Australia: Has time run out on timeshare resorts?

What was once a great investment and an appealing holiday destination, may have lost its gloss. Gone is the glamour of a few weeks holiday each year at a resort that you own in a lovely regional setting, along with other families enjoying the same opportunity. Instead, there is the reality of paying rising levies on your fixed retiree income to maintain an ageing facility in a regional area that your family and friends no longer wish to visit. And when you ask around to sell your interest in the resort, you quickly discover that it isn't worth very much at all.

So, when developers start showing some interest in the land the resort is located on, the option of selling out looks very attractive.

This was the case for Vacation Club Ltd (Club), which had operated a timeshare resort in Port Macquarie called 'Vacation Village' since 1980 for its approximately 494 members who owned and were entitled to stay at the resort.

At an Extraordinary General Meeting in November last year, the members voted in favour of a series of resolutions to wind up the Club which ultimately resulted in the appointment of trustees by the NSW Supreme Court for the sale of the resort property.

The resolutions were passed with overwhelming majorities ranging from 85% to 89%, in circumstances where:

  • many members were approaching, or were in, retirement and couldn't afford the levies;
  • levy default amongst members was growing placing the Club and members alike under increasing financial pressure;
  • as members were ageing with virtually no ability to exit the timeshare there was a high probability that defaults would accelerate;
  • the Club couldn't afford to pursue the levy defaulters; and
  • holiday rents were not covering the maintenance fees in many cases, leading to a strong move amongst members to favour the realisation of their interest through the sale of the resort land for future development.

Bartier Perry acted for the Club in Vacation Club Ltd v A.G.G. Properties Pty Ltd [2019] NSWSC 1357, in which Vacation Club successfully made an application to the Supreme Court of NSW for orders appointing trustees for the sale of the time share resort property under section 66G of the Conveyancing Act 1919 (NSW).

The 66G application was necessary because the title to the land on which the resort was located had been divided into 1248 sub-folios with 501 members, many of whom could not be located and communicated with. In these circumstances, the court needs to make orders for the title to be consolidated so it can be sold, because everyone with an interest in the land may not have notice of the orders sought, and may not have an opportunity to raise any objection or consent to the process.

As you might imagine, the logistics of dealing with 501 owners and 1248 land titles poses particular issues for litigation of this type, and formulating a clear strategy for the process and implementing it efficiently is imperative to ensuring the orders sought are obtained with minimum delay and expense.

A copy of the judgment can be found here -

Once the appointed trustees have marketed and sold the land on which the resort was located, the members will be able to resolve to wind up the resort company and finalise the process of bringing the timeshare venture to an end.

If you and fellow members of your time share resort have determined that the time has come to wind up your timeshare arrangement and realise the value of your resort, here is a basic checklist of some issues to consider.

Key takeaways from the judgment to assist with the sale process

Convene a meeting for the passing of the necessary resolutions

The majority of members of the timeshare will need to pass the necessary resolutions to begin the process, including:

  • The nomination of the resort owner and the relevant members who will be the applicants for the court proceedings.
  • The orders that will be sought from the court to appoint trustees under section 66G of the Conveyancing Act for the sale of the property and other ancillary orders, including:
    • production of certificates of title to sub-folios, and their cancellation;
    • the issue of a new single title for the land;
    • authority to terminate any leases and management agreements; and
    • how the sale proceeds will be distributed, including payment of any debts accrued by members.

Identify the appropriate defendants to the application

All the members of the timeshare resort who are the owners of the property must be listed as defendants to the proceedings.

When compiling the list of defendants, it is important to identify:

  • whether any owners have passed away. If an owner who has passed away held their share in the property as a sole owner or as a tenant in common with another owner, then consideration needs to be given to involving the deceased owner's estate in the proceedings; and
  • whether any company owners are deregistered. If a company owner has been deregistered, the Australian Securities and Investment Commissions will need to be contacted and possibly involved in the proceedings or the company reinstated.

Properly effect service on all of the members

In circumstances where you may be dealing with hundreds of owners, the simple issue of ensuring they have all been served with court and other documents is not straightforward. Depending on how the proceedings are pursued, you may be able to take advantage of the provisions in the resort's constitution or rules to effect service more easily and cheaply than by personal service, saving significant time and money.

Request production of the certificates of title from the owners

Before the Court will exercise its power to cancel the certificates of title of the sub-folios and order a new consolidated title be issued, it must be satisfied that any missing certificates of title have not been, or are unlikely to be, produced by the members.

The company operating the timeshare will therefore need to exhaust all reasonable enquiries it is able to make in obtaining the certificates of title from the member owners.

Confirm whether the titles are unencumbered

The position regarding encumbrances will be clear from the available certificates of title.

For those missing certificates of title which have not been produced by the member owners, title searches will need to be obtained in order to confirm that the certificates of title are not encumbered by any interest or mortgage. The court will need to be satisfied of the position in this regard before any orders will be made cancelling the certificates of title of the sub-folios.

Contact any caveators

Attempts will need to be made to notify any caveators noted on title of the sub-folios of the existence of, and the orders sought in, the proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions