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/

Holiday letting - another nail in the coffin

Many investors have been finding that the return from holiday letting their apartments does not match the return that they would achieve from long term rentals.

Whilst there are times when the returns for holiday rentals are high eg Christmas and holiday periods, the net return over a full year is often a disappointment to owners. Fees and charges associated with holiday letting are high and the upcoming hike in electricity charges will be the final straw for many investors.

Owners who use holiday letting pay for all electricity charges. However, if they rent their apartments out with a long term lease, the tenants pay for the electricity.

Electricity providers are writing to owners advising of the increases in charges. One such provider clearly blames "the impact of the Federal Government's carbon price" as one of the factors influencing the increases.

Astute owners will be doing their sums and many will be making the decision to take their units out of the holiday pool and rent them out on a long term basis. This will be a huge blow to Caretakers who rely on holiday lettings in Body Corporate Communities.

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

Access to BC records for all owners? Not necessarily.

As a general principle owners should be able to expect to have access to BC records after paying a prescribed fee. However, recent rulings by Adjudicators indicate that it is not that simple. If a BC 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 BC 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 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 BC and the BC Manager in the past. The BC Manager is the custodian of the records. What would happen if the BC decided that the BC Manager could not access records because of legal privilege?

I feel that all BC 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 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.