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.
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