Amana Living Incorporated v Commissioner of Titles
[2019] WASC 203
•14 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: AMANA LIVING INCORPORATED -v- COMMISSIONER OF TITLES [2019] WASC 203
CORAM: ACTING MASTER WHITBY
HEARD: 20 MAY 2019
DELIVERED : 14 JUNE 2019
FILE NO/S: CIV 2958 of 2018
BETWEEN: AMANA LIVING INCORPORATED
Plaintiff
AND
COMMISSIONER OF TITLES
First Defendant
REGISTRAR OF TITLES
Second Defendant
COMMISSIONER FOR CONSUMER PROTECTION
Third 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 - 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)
Legislation:
Retirement Villages Act 1992 (WA), s 3, s 15(3), s 15(4),
Transfer of Land Act 1893 (WA), s 48, s 188(3)
Result:
Application granted.
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M G S Crowley |
| First Defendant | : | No Appearance |
| Second Defendant | : | No Appearance |
| Third Defendant | : | Mr J L Derby |
Solicitors:
| Plaintiff | : | Jackson McDonald |
| First Defendant | : | No Appearance |
| Second Defendant | : | No Appearance |
| Third Defendant | : | Department of Mines, Industry Regulation and Safety - Consumer Protection Division (In House Legal Counsel) |
Case(s) referred to in decision(s):
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
ACTING MASTER WHITBY:
By its originating summons dated 13 November 2018, the plaintiff, Amana Living Incorporated (Amana) seeks the following orders:
1.A declaration that the Register maintained under s 48 of the Transfer of Land Act 1893 (WA) (TLA) contains error in respect of:
1.1memorial F070711 (within the meaning of s 15 of the Retirement Villages Act 1992 (WA) (RVA)), which memorial erroneously purports to aggregate under a single memorial multiple, separate 'retirement villages' (within the meaning of s 3 of the RVA) established and operating or formerly operated on multiple, separate parcels of land, and;
1.2the correspondingly endorsed certificates of title set out in the schedule to the originating summons, which certificates of title erroneously indicate that the land the subject of the certificates of title:
1.2.1is part of a single 'retirement village' (within the meaning of s 3 of the RVA) 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 s 20(1) of the RVA 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 s 188(3) TLA empowers the first defendant to direct the second defendant, and for the second defendant to comply with such direction, to correct the errors in the register by expunging Memorial F070711 from all of those certificates of title which Memorial F070711 currently endorses (listed in the Schedule to the Originating Summons).
Counsel for Amana informed the court that only the above relief is necessary, and that the further relief sought in pars 3 to 5 of the originating summons would only be required in the event that the court is not persuaded to grant that relief.[1]
[1] ts 7.
The certificates of title presently endorsed by Memorial F70711, lodged on 21 December 1992 and listed in the schedule to the originating summons are:
1.The land upon which the 'Sundowner Centre' retirement village formerly operated at 416 Stirling Highway, Cottesloe, more particularly described in Certificate of Title Volume 1676 Folio 186;
2.The land upon which the 'Wollaston Court' retirement village operates at 35 Angove Road, Albany, more particularly described in Certificate of Title Volume 43 Folio 159A;
3.A part of land upon which the 'Hale House' retirement village operates at 37 Waverley Road, Coolbellup, more particularly described in Certificate of Title Volume 2159 Folio 307 (which part was amalgamated subsequent to the lodgement of the memorial);
4.The land upon which the 'Moline Village' retirement village operates at each of the adjacent:
4.1.7 Deanmore Road, Karrinyup, more particularly described in Certificate of Title Volume 1293 Folio 160, and;
4.2.1 Jeanes Road, Karrinyup, more particularly described in Certificate of Title Volume 1372 Folio 155;
5.The land upon which the 'Le Fanu Court' retirement village operates at 5 Anstey Street, South Perth, more particularly described in Certificate of Title Volume 263 Folio 85A;
6.A part of the land upon which the 'Marjorie Appleton Village' retirement village formerly operated at 11 Freedman Road, Menora, more particularly described in Certificate of Title Volume 2684 Folio 239 (which part was amalgamated subsequent to the lodgement of the memorial);
7.The land upon which the 'Riley House' retirement village operates at 20 Excelsior Street, Shenton Park, more particularly described in Certificate of Title Volume 144 Folio 174A;
8.The land upon which the 'St Francis Court' retirement village operates at 34 Robinson Street, Inglewood, more particularly described in Certificate of Title Volume 522 Folio 73A;
The Parties
The Commissioner of Titles, the first defendant, and the Registrar of Titles, the second defendant, have each entered submitting appearances.
The Commissioner for Consumer Protection, the third defendant, has filed an outline of submissions dated 16 May 2019 in which it advises the Court that, having considered Amana's submissions,[2] it does not see an impediment to the grant of relief sought by Amana. The third defendant neither opposes nor consents to the grant of relief.
[2] Plaintiff's outline of submissions dated 20 May 2019.
The Evidence
Counsel for Amana tendered the following evidence in support of Amana's application:
1.Plaintiff's Additional Material comprising three volumes dated 7 May 2019.[3]
[3] Exhibit 1.
2.Aide Memoire entitled Memorial F070711 – a Map of the Geographical locations of the Amana retirement villages.[4]
[4] Exhibit 2.
3.Annexures to the Affidavit of Trent Will sworn on 19 October 2018.[5]
[5] Exhibit 3.
4.Affidavit of David Robert McMullin sworn on 4 April 2018.
5. Affidavit of Matthew David Reid sworn on 8 April 2018.
6.Affidavit of Jennifer Williams sworn on 13 November 2018.
7.Affidavit of Naomi Ruth Lam sworn on 14 November 2018.
8.Affidavit of David Spinks sworn on 24 October 2018.
9.Affidavit of Rose‑Marie McNamara sworn on 23 October 2018.
10.Affidavit of Alicia Jimenez sworn on 19 October 2018.
11.Affidavit of Dominic Maina sworn on 19 October 2018.
12.Affidavit of Induruwa Weerasinghe sworn on 19 October 2018.
13.Affidavit of Melanie Stewart sworn on 19 October 2018.
14.Affidavit of Gloria Walsh sworn on 18 October 2018.
15.Affidavit of Katrina Perrin sworn on 18 October 2018.
16.Affidavit of Sharon Taukiri sworn on 18 October 2018.
There was no objection by the defendants to the evidence being tendered.
Background
Amana (previously Anglican Homes Incorporated), a not‑for‑profit organisation incorporated in 1979 under the Associations Incorporation Act 1987 (WA), provides aged care services to older Western Australians. Amana is the successor of a program that was commenced by the Perth Diocese of the Anglican Church of Australia (Diocese) in 1962 to provide suitable housing for the aged and infirm. To this end, various retirement villages were established and operated by the Diocese upon parcels conveyed to the Perth Diocesan Trustees (PDT) under Crown grants of land.[6]
[6] Plaintiff’s Outline of Submissions dated 7 May 2019 at paragraph 15.
PDT has, over the years, conveyed the parcels of land and the retirement village operations to Amana.[7] Amana has prepared a chronology of relevant dates which I set out in full at Schedule 1 to this decision.
[7] Exhibit 1 Tab 37
Amana currently operates 17 retirement villages; traversing Albany and Kalgoorlie in the south west region, and in the Perth greater metropolitan area, from Australind and Mandurah in the south, Roleystone and Lesmurdie in the east, to Duncraig in the north.[8]
[8] Exhibit 2.
Memorial F70711
The RVA commenced operation in July 1992. By s 15(3) and s 15(4) of the RVA:
(3)… where land is, or is proposed to be, used for the purposes of a retirement village, a memorial in the form approved by the registrar of Titles containing such information as is prescribed shall be lodged with the Registrar of Titles.
(4)The owner of the retirement village shall cause a memorial referred to in subsection (3) to be lodged with the Registrar of Titles … within 3 months after the commencement of this section.
Memorial F70711 was lodged by PDT on 22 October 1992 and registered on 21 December 1992 over 12 separate parcels of land.[9]
[9] Exhibit 3, Annexure TW1.
Memorial F70711 Notation 1 states:
The land above described is or is proposed to be used for the purposes of a Retirement Village scheme [sic] within the meaning of the Retirement Villages Act 1992.
Notation 2 states:
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.
The 'land above described' included these 12 parcels:
16 Volume/Folio
17 Location
18 Name
16 224/115A
17 Coolbellup
18 Hale House
19 263/85A
20 South Perth
21 Le Fanu House
22 1317/494
23 Mount Lawley
24 Marjorie Appleton
25 508/86A
26 Mount Lawley
27 Marjorie Appleton
28 1293/160
29 Deanmore Rd, Karrinyup
30 Moline Village
31 1372/155
32 Jeanes Rd, Karrinyup
33 Moline Village
34 1333/853
35 Lesmurdie
36 Parry House
37 144/174A
38 Shenton Park
39 Riley House
40 522/73A
41 Inglewood
42 St Francis Court
43 1676/186
44 Cottesloe
45 Sundowner Centre
46 43/159A
47 Albany
48 Wollaston Court
49 951/170
50 Kalamunda
51 Armstrong House
Counsel for Amana submits that Memorial F70711 was incorrectly registered - a single memorial was registered in respect of multiple, separate retirement villages. The unintended consequence being that Memorial F70711 gives the residents of each separate retirement village the benefit of s 20 RVA statutory charges over all of the parcels of land encumbered by Memorial F70711.
Applicable Legal Principles
This is the third case involving a single memorial lodged in respect of multiple separate retirement villages to come before this court. The other two cases are Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection[10] (Retirement Care) and Swancare Group Inc v Commissioner for Consumer Protection[11] (Swancare).
[10] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219.
[11] Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80.
Amana does not challenge the reasoning in Swancare and Retirement Care.
RVA s 3(1) defines a 'retirement village' as:
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.
In Retirement Care, Pritchard J (as her Honour then was) said:
[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.[12]
[12] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [90].
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.
Pursuant to s 20 RVA, a resident's rights to repayment of all or part of a 'premium' paid is secured against the 'land in the retirement village' by a statutory charge.
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 s 20 RVA.
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'. To the extent that Memorial F0707011 is registered in respect of different parcels of land upon which separate 'retirement villages' operate, it has been registered in error and is incorrect.
The factual issues to be determined are whether or not there are separate 'retirement villages' registered under Memorial F70711 and, if so, whether there was a single overarching 'retirement village scheme' pursuant to which multiple 'retirement villages' were established.
Separate 'retirement villages'
Amana relies upon the following categories of evidence to establish that each retirement village subject to Memorial F070711 is a separate 'retirement village'.
(a) Memorial F707011 removed from certificates of title
Memorial F70711 was also registered against Certificate of Title Volume 1280 Folio 252 upon which 'Wearne House' operated at 9 Leslie Street, Mandurah ('Wearne House').[13]
[13] Affidavit of Naomi Lam at Annexure 'NRL6' pages 16 ‑ 18.
However, in 1988, Certificate of Title Volume 1280 Folio 252 had been cancelled, together with an adjacent parcel of land on Certificate of Title Volume 1279 Folio 549.[14] Both titles were amalgamated into Certificate of Title Volume 1800 Folio 899, with the address of 7 Leslie Street, Dudley Park.[15]
[14] Affidavit of Naomi Lam at Annexure 'NRL7'.
[15] Exhibit 3, Annexure 'TW27'.
By letter dated 4 January 1993 from Amana to the Diocese, Amana requested that 'another memorial document be executed' in respect of Wearne House because 'the Certificate of Title details have changed for the land held in Leslie Street, Mandurah.'.[16] By letter dated 6 January 1993, the Registrar of Titles responded enclosing 'a sealed copy of the Memorial documents'.[17] The Registrar of Titles manually deleted Wearne House from Memorial F070711 on the same day. Memorial F083201 was registered on 11 January 1993 in respect of the amalgamated title.
[16] Affidavit of Naomi Lam Annexure 'NRL7'.
[17] Affidavit of Naomi Lam Annexure 'NRL8'.
Further, in 2007 Memorial F070711 was removed from 'Armstrong House' being Certificate of Title Volume 951 Folio 170 in Kalamunda. Armstrong House was 'decommissioned' in the 2004 ‑ 2005 tax year.[18]
[18] Exhibit 1 Tab 16.
Counsel for Amana submits that the removal of Memorial F70711 from the Wearne House and Armstrong House Certificates of Title is inconsistent with the proposition that the retirement villages the subject of Memorial F70711 were single retirement villages.
(b) Geographical location of complexes
Exhibit C – a map marking the geographical locations of all of the retirement villages subject to Memorial F070711 shows that the distance between Sundowner in Cottesloe and Wollaston in Albany is approximately 450 km.
Even as between the Perth complexes, there is, for example, approximately 40 km between Armstrong Village in Kalamunda and Moline Village in Karrinyup, and more than 30 km between Moline Village and Parry Village in Lesmurdie.
(c) F70711 lodgement documents
Correspondence passing between Amana and PDT in September 1992 suggests that the true organising principle informing the registration of Memorial F70711 was simply whether or not Amana was the administering body of the particular complex on PDT land.
On 21 April 1993 Amana's Board passed a resolution to transfer ownership from PDT to Amana of each of the land parcels the subject of Memorial F70711. The resolution says:
14.TRANSFER OF CROWN GRANTS TO ANGLICAN HOMES FROM PERTH DIOCESAN TRUSTEES
The CE [Chief Executive] advised that properties currently in the name of the Perth Diocesan Trustees were now in the process of being transferred into the names of Anglican Homes. In order to effect the transfer, the Trustees had prepared various memorials for all those properties (with the exception of St Francis Court) which now required the application of the Common Seal and appropriate authorisation of the Board.
Similarly Lot 6, one of three parts of Hale House, required sealing and signature by the Board because of the property being transferred from the Perth Diocesan Trustees (originally transferred to the Perth Diocesan Trustees from Homeswest) to Anglican Homes. A deed had been prepared to effect this transfer and was presented for appropriate acceptance by the Board, as part of the properties being transferred … [19]
[19] Exhibit 1 Tabs 23 and 37.
In fact, St Francis Court was not the exception – that parcel of land was encumbered by Memorial F70711 four months earlier.[20] However, the fact that the resolution indicates that there was a perception that St Francis Court could be the exception, is persuasive of the fact that Amana intended Memorial F70711 to apply to separate retirement villages.
(d) Hale House simultaneously encumbered by two different memorials
[20] Exhibit 3 Annexure Annexure 'TW13'.
'Hale House' at 37 Waverley Road, Coolbellup is simultaneously encumbered by both Memorial F70711 and Memorial F013482.[21]
[21] Exhibit 3 Annexure .TW29'.
Hale House was established in 1969.[22] In 1992 Hale House was a 50‑unit independent living facility accommodating 54 residents.[23] By June 1994, a 40‑unit hostel had also been completed at the complex.[24] Amana resolved to approve the construction of the hostel in May 1992.[25] Residents were to pay entry premiums,[26] bringing it within the definition of a 'retirement village scheme' and therefore subject to the RVA. The hostel opened in October 1994.[27]
[22] Exhibit 1 Tab 15.
[23] Exhibit 1 Tab 5.
[24] Exhibit 1 Tab 7.
[25] Exhibit 1 Tab 21.
[26] Exhibit 1 Tab 25.
[27] Exhibit 1 Tab 26.
Hale House was situated upon multiple adjacent parcels of land some of which, in 1992, were owned by PDT and some by Amana. Those parcels owned by the PDT were encumbered by Memorial F70711. Those parcels owned by Amana were encumbered by Memorial F013482.[28]
[28] Exhibit 1 Tab 23.
All of the certificates of title were ultimately cancelled. PDT transferred its parcel of land to Amana, and the titles were amalgamated into Certificate of Title Volume 2159 Folio 307 which is encumbered by Memorial F70711 as to part and Memorial F013482 as to part.[29]
[29] Exhibit 3 Annexure 'TW29'.
Counsel for Amana submits that the fact that both Memorials F070711 and F013482 encumber a separate retirement village is not consistent with a view that all of those retirement villages encumbered by Memorial F070711 together constitute a single retirement village complex.
(e) Separate facilities
In 1992 every Amana retirement village had separate facilities for residents and residents from one village where not permitted to use the facilities at another village.[30]
[30] Affidavit of Rose-Marie McNamara [36].
By way of examples:
1.in 1992 Moline Village had a pool and gym, neither of which were available to use by the residents of any of the other villages the subject of Memorial F70711;[31] and
2.in November 1992, Amana's Board approved a request from Sundowner Centre's residents to install solar heating at the Sundowner Centre, but stipulated that the residents 'should not look to Anglican Homes for any capital contribution or recurrent costs'.[32]
(f) Separate administration
[31] Affidavit of Rose-Marie McNamara [40] - [41].
[32] Exhibit 1 Tab 22.
Amana's management treated each of the retirement villages as separate administrative units as demonstrated by:
1.Sundowner Centre and Moline Village, both of which were subject to Memorial F70711, had separate administrators;[33]
2.each retirement village was subject to separate financial management and had a separate and distinct budget;[34]
3.each retirement village incurred its own operating expenses, including staffing, maintenance, gardening, cleaning and catering costs. Residents at each retirement village were then billed 'maintenance rent' based upon those operating expenses;[35]
4.staffing ratios varied between retirement villages: in 1992, Sundowner Centre had 23 staff for 138 residents (1:6.3), whereas Parry House had 29 for 80 residents (1:2.76);[36]
5.types of residential care differed between the retirement villages: in 1992, St Francis Court was a nursing home facility requiring 66 staff for 60 residents, whereas Wollaston Court consisted of 'self‑care units' requiring no staff;[37]
6.in May 1992, Amana's Board considered consolidated financial data which had been derived from individual financial reports for each retirement village[38] The consolidated financial data also included financial reports from retirement villages which were not the subject of Memorial F070711 (indicating that the consolidated financial data was not designed to reflect a single retirement village the subject of Memorial F070711);[39]
7.State and Federal Government funding was specific to an individual retirement village;[40] and
8.each retirement village has a separate name.
[33] Exhibit 1 Tab 5.
[34] Affidavit of Rose-Marie McNamara [44].
[35] Affidavit of Rose-Marie McNamara [49] – [60].
[36] Exhibit 1 Tab 5.
[37] Exhibit 1 Tab 5.
[38] Exhibit 1 Tab 20.
[39] Exhibit 1 Tab 20.
[40] Exhibit 1 Tab 19.
In Swancare, Pritchard J, in finding that the retirement villages were separate, said:
[I]t will be a question of fact and degree whether there are separate complexes (and thus separate retirement villages).[41]
…the complex of residential premises and appurtenant land comprising each village is, and has always been, geographically separate…[42]
…the complexes of residential premises at each location has always had its own facilities, and its own social club, for residents.[43]
…those responsible for SwanCare's management and control treated the complexes as discrete retirement villages.[44]
[41] Swancare Group Inc v Commissioner for Consumer Protection [66].
[42] Swancare Group Inc v Commissioner for Consumer Protection [67].
[43] Swancare Group Inc v Commissioner for Consumer Protection [67].
[44] Swancare Group Inc v Commissioner for Consumer Protection [68].
I find that, applying the principles set out in Swancare, the facts relied upon by Amana clearly establish that each of the retirement villages the subject of Memorial F070711 were separate retirement villages.
Retirement Village Scheme/s
Having found that the Amana retirement villages were each separate retirement villages, the next issue to determine is whether there is a single 'retirement village scheme' (defined in s 3(1) RVA) that regulates all of those retirement villages the subject of Memorial F070711.
In Swancare, Pritchard J held:
Neither the definitions of 'retirement village' nor 'retirement village scheme' in the [RVA] expressly precludes the conclusion that more than one retirement village may be operated pursuant to one retirement village scheme.
For present purposes it is not necessary to determine whether the [RVA] permits more than one retirement village to be occupied under, or used in connection with, one retirement village scheme. That is because 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.
The evidence to which her Honour referred was the same evidence that led her Honour to conclude that the Carlisle and Bentley complexes were separate retirement villages.
Amana submits that the differences between the retirement villages the subject of Memorial F070711 are even more pronounced than the differences between the Carlisle and Bentley retirement villages in Swancare. In particular:
1.the distances between the Amana retirement villages the subject of Memorial F070711 are far greater than the distance between Bentley and Carlisle;[45]
2.there are more Amana retirement villages to be designated to a single 'retirement village scheme';
3.the Amana retirement villages were separately managed and not cross‑subsidized;[46]
4.Amana's records do not indicate that there was any plan in the nature of a 'retirement village scheme' referrable to the retirement villages the subject of Memorial F070711, while its records do indicate that such plans existed for the retirement villages the subject of each of the Memorials F013481, F010553 or F010552;[47]
5.in 1992, the retirement villages the subject of Memorial F070711 had different types of accommodation. For example Sundowner Centre provided 87 'self‑care' units and 41 hostel units (including a high-rise building), Hale House provided 'self-care' accommodation exclusively, Moline House provided 155 self‑care units and Wollaston Court provided 'self‑care' accommodation exclusively (single level, accessible by ramp).[48]
[45] Exhibit 2.
[46]Affidavit of Rose-Marie McNamara [55].
[47] Affidavit of David Reid and Affidavit of Naomi Lam.
[48] Exhibit 1 Tab 5 (Annual Report 1992).
I find that all of the evidence relied upon by Amana supports the conclusion that that there is not a single unifying 'retirement village scheme' which applies to all of the retirement villages the subject of Memorial F070711.
Correction of the Register
I find that the Amana retirement villages the subject of Memorial F070711 were each separate 'retirement villages' and each subject to separate 'retirement village schemes'. I am satisfied that the Memorial F070711 was lodged on 21 December 1992 over multiple parcels of land in error.
Section 188(3) of the TLA provides:
(3)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.
Memorial F070711 is an instrument which is amenable to correction by the Registrar of Titles, on the direction of the Commissioner of Titles, pursuant to s 188(3) TLA.[49]
[49] Swancare [144].
It is therefore appropriate that I grant the following orders sought in pars 1, 2 and 6 of Amana's Originating Summons filed 13 November 2018:
1.A declaration that the Register maintained under s 48 of the TLA contains error in respect of:
1.1Memorial F070711 (within the meaning of s 3 of the RVA) which erroneously purports to aggregate under a single memorial multiple, separate 'retirement villages' (within the meaning of s 3 of the RVA) established and operating or formerly operated on multiple, separate parcels of land; and
1.2the correspondingly endorsed certificates of title set out in the schedule to the originating summons, which certificates of title erroneously indicate that the land the subject of the certificates of title:
1.2.1is part of a single 'retirement village' (within the meaning of s 15 of the RVA) 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 s 20(1) of the RVA 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 s 188(3) TLA 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:
2.1expunging Memorial F070711 from all of those certificates of title which Memorial F070711 currently endorses (which are listed in the Schedule to the Originating Summons).
3.There be no order as to costs.
SCHEDULE 1
DATE
EVENT
15.03.79
Incorporation of Anglican Homes (AHI) Incorporated
05.10.92
AHI lodges a memorial, as the registered proprietor of land, in respect of the following retirement villages and nursing homes (which it also operates):
· Dorothy Genders Village (Retirement Village);
· Muschamp Village (Retirement Village) and Edward Collick Home (Nursing Home);
· Frederick Guest Village (Retirement Village) and Frederick Guest Hostel (Nursing Home);
· James Brown Care Centre (Nursing Home);
· Lefroy Care Centre (Nursing Home);
· Hale Hostel (Nursing Home); and
· Thomas Scott Hostel (Nursing Home).
06.10.92
The Shire of Armadale-Kelmscott, as registered proprietor, lodges a memorial in respect of the following retirement village (operated by AHI):
· Hillendale Village at 4 Andreas Road
06.10.92
The Town of Armadale, as registered proprietor, lodges a memorial in respect of the following retirement village (operated by AHI):
· Hillandale Village at 1 Eskdale Street
12.10.92
Memorial F010552 registered in respect of Shire of Armadale‑Kelmscott land identified as Hillandale Village
12.10.92
Memorial F0010553 registered in respect of Town of Armadale land identified as Hillandale Village
15.10.92
Memorial F013481 registered in respect of AHI land comprised of:
· Dorothy Genders Village;
· Muschamp Village and Edward Collick Home;
· Frederick Guest Village and Frederick Guest Hostel;
· James Brown Care Centre;
· Lefroy Care Centre;
· Hale Hostel; and
· Thomas Scott Hostel.
22.10.92
The Perth Diocesan Trustees (PDT), as registered proprietor, lodges a memorial in respect of the following retirement villages and nursing homes (operated by AHI):
· Hale House (Retirement Village);
· Le Fanu Court (Retirement Village);
· Majorie Appleton (Retirement Village);
· Moline Village (Retirement Village) and Moline House (Nursing Home);
· Parry Village (Retirement Village);
· Riley House (Retirement Village);
· St Francis Court (Retirement Village);
· Sundowner Village (Retirement Village);
· Wollaston Court (Retirement Village);
· Armstrong Village (Retirement Village); and
· Wearne House (Nursing Home).
21.12.92
Memorial F070711 registered in respect of PDT land comprised of:
· Hale House;
· Le Fanu Court;
· Majorie Appleton;
· Moline Village and Moline House;
· Parry Village;
· Riley House;
· St Francis Court;
· Sundowner Village;
· Wollaston Court;
· Armstrong Village; and
· Wearne House.
30.12.92
The PDT, as registered proprietor, lodges a memorial in respect of the following nursing home (operated by AHI):
· Wearne House
06.01.92
Wearne House removed from Memorial F070711 (description of the land incorrect)
11.01.93
Memorial F0832201 registered in respect of PDT land identified as Wearne House
13.05.93
Wearne House transferred from PDT to AHI
13.05.93
Wollaston Court transferred from PDT to AHI
13.05.93
Marjorie Appleton transferred from PDT to AHI
13.05.93
Moline Village and House transferred from PDT to AHI
13.05.93
Parry Retirement Village transferred from PDT to AHI
13.05.93
Riley House transferred from PDT to AHI
13.05.93
Sundowner Village transferred from PDT to AHI
13.05.93
Le Fanu Court transferred from PDT to AHI
08.11.93
Hale House transferred from PDT to AHI
07.02.94
Armstrong Retirement Village transferred from PDT to AHI
01.10.97
St Francis Court transferred from PDT to AHI
00.04.05
Armstrong Retirement Village decommissioned (no longer operating as retirement village)
00.01.07
Armstrong Retirement Village removed from Memorial F070711
00.03.07
Armstrong Retirement village land sold by AHI
13.11.07
AHI changes name to Amana Living Incorporated
2009
Majorie Appleton Retirement Village decommissioned and demolished (no longer operating as retirement village)
00.04.11
Parry Retirement Village removed from Memorial F070711 (no longer operating as retirement village)
2013
Sundowner Retirement Village ceased operation as a retirement village
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to Acting Principal Registrar Whitby14 JUNE 2019
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