Victorian Consolidated Legislation

Retirement Villages Act 1986 - SECT 31

Enforcement of charge

31. Enforcement of charge



(1) A resident of a retirement village in respect of which there is a charge
protecting the resident's refundable in-going contribution may apply to the
Supreme Court for an order for the enforcement of the charge.

(2) On application by a resident in accordance with subsection (1) the Supreme
Court may make an order for the enforcement of the charge if it is satisfied
that-

   (a)  the resident has brought proceedings against the owner for the time
        being of the land charged for the recovery of the resident's
        refundable in-going contribution, has obtained judgment, has attempted
        to execute the judgment but is unable to obtain payment of the whole
        of the judgment debt; and

   (b)  it is in the interests of all the residents of the retirement village
        to make the order.

(3) The Director may intervene in proceedings on an application under this
section and may appear personally or by representative.

(4) An order for the enforcement of a charge must provide for the following
matters-

   (a)  the sale of the land charged;

   (b)  a declaration that the charge is extinguished upon the completion of
        the sale of the land charged;

   (c)  a determination of the amount of the charge;

   (d)  a determination of the entitlements of residents to payments out of
        the proceeds of the sale of the land charged, having regard to the
        amount of each resident's refundable in-going contribution and the
        proportion which it bears to the total amount of refundable in-going
        contributions secured by the charge;

   (e)  the order in which the proceeds of sale are to be applied, having
        regard to the matters set out in subsection (4).

(5) Proceeds of sale are to be applied in the following order-

   (a)  firstly, in payment of encumbrances which rank before the charge in
        priority unless the sale is subject to those encumbrances;



   (b)  secondly, in payment of the costs incurred in applying for and
        obtaining the order for enforcing the charge and in selling the land
        charged;

   (c)  thirdly, in making payments to residents;

   (d)  fourthly, in payment of encumbrances which rank after the charge in
        priority;

   (e)  fifthly, in payments to the person who owned the land charged
        immediately before an order was applied for.

(6) An order for enforcing a charge which relates to land not under the
operation of the Transfer of Land Act 1958 may, for the purposes of selling
the land-



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   (b)  appoint a person who has power to convey the land; or

   (c)  vest the land in a person named in the order.

(7) An order for enforcing a charge may contain such incidental and
consequential provisions as the court may decide.

(8) Section 77 (except section 77(3)) of the Transfer of Land Act 1958 applies
to the sale of land pursuant to an order enforcing a charge as if the resident
who applied for the order were a mortgagee and the charge were a mortgage.

(9) If the court makes an order concerning land not under the
Transfer of Land Act 1958, the land must be brought under that Act before it
is sold.