Tuesday, November 15, 2016

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.

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