Manager
Lend Lease Retirement Living is the controlling entity behind the Manager and Developer entities in our Deed. They operate two wholly owned subsidiary companies in these roles: Village Management Pty Limited as 'The Manager' and LL WA Village Holdings Pty Ltd as 'The Developer'.
3.3 Manager: [Village Management], and any subsequent manager, are responsible for the day to day administration and management of the Village Scheme. The Manager must, at their request, report to either the Advisory Board or the Residents’ Committee regarding the administration and management of the Village Scheme.
In practice there is the management company operating from an office in Perth city and an on-site manager who is the company's representative, as are the staff.
3.3 Manager: [Village Management], and any subsequent manager, are responsible for the day to day administration and management of the Village Scheme. The Manager must, at their request, report to either the Advisory Board or the Residents’ Committee regarding the administration and management of the Village Scheme.
In practice there is the management company operating from an office in Perth city and an on-site manager who is the company's representative, as are the staff.
4. Manager's Duties and Obligations
4.1 Manage and Operate Village: [Village Management] must use [their] best endeavours to:
4.2 Maintain Service Areas and Common Areas: [Village Management] must (acting as the agent and on behalf of the Residents) arrange for the Service Areas and the Common Areas to be maintained in good order and condition. This includes the exterior walls, roofs and painted surfaces and all parking spaces, roads, pavements, lawns and gardens within the Common Areas. The costs of such maintenance are to be met from the Trust Account. Any other expenditure incurred on behalf of the Residents in the operation of the Village must also be paid out of the Trust Account that is not otherwise payable by an individual proprietor ofan Estate or any other person, but the way in which the Common Areas and associated facilities are operated and managed is determined by [Village Management] at [their] discretion, having regard to the standards of the Village. [Village Management] must ensure that [residents] and [each resident's] Visitors, Guest, Boarder and Tenant have the right, in common with others granted the same right, to use for parking any part of the Common Areas set aside by [Village Management] for parking motor vehicles in accordance with the Rules.
4.3 Manager’s Particular Duties: [Village Management] must:
4.4 Manager to Comply with Directions: [Village Management] must, subject to Clause 4.1, comply with the Advisory Board’s directions under Clause 3.7 and hear any representations made by the Residents’ Committee pursuant to its delegated duties under Clause 3.13. Any dispute between [Village Management] and the Advisory Board, over whether or not [Village Management] must comply with a direction of the Advisory Board, must be promptly referred to the Tribunal for a final decision.
4.5 Manager to Insure Village: [Village Management] must, to the satisfaction of the Advisory Board as the agent and on behalf of the Residents, ensure that all parts of the Village that are insurable against fire, storm and tempest, breakage of glass, impact and explosion (and any other risks usually insured against) are always kept insured with a reputable insurer at their full insurable value and, if possible, for their full reinstatement value. The cost of all such insurances shall form part of the annual Resident’s Contribution budget and shall be paid by [Village Management] out of the Trust Account on behalf of the Residents.
4.6 Type of Insurance Cover: [Village Management] must, to the satisfaction of the Advisory Board and on behalf of the Residents, ensure that the Advisory Board, Residents’ Committee, Developer, [Village Management] and each of the Residents are always kept insured with a reputable insurer against all claims, damages, costs, losses and expenses of any nature which any of the insured may suffer or incur in connection with loss of life, personal injury or damage to property arising from:
4.7 Insurances: [Village Management] must, to the satisfaction of the Advisory Board and on behalf of the Residents, ensure that general and products insurance, industrial special risks insurance, workers' compensation, house owner’s and householder’s insurance and any other insurances similar to those that would be required by a Strata Company under the Strata Titles Act 1985 (W.A.) are taken out with a reputable insurer and always kept in force for an insured amount (and if possible for the full reinstatement value) which a prudent person engaged in a similar business would take out. [Village Management] are not required to take out insurance for the Villa’s contents, that insurance is your responsibility. [Village Management] must:
4.8 Application of Insurance Proceeds: If any event occurs for which insurance money is payable under any policy of insurance, then that money must be paid by the insurer or insurers directly to the Fund and must be applied by [Village Management]:
4.9 Use of Village Facilities: [Village Management] may, at [its] discretion, grant to any one person or to any select group the right to exclusively use any part of the Village Centre or the Common Areas provided that [Village Management] believe such use would be beneficial to the Village.
5.13 Manager to Minimise Interference: When exercising [its] rights under Clause 5.12, [Village Management] must give proper regard to [a resident's] rights to occupy the Villa and to privacy. To the extent that it is reasonably practical, [Village Management] and [its] employees, contractors and consultants must not interfere with those rights.
7.3 Manager to Consider Prospective Resident: [Village Management] must promptly consider any application to purchase [a resident's] Estate in accordance with this Deed. However, [that resident] may only sell [their] Estate to a Prospective Resident.
4.2 Maintain Service Areas and Common Areas: [Village Management] must (acting as the agent and on behalf of the Residents) arrange for the Service Areas and the Common Areas to be maintained in good order and condition. This includes the exterior walls, roofs and painted surfaces and all parking spaces, roads, pavements, lawns and gardens within the Common Areas. The costs of such maintenance are to be met from the Trust Account. Any other expenditure incurred on behalf of the Residents in the operation of the Village must also be paid out of the Trust Account that is not otherwise payable by an individual proprietor ofan Estate or any other person, but the way in which the Common Areas and associated facilities are operated and managed is determined by [Village Management] at [their] discretion, having regard to the standards of the Village. [Village Management] must ensure that [residents] and [each resident's] Visitors, Guest, Boarder and Tenant have the right, in common with others granted the same right, to use for parking any part of the Common Areas set aside by [Village Management] for parking motor vehicles in accordance with the Rules.
4.3 Manager’s Particular Duties: [Village Management] must:
- (a) give the Advisory Board and the Residents Committee those details they reasonably require relating to [the Manager's] management of the Village Scheme;
- (b) comply with the Retirement Villages Act and the Code;
- (c) at least 4 weeks prior to the end of each financial year, prepare a budget for the total expenditure that we believe will be necessary to provide the Common Services for and on behalf of the Residents for the forthcoming financial year;
- (d) calculate the monthly Resident’s Contribution that must be paid by the proprietor of each Estate in order to raise the budgeted amount of Common Services expenditure for the forthcoming financial year and notify the proprietor of each Estate of the amount of their monthly Resident’s Contribution;
- (e) supervise the collection of their monthly Resident’s Contribution from the proprietor of each Estate and ensure that these amounts are deposited into the Trust Account and held on behalf of the Residents;
- (f) acting as the agent of the Residents, operate the Trust Account and utilise the funds raised by the Resident’s Contribution to pay from the Trust Account on behalf of the Residents all payments authorised under this Deed including, but not limited to, those made in respect of the Common Services including any rents, rates, taxes, duties, assessments, liabilities and outgoings assessed or levied against the Village (but excluding those charges which are levied or charged to an individual Estate) unless [Village Management] have, on reasonable grounds, contested any assessment or levy;
- (g) except for Excluded Maintenance and the interior of each of the Villas, arrange on behalf of the Residents for all parts of the Village which are of a repairable nature to be maintained in proper repair, working order and condition the cost of which is to be paid from the Trust Account;
- (h) not pull down, remove or damage any part of the Village without restoring or replacing that part, except in the ordinary course of business, or due to some lawful requirement, or otherwise with the consent of the Advisory Board;
- (i) permit and assist any Advisory Board or Residents’ Committee member and any person authorised by the Advisory Board or the Residents’ Committee in writing, to enter and inspect the Village, to view its state of repair and condition;
- (j) within 14 days after a written application is given to us at our Village office,in accord with Clause 5.11(1)(e) of the Code by Residents who are eligible to vote (pursuant to Clause 17.7), summon a meeting of the Residents under Clause 17 and notify the Advisory Board and the Residents’ Committee that the application has been received;
- (k) keep proper accounting records for all Residents’ funds that pass through our hands in accordance with our duties under both this Deed;
- (l) subject to the approval of the Advisory Board, have the Village Scheme accounts and the Trust Account audited at the end of each financial year by the Auditor;
- (m) on your written request, allow you to inspect the Village Scheme accounts in our offices and supply to you the most recent report of the Auditor on those accounts;
- (n) hold in Trust the amounts of Refurbishment and Improvements Contribution paid under Clause 7.8(b) and in accordance with Schedule 6 as a fund ("the Fund"). [Village Management] must invest the Fund in an authorised trustee investment. Interest on any Fund monies invested will accrue to the Fund and any taxes on income earned by the Fund or costs incurred in administering the Fund shall be paid out of the Fund. All other expenditure made from the Fund shall be in accordance with Clause 3.8; and
- (o) before any of the Residents offers their Estate for sale, ensure that the Villa which forms part of that Estate is upgraded in accordance with Clause 7.6(i) of this Deed.
4.4 Manager to Comply with Directions: [Village Management] must, subject to Clause 4.1, comply with the Advisory Board’s directions under Clause 3.7 and hear any representations made by the Residents’ Committee pursuant to its delegated duties under Clause 3.13. Any dispute between [Village Management] and the Advisory Board, over whether or not [Village Management] must comply with a direction of the Advisory Board, must be promptly referred to the Tribunal for a final decision.
4.5 Manager to Insure Village: [Village Management] must, to the satisfaction of the Advisory Board as the agent and on behalf of the Residents, ensure that all parts of the Village that are insurable against fire, storm and tempest, breakage of glass, impact and explosion (and any other risks usually insured against) are always kept insured with a reputable insurer at their full insurable value and, if possible, for their full reinstatement value. The cost of all such insurances shall form part of the annual Resident’s Contribution budget and shall be paid by [Village Management] out of the Trust Account on behalf of the Residents.
4.6 Type of Insurance Cover: [Village Management] must, to the satisfaction of the Advisory Board and on behalf of the Residents, ensure that the Advisory Board, Residents’ Committee, Developer, [Village Management] and each of the Residents are always kept insured with a reputable insurer against all claims, damages, costs, losses and expenses of any nature which any of the insured may suffer or incur in connection with loss of life, personal injury or damage to property arising from:
- (a) any occurrence in the Village; or
- (b) the use of the Village or any part of it by any of the Residents, their Visitors, Guest, Boarder, Tenant or any of Our Employees, contractors and consultants.
4.7 Insurances: [Village Management] must, to the satisfaction of the Advisory Board and on behalf of the Residents, ensure that general and products insurance, industrial special risks insurance, workers' compensation, house owner’s and householder’s insurance and any other insurances similar to those that would be required by a Strata Company under the Strata Titles Act 1985 (W.A.) are taken out with a reputable insurer and always kept in force for an insured amount (and if possible for the full reinstatement value) which a prudent person engaged in a similar business would take out. [Village Management] are not required to take out insurance for the Villa’s contents, that insurance is your responsibility. [Village Management] must:
- (a) not do or permit any act or thing which may prejudice or make invalid any insurance; and
- (b) take out and hold those insurances in the names of the Developer and [Village Management] (as agent for the Residents).
4.8 Application of Insurance Proceeds: If any event occurs for which insurance money is payable under any policy of insurance, then that money must be paid by the insurer or insurers directly to the Fund and must be applied by [Village Management]:
- (a) firstly, in reinstatement of so much of the Village that is the subject of the insured event;
- (b) secondly, in payment of any money owing to the Developer or ourselves; and
- (c) thirdly, to the Residents and
- (d) lastly, to any proprietor of an individual Estate that is entitled to these monies. [Village Management] must, when taking out the insurance, direct the insurer or insurers in the above terms.
4.9 Use of Village Facilities: [Village Management] may, at [its] discretion, grant to any one person or to any select group the right to exclusively use any part of the Village Centre or the Common Areas provided that [Village Management] believe such use would be beneficial to the Village.
5.13 Manager to Minimise Interference: When exercising [its] rights under Clause 5.12, [Village Management] must give proper regard to [a resident's] rights to occupy the Villa and to privacy. To the extent that it is reasonably practical, [Village Management] and [its] employees, contractors and consultants must not interfere with those rights.
7.3 Manager to Consider Prospective Resident: [Village Management] must promptly consider any application to purchase [a resident's] Estate in accordance with this Deed. However, [that resident] may only sell [their] Estate to a Prospective Resident.
8. Payment to Manager
8.1 Payment of Manager’s Costs and Expenses: [Village Management], as agent for the Residents, may pay from the Trust Account:
8.2 Manager’s Annual Fee: In addition to the payments under Clause 8.1, as from the commencement of the calendar month following the month when the first Estate in the Village is sold, [Village Management] are entitled to a fee of $45,000 per annum plus GST for acting as manager under this Deed. This fee is paid out of the Trust Account. [Their] fee is payable by equal calendar monthly instalments in arrears. It is to be adjusted on 1st July in each year ("the Adjustment Date") under the following formula:
Where:
F = Existing fee paid prior to Adjustment Date;
X = Adjusted fee payable subsequent to Adjustment Date;
PCPI = The Consumer Price Index determined prior to the preceding
Adjustment Date, or where this fee is being adjusted for the
first time, prior to the preceding 1st July.
CPI = The Consumer Price Index determined immediately prior to
the Adjustment Date.
Formula: X = F x CPI
PCPI
8.3 Consumer Price Index: The reference base for the Consumer Price Index is that adopted by the Australian Statistician for the March 1992 quarter onwards. If the Australian Statistician updates the reference base of that index, appropriate arithmetic adjustments must be made to the index as published to ensure the preservation of the intended continuity of the calculation provided for by Clause 8.2.
8.4 Alternative Adjustment: If the Consumer Price Index is suspended or discontinued, or if there is a major change in those items by reference to which that index is calculated, then the basis for adjustment of [their] fee will change to that sum determined by an independent actuary, or econometrician (acting as an expert) who is instructed by the Advisory Board, so as to be increased at a rate equal to the rate of economic inflation in Perth. The costs of any determination are paid by [Village Management] but are recoverable as an expense under Clause 8.1.
- (a) all costs, charges and expenses (including solicitor and client as well as party and party costs) reasonably and properly incurred by or on behalf of [Village Management]; and
- (b) any stamp or other duty which is payable from time to time in the carrying out or exercise by us of any duty, right, power or discretion imposed or conferred on us expressly or impliedly by this Deed.
8.2 Manager’s Annual Fee: In addition to the payments under Clause 8.1, as from the commencement of the calendar month following the month when the first Estate in the Village is sold, [Village Management] are entitled to a fee of $45,000 per annum plus GST for acting as manager under this Deed. This fee is paid out of the Trust Account. [Their] fee is payable by equal calendar monthly instalments in arrears. It is to be adjusted on 1st July in each year ("the Adjustment Date") under the following formula:
Where:
F = Existing fee paid prior to Adjustment Date;
X = Adjusted fee payable subsequent to Adjustment Date;
PCPI = The Consumer Price Index determined prior to the preceding
Adjustment Date, or where this fee is being adjusted for the
first time, prior to the preceding 1st July.
CPI = The Consumer Price Index determined immediately prior to
the Adjustment Date.
Formula: X = F x CPI
PCPI
8.3 Consumer Price Index: The reference base for the Consumer Price Index is that adopted by the Australian Statistician for the March 1992 quarter onwards. If the Australian Statistician updates the reference base of that index, appropriate arithmetic adjustments must be made to the index as published to ensure the preservation of the intended continuity of the calculation provided for by Clause 8.2.
8.4 Alternative Adjustment: If the Consumer Price Index is suspended or discontinued, or if there is a major change in those items by reference to which that index is calculated, then the basis for adjustment of [their] fee will change to that sum determined by an independent actuary, or econometrician (acting as an expert) who is instructed by the Advisory Board, so as to be increased at a rate equal to the rate of economic inflation in Perth. The costs of any determination are paid by [Village Management] but are recoverable as an expense under Clause 8.1.