Body Corporate Major Spending – Two Quotes Required

The Legislation requires that two quotes are usually required for Body Corporate major spending but many either ignore the Act or attempt to manipulate the law with creative wording.

Where major spending is involved, it makes perfect sense to require a Body Corporate to obtain two quotes. That allows some transparency in the process and at least provides an option to owners to compare the services that are being offered. In some cases, the Body Corporate will obtain more than two quotes.

When a Body Corporate submits only one quote in a major spending motion, owners would be entitled to be suspicious. Apart from the fact that it can often be a breach of the Act, the impression is that there is some form of impropriety involved.

Owners would quite rightly question why alternate quotes were not sought and why the Body Corporate has not attempted to source the best price for a service and submit the quotes to owners as required. Although many of these motions are submitted by a Committee they are entitled to rely on the advice of their Body Corporate Manager to ensure that the motions are accurately worded and that they comply with the regulations.

Motions renewing Body Corporate Managers Contracts

This all sounds obvious but it is amazing how many times the Act is ignored. One of the most common examples is when the renewal comes up for the contract of a Body Corporate Manager for an Accommodation Module. In a recent case, a motion was submitted for a three year contract for a Body Corporate Manager. There were no alternative quotes although the amount specified was close to double the Major Spending Limit for the Scheme.

It is inexcusable for Body Corporate Managers to make this sort of error but it happens often and on most occasions nothing is done because most owners are not aware of the requirements. For those who are aware, the only option available to them is to lodge a Dispute within three months of the event. That costs money and time and most people come to the conclusion that its best to leave it to someone else.

Some Body Corporate Manager's fees have increased in recent times and that makes motions for contracts to extend for more than a one year term problematical because the amount quoted is the cumulative total for the term of the contract ie if the motion for a Body Corporate Manager is asking for a three year contract at a flat $5000.00 per year and the Body Corporate Major Spending Limit for the Scheme is $10000.00 then multiple quotes are required.

Obviously, Body Corporate Managers want to lock owners in for long term contracts but they don’t want alternate quotes that might mean they lose their engagement. My advice to Bodies Corporate is that they should seek alternate quotes for a Body Corporate Manager. The service is now very competitive and there can be massive differences in the amounts charged although you should also bear in mind that the level of service can vary greatly.

Motions for Body Corporate Major Spending

In recent times, I have also seen a trend where Body Corporate Managers get creative with their wording of motions, usually in an attempt to avoid getting two quotes. Here is an example: That based on the indicative tender provided for the supply and installation of a (a service) by (a specific contractor) attached with the EGM notice, that the Body Corporate committee be authorised to further evaluate and review this tender, and at least one additional comparison tender to be obtained, and following such evaluation and review, that the committee is authorised up to an amount of $100,000-00 inclusive of GST, to enter into an agreement with a reputable contractor for (the service), and that two members of the committee are hereby authorised to execute any required written agreement under the common seal on behalf of the body corporate, with the cost of the proposal, if approved, to be met from the building sinking fund. 

Similar wording was actually used for a major spending motion recently and approved by the Body Corporate. It appears to be a way of avoiding submitting alternate quotes to owners. If the wording in this motion is acceptable then the Act should be rewritten. On most occasions, the reluctance to obtain alternate quotes is simply because the Committee have a preference for one contractor. However, they cannot ignore the Act. Owners should be given alternative options so they can make an informed decision.

Information about Major Spending Limits

The Commissioners website has some excellent information to help owners and Body Corporate Managers understand the Act. Body Corporate Major Spending Note: If your Scheme is a Commercial Module, the requirements for spending limits can be different to those for an Accommodation or Standard Module.
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The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues.

If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

Sir Humphrey explains Body Corporate Committee meeting minutes

It is very important that Body Corporate Committee meeting minutes are accurate. Sir Humphrey Appleby provides his insights on the procedure for taking minutes in Yes Prime Minister ...




There have been many cases where Committee members or owners have disagreed with or disputed the published record of what actually occurred at a meeting. Although the Act requires that the minutes be complete and accurate, the reality is that once the minutes are published it is difficult to change, revise or challenge them.

Bear in mind that the minutes can often be used later in references to Disputes or other matters that affect the Body Corporate. It is best for Committees to make it very clear to the Body Corporate Manager from the outset that a draft of the minutes should be sent to the committee for approval before publication. It is more likely that this will pick up any errors or omissions. ________________________________________________

The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues. If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

Body Corporate Committee members. A thankless job

The latest events at Palm Beach North only serve to highlight why it is becoming more difficult to encourage Body Corporate Committee members to continue to serve. The Body Corporate for Palm Beach North has had a fairly colourful history, part of which is detailed in various Disputes that have been lodged with the Commissioner over the years.

The Body Corporate Committee recently had their Budget meeting at the offices of their Body Corporate Manager, Archers. In the last few years, there has been some conflict between one owner and the Committee.

At the last AGM, the owner lodged a number of motions alleging a fairly vague breach of conduct against various committee members along with pages of explanatory notes. The Committee responded to owners with a very detailed explanation of why they disagreed with the owner. All of this was published as part of the agenda for the AGM and sent to all owners.

As an owner in the complex, it is my opinion that the Committee has done a good job and the allegations were frivolous. It is certainly understandable that the Committee members were offended by the allegations. There was a concern that the published motions and explanatory notes in the AGM may have defamed the Committee members but legal action is expensive and there is never any guarantee of results.

The outcome was that all motions that the owner lodged were not carried. However, the owner was elected as a Committee member along with the other incumbent Committee members. An EGM was held a few months later resulting in the removal from the Committee of the owner who had lodged the allegations against the previous Committee.

Flash forward to the recent Budget meeting and the Body Corporate Manager advised that the owner had once again lodged a series of motions and explanatory notes detailing allegations against the Committee. It is no wonder that the Committee members at the Budget meeting asked the Body Corporate Manager to exclude these motions from the Agenda. The Committee were concerned that by including the motions on the Agenda, the Body Corporate would be publishing libellous statements. The Body Corporate Manager explained that they had to comply with the Act and had to publish the motions as they had been lodged.

After some discussion at the meeting, the Body Corporate Manager advised the Committee that they would be terminating the contract immediately and ended the meeting before completing the business on the Agenda. This obviously left the Committee and the Body Corporate for Palm Beach North in a very difficult position as they were suddenly left without a Body Corporate Manager and no budget for the upcoming AGM. I can understand that the Body Corporate Manager insisted on complying with the Act but it is also understandable that the Body Corporate Committee members were very upset at the prospect of authorising a document that would be distributed to all owners that contained possible defamation against them.

This is another example of where the Act does not encourage owners to stand as Committee members. Section 100 and 111a of The Act states that the Body Corporate cannot be held liable for a required motion that is considered to be defamatory.

The Act requires that any motion and explanatory material that is submitted by an owner must be included in the Agenda for owners to vote on. If that material defames another person, then that person can take individual legal action against the person who submitted the motion but not the Body Corporate. Basically, an owner can submit any motion he or she likes.

It is not surprising that many question the fairness of this Section of the Act. Obviously, motions should ideally be included on the Agenda as submitted but the Act leaves plenty of room for someone to abuse that privilege and submit something that is defamatory or abusive with very little chance of legal reprisals.

I guess it would be unfair to hold the Body Corporate liable for a motion that could defame someone else but it also seems unfair for the Act to "require" the Body Corporate to publish material that may defame another person.

There have been other examples of motions that have been considered defamatory with other Bodies Corporate and these motions generally cause great distress to those affected. Ultimately, this is another example of why many owners prefer to leave the role of Committee member to someone else.
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The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues. If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

Gold Coast Council Rates rise again – Owners not happy.

Owners have expressed their disgust as Gold Coast Council rates rise yet again. Many are justifiably concerned that the continuing rate increases may force them out of their homes.

A council employee stated that owners should expect increases in their rates every six months with the clear implication that the increases were just a matter of course that everyone should just accept.
The latest rate notice includes a City Transport charge of $58.50. However, many owners are questioning exactly what benefits there are for them with the Transport charge.

Patricia of Mudgeeraba sent me an email after receiving the latest notice. She states "The City Transport charge is supposed to be for "improvements" to the transport system on the Gold Coast but bus services in Mudgeeraba have actually decreased and there certainly has not been any improvement. The light rail system might be of some benefit to those who live around the Surfers Paradise area but it is no use to those who will never use it."

Patricia went on to say "It also seems unfair that only rate payers have to pay for the so called improved transport. What about people who live on the Gold Coast who don't own property? They still use the light rail but they don't contribute anything".

Patricia is not alone in her concern about the Rate increase. Another owner in Palm Beach quoted his costs. "I pay $1250.00 approx. in council rates and when you add Body Corporate Levies and Water rates to the costs, it is getting to the stage where I would be better of being a renter rather than owning my property".

Better off renting than owning?? Well, you only need to do some basic arithmetic to work out that this is true in many cases. Surely the Gold Coast City Council does not want to encourage that scenario for owners.

There is no doubt that these are genuine concerns. Water Rates will soon be issued quarterly and the cynics amongst us are expecting continuing subtle increases that will supposedly have less impact than if the bills were issued half yearly.

Mayor Tom Tate has repeatedly said that the increases are small and they are seen as a contribution to improving services but he does not appear to understand that many owners cannot continue to absorb Council Rate increases. The fact is that many owners are considering leaving the Gold Coast altogether because of the constant increases.

Mayor Tate needs to consider that when taken on a cumulative basis, the increases are not small at all. In some cases, Gold Coast Council Rates have doubled in the last ten years.

Investors are also finding things tough. Rents do not cover the increases and, in some cases, rents have actually dropped because of the over supply of rental properties on the Gold Coast.

Like most Bureaucratic organisations, there is no doubt that the Gold Coast City Council could be a lot leaner but I wonder if Mayor Tate is making any attempts at all to cut costs and actually reduce Council and Water Rates.

Recent reports indicate that the current Council would be voted out if an election was held now. Well, one way that they could improve their position would be to make a committed attempt to reduce the costs of owning property on the Gold Coast.

What can you do about Gold Coast Council Rates rises?

If you live in a Body Corporate Community, I would encourage you to contact your Committee and urge them to write to the Gold Coast City Council on behalf of the Body Corporate requesting the Council to focus on reducing costs and Council and Water Rates.
If you are concerned about Gold Coast Council Rate rises send me an email.

Footnote:

I sent the following questions to the Gold Coast City Council for their comment but have yet to receive a response.

1. Why specifically, have the current Council Rates increased?
2. A Gold Coast Council employee advised that it was likely that there would be rises every six months. Is this correct?
3. Is there any possibility that Council Rates might decrease in the next six months?
4. Is the Mayor and Council aware that many owners of Units on the Gold Coast are being forced to consider leaving their homes because of rising Body Corporate fees and Council and Water Rates?
5. Is the Mayor and Council aware that investors are finding that rents are not sufficient to cover the increases in Council Rates and Body Corporate fees?

If the Gold Coast City Council does respond to any of the questions, I will publish their answers here.

BODY CORPORATE LEVY INCREASES LETTER FROM AN OWNER

I receive many emails from owners who are shocked at Body Corporate Levy increases at their buildings. The common theme is that they wonder whether they will be able to continue to live in their homes if the fees keep rising.

The latest Letter to the Editor from Jenny states ....
"As a result of the BC increase approved by the Attorney General last Sept our weekly BC fees increased from $110 p.wk to $140 p.wk. When talking to other unit owners in Surfers Paradise there seems to be a general opinion of not having an increase at all. Our BC has recently approved another increase of $10 p. wk to increase the Administration fees due to a works project underway in the building. That increase I can accept but an extra $30 oer week has certainly changed things financially for us. We have been owners here for just over 2 yrs & have seen our BC fees increase by approx $2000 per year. Do you have any advice regarding this? I did contact the Body Corporate Manager about it but was sent an email of totally confusing figures as to how the amounts were worked out. I'm not an accountant so this was useless. Do you know of any other buildings on the Coast that have incurred this sort of increase? Any advice would be hugely appreciated. I am going to visit other owners & get their opinions on this also. Regards Jenny"

In a further email she wrote ....
"....we have reached the opinion now that as much as we enjoy the lifestyle of high rise living it seems it's not going to be sustainable if BC fees can just continue to increase as they do. When we bought this apartment it was after many hrs of doing our  figures & at the time was affordable. However $2000 increase in just 2 years worries us as we now don't know what to expect in the future. We will probably consider selling & moving back into a more affordable life style which was not the plan but needs must."

The fact is that Body Corporate Levy increases in various communities is forcing many owners to reconsider their position in owning units. A combination of factors have resulted in the increases. Some owners are affected by the Levy Equalisation legislation. There is not much that can be done about that now apart from lobbying the Government to change the legislation yet again.

The original concept of setting levies was loosely based on the value and size of the units. The higher you go in an apartment building, the value of the apartment theoretically increased. Therefore, the developers felt that the levies should increase for higher floors. This particularly affected Penthouse owners who, in some cases, paid levies that were double those of owners of smaller ground or lower floor units.

The Penthouse owners argued that levies were purely for maintenance of the Common Property and should be the same for everyone. The recent legislation supports that argument.

Irrespective of whether the legislation is fair or not, owners like Jenny are coming to the conclusion that it is just not viable to continue to pay out crippling Body Corporate Levies. Add the levies to the spiralling Council and Water Rates and owners are wondering how they can afford to live in their homes. See my recent article.

The second factor in Body Corporate Levy increases is something that owners do have some control over. Committees, who represent owners, control spending and the budget. Committees are nearly always unpaid volunteers, many of whom have limited experience in managing substantial budgets. They are usually guided by their Body Corporate Manager and the time the Committee members are prepared to spend is often insufficient to what is needed to be able to monitor and manage a budget.

There are often areas in which cuts can be made in the budget but Committees are very reluctant to propose decreases in Body Corporate Levies. You rarely, if ever, hear of a Body Corporate that has proposed decreases to the Sinking and/or Administration fund. It is particularly difficult to curtail Body Corporate Levy increases in older buildings because maintenance costs usually increase as the buildings start to age. However, if units in Body Corporate Communities are going to continue to be a viable investment for owners, then Committees will have to do everything possible to put a hold on increases to levies.

The problem with that is that it takes time and some skill to be constantly monitoring the financial statements, obtaining quotes for alternative contractors, etc. Many Committee members are simply not prepared to be involved to that extent. I would love to see Committee members starting out the year with a goal of reducing the Body Corporate Levies by, say 5%, but the reality is that levies in Body Corporate communities seem to increase rather than decrease.

Meanwhile, other charges like Council and Water Rates and Electricity continue to rise. For investors who place their apartments in holiday letting this is a recipe for disaster. Their investments become not much more than hefty tax deductions.

As far as Jenny is concerned, my only advice would be to keep appraised of the spending at her building, particularly by looking closely at the financial statements that are provided to all owners prior to AGM's. She should also talk to the Committee members and other owners and explain how the increases are affecting her position and the value of her investment.

Ultimately, owners are fairly apathetic about their investments and many don't get involved. They usually hoped for capital gain when they eventually sold their units but that is something that you can no longer rely on. If owners took the time to analyse the costs of owning their units against the actual value of the unit, many would realise that they have made a very poor investment and that it is better to move on.

BODY CORPORATE UNPAID LEVIES – THE CONCILIATION PROCESS

An owner recently lodged an Application to the Commissioner, disputing the amount owing in Body Corporate Unpaid Levies and recovery costs. The matter was referred to a Conciliation Hearing but the end result left the owner and the Body Corporate back at square one.

Background

The owner has Body Corporate Unpaid Levies plus recovery costs amounting to over $3000.00. They cited various reasons why the amount has not been paid. However, the Body Corporate Committee believe that the entire debt should be paid in full and commenced recovery action about six months ago.
In the meantime, the owner, through her Real Estate Agent, lodged an Application with the Commissioner disputing the amount owing.
It is unlikely that the owner would have been aware that the Application had virtually no chance of getting a ruling unless she paid the entire amount owing. Had she done that, then she could have sought adjudication on the debt including recovery costs.
The fact is that the Commissioner has no jurisdiction to make a ruling where Body Corporate Unpaid Levies are still owing. The matter could only proceed to Conciliation where the facilitator could try and broker some sort of agreement between the parties but there is no obligation on either side to agree on anything.
In this case, the parties simply agreed that the owner would make a formal offer to the Body Corporate. The Application was then closed without any further action.
The Body Corporate was not obliged to accept the offer. They were only required to consider it and respond accordingly. Following the conciliation, an offer was made and subsequently rejected.
The overall process took over three months to reach its conclusion. The Committee members were forced to spend their own time in participating when there was never really any chance of resolving the matter.
In the meantime, the Body Corporate Unpaid Levies plus interest and costs increased and the owner was no better off apart from receiving some advice, which could be construed as legal advice, from the facilitator.

The Next Step

The Body Corporate now has no option but to proceed with legal action. The Facilitator seemed keen to push the Body Corporate towards referring the matter to QCAT for resolution but legal advice has indicated that they would be better off going through the courts.
The costs of the legal action will be significant and the owner will have to either pay the amount in full or get her own legal representation which will only add to the costs.
The lesson from this exercise is that owners should pay their levies on time. If, for some reason, they miss payments and are charged interest and even recovery costs, then they should pay the full amount and then refer the matter to the Commissioner who has the jurisdiction to decide on whether the additional costs are justified.
If you do not pay the outstanding amount you are setting yourself up for a potentially escalating amount in recovery costs and legal fees.
Watch this space for future developments.

THE WAVE BODY CORPORATE LEVY RECOVERY SAGA

Many owners in Body Corporate Communities have been watching The Wave Body Corporate Levy recovery saga with great interest. The latest news is that Westpac is reportedly facing a payout of $450,000.00 although there is no guarantee that the matter will end there. All this as a result of the relentless pursuit of an owners' unpaid levies of $5500.00.

Background

Dr and Mrs Prins, the owners of a luxury apartment at The Wave on the Gold Coast, fell behind with their levies owing approximately $5500.00. It has been reported that they wanted to enter into a payment plan but no agreement was reached and the Body Corporate commenced legal action to recover the debt.
The owners defended the legal action and were self represented. It appears that the matter continued for some time and the legal costs and associated fees ballooned to extraordinary amounts. Owners at The Wave were quite rightly concerned at the consequences of possibly losing the battle. The Prins declared bankruptcy in April 2013 by which time the recovery costs had risen to close to $350,000.00.
In mid 2013, Westpac took over the possession of the Unit and they apparently took the view that the responsibility for the recovery costs was not their responsibility. Westpac certainly had a good moral argument. Why should they be saddled with the costs that they had no control over?
The matter continued to escalate which was of great concern to owners bearing in mind that they were up against a giant bank with huge resources. Some owners became so nervous about the possible outcome that they favoured a negotiated settlement of the recovery costs.

The Latest News

The most recent development in the long running saga is that Westpac’s appeal was dismissed on 11 April 2014. See the Supreme Court ruling. The Court ruled that recovery costs associated with pursuing outstanding levies are a debt that attaches to the Lot.
SSKB (Stewart Silver King and Burns) has sent out a newsletter welcoming the decision and congratulating the Body Corporate for the Wave. However, there are surely no winners here.
Approximately $450,000.00 spent to recover a debt of approximately $5500.00???? Onlookers can be excused for thinking that something must be seriously wrong with the legal system particularly bearing in mind that there may still be avenues of appeal for Westpac and there could be more twists to the tale.
I can certainly understand the Body Corporate for the Wave taking legal action to recover a debt but if it takes 450,000.00 to get to this stage in attempting to recover a small debt then you would have to wonder about the way in which this was handled.
The recovery of Body Corporate Levies is a big problem for Bodies Corporate. The process can be time consuming for Committee members who are unpaid and some lawyers are getting plenty of business as a result.
I am currently dealing with a levy recovery issue at another Body Corporate. The matter will be going to conciliation soon and I will be reporting on the outcome. However one thing is certain. There is no way we will be spending $450,000.00 to recover the outstanding debt (I hope!).

Body Corporate owners angry at Gold Coast Council Rate increase

Unit Owners are up in arms about the recent Gold Coast Council Rate increase that puts many under financial pressure and ultimately contributes to lowering the value of their properties.

In recent years, there has been a steady increase in Gold Coast Council and Water Rates. The increases have coincidentally accompanied the decline in the value of homes in Body Corporate communities on the Gold Coast.

The situation was worsened when the Gold Coast Council Rates and Water Rates were separated and Allconnex was set up in 2010 specifically to handle water. This separation was a recipe for increases and property owners were shocked at the gradual increases in their water rates and Council Rates.

The bottom line for owners is that the value of their investments has declined and the decrease in value must surely have been affected by the Gold Coast Council Rate increase.

I took a sample of Council Rates and Water Rates from five properties and each one had significant increases in rates.

Some owners are now facing the frightening prospect of not being able to afford to live in their homes if the increases continue.

When you add the Body Corporate Levies to the Rates, the amount that Unit owners are paying just to live in their homes is getting out of hand.

Of the five properties in the sample, the cost of rates plus Body Corporate levies amounts to between $175.00 and $200.00 per week. Many other owners face much higher Body Corporate levies which push the overall cost up to $300.00 per week.

Many owners moved to Queensland to retire and they purchased units on the Gold Coast to live out their declining years. They understandably had no conception that increases in Rates and Levies could place their retirement dreams at risk.

Ralph, an elderly owner in Broadbeach, said "My combined Council and Water Rates have more than doubled in the ten years since I purchased the property. When I received the latest notices, I wondered how I would be able to find the money to pay them."

Investors are also upset. Owners with portfolios of properties are facing significant increases. Those who rent out their properties would like to be able to pass on some of the increase in costs to their tenants but the market will not bear the increased costs.

Those owners with Units in a Holiday Letting Pool are also affected. One owner of a luxury unit in Palm Beach gave me the beakup of costs versus rent:

• Body Corporate Levies 115.00 per week.
• Council Rates 35.00 per week
• Water Rates 27.00 per week

That makes a total of 177.00 per week. The owner paid 800,000.00 for his property. Average rent in the holiday pool works out at a gross of 450.00 per week over a year.

He pays for Cable TV, Cleaning, Commissions and has the unit fully furnished. He also pays for Electirity. He has ducted air conditioning in the Unit and the tenants often leave the air conditioning on all the time resulting in high electricity bills.

The bottom line is that the owner is coming away with an appalling return on his investment while his unit is deteriorating through wear and tear.

Investors look at the sums and see that they just don't add up. The reality is that investing in Body Corporate Communities on the Gold Coast is not a wise move at the moment.

Gold Coast Mayor Tom Tate wants people to invest in the Gold Coast. Well, if Council and Water rates continue to increase along with other associated expenses, investors will be bailing out and leaving the Coast in droves.

If you are concerned about the Gold Coast Council Rate increase you should contact the Gold Coast City Council preferably in writing.

Body Corporate Dispute withdrawn 4 months after ruling

The Commissioner for Body Corporate recently ruled that an owner was able to withdraw a Body Corporate Dispute Application - four months after a ruling had been made!


The Application was originally ruled on in August 2013 but the Commissioner for Body Corporate, Robert Walker, decided that the entire Adjudication was a nullity due to distribution procedures not being correctly carried out. Some owners did not receive copies of the original Application 0394-2013 (See my article on the Commissioners ruling).

 Suggestions have been made that the Commissioner exceeded his authority in quashing the ruling, considering that there was only very debatable support for his actions from the Act. However, the Commissioner decided to reopen the Body Corporate Dispute Application from the start and seek input from all owners.

Bearing in mind that the Body Corporate had already acted on the orders that were made, the Applicant saw little point in reopening the matter and having another ruling made.

As a result the Applicant advised the Commissioner that she wanted to withdraw the Body Corporate Dispute Application albeit that a ruling had been made four months earlier.

The Commissioner confirmed that the Application had been withdrawn on 16th Dec. Despite this, the original orders in Application Number 0394-2013 remain published on the Government website (as at the date of publication of this article) for all to see with no mention of the more recent developments.
The Commissioner stated that he relied on Section 254 (4) in allowing the Applicant to withdraw the Application. That section states: "The Application may be withdrawn by the Applicant at any time before it is disposed of under this Chapter".

Well, despite the fact that Mr Walker feels that the original adjudication was a nullity, it still remains as a published record. The only place you can find details of what transpired after the Adjudication is right here on www.BodyCorporateNews.com I wonder if there are any other similar instances where the Commissioner may have intervened in an Adjudication.

My feeling is that whilst Mr Walker may feel that there were valid grounds for ruling the original Adjudication a nullity, he did not have the authority to overturn the decision. In my opinion that should have been dealt with by an appeal to QCat.

 As to the "procedural irregularities" where copies of the application were not properly distributed, it should be entirely the responsibility of the Office of the Commissioner for Body Corporate to verify correct distribution. The policy of asking a Body Corporate representative to confirm that every owner has received copies of an Application is probably designed to save the Commissioner's Office money but is no guarantee that all owners see the Application.

I wonder if there have been distribution irregularities in any other Body Corporate Dispute Applications. Maybe there are other Adjudications that could be ruled a nullity. I'm guessing that there would be many applicants who would like to withdraw their Application after an Order has been made. Is there a time limit in addressing this? Not according to anything used by the Commissioner in making his ruling. 

Watch this space for more Body Corporate News.

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The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues. For more visit my AboutMe page If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

COMMISSIONER FOR BODY CORPORATE OVERTURNS ADJUDICATORS DECISION

The Commissioner for Body Corporate, Robert Walker, has made an extraordinary decision in quashing orders made by an Adjudicator nearly four months ago.


On August 7th 2013, Mr Peter Dowling, made orders in Application Number 0394-2013
This Application was the subject of an article on this website a few months ago. The Applicant advised the Commissioners office prior to the ruling that copies of the dispute had not been circulated to owners. She thought she was doing the right thing in providing the Commissioner's office with a "heads up".

It now seems that four months after the orders have been made, the Commissioner has decided to quash Mr Dowlings orders and reopen the Application from the beginning.

On 2nd Dec, the Commissioner for Body Corporate wrote to the Applicant stating that "distribution requirements" were not met as required by Section 243 of the Act.

He then went on to say that it "appears" that the orders of 7th August 2013 are a nullity with no legal effect. He quotes the case of Minister for Immigration and Multi Cultural Affairs v. Bhardwaj (2002) to support his claim that the orders are a nullity.

Despite the fact that it just "appears" that  the orders are a nullity, he has decided to reopen the Application and invite submissions from all owners. The Commissioner's Office has circulated copies of the Application directly to owners rather than get someone else to do it (eg The Secretary or Body Corporate Manager.)

He has given owners until 20th Dec to lodge their submissions.

I have my doubts as to whether the Commissioner for Body Corporate actually has the authority to overturn or quash an Adjudicator's decision. I can understand why people might think that Mr Walker has exceeded his authority.

The Commissioner for Body Corporate may well have a reasonable argument but I think that the Applicant correctly points out that she cannot accept that the orders are a nullity unless she sees a court order proving that.

The cover sheet of the orders very clearly state that an appeal should be made through QCAT within 60 days. Surely Mr Walker could have referred the matter to QCAT or a court to decide on whether the order should stand or not.

This does seem to make a complete mockery of the Adjudication system. The fact is that the Body Corporate in question has already acted on the orders months ago and owners are now confused and shocked to see the dispute reopened.

I have been advised that Mr Walker addressed a meeting this year stating that it would be inappropriate for him to interfere with an adjudication in any way. Well, he certainly seems to have done an about face on that.

Her position is that the original orders stand until the Commissioner can prove that he has the authority to reopen the Application.

The Clayton's Body Corporate Dispute - owners kept in the dark!

In a recent Body Corporate Dispute owners were never provided with copies of the Application. Consequently, orders were made without a single submission from any owner.

The Applicant in Body Corporate Dispute Number 0394-2013 (yet to be published), contacted me to express her concern.

The Commissioner had asked that the Application be circulated to all owners but the person they asked to do this was the subject of part of the dispute.

The fact that there were no responses or submissions should have at least raised questions about whether owners had actually seen the Application.

In fact, the Applicant phoned the Commissioner's Office to alert them of the problem.
The Applicant told me "When I contacted the Commissioner's Office to let them know that owners had not received copies of the dispute, they said that they take the word of the person they sent them to. If he says he has sent them then that is good enough."

The Applicant went on to say "The Commissioner's Office said that I should provide stat decs to prove that owners did not receive the dispute. I did not feel that it was my responsibility to do the work of the Commissioner so left it up to them to decide whether to pursue the matter or not."

The Adjudicator ruled on the Application in due course. "The orders were basically what I had sought but I did think it was strange that an Application like this could be lodged and ruled upon without owners knowing about it. I'm sure that they would have made submissions had they known."

When the orders were made, it was the Applicant who actually distributed copies to owners.
This does raise some questions about the procedures of the Commissioner. Not all Bodies Corporate employ a Body Corporate Manager. I don't think it is good enough that they send a hard copy to someone who they think might be responsible and then expect that person to distribute copies to owners.

When the Applicant in this Body Corporate Dispute took the trouble to phone the Commissioners office to alert them to the problem the Commissioner's staff should have taken the time to verify the claim rather than expect the Applicant to do the work.

Footnote: The reference to the "Claytons Body Corporate Dispute" comes from a very popular advertising campaign. In the 1970s a company produced a non alcoholic drink that was marketed as a good alternative to drinking alcohol. The brand name was Claytons and the slogan "Claytons - the drink you have when you are not having a drink!" In this case, the Dispute you have when you are not having a Dispute!

Body Corporate Levy increase Magic Mountain owner loses appeal to QCAT

The implications of The Body Corporate and Community Management Amendment Bill 2012, which was passed on March 19th 2013, have started to affect many owners who now face a significant Body Corporate Levy increase.

Owners have had to cope with the changes to legislation and various QCAT challenges over the last 10 years leaving many confused and upset over Body Corporate Levy increases that they cannot afford.

When the recent legislation was passed, some angry owners vowed to fight Body Corporate Levy increases with legal challenges.

It is important to note that the new legislation is not automatically applied. There is a process that owners must follow to ensure that changes to the Lot Entitlements are implemented. The first step is for an owner to ask the Body Corporate Committee to revert the levies in accordance with the legislation.

Some owners have already commenced the process. In one case, former 60 Minutes reporter, Ian Leslie successfully applied to have the levies at Magic Mountain Two reverted in accordance with the new legislation. Although this was a formality, many owners were obviously upset that they faced a Body Corporate Levy increase.

Mr Phillip Williams, another owner at Magic Mountain, challenged the reversion in an application to QCAT. (An interesting aside is that the QCAT judgment refers to the applicant as Phillip Williams in one reference and Paul Williams in another - probably an unfortunate error but it should be corrected!).

In the QCAT decision, Dr J.R.Forbes commented:
"Naturally, the applicant strongly opposes the effective reversal of the restoration of pre-July 2003 contributions that he secured in 2012. Plainly he regards the recently amended law as arbitrary and unfair. No doubt other unit holders felt the same when the former section 379 enabled one owner (perhaps among hundreds) to upset the existing scale of contributions. But these considerations do not entitle the Tribunal to disregard the present law."

The Application from Mr Williams was dismissed and the comments that were made suggested that the Application had little merit...
"The Tribunal has no jurisdiction to entertain the application for leave to appeal filed on 15 May 2013. Furthermore, the Tribunal has no jurisdiction to give advisory opinions or answer hypothetical questions, or to substitute its own policies for those of the legislature, or to anticipate changes that may or may not be made to the Act "later this year"."
"The applicant's case is not advanced by such extravagant rhetoric as "indefensible hypocrisy", "a conflicted ambiguous Act", "Iegislative thuggery" or vague and misconceived allusions to fair trading laws. I note that the Body Corporate does not press for costs on this occasion, but that is a future possibility that the applicant could usefully bear in mind."

There are indeed many owners who are horrified at the Body Corporate Levy increase while a smaller percentage of owners are delighted at the decrease in their levies.

Owners who are aggrieved at the changes to the legislation need to understand that the changes are now Law irrespective of how unfair they are perceived to be. Any challenge in regards to the levies must be in accordance with the Law and on very specific and limited grounds.

However, one owner pointed out that when he purchased his apartment the contract specified the Lot Entitlements. He feels that the new Law has not considered that original contracts may be breached by changing the Lot Entitlements.  Although he does raise an interesting point, I doubt that anyone would be able to use that to challenge the change in the Law.

Those who feel that the levies should revert to the original levies that were set by the Developers would be better off directing their feelings to the Queensland Government rather than QCAT.

There are probably more than enough owners who have been adversly affected by the new legislation and the Body Corporate Levy increase to have a real influence on the Goverment but they will not get anywhere unless they voice their opinions in large numbers.

Full and accurate minutes of Meetings? Don’t worry about it.

The BCCM Act requires that full and accurate minutes be kept of Body Corporate meetings. However, an Adjudicator has cast some doubt on the definition of the words full and accurate minutes in a recent decision.

In Coomera on the Park [2013] QBCCMCmr 204 (14 May 2013), the Adjudicator ordered that the Application be dismissed. In Point 1 of the Outcomes Sought the Applicant had asked:
“That all committee meetings as well as AGM meetings held by the committee be recorded to ensure that the final minutes actually reflect the decisions and points made by committee members...”
To the layman, it follows that by dismissing the Application, the Adjudicator appears to be saying that there is no need to “ensure that the final minutes actually reflect the decisions and points made by committee members”.

From the Adjudicator’s comments, it appears that the minutes of one of the meetings in question were certainly short on substance.

He quotes a couple of examples:
“There are a number of instances where “...” appear.
Item q) “Pest control quotations for Common Property” is followed by “????”.
“BUILDING AND GROUNDS MAINTENANCE AND CARETAKER’S REPORT” is similarly followed by “????”.”
Although the Adjudicator states that “I would encourage the minute taker to refrain from using “...”, he goes on to say “they are not inaccurate in any significant way in the areas they are required to be accurate by the legislation.”

He points out that, in the legislation, full and accurate means minutes including each of the following:
(a) the date, time and place of the meeting;
(b) the names of persons present and details of the capacity in which they attended the meeting;
(c) details of proxies tabled;
(d) for each motion voted on at the meeting—
(i) the words of the motion; and
(ii) the number of votes for and against the motion;
(e) details of correspondence, reports, notices or other documents tabled;
(f) the time the meeting closed;
(g) details of the next scheduled meeting;
(h) the secretary’s name and contact address.

I disagree with the Adjudicator's comments in this case. He appears to be saying that the minutes only need to include points a – h to be considered accurate. I feel that he is misinterpreting the definition of the word “including” as in “minutes including each of the following”. My reading of this is that the phrase means that the minutes should include all of those points from a – h but “including” does not mean that the minutes should include ONLY those points.

The definition of include means "Comprise or contain as part of a whole". In other words Full and Accurate minutes should certainly include points a – h, but that is just a part of what forms an accurate representation of what was determined at the meeting. To suggest otherwise is just playing with semantics.

In this case, the Applicant also wanted to be able to voice record the meetings. He raised the fact that threats had been made at the meetings but that there was no record of that in the minutes. The Adjudicator also dismissed that part of the Application and suggested that he could take his own notes of the meeting but that would not be of much help if they differed significantly from the “official” minutes.

I am not aware of any legislation that prevents anyone from making a personal record a meeting albeit that the recording may not be able to be used for any purpose.

In looking at the Dispute in its entirety, it seems to me that the Applicant in this case was not being unreasonable in asking that “full and accurate” minutes be taken for all meetings. I think that it is a pity that his Application was not upheld, at least in part. The penalty to the Body Corporate would have been minimal and an order might have ensured that future communication was improved.
I feel that this ruling gives Committees the opportunity to keep minutes to the absolute minimum as long as they include points a – h.

Despte that, an honest Committee will always try to keep owners informed by providing full and accurate minutes. Part of that role is to ensure the minutes of all meetings that are sent to owners are accurate and detailed to the point where nothing can be considered to be hidden.
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The opinions expressed in this blog are personal and not intended in to be advice in any way. I have spent many years participating on a number of different Body Corporate Committees. I am a dealer in Vintage Movie Memorabilia specialising in original movie posters and movie art. www.moviemem.com

Body Corporate Disputes – frivolous vexatious misconceived or without substance.

Adjudicators in Body Corporate Disputes can consider awarding costs against the applicant when those disputes are considered frivolous vexatious misconceived or without substance.

This doesn't happen very often but I received an email at Body Corporate News suggesting that some Body Corporate Managers and legal advisors have been ponting out the very real possibility of an award for costs against the Applicant to discourage owners from lodging disputes.

The process for lodging disputes is time consuming and can be fairly complex. Although the Dispute Resolution is designed to allow people without legal representation to make an application to the Commissioner, the applicant still needs to ensure that the arguments being put forward are in accordance with the Act.

When the respondent is the Body Corporate, there are many examples where their responses are written by solicitors.

It is interesting that in recent cases, Adjudicators have addressed the matter of whether to award costs against the Applicant based on whether a Body Corporate Dispute is considered to be frivolous vexatious misconceived or without substance. One consideration appears to be whether the Applicant has a history of lodging disputes and having them dismissed.

The problem with the system is that many owners in Body Corporate Communities have little understanding of the Act or legal processes. When they face an issue with their Body Corporate, they often find the prospect of lodging a dispute too daunting and end up putting up with problems.

Prior to lodging Body Corporate Disputes, the Applicant should make every effort to communicate with the Body Corporate preferably in writing, detailing their concerns. The Dispute application should be a last resort when the respondent fails to adequately address the applicants concerns.

I would also highly recommend that anyone considering lodging a Body Corporate Dispute should first contact the Commissioner for Body Corporate help line 1800 060 119.

The advisors are knowledgable and they can point out relevant sections of the Act that may help in an Application. They might also be able to give an indication of whether a potential dispute application has merit.

Another thing to consider is that there appears to be a growing trend towards cutting Committee's some slack. There have been rulings that indicate that Committee's cannot be expected to be word perfect in the Act.

In summary, my recommendation to anyone considering lodging a Dispute would be:

1. Do everything possible to resolve the dispute prior to lodging an application. Try and put everything in writing and keep a record of responses.
2. Use the Commissioners help line as much as possible prior to lodging an Application.
3. Ensure that any Application that is made is supported by relevant sections of the Act.
4. Be aware of section 242 of the Act which specifies time limits in lodging disputes.

My feeling is that Adjudicators will be asked by respondents to rule that Body Corporate Disputes are frivolous, vexatious, misconceived or without substance. The penalty can be up to $2000.00 so it is well worth doing as much research as possible prior to lodging an application.

New Ways for Body Corporate Managers to make money

Body Corporate Managers are always looking for new ways to make money. In recent years many have started offering additional services to clients but there is growing concern that the promotion of some of these services may constitute a conflict of interest.

In an ideal world, Bodies Corporate should take steps to ensure that they are compliant with all legislation and general rules and regulations. Some Body Corporate Managers have seized the opportunity to exploit this and make money.

The way it works is quite simple. They point out to Committees that  that the Body Corporate needs to get reports on various areas of compliance. They often give veiled threats of potential liability or Committee responsibilities if the reports are not obtained.

They then recommend their own in house services to provide the reports which can include things like:

• Sinking Fund Forecasts
• Workplace Health and Safety Reports
• Fire Risk assessment reports
• Asbestos reports
• Insurance assessments

and many more.

They don't stop there. They also provide services to "assist" owners with Dispute resolution, Levy Equalisation claims and one BC Manager even has a separate department that completes insurance claims at an additional cost of course.

There are often times when BC Managers do everything they can to promote these offshoot services in an attempt to generate more income for themselves. However, the problem that I have with all of this is that I don't see them always offering alternatives.

In one case, the Chairman of a Body Corporate was convinced that he needed to get three reports done urgently on Fire Safety, Workplace Health and Safety and an Asbestos assessment. He was pressured into thinking that he might even be liable if the reports were not done.

The Body Corporate Manager then proceeded to convince him that he should use the services of companies that were subsidiaries of the BC Manager. No alternatives were offerred.

When the reports were completed, they highlighted various issues that needed to be addressed and they offerred yet more "in house" services to rectify the faults.

It is inevitable that Body Corporate Managers will be creative in developing other services for their clients but they need to be very careful indeed to offer alternatives rather than try and convince Committees to go with their own offshoot companies.

An example of the potential problems that can occurr was highlighted in the comments of a QCAT adjudication  .....

“The adoption of the practice of body corporate managers purporting to act both as “experts” and “representatives” in the same case is not one which should be encouraged.”
This case referred to a claim to equalise the levies. The Body Corporate Manager offerred the services of one of their own consultants to represent the Body Corporate.

There is nothing wrong with Body Corporate Managers developing their business and providing additional services to their clients providing that they act ethically and offer alternatives to Committees.
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The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues.
If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

Adjudicator Decides! ONE CENT UNDERPAYMENT OF Body Corporate LEVIES

Natalie Green unwittingly paid her levies one cent short. As a result, she was denied voting rights at an EGM. A dispute was lodged and an Adjudicator was required to rule on a one cent underpayment of Body Corporate levies.

Yes, it is hard to believe but I suppose that rules are rules. In his findings the BCCM Adjudicator, D.Toohey stated "It seems harsh for someone to be deprived of their vote just because they unwittingly underpaid their levies by a tiny amount. However, there is no discretion for a returning officer or an adjudicator to allow a vote to be counted when a body corporate debt is owing." (see decision here)

Well, I guess that must be right. The Act has to be followed to the letter of the law. The Adjudicator's hands are tied. After all the law is the law and there cannot be any flexibility.

But wait!

Wasn't there a ruling recently that dealt with how the Act should be interpreted? I'm sure I heard something about that. Ah yes, the QCAT decision in the appeal of Application Number APL 157-12 (29th January 2013).

Dr J.R.Forbes said that the Act could be taken "liberally" which means that the Act should not be taken "strictly". In other words, some flexibility should be shown.

He states that “if the legislation were at all times and in all circumstances applied with utmost rigour and most precious attention to detail, its objects and policy would be retarded by endemic disputation, rather than advanced.”

You really could be excused for thinking that D.Toohey, in ruling on this dispute has applied "utmost rigour and most precious attention to detail".  All over a One Cent underpayment of Body Corporate levies!

Well, I guess the Adjudicators will attempt to rationalise all of this. I know all of the arguments that they will use (like whether there was a material loss or gain at stake) but the fact is that one ruling says that the Act should be interpreted liberally while another says that it must be followed to the letter of the law.

Ultimately, I would actually prefer to see that the Act is interpreted to the letter of the Law. That way, everyone knows where they stand.

If you think this is an isolated case of a seemingly contradictory ruling then I'm afraid you are mistaken. I will look at more contradictions in Adjudicator's rulings in future articles.

The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues.

If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

Body Corporate Levies Merry Go Round

First published Dec 6, 2012

I see that the Queensland Parliament Legal Affairs and Community Safety Committee has recommended yet another major change in the way that Body Corporate levies are set. The Body Corporate Levies Merry go Round continues. 

Rather than go into great detail about how these changes may be achieved, let me sum up the situation as it has unfolded over the years.

Traditionally, the developer has set the levies for Body Corporate buildings. The levies were often based and calculated on factors like floor space and the value of the units.

It is important to understand that owners were aware of the levies at the time of purchase and it follows that they accepted them to be fair and reasonable. After all, if they thought the levies were unfair why would they go ahead and make the purchase?

QCAT DECISION: BCCM Act should be read liberally!

A recent decision from QCAT is yet another indication that the BCCM Act, which regulates Body Corporate Communities, is becoming more irrelevant than ever. The QCAT member who ruled on the matter stated that BCCM Act should be read liberally - ie not taken strictly.

In his decision for the appeal of Application Number APL 157-12 (29th January 2013), Dr J.R.Forbes made a number of comments that only serve to weaken the Act and and the enforcement of regulations.

Dr Forbes describes the BCCM Act as a "lengthy, technical and complex instrument" and goes on to say that committee members cannot be expected to be experts in understanding and determining the rules and regulations. He fails to mention that Committees can rely on Body Corporate Managers to provide advice as required and that the Commissioner for Body Corporate has a help line to assist owners who have questions concerning the Act.

He states that "if the legislation were at all times and in all circumstances applied with utmost rigour and most precious attention to detail, its objects and policy would be retarded by endemic disputation, rather than advanced." 
In other words, a loose interpretation of the Act will result in less disputes.

He continues by comparing the BCCM Act with the Corporation Act 2001 noting that some sections of the Act could be construed "liberally" using the example that the invalid appointment of a director or the failure to assemble a quorum could be excused if there is no substantial injustice.

He argues that the BCCM Act should also be interpreted "liberally" and similar irregulaties or breaches could also be excused.

The reality is that many Bodies Corporate do not take the BCCM Act seriously at all. In fact, many Committees ignore it altogether.

The Commissioner for Body Corporate and the BCCM Act itself are reactionary instruments rather than being proactive. The Commissioner only acts when disputes are lodged. The process of lodging disputes is so time consuming and daunting that the majority of owners will reluctantly just accept breaches of the Act.

There are a huge number of Body Corporate Communites in Queensland. Many have issues that should be addressed but the actual amount of disputes that are lodged is miniscule in relation to the number of Body Corporate Communities.

The fact is that the Office of the Commissioner for Body Corporate is not logistically capable of handling "endemic disputation" irrespective of whether the disputes are justified or not. They do not have the staff to handle huge numbers of disputes.

One way of discouraging disputes is to interpret the legislation "liberally" which would inevitably result in many applications being dismissed.

Dr Forbes also affirmed that it is acceptable for committees to retrospectively resolve and ratify past irregular conduct (see my article on the original Application). This opens up a huge can of worms. It alows committees to bend and manipulate the rules at will secure in the knowledge that a dispute is unlikely anyway.

The BCCM Act is rapidly becoming a dinosaur - close to extinction. Dr Forbes is correct in saying that it is a complex document but there is no point in having legislation if it is rarely enforced and largely ignored by many.
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The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues. For more visit my AboutMe page If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to conta

Pets in Body Corporate Communities – Free For All

Recent decisions through the Commissioner for Body Corporate and appeals have resulted in an about face in regards to permission for pets in Body Corporate Communities.

Adjudicators rulings indicate that by laws in many Body Corporate Communities are now not worth the paper they are printed on and may discriminate against some owners in regards to pet approvals.

As a result of the decisions, Body Corporate Communities would be unwise to have a by law in place that bans or restricts pets. They should also consider removing any by law that restricts the size of a pet eg "dogs must be smaller than 10kg" and they should also be aware that restrictions on the number of pets per owner may well be invalid.

Pets in Body Corporate Communities: Background

1. Pet Approvals in Body Corporate Communities

Seachange Retirement Village 1140-2010 In this ruling, the Adjudicator addressed the "issue of reasonableness" in relation to keeping pets in Body Corporate Communities. He stated: "The most significant of these was a decision to invalidate a by-law for Kings Row Centre that prohibited residents from keeping dogs or cats.

In that decision, the Appeal Tribunal within the Queensland Civil and Administrative Tribunal determined that a by-law cannot contain a blanket prohibition on the keeping of dogs and cats. This was even though it was a high rise scheme in which it was recognised the keeping of a cat or a dog in a safe and healthy environment within the owner’s unit could inconvenience other residents."

The Adjudicator went on to say: "Following this decision, adjudicators have found pet by-laws to be unreasonable when they have involved a ban on the keeping of dogs or cats based on an arbitrary size or an arbitrary number of desired pets."

2. Weight Restrictions for Pets

Riverside Park (2011) 0958-2010 The Adjudicator states: "I believe its (sic) is quite possible for some breeds of dog exceeding 10 kilograms in weight, to be kept within lots without causing nuisance or annoyance to other lot owners. As a number of owners have pointed out, some small dog breeds have a high activity level and a propensity for barking whereas some dog breeds grow to more than 10kgs but rarely bark.

Further, given that there is vehicular access to each lot, it would be possible to transport an animal to and from a lot by vehicle, thereby obviating concerns regarding the presence of larger dogs on common property. Having regard to the circumstances, I am of the view that to the extent that by-law 16.1 restricts ownership of dogs to dogs not exceeding 10 kilograms in weight, that part of clause 16.1 is unreasonable and therefore invalid."

3. Restrictions on the Number of pets

Vantage (2011) 0978-2010 The Adjudicator ordered: "I further declare that Hendrik Zeeman is entitled to keep the two terrier dogs Dougal and Turbo on his lot subject to any reasonable conditions which may be imposed subsequently by the body corporate".

The Body Corporate was ordered to draft and submit a new CMS with ammendments to their by laws regarding the keeping of animals. Prior to recent rulings, some Adjudicators had dismissed various applications from owners or occupiers who wanted to keep pets despite by laws that prohibited the keeping of animals.

Adjudicators now appear to be adopting the approach that all owners are entitled to keep pets on their lots provided that those pets do not disturb or cause a nuisance to others.

This does seem to be a reasonable approach but many Body Corporate Communities still maintain by laws that are out of date and are discriminatory to others. One other issue that will be addressed in the future is whether owners should allow their friends and family to bring pets to their units or townhouses.

There are many logical arguments in favour of this, particularly in light of recent decisions. I believe it is discriminatory to prevent a bona fide visitor to bring a pet to a Body Corporate Community. It is likely that an Adjudicator will be required to address this at some point in the future. The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way.

I have spent many years participating on a number of different Body Corporate Committees and provide an owner's perspective on Body Corporate issues.
If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

I am the owner of http://www.moviemem.com/

Body Corporate Records Access Denied!

As a general principle owners should be able to expect to access Body Corporate records after paying a prescribed fee. However, some rulings by Adjudicators indicate that it is not that simple.


If a Body Corporate believes that certain records are subject to "legal privilege" then they have the right to refuse access to any owner who may be involved in either actual or threatened legal action against the Body Corporate or presumably anyone who claims to be affected by the records.

There are times when it might be prudent to withhold certain documents from an owner on the basis of legal privilege but anyone with an ounce of imagination should be able to see how this ruling could be abused.

It would be very easy for a Committee to deny access to Body Corporate records based on "legal privilege". The owner would then have to decide whether to lodge a dispute. If the records were needed urgently, the process of waiting for the dispute to be heard could prove costly for the owner.
An Adjudicator recently ruled that a dispute with QCAT constitutes legal action. Presumably any dispute that has been initiated or implied also comes under the banner of "legal privilege".

There are other considerations that could lead to abuse of this process. Who decides whether records are subject to legal privilege or not? What if the person who is actually seeking the records is the Chairman, Secretary or another Committee member?

There have been disputes between the Body Corporate and the Body Corporate Manager in the past. The Body Corporate Manager is the custodian of the records. What would happen if the Body Corporate decided that the Body Corporate Manager could not access records because of legal privilege?

I feel that all Body Corporate records should be available for access by owners irrespective of any implied or actual legal privilege.
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The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner's perspective on Body Corporate issues.

If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

I am the owner of http://www.moviemem.com/