South Australian Consolidated Acts South Australian Consolidated Acts (1) A party to a
dispute between an administering authority and a resident of a
retirement village may apply to the Tribunal for resolution of the matters in
dispute.
(2) On an application
under subsection (1)—
(a) if
the Tribunal finds that a party to the dispute has breached, or failed to
comply with, a residence contract, the Tribunal may—
(i)
by such order as it considers appropriate in the
circumstances, restrain the breach of the contract or require action in
performance of the contract;
(ii)
order the payment of an amount payable under the
contract;
(iii)
order the payment of compensation for loss or injury,
other than personal injury, caused by a breach of the contract or a failure to
comply with the contract;
(b) if
the Tribunal finds that a party to the dispute has breached, or failed to
comply with, a provision of this Act, the Tribunal may—
(i)
by such order as it considers appropriate in the
circumstances, restrain a breach of this Act or require action to comply with
this Act or, in relation to an administering authority, require the
administering authority to vary or reverse a decision or the effect of an act
of the administering authority;
(ii)
order a party to the dispute to refrain from future
action of a kind specified in the order;
(iii)
order the payment of compensation for loss or injury,
other than personal injury, caused by a breach of this Act or a failure to
comply with this Act;
(c) if
the Tribunal finds that the administering authority has acted in a harsh or
unconscionable manner, the Tribunal may, by such order as it considers
appropriate in the circumstances—
(i)
require the administering authority to vary or reverse a
decision or the effect of an act of the administering authority;
(ii)
avoid ab initio , or modify, terms or conditions of an
agreement between the administering authority and the resident;
(iii)
require the administering authority to repay to the
resident any amount paid by the resident in pursuance of a term or condition
of an agreement (that has been avoided or modified by the Tribunal);
(d) if
the dispute relates to the repayment of a premium, or a part of a
premium—the Tribunal may determine the amount that is repayable, and
make orders as to payment.
(3) If—
(a)
the Tribunal is unwilling to make an order under subsection (2), or
before or during the course of proceedings it appears to the Tribunal that it
would be preferable to endeavour to resolve the matters in dispute by
arbitration; or
(b) the
parties to a dispute indicate to the Tribunal that they wish to resolve the
matters in dispute by arbitration,
the Tribunal may, with the express consent of the parties (which may not be
subsequently withdrawn), proceed to deal with the dispute by arbitration.
(4) Where the Tribunal
is dealing with a dispute by arbitration, the Tribunal may determine any
question that arises for determination in the course of the proceedings by
reference to considerations of general justice and fairness.
(5) The Tribunal may,
at the end of an arbitration, give such directions as the Tribunal thinks fit
to resolve the dispute, or make any order to determine the dispute.
(6) The Tribunal may
decline to entertain an application under this section if—
(a) it
appears to the Tribunal that the matter could be adequately dealt with under
rules for the resolution of disputes established by the administering
authority of the retirement village; or
(b)
the Tribunal considers that it would be more appropriate for proceedings to be
taken in a court, or in another tribunal constituted by law; or
(c)
the Tribunal considers that it is appropriate for some other reason to decline
to proceed with the application.
(7) The Tribunal
should, in deciding whether it should decline to entertain an application
under this section, take into account—
(a) the
issues raised by the application;
(b) the
seriousness of the matter;
(c) the
relief sought;
(d) if
the application relates to the repayment of a premium or a portion of a
premium—the amount in dispute;
(e)
whether difficult or complicated questions of law may arise in the
proceedings;
(f) the
extent to which a court, or another tribunal, could resolve all matters in
dispute between the parties more efficiently or effectively,
and may take into account such other matters (whether similar or dissimilar to
those referred to above) as the Tribunal thinks fit.
(8) The Tribunal may
make an order under this section notwithstanding that it provides a remedy in
the nature of an injunction or order for specific performance in circumstances
in which such remedy would not otherwise be available.
(9) The Tribunal may
make ancillary or incidental orders for the purposes of proceedings under this
section.
(10) If a person
fails, without reasonable excuse, to comply with an order or direction of
the Tribunal, other than an order for the payment of an amount, the person is
guilty of an offence.
Maximum penalty: $10 000.
(11) If an order is
made by the Tribunal requiring a person to pay an amount to another person,
the order is enforceable in the same manner as a similar order under the
Residential Tenancies Act 1995 .
(12) A dispute as to
the repayment of a premium or a portion of a premium may also be brought
before a court competent to hear and determine a claim founded on contract for
the amount in dispute.
(13) This section does
not derogate from—
(a) the
other provisions of this Act that relate to applications to the Tribunal;
(b) the
other provisions of this Act that relate to the ability to resolve matters in
dispute by conciliation;
(c) the
jurisdiction of a court, or of another tribunal constituted by law.
(14) In this
section—
"resident" of a retirement village includes a former resident of a
retirement village.