Retirement Villages Act 1992

If a resident of a retirement village has made a complaint to the Commissioner and the Commissioner —

after investigating the complaint, is satisfied that the resident may have a right to commence or defend proceedings under this Act; and

is of the opinion that it is in the public interest that the Commissioner should commence, defend or assume the conduct of those proceedings on behalf of the resident,

The Commissioner must not commence, defend, or assume the conduct of, any proceedings under subsection (1) on behalf of a resident without first obtaining the written consent of the resident which once given is irrevocable except with the consent of the Commissioner.

In relation to any proceedings referred to in subsection (1) the following provisions apply —

the Commissioner has, on behalf of the resident of the retirement village, in all respects the same rights in, and control over, the proceedings, including the right to settle any action or part of any action, as the resident would have had in the conduct of those proceedings; and

the Commissioner may, without consulting or seeking the consent of the resident, conduct the proceedings in such manner as the Commissioner thinks appropriate and proper; and

in the case of proceedings already commenced by or against the resident, the Tribunal or the court hearing the proceedings must, on the application of the Commissioner, order that the Commissioner be substituted for the resident as a party to the proceedings, and may make such other orders or give such other directions in that behalf as the Tribunal or the court thinks fit; and

any moneys (excluding costs) recovered by the Commissioner are tobe paid to the resident without deduction and any amount awarded against the resident is payable by and recoverable from the resident, but in all cases the costs of the proceedings are to be borne by or paid to and retained by the Commissioner as the case may require; and

if any party to the proceedings alleges another cause of action, or if the resident on whose behalf the proceedings are being defended has another cause of action, the Tribunal or the court hearing the proceedings may, on the application of the Commissioner, order that the proceedings for the other cause of action be heard separately and that the party or the resident as the case may require be a party to those proceedings in the party’s or the resident’s own right and may make such other orders or give such other directions in that behalf as the Tribunal or the court thinks fit.

In any proceedings referred to in subsection (1), a document purporting to be signed by the Commissioner stating in respect of the proceedings that the Commissioner is satisfied that the resident may have a right to commence or defend proceedings under this Act and that it is in the public interest to commence, defend, or assume the conduct of, the proceedings, as the case may be, on behalf of the resident of the retirement village is, in the absence of proof to the contrary, proof that the Commissioner commenced, defended, or assumed the conduct of, the proceedings, as the case may be, in accordance with that subsection.

In any proceedings referred to in subsection (1) a document purporting to be the consent of the resident of the retirement village to the Commissioner commencing, defending, or assuming the conduct of, the proceedings, as the case may be, is, in the absence of proof to the contrary, proof of that consent.

Despite anything in this section, if the Tribunal or the court hearing the proceedings is satisfied whether on application by the resident or otherwise that any proceedings taken by the Commissioner under this section in the name of a resident are not in the interests of the resident the Tribunal or the court, as the case may be, must order that the proceedings are to be —

discontinued; or

continued so as not to affect the interests of the resident and only in accordance with such directions including directions as to costs, as the Tribunal or court, as the case requires, thinks just.

Any costs recovered by the Commissioner under subsection (3)(d) are to be credited to the Consolidated Account.

In this section resident includes a prospective resident or former resident.