Victorian Numbered Acts Victorian Numbered ActsFor section 31 of the Retirement Villages Act 1986 substitute —
Any of the following persons may apply to the Supreme Court for an order enforcing a charge securing a refundable in-going contribution for a residence right in a retirement village—
(a) a resident, in respect of the resident's refundable in-going contribution for a residence right in the retirement village;
(b) the Director.
(1) On an application under section 31, the Supreme Court may make an order enforcing the charge, if it is in the interests of the majority of the residents of the retirement village to make the order, and if—
(a) the owner or owners of the retirement village land are insolvent; or
(b) the Court is satisfied that it is just and equitable to do so where there is more than one owner of the retirement village land, and one or more of the owners of the land are insolvent and one or more of the owners of the land are not insolvent; or
(c) ownership of all or part of the retirement village land is vested in ASIC or the Commonwealth because that ownership was previously vested in a company that has been deregistered under the Corporations Act.
(2) An order under subsection (1) may provide for the following matters—
(a) the sale of the land charged, including the sale of the land by the person appointed under paragraph (f);
(b) a declaration that the charge is extinguished on 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 one or more 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 of application of the proceeds of the sale determined in accordance with section 31C;
(f) the appointment of a person to execute the order, and may provide for the following—
(i) the vesting of the estate in fee simple in the land in that person as trustee;
(ii) the ability of that person to do any other thing necessary to give effect to the order and to the sale of the land, including signing any contract for the sale of the land and any instrument of transfer of the land or other instrument under the Transfer of Land Act 1958 ;
(g) any incidental and consequential matters.
(3) 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.
An appointed person—
(a) has all the powers necessary to ensure the execution of the order; and
(b) may act as agent of the residents on whose behalf the order is made.
Proceeds of the sale of the land charged are to be applied in the following order—
(a) first, in payment of the costs incurred in—
(i) applying for and obtaining the order for enforcing the charge; and
(ii) selling the land charged; and
(iii) executing the order;
(b) secondly, in payment of encumbrances which rank before the charge in priority unless the sale is subject to those encumbrances;
(c) thirdly, in making the payments to the residents that the residents are entitled to be paid 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;
(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.
The Director may intervene in a proceeding on an application under section 31(a) and may appear personally or by representative.".