Tuesday, November 15, 2016

Body Corporate Dispute withdrawn 4 months after ruling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The Commissioner confirmed that the Application had been withdrawn on 16th Dec.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 That section states: "The Application may be withdrawn by the Applicant at any time before it is disposed of under this Chapter".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.

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.

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