Hardship Withdrawals and Forfeiture Procedures
| Accor Vacation Club ARSN 094 718 108 (Club) | ||
| Hardship arrangements facilitated by ASIC relief | ||
| 1.1 | ASIC granted relief to enable responsible entities of registered time-sharing schemes to modify the scheme constitution to facilitate the withdrawal of members who satisfy ASIC’s hardship criteria, with such withdrawal facilitated by the responsible entity sourcing a purchaser for the scheme interests owned by the member suffering hardship. | |
| 1.2 | A.P.V.C. Ltd ACN 093 228 141 (Responsible Entity), the responsible entity of the Club, has elected not to seek to adopt the hardship arrangements under section 601GA(1A) of the Corporations Act as we determined it was not in the best interests of Members to do so. | |
| 1.3 | The impact of both the effects of the Covid-19 pandemic on the tourism industry and the ongoing regulatory changes to the timesharing industry adversely affecting the rate of Membership sales resulted in the Responsible Entity being concerned that we will not be able to resell the Memberships of Members suffering hardship in a timely fashion. | |
| 1.4 | This is relevant because the practical effect of the hardship arrangement provisions is that Club Fees cannot be charged to Members whose hardship applications are accepted (Hardship Members) and Hardship Members are also not liable to pay any outstanding Club Fees (though such outstanding Club Fees can be recovered from the remaining proceeds of sale of the Membership (if sufficient) after deduction of sales and administrative costs).; | |
| 1.5 | However, the Club Constitution mandates that each Member must contribute to the annual Club Budget by paying the Club Fee determined in accordance with the Constitution. Therefore, implementation of the hardship arrangements, which provide that Hardship Members cannot be charged Club Fees, would be contrary to the Club Constitution and, as a result, not in the best interests of Members. | |
| 1.6 | Notwithstanding this, should a Member be suffering from hardship, please do not hesitate to contact Member Services to discuss any options that may be available to them. | |
| Forfeiture rights and procedures | ||
| 1.7 | Subject to the constitution of the Club, Memberships may be forfeited and sold by the Responsible Entity where a Member has: | |
| (a) | continuing arrears in relation to payment of any Application Moneys due; | |
| (b) | continuing default under a finance agreement; or | |
| (c) | continuing arrears in relation to payment of Club Fees or Special Club Fees. | |
| 1.8 | The process which the Responsible Entity follows when forfeiting a Membership is as follows: | |
| (a) | notice of 14 days (in the case of default under a partly paid Membership or under the finance agreement by the financier) and notice of one month (after a period of one month from the due date of payment in relation to non-payment of Club Fees or Special Club Fees) must be given by the Responsible Entity to the Member; | |
| (b) | if the breach has not been remedied or the relevant moneys paid at the end of the notice period, the Membership and all moneys paid to the date of default may be forfeited and the Membership sold by the Responsible Entity and/or the defaulting Member can be sued for recovery of outstanding moneys and for specific performance of outstanding obligations. In addition, interest continues to accrue against outstanding moneys; | |
| (c) | if the Responsible Entity decides to forfeit a Membership, it must use reasonable endeavours to sell the Membership, in the case where a PDS for that level of Membership has been given in the previous 12 months, at the price shown in the PDS most recently given and in any other case, at a fair market price obtained by the Responsible Entity using reasonable endeavours; | |
| (d) | the proceeds from the sale of the forfeited Membership (including proceeds of rental or sub-licensing) are applied first to sale costs, next to reasonable forfeiture administration costs, next for outstanding amounts due from the Member as scheme property (which the Responsible Entity holds for the Developer), next for outstanding amounts due from the Member to the Responsible Entity or other person relating to the Member’s participation in the Club, next for amounts payable by the Member or the Responsible Entity to a financier relating to the liability of the Member to that financier for financial accommodation in connection with the acquisition of the forfeited Membership and finally any remaining amount is paid to the Member in return for the Certificate of Membership, if the Certificate is available. If the proceeds of sale are insufficient for these purposes, the Member still remains indebted for the balance; | |
| (e) | the Member irrevocably appoints the Responsible Entity and/or any of its Directors (from time to time but only whilst they are Directors) as that Member’s true and lawful attorney to execute all documents and do all things as the Responsible Entity considers necessary for the purposes of forfeiture and sale; and | |
| (f) | during the period of default, the Members’ rights, privileges, licences and entitlements under the constitution and the Regulations may be suspended, but the Member must still pay applicable Club Fees and (where applicable) Special Club Fees. | |
| 30 September 2021 | ||
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