Part V Management corporations

In this Part:

this Part includes a management module.

(1) On and after the registration of a units plan, including a units plan relating to the first completed stage of a condominium development or on the issuing under the Real Property (Unit Titles) Act 1975 of the first freehold title to land in an estate development, there is constituted a body corporate under the name "The Proprietors –Units Plan No. ", the number to be included in the name being the number allotted to the units plan by the Registrar-General on its registration.

(2) The members of the body corporate are the persons who are proprietors, for the time being, of the units including, in the case of a corporation relating to a condominium development or estate development, the units in each completed stage of the condominium development or estate development.

(3) However, if a new body corporate (the new corporation) is constituted under this Act because of a subdivision of a part of the parcel to which the units plan relates:

(a) the new corporation must be regarded as a member of the body corporate (the parent corporation) constituted on the registration of the units plan; and

(b) the proprietors of the units resulting from the subdivision must not be regarded as members of the parent corporation.

(4) If subsection (3) applies, a reference in this Part to a proprietor constituting the parent corporation:

(a) includes a reference to the new corporation; and

(b) does not include a reference to the proprietors mentioned in subsection (3)(b).

(5) In this section:

(a) a reference to a units plan does not include a reference to a building development plan; and

(b) a reference to a body corporate does not include a reference to a building management corporation.

(1) On the registration of a building development plan there is constituted a body corporate under the name "The Proprietors – Building Development Plan No. ", the number to be included in the name being the number allotted to the building development plan by the Registrar-General on its registration.

(2) Despite subsection (1), the body corporate may call itself by another name.

(3) That other name:

(a) must include the words "Building Management Corporation"; and

(b) must be registered with the Registrar-General.

(4) The members of the body corporate are the persons who are proprietors, for the time being, of the building lots.

(5) However, if a new body corporate (the new corporation) is constituted under this Act because of a subdivision of a part of the parcel to which the building development plan relates:

(a) the new corporation must be regarded as a member of the body corporate (the parent corporation) constituted on the registration of the building development plan; and

(b) the proprietors of the units resulting from the subdivision must not be regarded as members of the parent corporation.

(6) If subsection (5) applies, a reference in this Part to a proprietor constituting the parent corporation:

(a) includes a reference to the new corporation; and

(b) does not include a reference to the proprietors mentioned in subsection (5)(b).

(1) A body corporate that is a proprietor of a unit may appoint a person as its representative for this Part.

(2) The appointment must be made in accordance with the management module that applies to the corporation to which the unit plan for the unit relates.

(3) While the appointment is in force, this Part applies to the representative as if the representative were the proprietor.

(1) A corporation:

(a) has perpetual succession;

(b) shall have a common seal; and

(c) may sue and be sued in its corporate name.

(2) A corporation has the powers, authorities, duties and functions conferred or imposed on it by or under this Act and, subject to this Act, has the control, management and administration of the common property.

(1) The common seal of a corporation shall be kept:

(a) where the corporation is constituted by one proprietor – by that person; or

(b) where the corporation is constituted by 2 or more proprietors – by such proprietor or committee-man as the corporation determines or, in the absence of such determination, by the secretary of the committee.

(2) The common seal of a corporation shall only be affixed to an instrument or document in the presence of:

(a) where the corporation is constituted by one or 2 proprietors – that proprietor or those proprietors, as the case may be; or

(b) where the corporation is constituted by more than 2 proprietors – such 2 persons, being proprietors or committee-men, as the corporation determines or, in the absence of such determination, the secretary and one other committee-man,

who shall attest the fact and date of the affixing of the seal by his signature or their signatures.

(3) Notwithstanding subsections (1) and (2), a committee-man shall, for the purpose of performing a duty or function or exercising a power delegated to him under the management module that applies to the corporation, be entitled to have the custody of the common seal of the corporation and to affix it to an instrument or document and, where he so affixes it, shall attest the fact and date of the affixing of the seal by his signature.

(4) Where a committee-man referred to in subsection (3) has affixed the common seal of the corporation to an instrument or document, he shall be deemed to have done so under the authority of the delegation.

(5) Subsection (4) shall not operate so as to enable a person fraudulently to obtain a benefit from its operation, but a benefit that accrues to a person from the operation of that subsection shall be deemed not to be fraudulently obtained if the benefit was first obtained by that person without fraud by him.

A corporation is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 in relation to the whole of the Corporations legislation to which Part 1.1A of that Act applies.

(1) On and after the constitution of a corporation, there shall be a committee of the corporation which, subject to this Act, shall perform all the duties and functions, and may exercise all the powers, imposed or conferred on the corporation.

(2) Those duties and functions shall be performed and those powers shall be exercised by the committee in such manner as the corporation by resolution passed at a general meeting directs or, in the absence of such a resolution, in such manner as the committee thinks fit.

(1) A corporation shall perform the duties, may exercise the powers, and may perform the functions, imposed or conferred on it by or under this Act.

(2) A corporation may do such things as are incidental or ancillary to the performance of its duties or functions or to the exercise of its powers.

A corporation shall, subject to this Act and the Regulations:

(a) be responsible for the enforcement of its articles and the control, management and administration of the common property;

(b) keep in a state of good repair and properly maintain the common property and all chattels in its possession, custody or control; and

(c) maintain in good repair and proper order and, if renewal is reasonably necessary, renew, all pipes, wires, cables, ducts, and apparatus and equipment of any kind used, or intended, adapted or designed for use, in the provision of services in respect of which easements are created by section 25.

(1) A corporation must open and maintain an account with an ADI into which it must pay all moneys received by it and out of which must be paid all expenditure incurred by it.

(2) Subject to subsection (3), moneys of a corporation may be invested:

(a) in such manner as trust funds may be invested under the Trustee Act 1893; or

(b) in such other manner as is authorised by a special resolution.

(3) Moneys of a corporation shall not be invested in mortgages of land.

(1) A corporation shall, from time to time, determine the amount that it will require by way of contributions from its members to discharge expenditure that it may reasonably be expected to incur, or has incurred, by reason of the performance of the duties and functions and the exercise of the powers imposed or conferred on it by this Act.

(2) A corporation shall, in a determination made under subsection (1), specify the time within which, and the manner in which, contributions so determined are to be paid by its members.

(3) Subject to this section and section 36A, the contribution payable in respect of each unit is such amount as bears to the total amount referred to in the determination the same proportion as the unit entitlement of the unit, as at the date of the determination, bears to the aggregate unit entitlement of all the units as at that date.

(4) Where:

(a) a determination made under subsection (1) relates to expenditure to be incurred by the corporation in discharge of a specified liability; and

(b) before the making of that determination, the corporation has, by a unanimous resolution, resolved that contributions for that expenditure are payable in a proportion other than that specified in subsection (3),

the contribution payable in respect of each unit for that expenditure is such amount as is ascertained in accordance with that resolution.

(4A) If a determination under subsection (1) relates to expenditure to be incurred in discharge of a specified liability imposed on the corporation that has been calculated using a formula, the contribution payable in respect of each unit for that expenditure is to be determined having regard to that formula unless before the making of the determination the corporation has, by a unanimous resolution, resolved otherwise.

(5) The corporation shall cause notice of each determination made under subsection (1) to be given to its members and shall, in the notice given to a member, specify the amount payable by him in respect of his unit and the time within which, and the manner in which, that amount is payable.

(6) If an amount payable in respect of a unit is not paid within the period specified in the notice, that amount is recoverable as a debt due to the corporation from the person who was the proprietor of the unit on the date on which the notice was so given and from the person who is the proprietor of that unit on the date on which the action is instituted.

(7) The liability under subsection (6) is joint and several.

Notwithstanding anything in this Part, moneys due to or held by a corporation immediately before the registration of a units plan relating to a second or subsequent completed stage of a condominium development or estate development shall be apportioned for expenditure on or in relation to the completed units and common property in the condominium development or estate development immediately before the registration of the units plan relating to that second or subsequent completed stage of the condominium development or estate development.

(1) This section applies to the following persons:

(a) the proprietor or mortgagee of a unit; and

(b) a person who produces the consent in writing of the proprietor of a unit to the making of a request under this section.

(2) A person to whom this section applies may request the relevant corporation:

(a) to issue to him within 14 days after the request is received by the corporation, a certificate under the seal of the corporation certifying whether or not any amount that is payable under section 36 by way of contribution in respect of that unit is unpaid on the date of the certificate and, if so, the amount unpaid and the date on or before which the amount is, or will become, due; or

(b) to make, as soon as is reasonably practicable after the request is received by the corporation, the books and records of the corporation available for his inspection and to give him reasonable opportunity to inspect those books and records.

(3) A request under this section shall be in writing.

(4) The corporation is entitled to charge a fee for supplying the certificate or making available the books and records under this section not exceeding the cost to the corporation of providing that service.

(5) If default has been made by a corporation in complying with a request made under this section, each person who was, at the time when the default occurred, a committee-man of the corporation is, unless he proves that he took reasonable steps to ensure that the default did not occur or proves that the default occurred without his knowledge, guilty of an offence.

Maximum penalty: 20 penalty units.

(6) Where a person has acted in good faith on a matter stated in a certificate issued by the corporation under this section, then, in an action by or against the corporation, the corporation is estopped, as against that person, from denying the truth of that or any other matter stated in the certificate.

A corporation shall comply with any reasonable request for the names and addresses of its committee-men.

(1) Except as provided by this section or in the course of, and for the purpose of, exercising its powers and performing its functions and duties, a corporation shall not carry on business.

(1A) A corporation may own, manage, dispose of or otherwise deal with a unit created by the subdivision under Part IIIA of common property, but the corporation shall not have any voting rights in relation to the unit at a meeting of the corporation, neither can it appoint a committee-man by virtue of its ownership of the unit.

(2) If default has been made by a corporation in complying with subsection (1), each person who was, at the time when the default occurred, a committee-man of the corporation is, unless he proves that he took reasonable steps to ensure that the default did not occur or proves that the default occurred without his knowledge, guilty of an offence.

Maximum penalty: 100 penalty units.

A corporation may, if authorised by a resolution without dissent:

(a) borrow moneys required by it for the purpose of performing its duties or functions or exercising its powers; and

(b) secure the repayment of moneys borrowed by it and the payment of interest on those moneys.

(1) If a person who is bound by a provision of the articles of a corporation commits a breach of that provision by act or omission, the corporation may serve upon that person a notice in writing giving particulars of the breach and requiring him to remedy the breach within a reasonable time specified in the notice.

(2) If the person upon whom the notice has been served fails to remedy the breach within the time specified in the notice, the corporation may itself remedy the breach.

(1) A corporation may, if authorised by special resolution:

(a) purchase, hire or otherwise acquire, or accept, personal property (not being a leasehold interest) for its own use or for any use in connection with the use and enjoyment of the common property; and

(b) dispose of any property so purchased, acquired or accepted.

(2) A corporation may, if authorised by resolution without dissent:

(a) grant an easement over any portion of the common property;

(b) acquire or accept an easement granted for the benefit of the common property; or

(c) release an easement so granted, acquired or accepted,

but an easement shall not be so granted, acquired, accepted or released except upon such terms and conditions and for such purposes as are specified in the resolution.

(3) Subject to sections 39(1A) and 42A, a corporation is not capable, either at law or in equity, of acquiring or possessing any interest in land (not being an easement granted for the benefit of the common property).

(1) In this section, land means land held for an estate in fee simple.

(2) A corporation may, if authorised by a resolution without dissent, accept a transfer or grant of land (not being a unit within the parcel) which is contiguous to the parcel but which is not subject to a mortgage, charge or writ, for the purpose of creating additional common property and, upon so doing, shall forthwith cause the dealing evidencing the transaction to be registered under the Land Title Act 2000.

(3) On the registration under the Land Title Act 2000 of a transfer or grant referred to in subsection (2):

(a) the land comprised in the transfer or grant becomes common property and is subject to the provisions of this Act relating to common property; and

(b) the Registrar-General shall make in the Register such recordings in relation to that land as he thinks fit.

(1) A corporation may, if authorised by a resolution without dissent of the corporation, grant a lease of the common property.

(2) An estate management corporation may, if authorised by a special resolution of the corporation, grant a lease of the common property.

(3) A building management corporation may, if authorised by a special resolution of the corporation, grant a lease of the common property.

A corporation may, if authorised by a special resolution, enter into and carry out an agreement with a proprietor or occupier of a unit providing for the repair or maintenance of the unit or for the provision of amenities or services by it to that unit or to that proprietor or occupier.

(1) A corporation may, if authorised by a unanimous resolution or as otherwise prescribed, grant to a member, or any person who has derived an interest in a unit through a member, any special privilege (not being a lease) in respect of the enjoyment of part or parts of the common property.

(2) A grant under subsection (1) may be terminated by notice in writing given by the corporation to the grantee in accordance with a special resolution.

(1) Where a corporation has performed any act which it was required or authorised by its articles or by or under this Act or any other law in force in the Territory to perform, and which related to one unit only or some of the units only, any money expended by the corporation in performing that act is recoverable by the corporation as a debt from the proprietor or proprietors, for the time being, of that unit or those units, as the case may be.

(2) Where the act referred to in subsection (1) related to some of the units only the amount recoverable from a proprietor in respect of a unit bears to the whole amount of the debt the same proportion as the unit entitlement of the unit bears to the aggregate unit entitlement of all those units.

(3) For the purposes of this section:

(a) act includes repairs and work; and

(b) an act shall be deemed to relate to a unit if, but only if, the act is wholly or substantially for the benefit of the unit or wholly or substantially the liability or the responsibility of the proprietor of the unit.

Where a corporation has incurred any expenditure or performed any repairs, work or act that it was required or authorised by its articles or by or under this Act or any other law in force in the Territory to perform, the expenditure, repairs, work or act having been rendered necessary by reason of any wilful or negligent act or omission on the part of, or breach of any provision of its articles by, a member of the corporation, the amount of that expenditure or any money expended by it in performing the repairs, work or act is recoverable by it from that member as a debt.

Where 2 or more persons are proprietors of a unit and an amount is recoverable under section 36 or 45 from the proprietor of that unit, the liability of those persons in respect of the payment of that amount is joint and several.

(1) Notwithstanding anything contained elsewhere in this Act, a corporation shall not, during the initial period:

(a) amend, rescind or add to its articles, or make articles in the place of articles rescinded, in such a manner that a right is conferred or an obligation is imposed on one or more, but not all, proprietors or in respect of one or more, but not all, units;

(b) alter common property forming part of a building, or erect a structure, on the common property; or

(c) borrow moneys or give securities,

unless the doing of that thing is authorised by an order of the Tribunal.

(2) Without affecting any other remedy available against an original proprietor, where a corporation contravenes subsection (1):

(a) the original proprietor is liable for any loss suffered by the corporation or a proprietor as a result of the contravention; and

(b) the corporation or a proprietor may recover from the original proprietor, as damages for breach of statutory duty, any loss suffered by it or him,

unless:

(c) the contravention occurred without the knowledge of the original proprietor;

(d) the original proprietor was not in a position to influence the conduct of the corporation in relation to the contravention; or

(e) the original proprietor, being in such a position, used all due diligence to prevent the contravention.

(3) In this section initial period means the period commencing on the day on which the corporation is constituted and ending on the day on which there are proprietors of units the subject of the units plan (other than the original proprietor) the sum of whose unit entitlements is not less than one third of the aggregate unit entitlement.

(1) The committee-men shall, at the first meeting of a committee after they assume office, appoint a chairman, a secretary and a treasurer of the committee.

(2) A person:

(a) shall not be appointed to an office referred to in subsection (1) unless he is a committee-man; and

(b) may be appointed to one or more of those offices.

(3) A person appointed to an office referred to in subsection (1) shall hold office until:

(a) he ceases to be a committee-man;

(b) the receipt by the corporation from him of notice in writing of his resignation from that office; or

(c) another person is appointed by the committee to hold that office,

whichever first occurs.

(4) The chairman shall preside at all meetings of the committee at which he is present and, if he is absent from a meeting, the committee-men present at that meeting shall appoint one of their number to preside at that meeting during the absence of the chairman.

(5) A person shall not exercise the powers, or perform any of the authorities, duties or functions of the corporation or the treasurer of the corporation, being powers, authorities, duties or functions relating to the receipt or expenditure of, or accounting for, moneys, or the keeping of the books of account, of the corporation, unless he is:

(a) a member of the corporation or a committee-man and is the treasurer of the corporation or of the committee; or

(b) a person with whom the treasurer of the corporation is required by an order of the committee to jointly exercise that power or perform jointly that authority, duty or function, and who is enabling the treasurer to comply with the order.

Maximum penalty: 100 penalty units.

(6) The treasurer of a corporation may delegate the exercise of any of his powers (other than this power of delegation), or the performance of any of his authorities, duties or functions as treasurer, the delegation of which is specifically approved by the committee, to another committee-man so approved, subject to such limitations as to time or otherwise as are so approved and, while a delegate is acting in accordance with the delegation, he shall be deemed to be the treasurer of the corporation.

(7) The committee of a corporation, may by notice in writing served on the treasurer of the corporation, order that he shall not exercise any of his powers, or perform any of his authorities, duties or functions that are specified in the notice, unless he does so jointly with another person so specified.

(8) A person who has possession or control of any:

(a) records, books of account or keys belonging to a corporation; or

(b) other property of a corporation,

shall, within 7 days after service on him of notice of a resolution of the committee requiring him to do so, deliver those records, books of account or keys or that other property to a committee-man specified in the notice.

Maximum penalty: 1 000 penalty units.

(1) Unless otherwise determined pursuant to a special resolution of the corporation, a committee shall not, in any one case, undertake expenditure exceeding the amount determined under section 36(1).

(1A) Notwithstanding subsection (1), a corporation or committee shall not cause an improvement to be made to the common property that, in any one case, exceeds the prescribed amount (or where no amount is prescribed, exceeds the amount calculated by multiplying 300 monetary units by the number of units) unless:

(a) it does so in pursuance of a resolution passed in general meeting without dissent; or

(b) it resolves by special resolution in general meeting that the improvement is essential for the health, safety or security of users of the common property; or

(c) it does so to comply with a notice or order served on it by a public authority or local government council.

(2) Where proposed expenditure would exceed an amount referred to in subsection (1), the committee shall:

(a) submit the proposal for determination at an extraordinary general meeting of the corporation convened for the purpose of, or for purposes which include, consideration of the proposal; and

(b) if the proposed expenditure is in respect of work to be performed or the purchase of personal property, submit at least 2 tenders to that meeting with the proposal.

(3) Subsection (1) does not apply to the expenditure of moneys:

(a) in payment of a premium of insurance effected by or on behalf of the corporation; or

(b) to comply with a notice or order served on the corporation by a public authority or local government council; or

(c) in discharge of a liability incurred in respect of an obligation of the corporation authorised by the corporation in general meeting.

No act done in good faith by the committee is invalidated merely by reason of the fact that at the relevant time there was some defect in the appointment or continuance in office of a committee-man.

(1) The regulations may:

(a) prescribe management modules for corporations; and

(b) provide for the application to a corporation of a management module; and

(c) make other provisions (such as transitional provisions) for the application.

(2) A management module must specify:

(a) how a corporation may make a decision (including, for example, requirements about meetings and voting of the committee of the corporation); and

(b) the records that must be kept by the corporation; and

(c) any other requirements about the management of the corporation.

(3) Without limiting subsection (1)(c), the regulations may provide:

(a) for a specified period after the commencement of this section – the application to a corporation of this Part as in force before the commencement; and

(b) the application of a management module to the corporation after the end of the period.

On and after the constitution of a corporation by section 27, the articles set out in Schedule 1 shall, subject to any amendment or rescission of, or addition to, those articles made under section 78, be the articles of the corporation.

(1) The corporation and each of the members of the corporation are bound by, and have the rights conferred by, the articles of the corporation to the same extent as if:

(a) the corporation and each member had agreed under seal with each other and each other member to be bound by the articles; and

(b) the articles contained covenants on the part of the corporation and each member to observe all the provisions of the articles.

(2) Unless the articles of the corporation otherwise provide, an occupier of a unit, not being the proprietor of the unit, is bound by the articles of the corporation as if he were the proprietor of the unit.

(1) A corporation may, by special resolution, alter its articles by amending, rescinding or adding to its articles or by making articles in the place of articles rescinded.

(2) Subject to subsection (3) an alteration of the articles of a corporation under subsection (1):

(a) has no force or effect unless a copy of the special resolution making the alteration, certified under the seal of the corporation as a true copy, is lodged with and registered by the Registrar-General; and

(b) has force and effect on and from the date of its registration or such later date as is fixed by the special resolution.

(3) To the extent that an alteration of the articles of a corporation made under subsection (1) or (2) results in a provision of the articles:

(a) being inconsistent with this Act other than a provision in Schedule 1;

(b) imposing a duty or conferring a power on the corporation which is not incidental or ancillary to the performance of the duties or functions, or the exercise of the powers, imposed or conferred on it by this Act; or

(c) prohibiting or restricting the devolution, transfer, lease or mortgage of, or any other dealing with:

(i) an interest in a unit; or

(ii) the equitable estate of the proprietor of a unit in the common property,

the alteration has no force or effect.

(1) Where a unit or common property the subject of a units plan is leased, otherwise than to a proprietor of a unit, for the purpose of its being used as, or in connection with, a residence, the lessor shall, within 7 days after the lessee's becoming entitled under the lease to possession of the unit or common property, provide the lessee, in accordance with subsection (2), with a copy of the articles of the corporation for the time being in force in respect of the units plan.

Maximum penalty: 20 penalty units.

(2) A lessee is provided with a copy of the articles in accordance with this section if the copy is:

(a) in any case, served personally on the lessee;

(b) where the lease relates to a unit or common property that is fully enclosed by walls or other structures – left in a conspicuous position at the unit or on the common property; or

(c) where the lease relates to a unit – served by leaving it with a person, who apparently has attained the age of 16 years, at the address of the unit or by posting it by prepaid post to the lessee at that address.

(1) The Interpretation Act 1978 applies to and in relation to the articles of a corporation as if the articles were an Act and as if each article were a section of an Act.

(2) Expressions used in the articles of a corporation have, unless the contrary intention appears, the same meaning as in this Act.