

   (2)each of the parcels of land the subject of F013481 were (as at 1992) and remain separate complexes;

   (3)there are multiple, separate 'retirement village schemes' in place in respect of the parcels of land the subject of F013481 on which retirement villages operate; and

   (4)F013481 was registered over multiple, separate complexes in error.

2. In relation to Memorial G 139747, I find that:

   (1)the parcels of land the subject of G139747 operate (and have always operated) as aged care facilities under the AC Act and therefore do not operate pursuant to the RVA; and

   (2)G139747 was registered in error.

3. Section 188(3) of the TLA provides:

   (1)The Registrar shall upon the direction of the Commissioner correct errors in the Register or in entries made therein or in duplicate certificates (in cases of paper titles) or instruments or graphics and may supply entries omitted to be made under the provisions of this Act.

4. Both Memorial F013481 and G139747 are instruments which are amenable to correction by the Registrar of Titles, on the direction of the Commissioner of Titles, pursuant to s 188(3) TLA.[66]

   [66] Swancare [144].

5. It is therefore appropriate that I grant the following orders sought in Amana's originating summons filed 31 August 2023:

   1.A declaration that the Register maintained under s 48 of the Transfer of Land Act 1893 (WA) contains errors in respect of:

   1.1.Memorial F013481 (within the meaning of s 15 of the Retirement Villages Act 1992 (WA)), which erroneously purports to aggregate under a single memorial multiple, separate 'retirement villages' (within the meaning of s 3 of the Retirement Villages Act 1992 (WA)) established and operating or formerly operated on multiple, separate parcels of land, and;

   1.2.the correspondingly endorsed certificates of title set out in the First Schedule, which certificates of title erroneously indicate that the land the subject of the certificates of title:

   1.2.1 is part of a single 'retirement village' (within the meaning of s 3 of the Retirement Villages Act 1992 (WA)) also comprising each of the other parcels of land endorsed by the respective single memorial, and;

   1.2.2.may be encumbered by such unregistered statutory charges as may arise under s 20(1) of the Retirement Villages Act 1992 (WA) in respect of any 'premiums' paid by residents or former residents of other, separate retirement villages also erroneously the subject of a single memorial.

   2.A declaration that the Register maintained under s 48 of the Transfer of Land Act 1893 (WA) contains errors in respect of:

   2.1.Memorial G139747 (within the meaning of s 15 of the Retirement Villages Act 1992 (WA)), which erroneously purports to aggregate under a single memorial multiple, separate 'retirement villages' (within the meaning page 3 of s 3 of the Retirement Villages Act 1992 (WA)) established and operating or formerly operated on multiple, separate parcels of land, and;

   2.2.the correspondingly endorsed certificates of title set out in the Second Schedule, which certificates of title erroneously indicate that the land the subject of the certificates of title:

   2.2.1.is part of a single 'retirement village' (within the meaning of s 3 of the Retirement Villages Act 1992 (WA)) also comprising each of the other parcels of land endorsed by the respective single memorial, and;

   2.2.2.may be encumbered by such unregistered statutory charges as may arise under s 20(1) of the Retirement Villages Act 1992 (WA) in respect of any 'premiums' paid by residents or former residents of other, separate retirement villages also erroneously the subject of a single memorial.

   3.A declaration that s 188(3) of the Transfer of Land Act 1893 (WA) empowers the first defendant to direct the second defendant, and the second defendant to comply with such direction, to correct the errors in the Register by:

   3.1.expunging Memorial F013481 from all of those certificates of title which Memorial F013481 currently endorses (which are listed in the First Schedule); and

   3.2.expunging Memorial G139747 from all of those certificates of title which Memorial G139747 currently endorses (which are listed in the Second Schedule).

   4.A declaration that the plaintiff is required, on or before the expunging of Memorial F013481, to lodge new and separate registrable memorials over each parcel of land described in the Third Schedule under s 15 of the Retirement Villages Act 1992 (WA).

   5.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CB

Associate to the Hon Justice Whitby

27 FEBRUARY 2024

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