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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD -v- COMMISSIONER FOR CONSUMER PROTECTION [2013] WASC 219

CORAM: PRITCHARD J

HEARD: 19-21 NOVEMBER 2012

DELIVERED : 31 MAY 2013

FILE NO/S: CIV 3266 of 2011

BETWEEN: RETIREMENT CARE AUSTRALIA (HOLLYWOOD) PTY LTD
Plaintiff
AND
COMMISSIONER FOR CONSUMER PROTECTION
First Defendant
REGISTRAR OF TITLES
Second Defendant
DOROTHY ARGENT
Third Defendant
BENJAMIN BAILEY
Fourth Defendant
ERICA BAILEY
Fifth Defendant
PHYLLIS BAKER
Sixth Defendant
WILFRED BAKER
Seventh Defendant
MARGARETA BERNET
Eighth Defendant
PHYLLIS BLACKMORE
Ninth Defendant
JUDITH BRAY
Tenth Defendant
JOAN BRIGHTON
Eleventh Defendant
THOMAS BROWN
Twelfth Defendant
AMELIA BUTLER
Thirteenth Defendant
DOROTHY BYLEVELD
Fourteenth Defendant
BETTY CANN
Fifteenth Defendant
EDWARD CAREW-REID
Sixteenth Defendant
CECILIA CARRIER
Seventeenth Defendant
VERA CHANTRY
Eighteenth Defendant
JOAN CLUSS
Nineteenth Defendant
WALTER CLUSS
Twentieth Defendant
NORMAN COLTON
Twenty-first Defendant
MERVYN CROWIE
Twenty-second Defendant
PAMELA COWIE
Twenty-third Defendant
KENNETH CROCKER
Twenty-fourth Defendant
PAMELA CUBITT
Twenty-fifth Defendant
JAMES DALTON
Twenty-sixth Defendant
WENDY DUFFY
Twenty-seventh Defendant
OLGA ELLIOTT
Twenty-eighth Defendant
NANCEE FERGUSON
Twenty-ninth Defendant
ELIZABETH FITZGERALD
Thirtieth Defendant
FUMIKA FUJI
Thirty-first Defendant
ELEANOR GARLAND
Thirty-second Defendant
DOUGLAS GAWLER
Thirty-third Defendant
MARGARET GAWLER
Thirty-fourth Defendant
MARJORIE GEDLING
Thirty-fifth Defendant
COLIN GILBERT
Thirty-sixth Defendant
ANNA GROOTE
Thirty-seventh Defendant
MAISI GUDGEON
Thirty-eighth Defendant
CECILIE HARVEY
Thirty-ninth Defendant
RUTH HEALY
Fortieth Defendant
DOUGLAS HILL
Forty-first Defendant
VERA HOLMES
Forty-second Defendant
JOAN HUTTON
Forty-third Defendant
BLANCHE JENKINS
Forty-fourth Defendant
WALTER JENKINS
Forty-fifth Defendant
RAYMOND JOLLEY
Forty-sixth Defendant
JESSIE KEVAN
Forty-seventh Defendant
LORINA MALEY
Forty-eighth Defendant
DOROTHY MANN
Forty-ninth Defendant
IAN McKIMMIE
Fiftieth Defendant
MARGARET MCPHEE
Fifty-first Defendant
MARY MELOT
Fifty-second Defendant
HUBERT MINCHIN
Fifty-third Defendant
JILL MINCHIN
Fifty-fourth Defendant
ESTHER MISSINGHAM
Fifty-fifth Defendant
THELMA MOWDAY
Fifty-sixth Defendant
PATRICIA NAPIER
Fifty-seventh Defendant
ANNETTE NEINABER
Fifty-eighth Defendant
SHEILA OLDFIELD
Fifty-ninth Defendant
EDITH PAGE
Sixtieth Defendant
ROSS RAE
Sixty-first Defendant
ELIZABETH ROGERS
Sixty-second Defendant
PATRICIA SANDERS
Sixty-third Defendant
EDITH SCOTT
Sixty-fourth Defendant
GLADYS POPPY SCOTT
Sixty-fifth Defendant
VALERIE SLINGERLAND
Sixty-sixth Defendant
JUNE STEPHENSON
Sixty-seventh Defendant
CATHERINE TELFER
Sixty-eighth Defendant
ELAINE TOWNSEND
Sixty-ninth Defendant
WING TSUI
Seventieth Defendant
GWENYTH TURPIN
Seventy-first Defendant
SONIA VAN DIEREN
Seventy-second Defendant
JOSEPHINE WARWICK
Seventy-third Defendant
EDWARD WHITE
Seventy-fourth Defendant
JOAN WIGLEY
Seventy-fifth Defendant
MARY-MAUDE WINTER
Seventy-sixth Defendant
REGINALD YOUNG
Seventy-seventh Defendant
COMMISSIONER OF TITLES
Seventy-eighth Defendant
ANDREW BOYT
Seventy-ninth Defendant
JUDITH BOYT
Eightieth Defendant
DAWN BROWN
Eighty-first Defendant
ALAN GORTON
Eighty-second Defendant
THELMA GORTON
Eighty-third Defendant
RUSSELL HEALEY
Eighty-fourth Defendant
SUSAN JESSUP
Eighty-fifth Defendant
SHALINI KRISHNAN
Eighty-sixth Defendant
PETER LEE
Eighty-seventh Defendant
ROSLYN LEE-STEERE
Eighty-eighth Defendant
JEFFREY LESLIE
Eighty-ninth Defendant
ANTHONY MITCHELL
Ninetieth Defendant
NOEL NAGLE
Ninety-first Defendant
KATHLEEN PIKE
Ninety-second Defendant
KENNETH PIKE
Ninety-third Defendant
BRIAN RICHARDSON
Ninety-fourth Defendant
KATHLEEN RICHARDSON
Ninety-fifth Defendant
PAMELA ROYLE
Ninety-sixth Defendant
PAUL ROYLE
Ninety-seventh Defendant
LEONIE SNELL
Ninety-eighth Defendant
MASSOMEH TAYEFI
Ninety-ninth Defendant
ROY YOUNG
Hundredth Defendant
YANLI YU
Hundred-and-first Defendant

Catchwords:

Statutory construction - Construction of 'Retirement Village Scheme' under the Retirement Villages Act 1992 (WA) - Whether statutory charge and memorial form part of a retirement village scheme - Construction of s 22 of the Retirement Villages Act 1992 (WA)

Legislation:

Aged Care Act 1997 (Cth)
Fair Trading (Retirement Villages Interim Code) Regulations 2012 (WA)
Fair Trading Act 2010 (WA)
Jetties Act 1926 (WA)
Planning and Development Act 2005 (WA)
Retirement Villages Act 1992 (WA)
Retirement Villages Regulations 1992 (WA)
Strata Titles Act 1985 (WA)
Transfer of Land Act 1893 (WA)

Result:

Plaintiff's action is dismissed.

Category: A

Representation:

Counsel:

Plaintiff:     Mr M D Howard SC & Mr N Ekanayake
First Defendant                  :     Mr J C Vaughan
Second Defendant              :     No appearance
Third Defendant                 :     Mr J R Birman & Mr T C Young
Fourth Defendant               :     Mr J R Birman & Mr T C Young
Fifth Defendant                  :     Mr J R Birman & Mr T C Young
Sixth Defendant                 :     Mr J R Birman & Mr T C Young
Seventh Defendant             :     Mr J R Birman & Mr T C Young
Eighth Defendant               :     Mr J R Birman & Mr T C Young
Ninth Defendant                 :     Mr J R Birman & Mr T C Young
Tenth Defendant                 :     Mr J R Birman & Mr T C Young
Eleventh Defendant            :     Mr J R Birman & Mr T C Young
Twelfth Defendant              :     No appearance
Thirteenth Defendant          :     Mr J R Birman & Mr T C Young
Fourteenth Defendant         :     No appearance
Fifteenth Defendant            :     Mr J R Birman & Mr T C Young
Sixteenth Defendant           :     No appearance
Seventeenth Defendant       :     No appearance
Eighteenth Defendant         :     No appearance
Nineteenth Defendant         :     Mr J R Birman & Mr T C Young
Twentieth Defendant          :     Mr J R Birman & Mr T C Young
Twenty-first Defendant       :     In Person
Twenty-second Defendant   :     Mr J R Birman & Mr T C Young
Twenty-third Defendant      :     Mr J R Birman & Mr T C Young
Twenty-fourth Defendant     :     Mr J R Birman & Mr T C Young
Twenty-fifth Defendant      :     Mr J R Birman & Mr T C Young
Twenty-sixth Defendant     :     Mr J R Birman & Mr T C Young
Twenty-seventh Defendant :     Mr J R Birman & Mr T C Young
Twenty-eighth Defendant    :     Mr J R Birman & Mr T C Young
Twenty-ninth Defendant     :     Mr J R Birman & Mr T C Young
Thirtieth Defendant            :     No appearance
Thirty-first Defendant         :     No appearance
Thirty-second Defendant     :     Mr J R Birman & Mr T C Young
Thirty-third Defendant        :     Mr J R Birman & Mr T C Young
Thirty-fourth Defendant      :     Mr J R Birman & Mr T C Young
Thirty-fifth Defendant        :     Mr J R Birman & Mr T C Young
Thirty-sixth Defendant       :     Mr J R Birman & Mr T C Young
Thirty-seventh Defendant    :     No appearance
Thirty-eighth Defendant     :     Mr J R Birman & Mr T C Young
Thirty-ninth Defendant       :     Mr J R Birman & Mr T C Young
Fortieth Defendant              :     Mr J R Birman & Mr T C Young
Forty-first Defendant          :     No appearance
Forty-second Defendant      :     Mr J R Birman & Mr T C Young
Forty-third Defendant         :     Mr J R Birman & Mr T C Young
Forty-fourth Defendant       :     Mr J R Birman & Mr T C Young
Forty-fifth Defendant          :     Mr J R Birman & Mr T C Young
Forty-sixth Defendant         :     Mr J R Birman & Mr T C Young
Forty-seventh Defendant     :     Mr J R Birman & Mr T C Young
Forty-eighth Defendant       :     No appearance
Forty-ninth Defendant        :     Mr J R Birman & Mr T C Young
Fiftieth Defendant              :     No appearance
Fifty-first Defendant           :     Mr J R Birman & Mr T C Young
Fifty-second Defendant      :     Mr J R Birman & Mr T C Young
Fifty-third Defendant          :     Mr J R Birman & Mr T C Young
Fifty-fourth Defendant        :     Mr J R Birman & Mr T C Young
Fifty-fifth Defendant          :     Mr J R Birman & Mr T C Young
Fifty-sixth Defendant          :     Mr J R Birman & Mr T C Young
Fifty-seventh Defendant     :     Mr J R Birman & Mr T C Young
Fifty-eighth Defendant       :     No appearance
Fifty-ninth Defendant         :     Mr J R Birman & Mr T C Young
Sixtieth Defendant              :     Mr J R Birman & Mr T C Young
Sixty-first Defendant          :     No appearance
Sixty-second Defendant      :     Mr J R Birman & Mr T C Young
Sixty-third Defendant         :     No appearance
Sixty-fourth Defendant       :     Mr J R Birman & Mr T C Young
Sixty-fifth Defendant          :     Mr J R Birman & Mr T C Young
Sixty-sixth Defendant         :     Mr J R Birman & Mr T C Young
Sixty-seventh Defendant     :     Mr J R Birman & Mr T C Young
Sixty-eighth Defendant       :     No appearance
Sixty-ninth Defendant         :     No appearance
Seventieth Defendant          :     No appearance
Seventy-first Defendant      :     Mr J R Birman & Mr T C Young
Seventy-second Defendant   :     Mr J R Birman & Mr T C Young
Seventy-third Defendant     :     Mr J R Birman & Mr T C Young
Seventy-fourth Defendant    :     Mr J R Birman & Mr T C Young
Seventy-fifth Defendant      :     Mr J R Birman & Mr T C Young
Seventy-sixth Defendant     :     Mr J R Birman & Mr T C Young
Seventy-seventh Defendant :     No appearance
Seventy-eighth Defendant    :     No appearance
Seventy-ninth Defendant     :     No appearance
Eightieth Defendant            :     No appearance
Eighty-first Defendant        :     No appearance
Eighty-second Defendant     :     No appearance
Eighty-third Defendant       :     No appearance
Eighty-fourth Defendant     :     No appearance
Eighty-fifth Defendant        :     No appearance
Eighty-sixth Defendant       :     No appearance
Eighty-seventh Defendant    :     No appearance
Eighty-eighth Defendant     :     No appearance
Eighty-ninth Defendant      :     No appearance
Ninetieth Defendant           :     No appearance
Ninety-first Defendant        :     No appearance
Ninety-second Defendant     :     No appearance
Ninety-third Defendant       :     No appearance
Ninety-fourth Defendant     :     No appearance
Ninety-fifth Defendant        :     No appearance
Ninety-sixth Defendant       :     No appearance
Ninety-seventh Defendant    :     No appearance
Ninety-eighth Defendant     :     No appearance
Ninety-ninth Defendant      :     No appearance
Hundredth Defendant         :     No appearance
Hundred-and-first Defendant :     No appearance

Solicitors:

Plaintiff:     Ilberys Lawyers
First Defendant                  :     Department of Commerce
Second Defendant              :     No appearance
Third Defendant                 :     Birman & Ride
Fourth Defendant               :     Birman & Ride
Fifth Defendant                  :     Birman & Ride
Sixth Defendant                 :     Birman & Ride
Seventh Defendant             :     Birman & Ride
Eighth Defendant               :     Birman & Ride
Ninth Defendant                 :     Birman & Ride
Tenth Defendant                 :     Birman & Ride
Eleventh Defendant            :     Birman & Ride
Twelfth Defendant              :     No appearance
Thirteenth Defendant          :     Birman & Ride
Fourteenth Defendant         :     No appearance
Fifteenth Defendant            :     Birman & Ride
Sixteenth Defendant           :     No appearance
Seventeenth Defendant       :     No appearance
Eighteenth Defendant         :     No appearance
Nineteenth Defendant         :     Birman & Ride
Twentieth Defendant          :     Birman & Ride
Twenty-first Defendant       :     In person
Twenty-second Defendant   :     Birman & Ride
Twenty-third Defendant      :     Birman & Ride
Twenty-fourth Defendant     :     Birman & Ride
Twenty-fifth Defendant      :     Birman & Ride
Twenty-sixth Defendant     :     Birman & Ride
Twenty-seventh Defendant :     Birman & Ride
Twenty-eighth Defendant    :     Birman & Ride
Twenty-ninth Defendant     :     Birman & Ride
Thirtieth Defendant            :     No appearance
Thirty-first Defendant         :     No appearance
Thirty-second Defendant     :     Birman & Ride
Thirty-third Defendant        :     Birman & Ride
Thirty-fourth Defendant      :     Birman & Ride
Thirty-fifth Defendant        :     Birman & Ride
Thirty-sixth Defendant       :     Birman & Ride
Thirty-seventh Defendant    :     No appearance
Thirty-eighth Defendant     :     Birman & Ride
Thirty-ninth Defendant       :     Birman & Ride
Fortieth Defendant              :     Birman & Ride
Forty-first Defendant          :     No appearance
Forty-second Defendant      :     Birman & Ride
Forty-third Defendant         :     Birman & Ride
Forty-fourth Defendant       :     Birman & Ride
Forty-fifth Defendant          :     Birman & Ride
Forty-sixth Defendant         :     Birman & Ride
Forty-seventh Defendant     :     Birman & Ride
Forty-eighth Defendant       :     No appearance
Forty-ninth Defendant        :     Birman & Ride
Fiftieth Defendant              :     No appearance
Fifty-first Defendant           :     Birman & Ride
Fifty-second Defendant      :     Birman & Ride
Fifty-third Defendant          :     Birman & Ride
Fifty-fourth Defendant        :     Birman & Ride
Fifty-fifth Defendant          :     Birman & Ride
Fifty-sixth Defendant          :     Birman & Ride
Fifty-seventh Defendant     :     Birman & Ride
Fifty-eighth Defendant       :     No appearance
Fifty-ninth Defendant         :     Birman & Ride
Sixtieth Defendant              :     Birman & Ride
Sixty-first Defendant          :     No appearance
Sixty-second Defendant      :     Birman & Ride
Sixty-third Defendant         :     No appearance
Sixty-fourth Defendant       :     Birman & Ride
Sixty-fifth Defendant          :     Birman & Ride
Sixty-sixth Defendant         :     Birman & Ride
Sixty-seventh Defendant     :     Birman & Ride
Sixty-eighth Defendant       :     No appearance
Sixty-ninth Defendant         :     No appearance
Seventieth Defendant          :     No appearance
Seventy-first Defendant      :     Birman & Ride
Seventy-second Defendant   :     Birman & Ride
Seventy-third Defendant     :     Birman & Ride
Seventy-fourth Defendant    :     Birman & Ride
Seventy-fifth Defendant      :     Birman & Ride
Seventy-sixth Defendant     :     Birman & Ride
Seventy-seventh Defendant :     No appearance
Seventy-eighth Defendant    :     No appearance
Seventy-ninth Defendant     :     No appearance
Eightieth Defendant            :     No appearance
Eighty-first Defendant        :     No appearance
Eighty-second Defendant     :     No appearance
Eighty-third Defendant       :     No appearance
Eighty-fourth Defendant     :     No appearance
Eighty-fifth Defendant        :     No appearance
Eighty-sixth Defendant       :     No appearance
Eighty-seventh Defendant    :     No appearance
Eighty-eighth Defendant     :     No appearance
Eighty-ninth Defendant      :     No appearance
Ninetieth Defendant           :     No appearance
Ninety-first Defendant        :     No appearance
Ninety-second Defendant     :     No appearance
Ninety-third Defendant       :     No appearance
Ninety-fourth Defendant     :     No appearance
Ninety-fifth Defendant        :     No appearance
Ninety-sixth Defendant       :     No appearance
Ninety-seventh Defendant    :     No appearance
Ninety-eighth Defendant     :     No appearance
Ninety-ninth Defendant      :     No appearance
Hundredth Defendant         :     No appearance
Hundred-and-first Defendant :     No appearance

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

AB v Western Australia (2011) 281 ALR 694
Associated Alloys Pty Ltd v CAN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588
Bailey v New South Wales Medical Defence Union (1995) 184 CLR 399
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cinema Plus Ltd (administrators appointed) v Australia and New Zealand Bank Group Ltd (2000) 49 NSWLR 513
Clissold v Perry (1904) 1 CLR 363
Douglas v Tickner (1994) 49 FCR 509
Gardner v The Queen (2003) 39 MVE 308
Minister for Aboriginal Affairs and Anor v Peko Wallsend Limited and Ors (1986) 162 CLR 1
National Provincial and Union Bank of England v Charnley [1924] 1 KB 431
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R and R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603
Sheriff Gordon Mines Ltd v FCT [1977] VR 342
Winter and Salvation Army (WA) Property Trust [2012] WASAT 17
Young v Owners of Strata Plan 3529 (2001) 54 NSWLR 60

Table of Contents

1. The factual context

(a) The parties to the litigation

(b) The Land

The Retirement Village prior to July 2005
Redevelopment of the Land
The result of the redevelopment so far

(d) The residence contracts

(e) The statutory charge and the Memorial

(f) The residents' concerns about the proposed variation

2.     Areas of factual dispute
3.     The relief sought
4.     Approach to construction
5. What is a 'retirement village' and a 'retirement village scheme' under the RV Act?

(a) The definitions of a 'retirement village' and a 'retirement village scheme' under the RV Act

(b) The parties' submissions

(d) Some conclusions about the meaning and operation of the definitions of 'retirement village' and 'retirement village scheme'.

6. Do the statutory charge and the memorial form part of a retirement village scheme?

(a) The nature and features of the statutory charge under s 20 of the RV Act

(b) The nature and features of the memorial required to be lodged under s 15(3) of the RV Act

7. The proper construction of s 22 of the RV Act

(a) How is a retirement village scheme terminated?

(i)     The parties' submissions
(ii)      Who terminates?
(iii)     What does 'admitted to occupation of residential premise under the scheme' mean?
(iv)     When and how may a termination of a retirement village scheme take place?

(b) What are the consequences of a termination of a retirement village scheme?

(i) what are the consequences of termination (if any) for residence contracts and service contracts?
(ii) what are the consequences of termination (if any) for any statutory charge and memorial in respect of the land in the retirement village?
(iii) what are the consequences of termination (if any) for the application of the RV Act

(i) The purpose of the RV Act
(ii) The purpose of the RV Act and its implications for the construction of s 22

8. Section 22 does not apply in the present case

(a) The parties' submissions

(b) Retirement Care's application does not involve a termination of the Scheme

9. Other issues – interests relevant to the exercise of discretion by the Court in granting approval under s 22 of the RV Act
10. Conclusions

PRITCHARD J: Since 1 July 2005, Retirement Care Australia (Hollywood) Pty Ltd has been the owner and operator of the Hollywood Retirement Village. The Retirement Village is situated on a large parcel of land at 118 ‑ 120 Monash Avenue in Nedlands (the Land).[1] The Retirement Village exists pursuant to a 'retirement village scheme' (the Scheme) as defined in the Retirement Villages Act 1992 (the RV Act) and the provisions of the RV Act apply to the Retirement Village.
[1] Until December 2011, the Land was described as Lot 2237 on Deposited Plan 123689 which comprised Certificate of Title Volume 570 Folio 44A. Its present description on the Register of Land Titles is referred to in [13] below.
Retirement Care would like to be able to sell part of the Land, while continuing to use the balance of the Land for the Retirement Village (the proposed variation). Some of the residents of the Retirement Village oppose the proposed variation.
As a result of the operation of a number of provisions of the RV Act, Retirement Care is unable to pursue the proposed variation unilaterally. At the same time, the RV Act does not contain any provision which expressly permits the proposed variation. As a consequence, Retirement Care has applied to the Court pursuant to s 22 of the RV Act, seeking (amongst other things) the approval of the Court for the termination of the Scheme, and a declaration that immediately upon that termination occurring, there will be a retirement village scheme in respect of the balance of the Land apart from that portion which it wishes to sell. Retirement Care's application is a novel one, and raises a number of difficult questions about the operation of the RV Act applies, and the relief sought by Retirement Care should be refused

For the reasons set out below, I have reached the conclusion that this is not a case to which s 22 of the RV Act applies and the relief sought by Retirement Care should be refused.
These reasons for decision deal with the following matters:
1.The factual context;
2.Areas of factual dispute;
3.The relief sought;
4.Approach to construction of s 22 of the RV Act;
5.What is a 'retirement village' and a 'retirement village scheme' under the RV Act?
6.Do the statutory charge and the memorial form part of a 'retirement village scheme'?
7.The operation of s 22;
8.Section 22 does not apply in the present case;
9.Other issues ‑ interests relevant to the exercise of discretion by the Court in granting approval;
10.Conclusion.

The factual context

Save for the factual disputes referred to at [53] to [57] below, the facts were not in dispute. Before setting out the factual context for the present dispute in some more detail, however, it is convenient to note the parties to the litigation.

(a) The parties to the litigation

Retirement Care is a wholly owned subsidiary of Regis Aged Care Pty Ltd (Regis).[2] Regis' primary area of business is the provision of aged care accommodation.
[2] Regis is a wholly owned subsidiary of Fairway Investment Holdings Pty Ltd.
Other than the Commissioner of Consumer Protection (the Commissioner), the Registrar of Titles (the Registrar), and the Commissioner of Titles, the defendants were residents of the Retirement Village when the action was commenced or became residents after the action was commenced.
Not all of the residents of the Retirement Village chose to appear, and to participate in, these proceedings, but I am satisfied that all of them were served with the writ and statement of claim and have been afforded the opportunity to participate. Those defendants who are residents of the Retirement Village, and who chose to participate in these proceedings, with the exception of Mr Colton, (the 21st defendant) were represented by a single firm of solicitors, and are referred to herein as the Schedule A defendants. The Schedule A defendants, and Mr Colton, were opposed to the proposed variation. Mr Colton did not attend the trial but made written submissions in the form of letters dated 5 January 2011 and 27 January 2011 which I have taken into account together with the submissions of the other parties.
The Commissioner participated in the proceedings, and through counsel made oral and written submissions in relation to legal issues arising in the proceedings.
The Registrar and the Commissioner of Titles did not participate in the proceedings, but indicated that they would abide the decision of the Court.[3]

(b) The Land

[3] Letter from Shane Nelson, Deputy Commissioner of Titles to Principal Registrar of Supreme Court of Western Australia, dated 12 April 2008; see also ts 48, 145, 148.

Since purchasing the Retirement Village in 2005, Retirement Care has sought and received approval from the Western Australian Planning Commission for a two lot subdivision of the Land. In 2010, a plan of subdivision (Deposited Plan 59743) was made, subdividing the south western corner of the Land (Lot 889) from the balance of the land (Lot 888). In December 2011, a separate certificate of title was issued in respect of each Lot.[4]
[4] Volume 2780 folio 887 in respect of Lot 888, which now bears the street address 118 Monash Avenue Nedlands, and Volume 2780 Folio 888 in respect of Lot 889, which now bears the street address of 56 Smyth Road Nedlands.
For completeness, I note that in 2012, Retirement Care was granted approval (subject to compliance with conditions) for a four lot subdivision of the Land.[5] Certificates of title have not been issued in respect of the lots referred to in that subdivision. The pursuit of that subdivision is not relevant to the present application which pertains solely to Lots 888 and 889.
[5] Exhibit D, Witness Statement of Michael Brian Horwood dated 28 August 2012, at [43]; Chronology of Events agreed as between Retirement Care and Schedule A defendants.
Finally, I note that the applicable town planning scheme presently limits the use of Lot 889 to residential premises, for persons aged 55 years or older.[6]

(c) The Retirement Village

The Retirement Village prior to July 2005

[6] Exhibit D, Witness Statement of Michael Brian Horwood dated 28 August 2012, at [43].

Prior to 1 July 2005, the Retirement Village was owned and operated by the Salvation Army (Western Australia) Property Trust. A variety of buildings and facilities were located on the Land when it was purchased by Retirement Care. In the north eastern corner of the Land were located aged care facilities comprising a nursing home and a number of hostels. In the same area were located a day therapy centre, a kiosk, hairdresser, chemist and a supermarket. The aged care facilities remain in the same location.
In the north western corner of the Land were located a large number of small individual flats or villas ‑ known as independent living units (ILUs) ‑ in which residents could live independently. This area of the Village was, and remains, known as Centennial Close.
In the south eastern corner of the Land were located a small number of individual ILUs, a number of ILUs in a multi storey building, known as the Wyvern Units, ILUs in a complex known as the Crossleigh Units, a swimming pool and spa.
In the south western corner of the Land (on the land which is now Lot 889) were located a number of ILUs, the Warrina Dementia Hostel, an auditorium and medical centre, and a community centre known as Withnell Cottage.

Redevelopment of the Land

Between approximately October 2009 and July 2010, Retirement Care arranged for the demolition of a number of buildings on the Land. Those buildings included buildings used for accommodation and for amenities, including the Warrina Dementia Hostel, the Crossleigh Units, a number of ILUs, the Withnell Cottage, the auditorium and the medical centre.
Evidence was given by Mr Michael Horwood, the General Manager of the Property Division of Regis Aged Care Pty Ltd, that Retirement Care's initial intent in pursuing the subdivision of the Land was part of what was known as 'Plan B' which was a plan for the development and construction of a new aged care facility on what has become Lot 889. Mr Horwood's evidence was that Plan B was withdrawn after tenders for the construction of that aged care facility were obtained, because of the high cost of its development.
A new plan for redevelopment was then adopted, which was known as 'Masterplan B'. Masterplan B had a number of aspects. The first concerned the aged care facilities in the north eastern part of Lot 888 and comprised the construction of an additional 90 bed wing for an existing aged care facility, the amalgamation and refurbishment of existing aged care facilities into one building offering 197 beds across low care, high care and extra services, and the construction of a new aged care facility offering high care premium additional services. Secondly, Masterplan B contemplated the eventual redevelopment of the site of the Wyvern Units, because those Units were considered too small in size by contemporary standards, yet the cost of refurbishment of the building in which they were located was too high to be economically viable. Accordingly, Masterplan B contemplated that no new residents would be accepted into the Wyvern Units and those residents in the Wyvern Units would be relocated to Centennial Close as and when it became possible to do so. A third aspect of Masterplan B concerned the construction of various works, including a new community centre (to replace amenities that were previously located in the Wyvern building) and a new pool, at Centennial Close where they would be easily accessible by ILU residents.

The result of the redevelopment so far

There are now 260 residents living in ILUs in Centennial Close. Although the Wyvern building remains in the south‑eastern corner of Lot 888, no residents are living in that building.
The aged care facilities continue to be located in the north‑eastern corner of Lot 888. Nearby are located a day therapy centre, supermarket, coffee shop, hairdresser, doctor's rooms and chemist, all of which are available for access by the ILU and aged care residents.
Some of the facilities which were previously located in buildings which have been demolished have been relocated. By way of example, three ILUs in Centennial Close have been converted into the new community centre and library. At the time of the hearing Retirement Care was in the process of arranging for the construction of the new pool.
The residents who previously resided in buildings on Lot 889, and in the south eastern corner of Lot 888 have been relocated to accommodation in the ILUs located elsewhere on Lot 888.
As a result of these changes, the residents of the Retirement Village now live in accommodation which is located only on Lot 888. All of the buildings on Lot 889 have been demolished.
Lot 889 is therefore vacant land, apart from a carriageway – the Village Road[7] ‑ which is located adjacent to the eastern boundary of Lot 889. The Village Road is the subject of an easement, which amongst other things burdens Lot 889 for the benefit of Lot 888 (the easement).

(d) The residence contracts

[7] The carriageway is marked as C1 on Deposited Plan 59743.

Each of the residents of the Retirement Village live in the Retirement Village pursuant to a 'residence contract' as defined in the RV Act, which gives them a right to occupy as specified in their contract. Not all of the residence contracts are in identical terms.
Some of the residence contracts required that the resident pay a premium upon entering the Retirement Village (the entry premium) and in those cases, the residence contract requires that part of the entry premium be repaid on the happening of certain contingencies, when the residence contract comes to an end and the resident ceases to reside at the Retirement Village. When Retirement Care purchased the Retirement Village, it became liable[8] to perform the obligations owed by the Salvation Army to the then residents under their respective residence contracts. Those obligations included the obligation to repay part of the entry premium paid by some of the residents, upon the termination of the residence contract of each of those residents.
[8] In accordance with the provisions of the RV Act. Retirement Care also entered into a deed poll to this effect.
Since purchasing the Retirement Village, Retirement Care has entered into a number of contracts with residents, on varying terms. Some of those residents have paid an entry premium (and have a contractual right to the repayment of part of their entry premium when the residence contract comes to an end). In more recent times, however, residence contracts offered by Retirement Care have not required the payment of an entry premium.
Most residents of the Retirement Village occupy their ILU pursuant to a licence to occupy for life under their residence contract. More recently, however, the residence contracts offered by Retirement Care have granted a shorter term licence to occupy.

(e) The statutory charge and the Memorial

Under s 20(1) of the RV Act, the obligation to repay an entry premium or part thereof gives rise to a statutory charge over the land in a retirement village. It was not in dispute that the right of some of the residents of the Retirement Village to the repayment of part of their entry premium gave rise to a first ranking charge over the Land, and thus over what are now Lots 888 and 889. As the right to the repayment of each resident's entry premium gives rise to a statutory charge, it was not in dispute that Lots 888 and 889 are in fact subject to a number of statutory charges for the benefit of the individual residents concerned (the Charges).
The total value of the entry premiums which Retirement Care is obliged to repay to the residents of the Retirement Village does not exceed $5 million.[9] Retirement Care's case was that the value of Lot 888 is significantly greater than the total amount it is liable to pay by way of the repayment of entry premiums.[10] The undisputed evidence was that Lot 888 alone is valued at $41.2 million.[11]
[9] In response to Retirement Care's Notice to Admit Facts dated 30 August 2012, the Commissioner admits that Retirement Care is obliged to repay entry premiums in an amount not exceeding $4.4 million. The Schedule A defendants admitted that Retirement Care is obliged to repay entry premiums in an amount not exceeding $5 million.
[10] Reply at [12.3].
[11] See Valuation report dated 10 October 2012.
The RV Act requires that where land is, or is proposed to be used for the purposes of a retirement village, the owner of the land must lodge a memorial with the Registrar of Titles.[12] In accordance with this requirement, a memorial was registered over the Land (the Memorial)[13] from September 1992 and when new certificates of title in respect of Lots 888 and 889 were issued, the Memorial remained registered against each certificate of title. The Memorial states that:
1.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.
2.By virtue of s 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.
3.The provisions of Part 3 of the Retirement Villages Act 1992 apply generally to retirement villages established under the Act.
[12] RV Act s 15(3) and s 15(4).
[13] Number E987333.
The statutory bases for the Charges and for the Memorial are discussed further at [102], [103] and [113] below.
Finally, it was not in dispute that Lots 888 and 889 are encumbered by a mortgage (the Mortgage),[14] which was registered after the Memorial, and which is therefore second in priority to the statutory charges referred to in the Memorial.

(f) The residents' concerns about the proposed variation

[14] Mortgage K369504, lodged 8 October 2007.

Evidence was given by four residents of the Retirement Village: Mr Walter Jenkins, Dr June Stephenson, Mr Hubert Minchin and Mrs Mary Winter (the resident witnesses).
Counsel for Retirement Care objected to the evidence of the resident witnesses on the ground that their evidence was irrelevant to the issues in dispute. The evidence in chief of each of the resident witnesses (which was set out in the form of a witness statement) was provisionally admitted on the basis that I would determine its relevance in the course of considering the issues in dispute.
Some of the resident witnesses' evidence concerned the standard of accommodation in the Retirement Village and Retirement Care's approach to the redevelopment of the Land. The essence of this part of the resident witnesses' evidence, in summary, was that they considered that the standard of accommodation, and the quality of the amenities and the surrounding environment, which were provided while the Salvation Army owned the Retirement Village (and when each of the resident witnesses began living there) were of a high standard, but had declined since Retirement Care bought the Retirement Village. The resident witnesses expressed concerns about the adequacy of the facilities at the Retirement Village following the demolition of buildings, and the construction of new buildings and amenities, to which I have already referred. In addition, the resident witnesses considered that the redevelopment of the Retirement Village had been decided upon without adequate consultation with residents of the Retirement Village.
I have taken this evidence into account as background evidence which assists in understanding the subjective concerns of each of the resident witnesses in relation to the proposed variation.
This evidence was also said to be relevant to the factors which the Schedule A defendants contended should be taken into account by the Court in determining whether to grant approval for the termination of a retirement village scheme under s 22 of the RV Act. By way of example, one of those factors was said to be whether Retirement Care had breached the residence contracts in a number of respects.
For the reasons set out below it has not been necessary for me to resolve the question of the factors which would be relevant to the exercise of this Court's discretion under s 22 of the RV Act. In those circumstances it is not necessary to resolve the question of the relevance of this part of the resident witnesses' evidence. Although it is ordinarily desirable for a trial judge to resolve all of the factual issues in a case, and although Retirement Care disputed a number of aspects of the resident witnesses' evidence, in my view the preferable course in this case is to leave the resolution of the factual issues raised by the resident witnesses' evidence for another day. I have reached that conclusion particularly in view of the nature of the issues involved (for example, allegations of breaches of the residence contracts), the fact that some of those issues have been traversed elsewhere,[15] the fact that even if relevant, some of the issues (such as the alleged breaches of contract) may be resolved on legal rather than factual grounds, and the confined ambit of the evidence.
[15] Winter and Salvation Army (WA) Property Trust [2012] WASAT 17.
The balance of the resident witnesses' evidence concerned three broad themes: why they opposed the proposed variation and the termination of the Scheme, the circumstances in which some of them moved from ILUs on Lot 889 to ILUs in Centennial Close and their views as to how Lot 889 should be used in future (rather than sold).
Mr Jenkins' evidence was that he originally decided to live at the Retirement Village because he understood the entirety of the Land would be used for aged care purposes, that he did not know what Lot 889 would ultimately be used for, and that he was concerned that its use could be detrimental to the lifestyle of the Retirement Village. (I note, however, that in cross examination Mr Jenkins accepted that the zoning requirements applicable to Lot 889 alleviated the concerns he had about who might ultimately live on Lot 889.) In addition, Mr Jenkins' expectation was that if Retirement Care's present application was successful, it would continue to attempt to reduce, or terminate, the remainder of the Scheme.
Dr Stephenson opposed the proposed variation and the termination of the Scheme because her preference was that Lot 889 should be used for the building of new facilities for aged care, dementia and nursing home residents, and that it should be retained as part of the Retirement Village, which serviced a large number of people.
Mr Minchin was concerned that the real purpose of Retirement Care's application to terminate the Scheme was to concentrate the Retirement Village into Centennial Close and eliminate any possibility that Lot 889 could be used for new facilities or additional ILUs. In addition, Mr Minchin was concerned that if the application was successful, and the Charges were applied only to Lot 888, the value of his security for the repayment of his entry premium would be reduced. He maintained the latter view in cross examination, notwithstanding the disparity between the value of Lot 888 and the total of Retirement Care's liability for the repayment of entry premiums.
In addition, Mr Minchin gave evidence that at a meeting of residents in March 2007, a representative of Retirement Care had advised that Retirement Care wished to redevelop the south western corner of the Land (to construct a new aged care facility, a nursing home, a community centre and other facilities, including a medical centre and swimming pool) but could not do so unless all residents living on that part of the Land relocated to the north eastern corner of the Land (that is, to Lot 888). Mr Minchin's evidence was that he and his wife had decided to move from their ILU on Lot 889 to another ILU on Lot 888 because they were keen to see Lot 889 redeveloped in the manner proposed by Retirement Care, and because Retirement Care had indicated that those residents who relocated would be given preferential admission to the new aged care facilities which were constructed.

Mrs Winter opposed Retirement Care's application to terminate the Scheme because she considered that the object of its application was to permit the sale of Lot 889 which would exclude its availability for the redevelopment or expansion of the Retirement Village, and would result in the removal of the Charges over Lot 889 (which in her view would reduce the total value of the land securing the repayment of her entry premium). However, in cross examination, and having regard to the value of Lot 888 and of Retirement Care's liability for the repayment of entry premiums, Mrs Winter agreed that she no longer relied upon the latter reason for opposing the termination of the Scheme.
Mrs Winter also gave evidence that following the provision of information by Retirement Care in 2007 about its plans for the redevelopment of what is now Lot 889, she agreed to relocate from her ILU on what is now Lot 889 to an ILU on what is now Lot 888. Her evidence was that she was keen for the proposed facilities to be built and therefore agreed to the relocation, and that had she been told that Retirement Care wanted to subdivide the Land for purposes unrelated to the Retirement Village she would not have agreed to move.
This is also an appropriate point to mention Mr Colton's submissions. He submitted that Retirement Care's application should be dismissed because Lot 889 had previously been the site of the Warrina Dementia Hostel, which Retirement Care had demolished with the promise that another dementia facility would be built in its stead.
In so far as the evidence of the resident witnesses (and Mr Colton's submissions) addressed the reasons why they opposed the proposed variation and their desires or preferences about the future use of Lot 889, I have taken this evidence into account for the purpose of understanding their subjective views about these issues. However, for the reasons given above at [42] it is not necessary to otherwise determine the relevance of this evidence or to make any findings as to whether the witnesses' views should be accepted as an accurate statement of the factual position.
In so far as some of the witnesses' evidence addressed why they moved from Lot 889 to Centennial Close, the Schedule A defendants submitted that this evidence was relevant to one of the factors which should be taken into account in the exercise of the Court's discretion under s 22, namely Retirement Care's conduct and whether it had induced residents to move from Lot 889 on the basis of a misrepresentation of its intentions as to the future use of Lot 889. That claim was disputed by Retirement Care. For the reasons given above at [42] it is not necessary to determine the relevance of this evidence or to make any findings about it.

Areas of factual dispute

On the face of the pleadings, there were, effectively, three areas of factual dispute. The first was whether Retirement Care has breached its obligations to residents of the Retirement Village under the residence contracts, by denying them access to part of the Retirement Village (namely to Lot 889, save for the Village Road) and, or alternatively, by demolishing accommodation and amenities in the Retirement Village without replacing them.
A second factual dispute was whether Retirement Care's conduct in relation to the redevelopment of the Land meant that it did not come to the Court with 'clean hands'. In addition to the allegations that Retirement Care had breached residents' contracts, this area of dispute concerned whether Retirement Care had misrepresented to residents the nature of its proposed redevelopment of the Land, and by doing so, induced some residents to move to different accommodation within the Retirement Village under a misapprehension as to what was intended.
These two areas of factual dispute were potentially relevant to the considerations bearing upon the exercise of the Court's discretion under s 22 of the RV Act. In view of the conclusions I have reached about the construction of s 22, it is not necessary for me to assess each of the factors said to be relevant to the exercise of discretion under s 22 of the RV Act. For that reason, it is not necessary for me to make findings in relation to the facts bearing on some of those factors.
The third area of factual dispute on the pleadings was whether the Land ‑ both before and after its subdivision into Lots 888 and 889 ‑ has been used for the purpose of the Scheme. In their defences, the Commissioner and the Schedule A defendants pleaded that the Retirement Village and the 'retirement village scheme' extended over the whole of the Land, and now extend over the whole of Lots 888 and 889.[16] In its Reply, Retirement Care pleaded that although from July 2005 the whole of the Land was used for the purposes of a retirement village, at no time from July 2005 was the whole of the Land occupied for the purposes of a retirement village. The basis for this pleading was that part of the Land has been, and since December 2011 part of Lot 888 is, used for aged care facilities, and that the residents of those facilities were not residents of the Retirement Village. Retirement Care also pleaded that some of the buildings on the Land were used for the purposes of those aged care facilities.[17] Retirement Care also says that since December 2009, Lot 889 has not been occupied for the purposes of a retirement village because it has been a vacant lot.[18]
[16] First Defendant's Amended Defence at [2] and [8]; Schedule A defendants' Amended Defence at [3].
[17] Reply at [2].
[18] Reply at [2].
Given the conclusion I have reached at par [96] and [97] as to the meaning of the definition of 'retirement village' it is not necessary to resolve questions concerning whether buildings were used or occupied under the Scheme, or whether the Land was occupied or used for or in connection with the Scheme.
For completeness, I note that the RV Act does not apply to a resident or prospective resident of a retirement village or to the administering body of that retirement village in the circumstances described in s 5(2) of the RV Act. The effect of s 5(2) was touched upon briefly in submissions, and some evidence was led in relation to the matters referred to in that subsection. Mr Shea gave evidence that the three aged care facilities on Lot 888 are administered under the Aged Care Act 1997 (Cth) (AC Act). Mr Shea confirmed that all of the occupants in the aged care facilities on Lot 888 received the subsidies referred to in s 5(2) of the RV Act.[19] Mr Shea also gave evidence that Retirement Care, and (since June 2012) Regis, provided 'residential care' under the AC Act to the residents of the aged care facilities on Lot 888.[20] It was Mr Shea's evidence that until 17 June 2012, Retirement Care was an 'approved provider' under the AC Act, and that since then, Regis has been the operator of the facilities as an approved provider.[21]
[19] Exhibit Q, Supplementary Witness Statement of Brett William Shea dated 21 November 2012, at [5].
[20] Exhibit J, Supplementary Witness Statement of Brett William Shea dated 16 November 2012, at [8].
[21] Exhibit J, Supplementary Witness Statement of Brett William Shea dated 16 November 2012, at [6] and [7].
There did not appear to be any dispute between the parties that s 5(2) of the RV Act applied so that residents of the aged care facilities were not subject to the RV Act. While that may be the case, it was not entirely clear ‑ having regard to Mr Shea's evidence ‑ that s 5(2)(a) of the RV Act was satisfied.[22] (In the present case, the 'administering body'[23] for the Retirement Village is Retirement Care, whereas Regis is the approved provider for the aged care facilities on Lot 888.) That issue was not explored in the submissions or the evidence. However, it is unnecessary to determine the question of the application of s 5(2) for present purposes. Even if is assumed that s 5(2) applies, its effect is to exclude the application of the RV Act to the residents and the administering body of the Retirement Village, in so far as they are residents of aged care facilities, and providers of residential premises and residential care, under the AC Act. That does not preclude the conclusion that that part of Lot 888 on which the aged care facilities are located forms part of the Retirement Village for the purposes of the RV Act, and I did not understand counsel for Retirement Care to seek to suggest otherwise.[24]
[22] Section 5(2)(a) of the RV Act requires that the administering body of the retirement village be an 'approved provider' as defined in the AC Act in relation to the residential premises used or intended to be used as a place of residence by a resident of the retirement village.
[23] The term 'administering body' is defined in RV Act s 3(1) to mean 'the person by whom, or on whose behalf, the retirement village is administered and includes a person (other than a resident) who is the owner of land within the retirement village'.
[24] Note that no party went so far as to contend that any part of the RV Act was rendered inapplicable or invalid in its application to the aged care facilities on Lot 888 by virtue of the existence of the AC Act as a whole, or particular provisions within that Act.

The relief sought

Initially a variety of alternative forms of relief were sought by Retirement Care.[25] However, in the course of the hearing, the relief sought by Retirement Care was confined to the following orders (the proposed orders):[26]
1.an order granting the approval of the Court for the termination of the retirement village scheme which relates to the Retirement Village on Lot 888 and Lot 889, pursuant to s 22 of the RV Act;
2.a declaration that the charges under the Memorial have been fully satisfied, extinguished or determined in respect of Lot 889 and no longer affect Lot 889; and
3.a declaration that immediately from the time that order 1 above takes effect, there is a retirement village scheme being conducted on Lot 888.
[25] See the Prayer for the Relief in the Amended Statement of Claim.
[26] Minute of Plaintiff's Relief Sought dated 21 November 2012.
Although Retirement Care seeks an order granting the Court's approval for the termination of the Scheme, it does not intend to entirely cease conducting a retirement village scheme. Instead, as proposed order 3 makes clear, the proposed variation contemplates that immediately upon the termination of the Scheme, Retirement Care intends to continue to operate the Retirement Village, without any change to the residence contracts pursuant to which existing residents live in the Retirement Village, and by utilising the same premises and facilities for residents as presently exist, but using only the land in Lot 888.
As I understand Retirement Care's case, proposed order 2 is intended to serve two purposes. First, the grant of the declaration sought is designed to support an application to the Registrar under the RV Act to cancel the Memorial in respect of Lot 889. Secondly, the declaration is intended to confirm what Retirement Care contends will, in any event, occur upon the termination of the Scheme, namely that the Charges will no longer apply to Lot 889.
Retirement Care sought to terminate the Scheme only on the basis that the priority of the Charges over the Mortgage in respect of Lot 888 would be maintained.[27] Mr Horwood gave evidence that the mortgagee is amenable to the preservation of the priority of the Memorial with respect to the Mortgage.
[27] Counsel for Retirement Care proposed that Retirement Care could take two courses of action to achieve this result. First, counsel submitted that Retirement Care could first lodge a new Memorial over Lot 888, then register a discharge of the Mortgage, then apply for the cancellation of the Memorial over Lot 889 (with a notation on the titles for Lots 888 and 889 to the effect that the earlier Memorial was extinguished in respect of those Lots) and lastly lodge a new mortgage over Lot 888 in the same terms as the existing Mortgage. Alternatively, counsel submitted that Retirement Care could apply for the cancellation of the Memorial over Lot 888 and Lot 889, then register a discharge the Mortgage, then lodge a new Memorial over Lot 888 and then lodge a new mortgage over Lot 888 in the same terms as the existing Mortgage.
In other words, in seeking the relief set out above, Retirement Care seeks to terminate the Scheme, and to immediately replace it with what it sees as another retirement village scheme, but with the result that Lot 889 will no longer be subject to the Charges, and that the Memorial over Lot 889 will be able to be cancelled.

Approach to construction

The resolution of the issues arising from Retirement Care's application turns on the construction of various provisions of the RV Act. The key provision is, of course, s 22 of the RV Act, which provides:
(1)A retirement village scheme cannot be terminated without the approval of the Supreme Court while a person who has been admitted to occupation of residential premises under the scheme remains in occupation of those premises.
(2)The Commissioner will be a party to any proceedings in which the Supreme Court's approval of the termination of a retirement village scheme is sought.
(3)If the Supreme Court approves the termination of a retirement village scheme it may make such orders as it thinks necessary to protect the interests of existing residents.
Some of the terms used in s 22 are defined in the RV Act. Others are not. Determining the meaning of s 22 as a whole, and how it was intended to be applied, therefore requires a consideration of the defined meaning of any terms, and the ordinary meaning of the remaining words in the section, considered within their context. That context includes matters such as the meaning of the language used within the statute when viewed as a whole, the provisions of the statute as a whole and how they work together, and the purpose to which the statute was directed.[28] A construction that would promote the purpose or object underlying the statute is to be preferred to a construction that would not promote that purpose or object.[29]
[28] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ); AB v Western Australia (2011) 281 ALR 694, 697, 700, 703 (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
[29] Interpretation Act 1984 (WA) s 18.
In the analysis which follows, I commence by considering the definition of two key terms used in the RV Act: the definition of a 'retirement village scheme' which is integral to the operation of s 22 itself, and the definition of a 'retirement village'. I then turn to consider the operation of the provisions of the RV Act which relate to statutory charges and memorials, and to consider their relationship with a retirement village scheme under the RV Act.
In the light of those conclusions, I then return to consider the meaning and operation of s 22 itself. In doing so I consider the purpose of the RV Act as a whole, how that purpose manifests itself in the ways in which the RV Act regulates retirement villages, and what light that purpose sheds on the intended meaning and operation of s 22.
I have undertaken this analysis in rather more detail than would ordinarily be necessary for two reasons. First, the provisions of the RV Act which arise for consideration in this case have not been the subject of any previous judicial consideration, and were the subject of close analysis by all counsel in the course of the hearing. Secondly, having reflected at some length on the helpful submissions of counsel for each of the parties, I find myself unable to entirely agree with the approach taken by any of the parties to the construction of the RV Act and to s 22 in particular. In those circumstances, it is appropriate to explain the reasoning behind my conclusions in some detail.

What is a 'retirement village' and a 'retirement village scheme' under the RV Act?

In this section of my reasons, I deal with the following matters:
(a)the definitions of a 'retirement village' and a 'retirement village scheme' under the RV Act;
(b)the parties' submissions;
(c)the elements of a 'retirement village scheme' and a 'retirement village' under the RV Act;
(d)some conclusions about the meaning and operation of the definitions of 'retirement village' and 'retirement village scheme'.

(a) The definitions of a 'retirement village' and a 'retirement village scheme' under the RV Act

Except in so far as the RV Act provides otherwise, the RV Act applies to 'retirement villages', whether established before or after the commencement of the RV Act.[30] A 'retirement village' is defined in the RV Act[31] to mean:
retirement village means 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.
[30] RV Act s 3(1).
[31] RV Act s 3(1).
The term 'retirement village scheme' is pivotal to the operation of the RV Act generally, and to the operation of s 22 itself. The term 'retirement village scheme' is defined in the RV Act[32] to mean:
[32] RV Act s 3(1).
retirement village scheme or scheme means 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.

(b) The parties' submissions

The parties were all of the view that the Retirement Village is part of a 'retirement village scheme' as defined in the RV Act because it was established for retired persons or predominantly for retired persons, some residential premises in the Retirement Village are occupied pursuant to licences, and some of the residents have paid a 'premium' as defined in the RV Act in consideration for their admission as a resident. However, all of the parties were of the view that the Scheme comprised more these three elements.[33]
[33] Plaintiff's Outline of Submissions (Updated to Include Trial Book References) dated 14 November 2012 at [14], [18] and [19].
Counsel for Retirement Care submitted that because a 'retirement village' is defined by reference to premises and land occupied or used (or intended to be occupied or used) for a retirement village scheme, the concept of a 'retirement village' under the RV Act does not, as a matter of substance, connote a different concept from that of a 'retirement village scheme'.[34] He thus submitted that a retirement village scheme will therefore include the three elements referred to in the definition of a retirement village scheme, the buildings and land which make up the retirement village, the statutory charge and the memorial.[35]
[34] Plaintiff's Outline of Submissions (Updated to Include Trial Book References) dated 14 November 2012 at [21].
[35] Plaintiff's Outline of Submissions (Updated to Include Trial Book References) dated 14 November 2012 at [22].

Counsel for the Schedule A defendants submitted that a retirement village scheme is established when there are residential premises (occupied by retired persons or predominantly by retired persons) and the payment of one or more premiums.[36] Counsel for the Schedule A defendants also submitted that a retirement village comprises the residential premises that are part of the retirement village scheme. Counsel for the Schedule A defendants submitted that the land to which a retirement village scheme extends falls to be determined at the date when the scheme comes into existence,[37]and that the retirement village scheme would continue to exist irrespective of any subdivision or change in the use of that land.[38]
[36] Schedule A defendants' Outline of Submissions dated 16 November 2012 at [5].
[37] Schedule A defendants' Outline of Submissions dated 16 November 2012 at [7].
[38] Schedule A defendants' Outline of Submissions dated 16 November 2012 at [10].
Counsel for the Commissioner submitted that the reference to a 'scheme' requires a systematic plan or arrangement for attaining a particular objective.[39] He submitted that for the purpose of the definition of a 'retirement village scheme' that objective is the operation of a complex of residential premises and appurtenant land (a village) for retired persons or predominantly for retired persons.[40] Counsel for the Commissioner submitted that the elements of the retirement village scheme constituted by the retirement village in this case are the complex of residential premises and appurtenant land, Retirement Care as the administering body and owner of the Land, the residents, the occupation of the residential premises in the Retirement Village by the residents pursuant to their residence contracts (which gave them either a licence to occupy for life or a short term licence to occupy), any service contracts between Retirement Care and the residents, the payment of a premium and the premium repayment rights enjoyed by certain of the residents, together with the Charges and the Memorial.[41]
[39] First Defendant's Outline of Submissions dated 15 November 2012 at [32].
[40] First Defendant's Outline of Submissions dated 15 November 2012 at [32].
[41] First Defendant's Outline of Submissions dated 15 November 2012 at [33].
In summary, counsel for the Commissioner submitted that in a broad sense, the Scheme in this case comprises the relationships established by the various residence contracts and any service contracts, and includes the land used, or proposed to be used, for the purpose of the Retirement Village as designated in the Memorial, the Charges and the parties' rights and responsibilities under the RV Act and the regulations made under that Act.[42] Counsel for the Commissioner submitted that there may be changes to some parts of the Scheme over time (for example, to the residents, to the administering body or to the terms of the residence contracts).[43] However, he submitted that in one respect the Scheme was fixed. That one respect concerned the land the subject of the Scheme.[44] Counsel for the Commissioner submitted that the land the subject of the Scheme was determined by the Memorial as lodged and registered.[45] Counsel for the Commissioner thus submitted that from the commencement of the Scheme, the Memorial established the boundaries of the land in the Retirement Village which was the subject of the Scheme, and it was this land to which the statutory charges attached.[46]

(c) The elements of a 'retirement village scheme' and a 'retirement village' under the RV Act

[42] First Defendant's Outline of Submissions dated 15 November 2012 at [41].

[43] First Defendant's Outline of Submissions dated 15 November 2012 at [42].

[44] First Defendant's Outline of Submissions dated 15 November 2012 at [43].

[45] First Defendant's Outline of Submissions dated 15 November 2012 at [45].

[46] First Defendant's Outline of Submissions dated 15 November 2012 at [45].

Four things may be noted about the definition of 'retirement village scheme'.
First, the definition sets out what a retirement village scheme means, not what it includes. It therefore appears that the definition is intended to be an exhaustive statement of what constitutes a retirement village scheme for the purposes of the RV Act.[47]
[47] See for example Sheriff Gordon Mines Ltd v FCT [1977] VR 342, 353; Douglas v Tickner (1994) 49 FCR 509, 519; Gardner v The Queen (2003) 39 MVE 308; and see DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, 2011) at [6.61].
Secondly, the definition defines both 'retirement village scheme' and 'scheme' interchangeably. In so far as it refers to a 'scheme' the ordinary and natural meanings of the word 'scheme' include 'a programme of action; a project', a 'policy or plan officially adopted by a company [or] business' and 'any system of correlated things, parts … or the manner of its arrangement'.[48] In other words, a retirement village scheme (or scheme) under the RV Act is a programme of action or a plan or policy concerning the use of residential premises.
[48] Macquarie Dictionary (4th ed, 2005).
Thirdly, as is apparent from the definition of 'retirement village scheme' that programme of action or plan or policy must comprise three elements in order for it to constitute a 'retirement village scheme' for the purposes of the RV Act.
The first of these elements is that the scheme must be established for 'retired persons' or predominantly for retired persons. Under the RV Act a 'retired person' is a person who has attained the age of 55 years or is retired from full‑time employment, or a person who is or was the spouse or de facto partner of such a person.[49]
[49] RV Act s 3(1).
The second element of the scheme which makes that scheme a retirement village scheme under the RV Act is that it is a scheme under which 'residential premises' are occupied (clearly, albeit implicitly, by retired persons). Under the RV Act,[50] 'residential premises' means a premises or part of a premises used as a place of residence, and includes a hostel unit. That definition is clearly intended to encompass a wide variety of forms of residential accommodation, and so is capable of encompassing houses, villas, flats or units within a hostel complex, or indeed any other forms of residential accommodation whether comprising the whole or part of an individual premises. These forms of accommodation may cover a spectrum of residents' needs, and so may comprise premises which permit complete, or a high level of, as independent living by the occupants (and which are referred to, unsurprisingly, independent living units (ILUs), through to accommodation which caters for residents with a higher degree of dependency on external assistance in day to day living.
[50] RV Act s 3(1).
In addition, it is apparent from the definition of 'retirement village scheme' that the Parliament has sought to encompass residential premises occupied pursuant to the widest possible variety of legal arrangements, whether pursuant to residential tenancy agreements, leases or licences, or pursuant a right to occupy which derives from the ownership of shares, or from the ownership of the premises subject to conditions concerning the subsequent sale or disposal of the premises. The Parliament has also clearly been concerned to be able to encompass other mechanisms for occupation which might emerge in the future, by the prescription, through regulations, of other sources of a right to occupy residential premises in a retirement village setting.[51]
[51] To date, no regulations have been promulgated for this purpose.
The third element of a scheme which makes that scheme a retirement village scheme under the RV Act is that under the scheme at least one resident or prospective resident[52] pays a premium in consideration for, or in contemplation of, admission as a resident under the scheme. Under the RV Act, a 'premium' is defined in the following way:
premium means a payment (including a gift) made to the administering body of a retirement village in consideration for, or in contemplation of, admission of the person by or on whose behalf the payment was made as a resident in a retirement village (including any such payment made for the purchase of residential premises in a retirement village or for the purchase, issue or assignment of shares conferring a right to occupy any such residential premises) but does not include ‑
(a)any such payment excluded by regulation from the ambit of this definition; or
(b)recurrent charges.
[52] The term 'resident' is defined in s 3(1) of the RV Act to mean in relation to a retirement village, a person who has been admitted to occupation of residential premises in accordance with a retirement village scheme and includes a spouse or de facto partner of such a person who is residing with that person or who was residing with that person at the time of his or her death.
As the definition makes clear, this payment is distinct from charges which may be payable by residents, such as for rent or services, on a recurring basis.[53] In some instances, such as the present case, it may be that numerous residents, or all residents, will be required to pay a sum to enter into occupation under the scheme, but in order for a scheme to constitute a retirement village scheme it is not necessary that all residents pay such a premium.
[53] See the definition of 'recurrent charge' in RV Act s 3(1).
Fourthly, a necessary concomitant of this meaning of the word 'scheme' is that the programme of action, or plan or policy which constitutes the scheme must be adopted and implemented by a party. In my view, it is clear that that party must necessarily be the owner[54] of the land in relation to the retirement village, because that person or entity will be in a position to determine the purpose for which the residential premises on the land will be used. That is also consistent with the fact that obligations are imposed on owners of retirement village land prior to entering into any contract which gives rise to a right to occupy residential premises.[55]
[54] As defined in RV Act s 3(1)
[55] See, for example, RV Act s 15 and s 16.
Four things may be noted about the definition of 'retirement village' in the RV Act.
First, the definition of 'retirement village' has two key elements – on the one hand the buildings and appurtenant land which physically make up the retirement village, and on the other hand, the use or intended use for which the buildings and land are to be used. It is that use which transforms a complex of residential premises into something which is regulated under the RV Act. That use must be for the purpose of, or in connection with, a retirement village scheme.
Secondly, in so far as the definition of 'retirement village' refers to 'appurtenant' land, the word 'appurtenant' should be given its ordinary meaning of 'belonging, appertaining, pertinent'.[56] The word 'appurtenant' is often used in a 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.[57] In my view, that is its intended meaning in the present context.
[56] Macquarie Dictionary (4th ed, 2005).
[57] See, for example, Jetties Act 1926 (WA) [s 4(1) and (1a)]; Strata Titles Act 1985 (WA) s 11; Transfer of Land Act 1893 (WA) s 167A, s 229A; Residential Tenancies Act 1987 (WA) s 3, Planning and Development Act 2005 (WA) s 121.
Thirdly, a question of construction arises in relation to the definition of 'retirement village' as to whether the words 'occupied or intended for occupation … or used or intended to be used…' apply to both the complex of residential premises, and to the appurtenant land, or whether the definition should be understood as referring to a complex of residential premises occupied or intended for occupation under a retirement village scheme, and appurtenant land used or intended to be used for or in connection with a retirement village scheme.
Although it is difficult to envisage that any difference in the operation of the RV Act would arise whichever construction is adopted, the matter was the subject of submissions by the parties, and it is appropriate to deal with it. In my view, the words 'occupied or intended for occupation …or used or intended to be used for or in connection with a retirement village scheme' should be read as applicable to both the residential premises and the appurtenant land. That is consistent with the fact that the reference to occupation and use appears at the end of the definition, whereas the drafter could have referred to occupation immediately after the words 'a complex of residential premises, whether or not including hostel units'. In addition, although various provisions of the RV Act refer to the occupation of premises,[58] other provisions refer to the occupation of land or to the use of a place.[59] In other words, concepts of occupation and use are used interchangeably with respect to premises and land elsewhere in the RV Act.
[58] See, for example, the definitions of 'residence contract', 'resident' and 'retirement village scheme' in RV Act s 3(1).
[59] See, for example, RV Act s 3(1) (definition of 'residential premises' which refers to the occupation of land, and to the use of the physical premises) and to s 5(2) (which refers to the use of residential premises).
Fourthly, the definition of 'retirement village' also refers to an intention as to the occupation or use of the premises or land under, or for or in connection with, a retirement village scheme. While Retirement Care and the Commissioner submitted that it was the intention of the owner of the land in question which gave rise to the existence of the retirement village, I understood the Schedule A defendants to submit that the concept of intention encompassed the intention of the residents of the retirement village as well as the owners. The evidence of the resident witnesses (and Mr Colton's submissions) which I have set out above indicates that in so far as those residents have a subjective 'intention' with respect to the use of the Land, that intention is that the whole of the Land (including Lot 889) should be used for or in connection with the Retirement Village. However, I am unable to accept that the intention referred to in the definition of 'retirement village' extends to the intention of the residents themselves. In my view, the intention there referred to is the intention of the owner of the premises and land which make up the retirement village, for the following reasons.
The primary reason for the inclusion of the reference to 'intention' seems to be as a means of ensuring that the provisions of the RV Act will apply to premises and land before any residents take up residence. In other words, premises and land can become a 'retirement village' before any residents commence residing there. By ensuring that the premises and land constitute a 'retirement village' once the owner of the land forms an intention that the premises and land be used or occupied under, or for or in connection with, a retirement village scheme, the provisions of the RV Act apply, so that the owner will become subject to a range of obligations in the RV Act which are designed to protect the interests of residents who will live in the retirement village in due course.[60]
[60] See, for example, RV Act s 15(3) and s 15(4) (the requirement to lodge a memorial, which applies when land is proposed to be used for the purposes of a retirement village, and before any residence contract is entered into); see also s 13(12) (the requirement for the owner to provide documents to a person five days before entering into a residence contract).
However, for completeness I note that the concept of 'intention' to occupy or use premises or land for or in connection with a retirement village scheme also appears to have relevance after the scheme is brought to an end. That is because the memorial over land used as a retirement village may be cancelled when the Registrar 'is satisfied that no part of the land to which a memorial relates is still used, or 'proposed' to be used, as a retirement village'.[61] The word 'proposed' clearly requires consideration of the owner's intention with respect to the future use of the land.

(d) Some conclusions about the meaning and operation of the definitions of 'retirement village' and 'retirement village scheme'.

[61] See RV Act s 15(8).

It will be apparent from what I have said that in my view a 'retirement village scheme' under the RV Act is the programme of action or plan or policy which contains the three elements to which I have referred. Nothing in the definition of 'retirement village' or in any other provision of the RV Act expressly warrants the conclusion that the land in a retirement village itself forms part of a retirement village scheme. Clearly there is a close relationship between the concept of the 'retirement village scheme' and the land in the retirement village, because there cannot be a 'retirement village' under the RV Act without both the premises and land, on the one hand, and on the other hand, the scheme in connection with which the premises and land are used. Despite their close inter-connection, however, a 'retirement village scheme' and a 'retirement village' are discrete concepts under the RV Act, and cannot be understood interchangeably.
The absence of any of the three elements of the definition of 'retirement village scheme' will mean that a residential complex and appurtenant land cannot be said to be used or intended for use under a 'retirement village scheme' and therefore cannot constitute a 'retirement village' for the purposes of the RV Act. So, for example, a complex of residential premises which are not offered for occupation by retired persons (pursuant to a programme of action or plan or policy pursued by the owner of that land) will not be used for a retirement village scheme and thus could not constitute a 'retirement village' for the purposes of the RV Act. Similarly, if a residential complex is occupied by residents, none of whom ever paid an entry premium for the right to occupy those premises, that complex will not be used for a 'retirement village scheme' and will not constitute a 'retirement village' for the purposes of the RV Act.

Do the statutory charge and the memorial form part of a retirement village scheme?

As I have already noted, counsel for Retirement Care and for the Commissioner submitted that the statutory charges which arise under the RV Act and any memorial registered in respect of the land in a retirement village will form part of the retirement village scheme with respect to that retirement village. In contrast, counsel for the Schedule A defendants submitted that the statutory charge or charges were not a part of a retirement village scheme, but an incident of the existence of such a scheme, and that a memorial is not part of a scheme but serves the function of notification of the existence of a retirement village scheme.
For the reasons which follow, I have reached the view that a statutory charge and a memorial do not form part of a retirement village scheme for the purposes of the RV Act.
In this section of my reasons, I deal with the following:
(a)the nature and features of the statutory charge under s 20 of the RV Act;
(b)the nature and features of the memorial required to be lodged under s 15(3) of the RV Act;
(c)why the statutory charge and the memorial do not form part of a retirement village scheme under the RV Act.

(a) The nature and features of the statutory charge under s 20 of the RV Act

Subsection 20(1) of the RV Act provides that the rights of a resident to the repayment of a premium, or part of a premium, under s 19[62] 'are a charge on the land in the retirement village' (other than residential premises owned by a resident, or any prescribed part of, or interest in, a retirement village[63]).
[62] This appears to be a reference to s 19(3) – (6) of the RV Act.
[63] No part of, or interest in, a retirement village has been prescribed for the purposes of the RV Act.

D. The termination of a retirement village scheme does not, of itself, affect a memorial over the land in the retirement village

I now turn to the memorial required to be lodged under s 15 of the RV Act. In my view, the termination of a retirement village scheme does not, of itself, have any direct bearing on the continued registration of the memorial on the Register in respect of the land in the retirement village. The only means by which a memorial may be cancelled under the RV Act is by an application to the Registrar under s 15(8) of the RV Act. In order to cancel the memorial, the Registrar will need to be satisfied of the matters referred to in s 15(8). In a situation where there were no longer any residents living in the retirement village, where all entry premiums had been repaid, where the owner of the retirement village had no intention of continuing to operate the retirement village scheme, and where the retirement village scheme was therefore terminated, evidence of those matters could be put before the Registrar to enable the Registrar to be satisfied that 'no part of the land to which [the] memorial relates is still used, or proposed to be used, as a retirement village'.
In other cases in which the termination of a retirement village scheme was effected with the approval of the Court, the Court's order granting approval and any other orders made to protect the interests of existing residents would clearly be highly relevant to the Registrar's decision as to whether to cancel the memorial.

what are the consequences of termination (if any) for the application of the RV Act

For the reasons outlined above the termination of a retirement village scheme will have the result that the residential premises and appurtenant land will no longer constitute a retirement village. That in turn will have the consequence that the provisions of the RV Act will no longer apply to the residential premises and land, or to the residents of the former retirement village. It is not necessary for present purposes to canvas the impact of that change, but as I explain below, the provisions of the RV Act confer significant benefits and protections on the residents of retirement villages. The loss of those benefits and protections by residents would clearly be a factor for consideration in determining whether the Court's approval should be granted for the termination of a retirement village scheme.

(c) The construction of s 22 of the RV Act having regard to the purpose of the RV Act as a whole.

The construction of the words in s 22, having regard to their ordinary meaning, and to the surrounding context, including the meaning and operation of other provisions in the RV Act, suggests that the termination of a retirement village scheme would not, of itself, have any impact on the existence of the memorial over the land in the retirement village or on any statutory charges which apply to that land. However, in construing s 22 of the RV Act having regard to the surrounding context, it is also appropriate to consider the purpose of the RV Act as a whole, and the purpose of s 22 within the context of that overall purpose.

The purpose of the RV Act

In recent years, there has been an increase in the provision of private residential accommodation (of various kinds) for older people in village, or residential complex, settings. As the facts of the present case demonstrate, these accommodation arrangements are entered into by older people at a time in their lives when many of them will need or desire the assurance of long term security in relation to their living arrangements, when many of them will not have any significant bargaining power in negotiating the terms on which accommodation is offered, and when many of them will no longer be working either at all, or on a full time basis, and may not have a significant income stream, so that the provision of a large lump sum by way of an entry premium may assume an even greater financial significance than it otherwise would.
These were among the very concerns which led to the enactment of the RV Act. In the speech given by Mrs Henderson, then the Minister for Consumer Affairs, on the second reading of the Retirement Villages Bill 1991, the Minister observed:[105]
Over the past 10 years resident funded accommodation has become more heavily marketed. Retirement villages offer varying levels of resident support, from complete self care to supervised hostels and full-time nursing homes, often within the one complex. The promotion and advertising of villages appeals to seniors' needs for a low maintenance lifestyle with guaranteed security of tenure, [and] smooth and efficient administration providing a safe, financially viable investment. …
Timely and well planned regulation of the industry will bring confidence and credibility. It will protect both the residents and the industry from future problems … . With the rapidly aging population, dramatic growth in this industry is expected in the coming years. This growth must be built on a stable and secure base. …
Over recent years, the retirement village industry has been characterised by diversity of legal and financial arrangements, as well as of the range, standards and cost of the facilities provided. Because of this choices are often difficult to make. For many seniors this is a most vulnerable time of life. Contracts between residents and village management are often lengthy and complex. By necessity these contracts include a great deal of detail. For many older people purchasing a place in a retirement village is their last major financial transaction. The decisions they make must suit their individual circumstances. …
Achieving a sense of balance has been important in developing this legislation. Effective consumer safeguards are a central feature and the experiences in other states have been valuable. Yet the level of regulation must not be so excessive as to stifle desirable growth in the industry. …
Penalties are built into the Bill to protect residents' rights of tenure. The owner of a retirement village is restricted in the ways in which a village can be used for other purposes. This is achieved in the Bill by means of a memorial which must be lodged on the title, restrictions in the manner of lifting the memorial and by a statutory charge which is linked to the memorial. …
[105] Parliament of Western Australia, Parliamentary Debates, Legislative Assembly, 16 May 1991 at 2049 – 2051.
The RV Act is thus an example of consumer protection legislation: many of its provisions are designed to afford protection in various ways to the residents of retirement villages. At the same time, the regulation of retirement villages provides some certainty for the owners and administering bodies of retirement villages as to their obligations and rights, which is no doubt important given what may be a long-term and very significant investment in establishing a retirement village. For the owner of the land in the retirement village, for the administrator of the retirement village scheme, and for the residents themselves, the application of the RV Act has significant consequences.
I have already mentioned some of these consequences (that is, the statutory charge, and the registration of the memorial). For present purposes, it is not necessary to attempt a comprehensive summary of the ways in which the RV Act (and the Regulations made under the RV Act) regulates the conduct of retirement villages, or provides for the rights and obligations of owners and administering bodies of retirement villages.[106] It suffices to note four ways in which the RV Act protects residents and prospective residents of retirement villages.
[106] I note that the regulation effected by the RV Act is not the only form of statutory regulation applicable to retirement villages. Regulations made pursuant to the Fair Trading Act 2010 (WA) extensively prescribe the rights and obligations of residents of retirement villages, and administering bodies of retirement villages, in a variety of ways: see Fair Trading (Retirement Villages Interim Code) Regulations 2012 (WA) and Fair Trading (Retirement Villages Interim Code) Regulations 2013 (WA).
First, the RV Act requires that the owner of a retirement village provide certain information to prospective residents prior to their entry into a residence contract, and prescribes a 'cooling off' period in which a resident may rescind a residence contract after entering into the contract and before entering into occupation of residential premises in a retirement village.[107]
[107] RV Act s 13 and s 14.
Secondly, the RV Act secures the right of a resident of a retirement village to reside in the residential premises in the retirement village. It does so in two ways. The first is that the successor in title of the owner of the land used for the retirement village will be bound by any contract entered into between the owner and a resident of the retirement village.[108] In addition, a resident's right of occupation of residential premises in a retirement village cannot be terminated other than in specified circumstances, namely if the resident dies or abandons the premises, if the contract is terminated by the resident in accordance with the contract or under the RV Act, if the holder of a security in respect of the premises becomes entitled to vacant possession, or if the residence contract is terminated by the State Administrative Tribunal.[109] Residents are also protected by a prohibition on proceedings brought by the administering body of a retirement village to obtain recovery of possession of residential premises occupied by a resident of that retirement village, and a prohibition on persons entering residential premises occupied by a resident, for the purposes of recovering possession, other than pursuant to an order of a court or the Tribunal.[110]
[108] RV Act s 17(1).
[109] RV Act s 17(1). Applications for termination may be made by the administering body of a retirement village in certain circumstances: see RV Act s 58, 59, 62 and 63.
[110] RV Act s 65 and s 66.
Thirdly, the RV Act gives the State Administrative Tribunal jurisdiction to deal with a variety of disputes between residents of a retirement village and the administering body in respect of that retirement village, including disputes arising in relation to a service contract,[111] certain disputes arising under or in relation to residence contracts (such as disputes over the transfer of a resident from one form of accommodation with a retirement village to another form of accommodation[112]) and applications by an administering body to terminate a resident's right to occupy on various grounds.[113]
[111] RV Act s 56.
[112] RV Act s 57.
[113] RV Act ss 58, 59, 62 and 63.
Finally, the RV Act prohibits any attempt to contract out of the provisions of the RV Act.[114]

The purpose of the RV Act and its implications for the construction of s 22
[114] RV Act s 6.

Given that the termination of a retirement village scheme would have the consequence that the RV Act would no longer apply, it is perhaps not surprising that the Parliament prohibited a termination without the approval of the Court in circumstances where residents of the retirement village admitted to occupation under the scheme remain in occupation.[115]
[115] RV At s 22(3).
Nevertheless, s 22 does contemplate the possible termination of a retirement village scheme, notwithstanding that residents remain in occupation. There is, therefore, something of a balance being struck in s 22, between the ability of an owner to bring to an end a scheme which the owner no longer wishes to pursue, and the interests of any remaining residents of the retirement village who will be affected (at the very least by the fact that the RV Act will no longer apply) if the scheme is terminated. Although clearly the RV Act seeks to strike a balance between the rights and obligations of owners and residents, the balance falls heavily in favour of the protection of the interests of the residents of retirement villages, particularly in the long term certainty and security of their accommodation.
What is apparent from the provisions and purpose of the RV Act as a whole is that the Parliament intended that once a retirement village came into existence under the RV Act, so that the terms of that Act applied to regulate the rights and obligations of the owner, the administering body and the residents, the circumstances in which the RV Act would be rendered inapplicable would be limited. In that way, the interests of residents in the certainty and security of their accommodation would be secured. Within that context, an expansive construction of s 22 - in terms of the implications of the termination of a scheme, or the circumstances in which a termination will occur, would not promote the purpose and object of the RV Act.
The meaning of s 22 which I have drawn from the ordinary meaning of the words used in s 22 (including those words defined in the RV Act), considered within the context of the provisions of the RV Act as a whole, leads to the conclusion that the termination of a retirement village scheme will occur in the confined circumstances when the owner of the retirement village no longer wishes to pursue a plan or policy involving residential premises which meets the elements in the definition of 'retirement village scheme' in the RV Act, and will have no direct bearing on any statutory charges in respect of the land in the retirement village or on the memorial over that land. That meaning appears to be consistent with the purpose of the RV Act.

Section 22 does not apply in the present case

(a) The parties' submissions

Retirement Care's case was that the relief it sought was able to be granted because what it proposes constitutes a termination of the Scheme. As I have already noted, the basis for that view is that the Scheme encompasses Lots 888 and 889, but that because Retirement Care no longer intends to operate a retirement village scheme on both Lots, the Scheme which presently exists would be terminated. Retirement Care's case then proceeded on the basis that if the Scheme were terminated over both Lots there would no longer be a 'retirement village' for the purposes of the RV Act on both Lots 888 and 889. Because a statutory charge under the RV Act applies only in respect of land in the retirement village, the Charges would from that point no longer apply to Lots 888 and 889. However, as Retirement Care would immediately have an intention to operate a retirement village scheme on Lot 888, Lot 888 would immediately constitute buildings and land used for a retirement village scheme, and thus would constitute a retirement village for the purposes of the RV Act. As a statutory charge arises from an obligation to repay entry premiums (which obligation would remain unchanged) and because a statutory charge applies to land in a retirement village, the statutory charges would thereafter apply to Lot 888.
Because Retirement Care does not propose to cease operating a retirement village scheme but to use only Lot 888 for that purpose, counsel for the Commissioner submitted that Retirement Care's application for approval of the termination of the Scheme was simply a device to secure Retirement Care's objective of freeing Lot 889 of the Charges and of the Memorial, so as to facilitate the sale of Lot 889. Retirement Care's case is that s 22 of the RV Act can be used to achieve that outcome.
The Commissioner submitted that although s 22 of the RV Act did not expressly contemplate an application of the kind brought by Retirement Care, there was no reason why s 22 could not be used for the purpose of such an application. Ultimately, the Commissioner did not take a position on whether the Court should grant or refuse approval for the termination of the Scheme. However counsel for the Commissioner submitted that the approval of the Court, if given, should be conditional upon the preservation of the first priority for the Charges vis-à-vis any other encumbrance pertaining to Lot 888.
As I understood his submissions, counsel for the Schedule A defendants submitted that s 22 was intended to operate when there were no residents who continued to reside at the Retirement Village or when a minority of residents refused to agree to the termination of a scheme. However, he also accepted that it was possible for s 22 to be relied upon for an application of the kind made by Retirement Care. Counsel for the Schedule A defendants submitted that even if s 22 was capable of application in the circumstances of this case, approval for the termination of the Scheme should be refused in the exercise of the Court's discretion.

(b) Retirement Care's application does not involve a termination of the Scheme

The analysis of the RV Act, and of the elements of s 22 in particular, which I have undertaken above, point to the conclusion that what Retirement Care seeks to do in this case does not involve a termination of the Scheme, and accordingly, that this is not a case to which s 22 applies. My reasons for that conclusion are as follows.
Retirement Care clearly intends to continue to implement a scheme for retired persons under which those persons occupy residential premises pursuant to contracts granting a right of occupation, and it will continue to be the case that some of those residents will have paid an entry premium to which a repayment right applies. In other words, all of the elements of a retirement village scheme which are presently met in the Scheme will continue to be met. In truth, what is intended is not a termination of the Scheme at all. The Scheme will continue unchanged.
Although Retirement Care does not wish to use Lot 889 for or in connection with the Scheme, the Land itself does not form part of the Scheme. Accordingly, Retirement Care's intention to cease using Lot 889 for or in connection with the Scheme cannot bring about the termination of the Scheme.
I accept the Commissioner's submission that what Retirement Care in fact wants to do is to excise Lot 889 from the Retirement Village, and to remove the Memorial and the Charges (without repaying the entry premiums) from Lot 889. Section 22 of the RV Act is not concerned with the termination of a retirement village, and neither s 22 nor any other section of the RV Act permits Retirement Care to excise land from a retirement village.
For the reasons I have set out above, the termination of a retirement village scheme would not ordinarily occur while statutory charges remained in place but in any event, termination would not, of itself, extinguish those charges.
Quite apart from the Charges, the termination of the Scheme would not, of itself, involve the cancellation of the Memorial. The removal of the Memorial would require steps being taken by the Registrar, following satisfaction of the criteria in s 15(8) of the RV Act. However, the Memorial has been registered over the whole of the Land, and thus presently is registered on the title to both Lot 888 and Lot 889. Retirement Care's intention is that the entirety of Lot 888 will still be used for the Retirement Village. Furthermore, by virtue of the existence of the Charges, it is not possible to say that no part of Lot 889 is 'used or proposed to be used as a retirement village'. That is because Lot 889 forms part of the security to which the Charges attach, and in my view Lot 889 is therefore land which is being used for or in connection with the Scheme. Accordingly, there does not appear to be any basis upon which Retirement Care could suggest that 'no part of the Land (to which the Memorial relates) is still used, or proposed to be used, as a retirement village' so as to seek the cancellation of the Memorial.[116]
[116] In view of this conclusion it is unnecessary to deal with another issue which arose in the course of submissions, namely whether the existence of the easement over Lot 889 (see par [28] above) which burdens Lot 889 for the benefit of Lot 888 means that Lot 889 is used for or in connection with the Scheme.

Given that a termination of the Scheme would not extinguish the Charges or of itself cancel the Memorial, the relief sought by Retirement Care in proposed order 2 could not be granted. That being the case, there is an element of futility about Retirement Care's application.

Other issues – interests relevant to the exercise of discretion by the Court in granting approval under s 22 of the RV Act

For completeness I should note that even if I am wrong in my conclusion that s 22 does not apply because Retirement Care's proposed variation does not involve the termination of the Scheme, I would not have been prepared to grant approval for the termination of the Scheme, having regard to the existence of the Charges in respect of the Land.
Section 22 clearly gives the Court a discretion as to whether to approve the termination of a retirement village scheme. That discretion is unconfined in its terms. The factors which may be taken into account in the exercise of that discretion are similarly unconfined, save in so far as there may be found in the subject matter, scope and purpose of the RV Act some implied limitation on the factors to which the Court may legitimately have regard.[117]
[117] Minister for Aboriginal Affairs and Anor v Peko Wallsend Limited and Ors (1986) 162 CLR 1 at 40 (Mason J).
The fact that the Court may approve the termination but with such orders as it thinks necessary to protect the interests of existing residents conveys the Parliament's intention that the protection of the interests of existing residents should be at the forefront of the Court's consideration of whether to grant approval for the termination of a scheme, and if so, as to whether any orders should be made to protect the interests of the residents. It was common ground between the parties that the interests of the existing residents were the paramount consideration in the exercise of the Court's discretion. However, no party suggested that that was the only consideration to which the Court could, or should, have regard.
All of the parties accepted that the existence of the Charges was a consideration relevant to the Court's exercise of discretion under s 22 of the RV Act. As I have indicated above, Retirement Care's position was that the Charges would be extinguished on the termination of the Scheme, because there would no longer be land in a retirement village to which they would attach. However, its case was that the commencement of a retirement village scheme in respect of Lot 888 would mean that the Charges would immediately apply to Lot 888. Counsel for Retirement Care submitted that there would be no overall adverse impact on the security offered by the Charges for the repayment of the entry premiums because the evidence established that the value of Lot 888 would considerably exceed the quantum of Retirement Care's liability to repay the entry premiums. He also submitted that there would be no loss of priority for the Charges as a result of the means by which Retirement Care proposed to bring the termination of the Scheme into effect.
These submissions were not without their attractions, particularly in view of the value of Lot 888 as compared with the quantum of Retirement Care's outstanding liability for the repayment of entry premiums. However, the fact remains that it was no part of the proposed variation that Retirement Care would immediately repay the entry premiums. Having regard to the view I have taken of the RV Act, that is the only way (other than as a result of the sale of the Land pursuant to an order of the Court) by which the Charges can be extinguished. As a consequence, the Court could not grant proposed order 2 of the relief sought. That would not achieve the result that Retirement Care seeks, and it was clear that the relief sought was sought as a package.
In the exercise of my discretion, this consideration alone would have warranted the refusal of Retirement Care's application for approval for the termination of the Scheme.

Conclusions

My conclusions in respect of the issues raised by this action are, in summary, as follows.
The termination of a retirement village scheme to which s 22(1) of the RV Act refers is the termination of a scheme which features the three elements set out in the definition of 'retirement village scheme' in s 3(1) of the RV Act. Although land in a retirement village will clearly be occupied under, or used for or in connection with, such a scheme, the scheme itself does not include that land. Nor does a retirement village scheme itself encompass either the memorial lodged in respect of the land used as the retirement village, or any statutory charges which may apply to that land under the RV Act.
Consequently, the termination of a retirement village scheme under s 22 will be effected when the owner of a retirement village determines to cease operating a scheme comprising all three elements in the definition of a retirement village scheme.
The approval of the Court will only be required for the termination of a scheme when a resident who entered into occupation of premises under the scheme remains in occupation. If no residents remain in occupation, the Court's approval for a termination will not be required.
The termination of a retirement village scheme will necessarily have the result that there will no longer exist a 'retirement village' for the purposes of the RV Act, so that the RV Act will no longer apply to regulate the rights and obligations of the owner, administering body and residents of the retirement village.
The termination of a retirement village scheme will not, of itself, extinguish any statutory charge over the land used as the retirement village. However, a scheme will not, ordinarily, be terminated if the owner of the retirement village remains subject to an outstanding liability to repay an entry premium or part thereof.
The termination of a retirement village scheme will not, of itself, result in the cancellation of the memorial over the land used as the retirement village. However, the fact of the termination of the scheme (and if appropriate, any approval given by the Court for that termination) will be relevant to the Registrar's consideration of an application to cancel the memorial under s 15(8) of the RV Act.
The termination of a retirement village scheme will not, of itself, have any bearing on the existing contractual relationships between the owner or administering body of the retirement village and the residents of the retirement village.
In determining whether to approve the termination of a retirement village scheme, the Court has a wide discretion. It is not necessary to determine the factors which may be relevant to the exercise of that discretion, save to make two observations. First, the interests of existing residents will be at the forefront of the Court's consideration in exercising that discretion. Secondly, if a statutory charge applies to the land in the retirement village, and if it is not proposed that that charge be extinguished by repayment, the continued existence of the charge would ordinarily weigh very heavily against the exercise of discretion to approve the termination of the retirement village scheme. It does not appear to have been contemplated by the Parliament that a scheme could be terminated without the repayment of the statutory charge.
The Court clearly has a wide discretion as to the making of such orders as it thinks necessary to protect the interests of existing residents.
In the present case, what is proposed by Retirement Care does not, in fact, constitute the termination of the Scheme, so that the Court's power under s 22 of the RV Act is not enlivened. However, even if I am wrong in that conclusion, so that what is proposed in fact constitutes the termination of the Scheme, I would not grant approval for the termination in view of the fact that Retirement Care remains subject to an obligation to repay the entry premiums or part thereof, so that the Charges apply to the Land. In those circumstances, the relief sought in paragraph 2 of the proposed orders could not be granted. The proposed orders were sought as a package and were not pursued separately.
The RV Act does not contain any provision which permits the owner of a retirement village to excise part of the land from a retirement village in a manner which will enable the memorial to be cancelled in respect of that part of the land. Nor does the RV Act contain any provision which would enable the statutory charges which apply to the land to be modified or varied to reflect a change in the land in the retirement village. Whether the RV Act should permit those changes to occur involves questions of policy which are properly matters for the legislature.
Retirement Care's action should be dismissed.