Chapter 6 Dispute resolution

In this chapter—

dispute see section 227.

occupier, of a lot, means a person in the person’s capacity as the occupier of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

owner, of a lot, means a person in the person’s capacity as the owner of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

(1) A dispute is a dispute between—

(a) the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or

(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or

(c) the body corporate for a community titles scheme and a body corporate manager for the scheme; or

(d) the body corporate for a community titles scheme and a caretaking service contractor for the scheme; or

(e) the body corporate for a community titles scheme and a service contractor for the scheme, if the dispute arises out of a review carried out, or required to be carried out, under chapter 3, part 2, division 7; or

(f) the body corporate for a community titles scheme and a letting agent for the scheme; or

(g) the body corporate for a community titles scheme and a member of the committee for the body corporate; or

(h) the committee for the body corporate for a community titles scheme and a member of the committee; or

(i) the body corporate for a community titles scheme and a former body corporate manager for the scheme about the return, by the former body corporate manager to the body corporate, of body corporate property; or

(j) if the dispute is about access by an interested person (layered arrangement) to the records of a body corporate for a community titles scheme in a layered arrangement of community titles schemes—the person and the body corporate; or

(k) if the dispute is about the giving of documents or material required to be given to a body corporate for a community titles scheme by an original owner under this Act—the body corporate and the original owner for the scheme.

(2) An application by a person mentioned in subsection (1)(a) to (h) for a declaratory order about the operation of this Act is also a dispute even if there is no respondent or affected person for the application.

Example for subsection (2)—

an application by a body corporate for an order declaring the financial year for the body corporate

(3) If a community titles scheme is included in a layered arrangement of community titles schemes, a dispute between the following parties is also a dispute if the dispute relates to by-laws that are binding on both parties and the person commencing the proceeding is directly and materially affected by the subject of the dispute—

(a) the owner or occupier of a lot included in the community titles scheme and the owner or occupier of a lot in another community titles scheme that is included in the layered arrangement;

(b) the body corporate for the community titles scheme and another body corporate that is included in the layered arrangement;

(c) the body corporate for the community titles scheme and the owner or occupier of a lot in another community titles scheme that is included in the layered arrangement.

(4) An adjudication application made by a body corporate for an alternative insurance order is also a dispute.

(1) This chapter establishes arrangements for resolving, in the context of community titles schemes, disputes about—

(a) contraventions of this Act or community management statements; and

(b) the exercise of rights or powers, or the performance of duties, under this Act or community management statements; and

(c) the adjustment of lot entitlement schedules; and

(d) matters arising under the engagement of persons as body corporate managers, the engagement of certain persons as service contractors, and the authorisation of persons as letting agents.

(1A) Subsection (1)(c) applies subject to sections 47AA and 412.

(2) Also, this chapter authorises the provision of education and information services aimed at promoting the avoidance of disputes.

(1) Subsections (2) and (3) apply to a dispute if it may be resolved under this chapter by a dispute resolution process.

Notes—

1 For a dispute about a body corporate decision under section 47A, see section 47AA.

2 For disputes about a decision of a body corporate committee under section 410, or a body corporate decision under section 411, see section 412 (5).

(2) The only remedy for a complex dispute is—

(a) the resolution of the dispute by—

(i) an order of a specialist adjudicator under chapter 6; or

(ii) an order of QCAT exercising the tribunal’s original jurisdiction under the QCAT Act; or

(b) an order of the appeal tribunal on appeal from a specialist adjudicator or QCAT on a question of law.

(3) Subject to section 229A, the only remedy for a dispute that is not a complex dispute is—

(a) the resolution of the dispute by a dispute resolution process; or

(b) an order of the appeal tribunal on appeal from an adjudicator on a question of law.

(4) However, subsections (2) and (3) do not apply to a dispute if—

(a) an application is made to the commissioner; and

(b) the commissioner dismisses the application under part 5.

(5) Also, subsections (2) and (3) do not limit—

(a) the powers of QCAT under the QCAT Act to—

(i) refer a question of law to the Court of Appeal; or

(ii) transfer a proceeding, or a part of a proceeding, to the Court of Appeal; or

(b) the right of a party to make an appeal from QCAT to the Court of Appeal under the QCAT Act.

(1) A claim to recover a debt the subject of a debt dispute that is a claim under the Queensland Civil and Administrative Tribunal Act 2009, schedule 3, definition minor civil dispute, paragraph 1(a) is, under paragraph 2 of that definition, a minor civil dispute.

(2) Subsection (1) does not affect a body corporate’s right to start proceedings in a court of competent jurisdiction to recover a debt the subject of a debt dispute.

(3) To remove any doubt, it is declared that an adjudicator does not have jurisdiction in a debt dispute.

(4) A dispute resolution process does not apply to a debt dispute or a related dispute to a debt dispute once a proceeding to recover the debt the subject of the debt dispute is started before QCAT or in a court of competent jurisdiction.

(5) If—

(a) a dispute resolution process has started for a debt dispute or a related dispute to a debt dispute; and

(b) a proceeding to recover the debt the subject of the debt dispute is subsequently started before QCAT or in a court of competent jurisdiction;

the dispute resolution process is at an end.

(6) A dispute is a related dispute to a debt dispute if—

(a) the subject matter of the dispute is related to the subject matter of the debt dispute; and

(b) there are proceedings in a court or before QCAT to recover the debt the subject of the debt dispute; and

(c) the commissioner considers that the dispute and the debt dispute are connected in a way that makes it inappropriate for the dispute to be dealt with by a dispute resolution process.

(7) In this section—

debt dispute means a dispute between a body corporate for a community titles scheme and the owner of a lot included in the scheme about the recovery, by the body corporate from the owner, of a debt under this Act.

(1) This chapter provides for the establishment of the office of commissioner for body corporate and community management for providing education and information services and managing the dispute resolution process.

(2) This chapter also provides for the appointment of dispute resolution officers to settle individual disputes.

(3) The main elements of the dispute resolution process provided for in this chapter are—

• applications to the commissioner

• dispute resolution recommendations, especially at the preliminary stage of the dispute resolution process

• mediation, conciliation and adjudication

• orders, including interim orders, by adjudicators

• enforcement of orders through a Magistrates Court

• appeals to the appeal tribunal on questions of law.

Part 2 Commissioner for body corporate and community management

(1) There is to be a commissioner for body corporate and community management.

(2) The commissioner is appointed under the Public Sector Act 2022.

(3) A person may hold the office of commissioner as well as another position under the Public Sector Act 2022.

(1) The commissioner has responsibility for the administration of this chapter.

(2) In particular, the commissioner has responsibility for providing, under this chapter, a dispute resolution service.

(3) The commissioner may also provide an education and information service for helping—

(a) lot owners, bodies corporate and other persons who have rights and obligations under this Act to become aware of the rights and obligations; and

(b) members of the public to become aware of the rights and obligations under this Act of persons mentioned in paragraph (a); and

(c) dispute resolution officers to increase their proficiency.

(4) The commissioner is subject to the direction of the chief executive in administering this chapter, but must act independently, impartially and fairly in making decisions about particular persons.

Example for subsection (4)—

The commissioner must act independently in making a dispute resolution recommendation for a particular application.

(5) Once an application is referred to an adjudicator, the commissioner has no role in relation to the substance of the dispute or the outcome sought by the application.

(6) Subsection (5) does not affect the exercise of a power by the commissioner under section 239C or 294A (2)(a).

(1) The commissioner may make practice directions for internal dispute resolution and the dispute resolution service.

(2) Without limiting subsection (1), practice directions may be made about all or any of the following—

(a) the contents of—

(i) applications; or

(ii) documents supporting applications; or

(iii) submissions to the commissioner about applications;

(b) dispute resolution recommendations;

(c) procedures for conducting the dispute resolution service.

(3) The doing of anything by a person for internal dispute resolution or the dispute resolution service is subject to a practice direction about doing the thing.

(4) To remove any doubt, it is declared that a practice direction is not subordinate legislation.

In performing official functions under this chapter, the commissioner has the privileges and immunities from liability a magistrate has in exercising the jurisdiction of a Magistrates Court.

(1) The commissioner may delegate a power the commissioner has under this chapter to a public service employee who is appropriately qualified to exercise the power delegated.

(2) Also, the commissioner may delegate a power the commissioner has under parts 5 to 9 to—

(a) an adjudicator appointed for specialist adjudication; or

(b) another adjudicator who is not a public service employee.

(3) A delegation under subsection (2) may only be made on a case by case basis.

Part 3 Dispute resolution officers

(1) The chief executive must appoint appropriately qualified persons as department conciliators and department adjudicators (department appointees) for conducting the dispute resolution service.

(2) A department appointee—

(a) is appointed under the Public Sector Act 2022; and

(b) may hold the office of department appointee as well as an appointment to perform another role under that Act; and

(c) is appointed for conducting the dispute resolution processes stated in the appointment for applications referred to the department appointee.

(3) Also, the chief executive may enter into a contract with an appropriately qualified person under which the person—

(a) agrees to provide department adjudication or department conciliation; and

(b) is appointed as a department adjudicator for conducting department adjudication, or as a department conciliator for conducting department conciliation, for applications referred to the person while the contract is in force.

(4) A person appointed under subsection (3) is appointed under this Act and not the Public Sector Act 2022.

(5) A person may be appointed under this section for conducting both department conciliation and department adjudication.

Note—

See, however, section 267 (2).

(6) A person is appointed for specialist mediation, specialist conciliation or specialist adjudication, in the way provided in this chapter, only on a case by case basis.

Note—

Part 7 deals with specialist mediation and conciliation and part 8 deals with specialist adjudication.

(7) In this section—

appropriately qualified, for appointment to conduct a dispute resolution process, means having the qualifications, experience or standing appropriate for conducting the dispute resolution process.

In performing functions under this chapter, a dispute resolution officer has the privileges and immunities from liability a magistrate has in exercising the jurisdiction of a Magistrates Court.

Part 4 Applications

Division 1 Application

(1) A person, including the body corporate for a community titles scheme, may make an application if the person—

(a) is a party to, and is directly concerned with, a dispute to which this chapter applies; and

(b) other than a body corporate who makes an adjudication application for an alternative insurance order—has made reasonable attempts to resolve the dispute by internal dispute resolution.

(2) This section is subject to sections 183A and 184 to 186.

(1) An application must be—

(a) made in the approved form; and

(b) given to the commissioner; and

(c) accompanied by the fee prescribed under a regulation, to the extent the fee is not waived under subsection (3) or (4).

(2) If the application is for an outcome affecting owners or occupiers of lots included in the scheme generally, or a particular class of the owners or occupiers, the application may identify the affected persons as the owners or occupiers generally, or by reference to the class, instead of stating the persons’ names and addresses.

(3) The commissioner may waive payment of the fee mentioned in subsection (1)(c) if the commissioner is satisfied payment of the fee would cause the applicant financial hardship.

(4) Also, the commissioner may waive the fee mentioned in subsection (1)(c)—

(a) for a conciliation application—if the commissioner rejected the applicant’s adjudication application for the same dispute under section 241 (1)(c)(ii); or

(b) for an adjudication application—if the commissioner rejected the applicant’s conciliation application for the same dispute under section 241 (1)(b).

The approved form for a conciliation application must provide for each of the following matters to be stated in the form—

(a) the outcome sought by the application;

(b) the name and address of—

(i) the respondent to the application; and

(ii) if neither paragraph (c) nor (d) applies—each affected person for the application;

(c) if the application is for an outcome affecting owners or occupiers of lots included in a community titles scheme generally—a statement to that effect;

(d) if the application is for an outcome affecting a particular class of the owners or occupiers—a sufficient identification of the affected persons for the application by reference to the class;

(e) a brief summary of the background to the dispute;

(f) how the applicant has attempted to resolve the dispute by internal dispute resolution.

The approved form for an adjudication application, other than an application for an order approving alternative insurance, must provide for each of the following matters to be stated in the form—

(a) the outcome sought by the application;

(b) the name and address of—

(i) the respondent to the application; and

(ii) if neither paragraph (c) nor (d) applies—each affected person for the application;

(c) if the application is for an outcome affecting owners or occupiers of lots included in a community titles scheme generally—a statement to that effect;

(d) if the application is for an outcome affecting a particular class of the owners or occupiers—a sufficient identification of the affected persons for the application by reference to the class;

(e) the grounds, in detail, on which the outcome is sought;

(f) whether the applicant has attempted to resolve the dispute by either or both of the following—

(i) internal dispute resolution;

(ii) department conciliation.

The approved form for an adjudication application for an order approving alternative insurance must require the applicant to provide details of—

(a) the alternative insurance the applicant proposes to put in place; and

(b) the grounds on which the application is made.

Note—

Section 281A states the matters an adjudicator must be satisfied of before making an order approving alternative insurance.

(1) This section applies if a party to an application stops being a relevant person for the application before it is disposed of under this chapter.

(2) Unless someone else is substituted as the relevant person under subsection (3), the application continues subject to this chapter as if the party continued to be the relevant person for the application.

(3) If the commissioner reasonably considers it appropriate, the commissioner may, by written notice given to each party to the application, substitute another person as the relevant person for the application.

(4) It is sufficient for giving a notice to a person under subsection (3) if the notice is sent to the person’s address that is last known to the commissioner.

(5) If the commissioner substitutes another person (the substitute person) as the relevant person for the application, the commissioner must give a QCAT information notice to—

(a) the applicant for the application; and

(b) the substitute person.

(6) If a party to a conciliation application stops being a relevant person for the application after it is made, the commissioner may allow an adjudication application for the same dispute to be made as if the party were the relevant person for the adjudication application.

(7) To remove any doubt, it is declared that nothing in this section prevents—

(a) the commissioner from rejecting an application under section 241; or

(b) an adjudicator from making an order dismissing an adjudication application under section 270.

(1) After receiving the application, the commissioner may require the applicant to give further information or material about the application to help the commissioner decide the further action to be taken on the application.

Examples—

1 The commissioner may require the application to be amended to more accurately identify respondents to, or affected persons for, the application.

2 The commissioner may require the applicant to give the commissioner a copy of the applicant’s correspondence to the committee for the body corporate showing the applicant’s attempts to resolve the dispute by internal dispute resolution.

(2) A requirement under subsection (1)—

(a) may require the information to be verified by statutory declaration; and

(b) must state the period within which the information or material must be given to the commissioner.

(1) The commissioner may reject an application if—

(a) the outcome sought is not within the jurisdiction of a dispute resolution officer; or

(b) for a conciliation application—the commissioner considers the dispute is not appropriate for department conciliation; or

(c) the commissioner reasonably believes the applicant has not made a reasonable attempt to resolve the dispute by—

(i) for a conciliation application—internal dispute resolution; or

(ii) for an adjudication application, other than an application for an order approving alternative insurance—internal dispute resolution or department conciliation; or

(d) the applicant fails, without reasonable excuse, to comply with a practice direction made under section 233 about internal dispute resolution; or

(e) the applicant fails, without reasonable excuse, to comply with a requirement of the commissioner under section 240 (1) about the application; or

(f) the commissioner is satisfied—

(i) a party to the application is no longer a person mentioned in section 227 (1) for the dispute the subject of the application; and

(ii) the outcome sought by the application is no longer relevant or required; or

(g) the subject of the application is a debt dispute, and a proceeding between the parties to the application has been started before QCAT or in a court of competent jurisdiction in relation to the subject matter of a debt dispute; or

(h) the subject of the application is a related dispute to a debt dispute.

(2) The commissioner may also reject an application if—

(a) the commissioner—

(i) reasonably considers the applicant does not wish to proceed with the application; and

(ii) by written notice, informs the applicant that the application may be rejected unless the applicant, within 28 days after receiving the notice, advises the commissioner that the applicant wishes to proceed; and

(b) the applicant—

(i) advises the commissioner that the applicant does not wish to proceed; or

(ii) does not respond to the notice within the period mentioned in paragraph (a)(ii).

(3) To remove any doubt, it is declared that the commissioner may accept an application that the commissioner may reject under subsection (1)(c) or (d) if the commissioner considers the acceptance appropriate in the circumstances.

Examples of circumstances—

• the application is for a declaratory order, or for authorisation for emergency expenditure

• there is a threat of violence between the parties to the application

If the commissioner decides to reject an application, the commissioner must immediately give the applicant a QCAT information notice.

(1) This section applies to an adjudication application for an order declaring void—

(a) a meeting of the committee for the body corporate, or a general meeting of the body corporate; or

(b) a resolution of the committee or body corporate; or

(c) a decision of the body corporate for a specified two-lot scheme made by a lot owner agreement; or

(d) the election of an executive or other member of the committee.

(2) The adjudication application must be made within 3 months after—

(a) if subsection (1)(a) applies—the meeting; or

(b) if subsection (1)(b) applies—the meeting at which the resolution was passed or purported to be passed; or

(c) if subsection (1)(c) applies—the day when the lot owner agreement was made; or

(d) if subsection (1)(d) applies—the meeting at which the executive or other member was elected.

(3) A person is taken to have complied with subsection (2) for a dispute if the person made a conciliation application for the same dispute within the time mentioned in the subsection for the dispute.

(4) However, if the making of the adjudication application does not comply with subsection (2)—

(a) the commissioner must deal with the application (including making a dispute resolution recommendation for the application) as if the making of the application complied with subsection (2); and

(b) an adjudicator to whom the application is referred for specialist or department adjudication may, for good reason, waive the noncompliance.

Division 2 Initial action on application

Subdivision 1 Conciliation application

If the commissioner accepts a conciliation application, the commissioner must refer the application to a department conciliator for department conciliation under the provisions of this chapter applying to the conciliation.

Subdivision 2 Adjudication application

In this subdivision—

application means an adjudication application.

(1) Subject to section 243A and section 243B, the commissioner must give written notice (the original notice) of the application to—

(a) the respondent to the application; and

(b) the body corporate; and

(c) each affected person who is not entitled to be given a copy of the notice under subsection (4).

(2) The original notice must—

(a) include a copy of the application; and

(b) invite each person who is given the original notice, or a copy of it under subsection (4), to make written submissions to the commissioner about the application within a stated time.

(3) The commissioner may extend the time for making the submissions by a further notice given in the way the original notice was given, and to the persons to whom the original notice was given.

(4) Unless the commissioner has advised the body corporate otherwise, the body corporate must, within the shortest practicable time after receiving the original notice, give—

(a) a copy of the original notice, including a copy of the application, to each person whose name appears on the roll as the owner of a lot included in the scheme; and

(b) a written notice (confirmation notice), as required under this section, to the commissioner.

Maximum penalty—20 penalty units.

(5) The confirmation notice must—

(a) state—

(i) the persons to whom the body corporate gave a copy of the original notice; and

(ii) when the copy was given; and

(b) if requested by the commissioner, be verified by statutory declaration.

(1) This section applies if the commissioner reasonably considers—

(a) an application should be immediately referred to a dispute resolution officer because it relates to emergency circumstances; and

Example of emergency circumstances—

a burst water pipe the repair or replacement cost of which exceeds the body corporate committee’s expenditure limit under the regulation module applying to the scheme

(b) it is not appropriate to deal with the application under section 247.

(2) The commissioner may immediately refer the application to a dispute resolution officer without giving written notice as mentioned in section 243 (1).

(1) This section applies if an application is an adjudication application for an alternative insurance order.

(2) The commissioner may immediately refer the application to an adjudicator without giving written notice under section 243 (1).

(1) This section applies if 1 or more persons are invited under section 243 (2)(b) to make submissions in response to the application.

(2) The commissioner must give written notice to the applicant advising that if the applicant wishes to reply to any of the submissions, the applicant must, within the period stated in the notice—

(a) apply to the commissioner to inspect the submissions; and

(b) make a written reply.

(3) The notice must state that the reply must be given to the commissioner and may only relate to issues raised by the submissions.

(4) The commissioner, by written notice given to the applicant, may extend the period for making the reply.

(1) The applicant may, with the commissioner’s permission, change the application at any time before the commissioner makes an initial dispute resolution recommendation under part 5.

(2) The commissioner has a discretion to give or withhold permission and, if the commissioner gives permission, the commissioner may impose conditions.

Example—

If the change substantially affects the nature of the application or the outcome sought, the commissioner may permit the change on conditions providing for further written notice of the amended application, on terms decided by the commissioner, to be given to the respondent, each affected person and the body corporate and allowing a further opportunity to make written submissions on the changed application.

(3) If the commissioner withholds permission to change the application, or imposes conditions on the permission to change the application, the commissioner must give the applicant a QCAT information notice.

(4) The application may be withdrawn by the applicant at any time before it is disposed of under this chapter.

(1) The commissioner must, on application by an interested person for an application—

(a) allow the person to inspect all or any of the following—

(i) the application;

(ii) submissions made about the application;

(iii) the applicant’s reply to the submissions; or

(b) give the person copies of all or any of the documents mentioned in paragraph (a).

(2) An application under this section must be written and accompanied by the fee prescribed under a regulation.

(3) In this section—

interested person, for an application, means—

(a) the applicant, the respondent or an affected person; or

(b) the body corporate or a member of its committee; or

(c) a person who has made a submission on the application.

(1) This section applies if the commissioner reasonably considers that an application for an interim order should be referred to a conciliator or an adjudicator because of the nature or urgency of the circumstances to which the application relates.

(2) The commissioner may refer the application to—

(a) a department conciliator for department conciliation; or

(b) an adjudicator for adjudication under this chapter.

(3) The referral may be made even though—

(a) notice of the application has not been given under section 243; or

(b) all persons entitled, under that section, to make submissions about the application have not had an opportunity to make submissions.

Part 5 Dispute resolution recommendations

(1) The commissioner may make 1 or more dispute resolution recommendations for an application after the application is made and before it is resolved by a dispute resolution process.

(2) However, the commissioner must not make a dispute resolution recommendation after the commissioner refers the application to a dispute resolution officer, unless the dispute resolution officer refers the application back to the commissioner.

(3) A dispute resolution recommendation must be for 1 of the following dispute resolution processes—

(a) department conciliation;

(b) dispute resolution centre mediation;

(c) specialist mediation;

(d) specialist conciliation;

(e) department adjudication;

(f) specialist adjudication.

(4) If the commissioner has made a dispute resolution recommendation for the application, a further recommendation may be that the application be the subject of the same type of dispute resolution process or a different type.

(5) If an application for an interim order has been referred back to the commissioner under section 279 (4), the commissioner may make a dispute resolution recommendation that the application be the subject of department conciliation without giving written notice as mentioned in section 243 (1).

(1) This section applies if—

(a) the initial dispute resolution process for an application was specialist conciliation; and

(b) a further dispute resolution recommendation is that the application be the subject of department or specialist adjudication; and

(c) the person who conducted the conciliation is an adjudicator.

(2) The adjudicator may be the same person who conducted the conciliation, if, at the end of the conciliation, all parties to the application consent to the person being the adjudicator.

(1) Instead of making a dispute resolution recommendation for an application, the commissioner may dismiss the application.

(2) The commissioner may dismiss the application only if the commissioner is satisfied that the dispute should be dealt with in a court or tribunal of competent jurisdiction.

(3) Also, for an adjudication application, the commissioner may dismiss the application if—

(a) the application is accompanied by an explanation why the dispute the subject of the application should be dealt with by a stated alternative process; and

(b) the parties to the application agree that the dispute be dealt with by the alternative process; and

(c) the commissioner is satisfied, having regard to the nature of the dispute, that the dispute may be dealt with by the alternative process.

(4) If the commissioner dismisses the application, the commissioner must give each party to the application a certificate in the approved form evidencing the dismissal.

(5) In this section—

alternative process, for a dispute, means—

(a) a process of a court or tribunal having jurisdiction to deal with the dispute; or

(b) another process capable of dealing with the dispute and binding the parties.

(1) Before deciding on a dispute resolution recommendation for an application, or dismissing an application, the commissioner may seek the views of each interested person, to the extent the commissioner considers appropriate.

(2) Also, before deciding on a dispute resolution recommendation for the application, or dismissing the application, the commissioner may do all or any of the following—

(a) require an interested person to obtain, and give to the commissioner, a report or other information;

Example—

an engineering report

(b) interview persons the commissioner considers may be able to help in resolving issues raised by the application;

(c) inspect, or enter and inspect—

(i) a body corporate asset or record or other document of the body corporate; or

(ii) common property (including common property the subject of an exclusive use by-law); or

(iii) a lot included in the scheme.

(3) Action the commissioner takes under subsections (1) and (2) must be for the purpose only of deciding—

(a) on the dispute resolution recommendation the commissioner considers to be most likely to promote a quick and efficient resolution for the application; or

(b) whether to dismiss the application.

(4) If a place to be entered under subsection (2)(c) is occupied, the commissioner may enter only with the owner’s consent and, in seeking the consent, must give reasonable notice to the occupier of the time when the commissioner wishes to enter the place.

(5) If a place to be entered under subsection (2)(c) is unoccupied, the commissioner may enter only with the owner’s consent and, in seeking the consent, must give reasonable notice to the owner of the time when the commissioner wishes to enter the place.

(6) The body corporate or someone else who has access to the body corporate’s records must, if asked by the commissioner and without payment of a fee, do either or both of the following—

(a) allow the commissioner access to the records within 24 hours after the request is made;

(b) give the commissioner copies of the records or allow the commissioner to make the copies.

Maximum penalty—20 penalty units.

(7) A person who fails to comply with a requirement under subsection (2)(a), or obstructs the commissioner in exercising a power under this section, commits an offence unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

(8) It is a reasonable excuse for a person not to comply with a requirement mentioned in subsection (7) to give information or a document, if giving the information or document might tend to incriminate the person.

(9) In this section—

interested person means—

(a) a party to the application; or

(b) an affected person; or

(c) the body corporate.

(1) The commissioner may make a recommendation that an application be the subject of specialist mediation, specialist conciliation or specialist adjudication if the commissioner may make the recommendation under the conditions applying under this chapter to the making of the recommendation.

(2) However, the commissioner must make the recommendation if—

(a) the parties ask for it to be made; and

(b) the commissioner may make it under the conditions applying under this chapter to the making of the recommendation.

Part 5A Department conciliation

The purpose of this part is to provide for department conciliation to resolve disputes as quickly and with as little formality and technicality as possible.

The functions of a department conciliator are—

(a) to encourage the settlement of disputes by facilitating and helping the conduct of negotiations between parties to applications; and

(b) to promote the parties’ open exchange of information relevant to the dispute; and

(c) to give the parties information about the operation of this Act relevant to the dispute; and

(d) to help in the settlement of the dispute in any other way.

(1) This section applies if the commissioner—

(a) decides under section 247 to refer an adjudication application to a department conciliator for department conciliation; or

(b) makes a recommendation under section 248 that an adjudication application be the subject of department conciliation.

(2) The commissioner must refer the application to a department conciliator as soon as practicable after making the decision or recommendation.

(1) This section applies to a department conciliator to whom—

(a) a conciliation application is referred under section 242A; or

(b) an adjudication application is referred under section 247 or 248.

(2) Subject to subsection (3), the department conciliator must start the department conciliation session as soon as practicable after the referral.

(3) If the application is a conciliation application that was not accompanied by a fee required under section 239 (1)(c), the department conciliator may delay starting the conciliation session until the fee is paid.

(1) The department conciliation session must be conducted—

(a) in the way the department conciliator considers appropriate; and

(b) as quickly and with as little formality and technicality as possible.

(2) The department conciliator, as the department conciliator considers appropriate, may accept written material from any person and distribute written material to any person for the purpose of the conciliation.

(3) A person who is not a party to the application may attend and take part in the department conciliation session if the department conciliator is satisfied the person may help to resolve the dispute.

(4) A person may use an interpreter in a department conciliation session.

(5) Evidence of anything said or done about the dispute in a department conciliation session is inadmissible in a proceeding.

(6) A department conciliation session may be terminated at any time by the department conciliator.

(1) A party to the application may be represented by an agent at the department conciliation session if the department conciliator approves and is satisfied an agent should be permitted to help the conciliation process.

(2) Subsection (1) does not stop the following from representing the party mentioned—

(a) if the party is a corporation under the Corporations Act —an officer of the corporation;

(b) if the party is the body corporate for the community titles scheme—not more than 2 individuals, each of whom is an owner of a lot included in the community titles scheme or a committee voting member;

(c) if the party is a corporate entity not mentioned in paragraph (a) or (b)—an agent appointed by the entity.

(3) The approval may be given without conditions or on the conditions the department conciliator considers reasonable to ensure no other party to the application is unfairly disadvantaged by the agent appearing at the session.

(4) If the approval is given on conditions, the party’s entitlement to be represented by an agent is subject to the agent complying with the conditions.

(1) If the body corporate for the community titles scheme is a party to the application, a committee voting member may be appointed as an agent for the body corporate if authorised in writing by a majority of the committee voting members.

(2) The regulation module applying to the scheme, to the extent it provides for a procedure for making the appointment, does not apply to the appointment.

(3) In acting as agent for the body corporate, the committee voting member may do anything the committee may do under the regulation module, unless the doing of the thing is limited or prohibited by the committee voting member’s authorisation.

(4) This section does not apply if representation of the body corporate by an agent is a restricted issue for the committee under the regulation module applying to the scheme.

(1) The department conciliator must refer the application back to the commissioner if the conciliator considers there is no further action the conciliator can take in the department conciliation session because, for example—

(a) a party to the application does not make reasonable attempts to participate in the session; or

(b) a party to the application does not attend or withdraws from the session; or

(c) no agreement is reached at the session; or

(d) agreement is reached at the session; or

(e) the department conciliator reasonably believes the matter is not appropriate for department conciliation; or

(f) the subject of the application is a debt dispute, and a proceeding between the parties to the application has been started before QCAT or in a court of competent jurisdiction in relation to the subject matter of a debt dispute; or

(g) the subject of the application is a related dispute to a debt dispute.

(2) In referring the application back to the commissioner under subsection (1), the department conciliator must inform the commissioner of the reason for the referral.

(3) The department conciliator must give the applicant a certificate signed by the conciliator stating—

(a) that the application has been referred back to the commissioner; and

(b) the reason for the referral.

(1) An agreement reached at the department conciliation session must be written and signed by each party to the application and the department conciliator.

(2) The department conciliator must give a copy of the signed agreement to—

(a) each party to the application; and

(b) the commissioner.

(3) If there is an inconsistency between the agreement and this Act, the agreement is ineffective to the extent of the inconsistency.

(4) Subject to section 252J (2), if each party to the application consents, the department conciliator must refer the agreement to the commissioner for referral to an adjudicator for a consent order.

(5) If the agreement is referred to the commissioner under subsection (4), the commissioner must refer it to an adjudicator for a consent order under section 276 (5).

(1) This section applies if—

(a) an agreement reached at the department conciliation session is signed by a committee voting member appointed as agent for the body corporate for the community titles scheme under section 252G (1); and

(b) each party to the application consents to the agreement being referred to an adjudicator for a consent order.

(2) The agreement may be referred to the commissioner under section 252I (4) only if, within 30 days after the agreement is made, the body corporate gives the department conciliator written notice stating that the committee—

(a) has ratified the agreement; and

(b) has given a copy of the agreement to each lot owner; and

(c) has not received a notice of opposition to the agreement.

(3) In this section—

notice of opposition, to the agreement, means a notice opposing the agreement signed by or for the owners of at least one-half of the lots included in the scheme.

(1) If an application is referred to the commissioner under section 252H (1), the commissioner must, by written notice given to the applicant, end the department conciliation.

(2) The notice must state that the department conciliation has ended and the day on which it ended.

(1) This section applies to a person who—

(a) is, or has been, a department conciliator; and

(b) in that capacity acquired information under this part about someone else.

(2) The person must not disclose the information to anyone else.

Maximum penalty—20 penalty units.

(3) Subsection (2) does not apply to the disclosure of information about a person—

(a) with the person’s consent; or

(b) for statistical purposes, if the disclosure is made to a public service employee in the department and does not reveal the identity of the person; or

(c) for the purpose of the department conciliation session during which the information was obtained; or

(d) if the disclosure is reasonably necessary because there is a serious threat to personal property or safety; or

(e) for an investigation or proceeding for an offence against this Act; or

(f) if the disclosure or giving of access is otherwise required under an Act.

Part 6 Dispute resolution centre mediation

The purpose of this part is to provide for what happens if the commissioner, in making a dispute resolution recommendation for an application, recommends that the application be the subject of dispute resolution centre mediation.

(1) As soon as practicable after making a recommendation that the application be the subject of dispute resolution centre mediation, the commissioner must refer the application to the director of—

(a) the dispute resolution centre located closest to the scheme land; or

(b) if it appears to the commissioner that the parties to the application agree that another dispute resolution centre is preferred—the other dispute resolution centre.

(2) The application is taken to be a dispute accepted for mediation by the director of the dispute resolution centre under the Dispute Resolution Centres Act 1990.

(3) Nevertheless, in referring the application to the director, the commissioner must comply to the greatest practicable extent with the procedures applying under the Dispute Resolution Centres Act 1990 for commencing a mediation session.

(4) Evidence of anything said or done in a dispute resolution centre mediation session is inadmissible in a proceeding.

(1) The director of the dispute resolution centre must refer the application back to the commissioner if there is no further action that may be taken under the Dispute Resolution Centres Act 1990 in relation to the dispute the subject of the application, because, for example—

(a) there is a mediation session for the dispute, but a party withdraws from the session; or

(b) there is a mediation session but no agreement is reached at the session; or

(c) there is a mediation session and agreement is reached at the session.

(2) In referring the application back to the commissioner, the director merely advises the commissioner that the director’s action under the Dispute Resolution Centres Act 1990 has been completed.

Part 7 Specialist mediation and conciliation

The purpose of this part is to provide for—

(a) the conditions under which the commissioner may make a dispute resolution recommendation that an application be the subject of—

(i) specialist mediation; or

(ii) specialist conciliation; and

(b) what happens if the commissioner recommends the application be the subject of the dispute resolution process.

The commissioner may recommend an application be the subject of specialist mediation or specialist conciliation if—

(a) the parties to the application agree on a person who is to be the dispute resolution officer for the application; and

(b) the commissioner considers the person agreed on has the qualifications, experience or standing appropriate for acting as the dispute resolution officer for the application; and

(c) the parties and the dispute resolution officer (or, if the officer is an officer or employee of the department, the commissioner) agree on each of the following—

(i) the amount to be paid for the mediation or conciliation;

(ii) how it is to be paid;

(iii) by whom it is to be paid.

As soon as practicable after the commissioner recommends the application be the subject of specialist mediation or specialist conciliation, the commissioner must refer the application to a dispute resolution officer agreed to by the parties and the commissioner for conducting the dispute resolution process.

(1) The mediation or conciliation session must be conducted as quickly and with as little formality and technicality as possible.

(2) A person who is not a party to the application may attend and take part in the session if the dispute resolution officer is satisfied the person may help resolve the dispute.

(3) The session must be held in private.

(4) A person may use an interpreter in the session.

(5) Evidence of anything said or done about the dispute in a mediation session is inadmissible in a proceeding.

(6) Evidence of anything said or done in a conciliation session is inadmissible in a proceeding, unless the proceeding is an adjudication and the parties have consented, under section 249, to the dispute resolution officer conducting the adjudication.

(7) The mediation or conciliation session may be terminated at any time by the dispute resolution officer.

(1) Attendance at, and participation in, a specialist mediation or specialist conciliation session is voluntary.

(2) A party may withdraw from the session at any time.

(3) Except as expressly stated in this chapter, this part does not affect a right or remedy that a party to an application has apart from this part.

(1) A party to the application may be represented by an agent at the specialist mediation or specialist conciliation session if the dispute resolution officer approves and is satisfied an agent should be permitted to help the dispute resolution process.

(2) Subsection (1) does not prevent—

(a) if a corporation under the Corporations Act is a party to the application—an officer of the corporation from representing the corporation; or

(b) if another corporation is a party to the application—an agent appointed by the corporation from representing the corporation; or

(c) if more than 1 owner constitutes the body corporate—1 or more of the owners from representing the body corporate.

(3) The approval may be given without conditions or on the conditions the dispute resolution officer considers reasonable to ensure no other party to the application is substantially disadvantaged by the agent appearing at the session.

(4) If the approval is given on conditions, the entitlement of the party to be represented by an agent is subject to the agent complying with the conditions.

(1) The dispute resolution officer must refer the application back to the commissioner if the officer considers there is no further action the officer can take in the dispute resolution process because, for example—

(a) a party to the application does not attend or withdraws from the mediation or conciliation session; or

(b) no agreement is reached at the session; or

(c) agreement is reached at the session.

(2) In referring the application back to the commissioner, the dispute resolution officer must inform the commissioner of the reason for the referral.

Part 8 Specialist adjudication

(1) The purpose of this part is to provide for the conditions under which the commissioner may make a dispute resolution recommendation that an application be the subject of specialist adjudication.

(2) The commissioner may recommend an application be the subject of specialist adjudication if authorised under this part.

(1) The commissioner may recommend an application be the subject of specialist adjudication if—

(a) the parties to the application agree on a person who is to be the adjudicator for the application; and

(b) the commissioner considers the person agreed on has the qualifications, experience or standing appropriate for acting as an adjudicator for the application; and

(c) the parties and the adjudicator agree on the amount to be paid for the adjudication; and

(d) for the amount agreed to be paid for the adjudication—the parties either—

(i) agree on how, and by whom, the amount is to be paid; or

(ii) agree the amount is to be paid in the way decided by the adjudicator; and

(e) the adjudicator gives the parties written confirmation of the agreement mentioned in paragraph (c).

(2) Subsection (1)(a) does not require the agreement of a party who is a joined respondent.

(3) In this section—

joined respondent means a person who is joined as a respondent to the application under section 47B (5)(a), 48 (3)(a) or 388 (3)(a).

(1) The commissioner may recommend an application be the subject of specialist adjudication if the application is about a dispute relating to a motion for an economic reasons resolution.

(2) Subject to section 270 (3), the body corporate must pay the amount for the adjudication.

Part 9 Adjudication generally

Division 1 Preliminary

The purpose of this part is to provide for—

(a) what happens if the commissioner makes a dispute resolution recommendation that an application be the subject of specialist or department adjudication, including adjudication limited to making a consent order; and

(b) the making of adjudicators’ orders.

(1) The following provisions (the applied provisions) apply to an agreement referred to an adjudicator under section 252I (5)—

• section 270, other than section 270 (1)(c), (3) and (4)

• sections 271, 273, 274 and 275

• section 276, other than section 276 (4)(b)

• section 281.

(2) Sections 269 and 285 also apply to the agreement.

(3) The applied provisions apply to the agreement as if—

(a) a reference in any of the applied provisions to the application or an application were a reference to the agreement; and

(b) a reference in sections 270, 274 and 281 to the applicant were a reference to the applicant for the application that resulted in the agreement; and

(c) a reference in sections 270, 271 and 273 to a party to an application were a reference to a party to the application that resulted in the agreement; and

(d) a reference in sections 271 and 273 to an affected person were a reference to an affected person for the application that resulted in the agreement; and

(e) a reference in section 274 to the respondent were a reference to the respondent for the application that resulted in the agreement.

(4) Also, section 270 applies to the agreement as if—

(a) a reference in the section to dismissal of applications were a reference to refusal of a consent order for the agreement; and

(b) a reference in the section to an order dismissing the application were a reference to an order refusing a consent order for the agreement; and

(c) the reference in section 270 (1)(e)(ii) to the outcome sought by the application were a reference to the agreement.

Division 2 Procedural matters about adjudication

(1) As soon as practicable after the commissioner recommends that the application be the subject of specialist or department adjudication, the commissioner must refer the application to—

(a) if the recommendation is for specialist adjudication—the adjudicator decided under the recommendation; or

(b) if the recommendation is for department adjudication—an adjudicator appointed for conducting department adjudication.

(2) The adjudicator to whom an application is referred can not be the person who conducted the department conciliation for the dispute the subject of the application.

If the application is referred to an adjudicator for department adjudication, the adjudicator may adjudicate on the application only if the fee prescribed under a regulation has been paid in the way prescribed under the regulation.

(1) The adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application.

(2) Also, if an agreement is referred to an adjudicator under section 252I (5), the adjudicator may investigate the agreement to decide whether it would be appropriate to make a consent order under section 276 (5).

(3) When investigating the application or agreement, the adjudicator—

(a) must observe natural justice; and

(b) must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application or agreement; and

(c) is not bound by the rules of evidence.

(1) The adjudicator may make an order dismissing the application if—

(a) it appears to the adjudicator that the adjudicator does not have jurisdiction to deal with the application; or

(b) the adjudicator is satisfied the dispute should be dealt with in a court or tribunal of competent jurisdiction; or

(c) it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance; or

(d) the applicant fails, without reasonable excuse, to comply with a requirement of the adjudicator under section 271 (1); or

(e) the adjudicator is satisfied—

(i) a party to the application is no longer a person mentioned in section 227 (1) for the dispute the subject of the application; and

(ii) the outcome sought by the application is no longer relevant or required; or

(f) the subject of the application is a debt dispute, and a proceeding between the parties to the application has been started before QCAT or in a court of competent jurisdiction in relation to the subject matter of a debt dispute; or

(g) the subject of the application is a related dispute to a debt dispute.

(2) The adjudicator’s power to make an order under this section may be exercised—

(a) without investigating the detail of the application; or

(b) before an investigation has ended.

(3) If the adjudicator makes an order under subsection (1)(c), the adjudicator—

(a) may order costs against the applicant to compensate all or any of the following for loss resulting from the application—

(i) the respondent to the application;

(ii) the body corporate for the community titles scheme;

(iii) an affected person; and

Example of loss for paragraph (a)—

legal expenses reasonably incurred by the person in relation to the application

(b) in ordering the costs, may have regard to previous applications made by the applicant.

(4) The total amount of costs ordered under subsection (3) must not be more than $2,000.

(1) When investigating the application, the adjudicator may do all or any of the following—

(a) require a party to the application, an affected person, the body corporate or someone else the adjudicator considers may be able to help resolve issues raised by the application—

(i) to obtain, and give to the adjudicator, a report or other information; or

Example—

an engineering report

(ii) to be present to be interviewed, after reasonable notice is given of the time and place of interview; or

(iii) to give information in the form of a statutory declaration;

(b) require a body corporate manager, service contractor or letting agent who is a party to the application or an affected person to give to the adjudicator a record held by the person and relating to a dispute about a service provided by the person;

(c) invite persons the adjudicator considers may be able to help resolve issues raised by the application to make written submissions to the adjudicator within a stated time;

(d) inspect, or enter and inspect—

(i) a body corporate asset or record or other document of the body corporate; or

(ii) common property (including common property the subject of an exclusive use by-law); or

(iii) a lot included in the community titles scheme concerned.

(2) If the application is an application referred to the adjudicator for department adjudication, the commissioner must give the adjudicator all reasonable administrative help the adjudicator asks for in investigating the application.

(3) If a place to be entered under subsection (1)(d) is occupied, the adjudicator may enter only with the occupier’s consent and, in seeking the consent, must give reasonable notice to the occupier of the time when the adjudicator wishes to enter the place.

(4) If a place to be entered under subsection (1)(d) is unoccupied, the adjudicator may enter only with the owner’s consent and, in seeking the consent, must give reasonable notice to the owner of the time when the adjudicator wishes to enter the place.

(5) The body corporate or someone else who has access to the body corporate’s records must, as requested by an adjudicator and without payment of a fee, do either or both of the following—

(a) allow the adjudicator access to the records within 24 hours after the request is made;

(b) in accordance with the request, give the adjudicator copies of the records or allow the adjudicator to make the copies.

Maximum penalty—20 penalty units.

(6) A person who fails to comply with a requirement under subsection (1)(a) or (b), or obstructs an adjudicator in the conduct of an investigation under this part, commits an offence unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

(7) It is a reasonable excuse for a person not to comply with a requirement mentioned in subsection (6) to give information or a document, if giving the information or document might tend to incriminate the person.

An adjudicator may delegate a power the adjudicator has under this part, other than under section 270, to an appropriately qualified officer of the department.

For an adjudication, a party to the application, an affected person or the body corporate has the right to be represented by an agent.

Division 3 Adjudicator’s orders

(1) The adjudicator for an application must give a copy of an order made under this chapter to—

(a) the applicant; and

(b) the respondent to the application; and

(c) the body corporate for the community titles scheme; and

(d) a person who, on an invitation under section 243 or 271 (1)(c), made a submission about the application.

(2) The copy of the order must be—

(a) certified by the adjudicator as a true copy of the order; and

(b) accompanied by—

(i) a statement of the adjudicator’s reasons for the decision; and

(ii) an outline in the approved form of the appeal rights available under part 11.

(3) If the order is a declaratory or other order affecting the owners or occupiers of the lots included in the scheme generally, or a particular class of the owners or occupiers, the adjudicator need not give a copy of the order to each owner or occupier individually, but may instead give notice in a way that ensures, as far as reasonably practicable, it comes to the attention of all owners or occupiers or all members of the class.

When the adjudicator has completed the adjudicator’s duties under this part, the adjudicator must refer the application (including any order the adjudicator has made) back to the commissioner.

(1) An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about—

(a) a claimed or anticipated contravention of this Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

(c) a claimed or anticipated contractual matter about—

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

(2) An order may require a person to act, or prohibit a person from acting, in a way stated in the order.

(3) Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5.

(4) An order appointing an administrator—

(a) may be the only order the adjudicator makes for an application; or

(b) may be made to assist the enforcement of another order made for the application.

(5) If the adjudicator makes a consent order, the order—

(a) may include only matters that may be dealt with under this Act; and

(b) must not include matters that are inconsistent with this Act or another Act.

If an adjudicator considers it just and equitable in the circumstances, the adjudicator may make an order under this part even if a person fails, without reasonable excuse, to comply with a requirement made by the adjudicator under section 271 (1)(a)(ii).

If an adjudicator appoints an administrator to perform obligations of the body corporate, the committee for the body corporate or a member of the committee, anything done by the administrator under the authority given under the order is taken to have been done by the body corporate, committee or member.

(1) The adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.

Examples—

1 The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.

2 The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.

(2) An interim order—

(a) has effect for a period (not longer than 1 year) stated in the order; and

(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and

(c) may be cancelled by a later order made by the adjudicator; and

(d) if it does not lapse or is not cancelled earlier, lapses when—

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the application a QCAT information notice, under section 241A, for the commissioner’s decision to reject the application; or

(iii) a final order is made by an adjudicator to whom the application is referred.

(3) Despite subsection (2), if an appeal is started against an interim order, the order continues in force until 1 of the following happens—

(a) the order is stayed under the QCAT Act;

(b) if the decision on the appeal is to refer the matter of the interim order back to the adjudicator who made the order with directions—the adjudicator makes an order under the directions;

(c) the appeal is decided, but other than in the way mentioned in paragraph (a);

(d) the application is withdrawn;

(e) a final order is made by the adjudicator.

(4) As soon as the adjudicator to whom the commissioner refers an application under section 247 makes an interim order or decides not to make an interim order, the adjudicator must refer the application back to the commissioner.

(1) This section applies if—

(a) the applicant for an adjudication application made a conciliation application for the same dispute; and

(b) the respondent to the adjudication application was the respondent to the conciliation application; and

(c) the commissioner ended the conciliation application under section 252K because the respondent failed, without reasonable excuse, to participate in the department conciliation.

(2) If asked by the applicant, the adjudicator may order the respondent to pay to the applicant the amount paid by the applicant under section 239 (1)(c) as fees for the conciliation application and adjudication application.

(1) If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention—

(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or

(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.

Example—

A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition. The adjudicator could order the body corporate to have the damage repaired or to pay an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.

(2) The order can not be made if—

(a) for an order under subsection (1)(a)—the cost of carrying out the repairs is more than $75,000; or

(b) for an order made under subsection (1)(b)—the amount fixed by the adjudicator would be more than $10,000.

(1) This section applies if a body corporate for a community titles scheme makes an adjudication application for an alternative insurance order.

(2) An adjudicator may make an alternative insurance order only if the adjudicator is satisfied—

(a) the body corporate can not comply with the requirement under the regulation module applying to the scheme to put in place insurance for the scheme that insures for the full replacement value of—

(i) to the extent that a building is scheme land—each building in which is located a lot created under a building format plan of subdivision or a volumetric format plan of subdivision; or

(ii) each building on a lot, created under a standard format plan of subdivision, that has a common wall with a building on an adjoining lot; and

(b) the insurance cover under the alternative insurance is as similar as practicable to the insurance cover required under the regulation module applying to the scheme.

(3) Without limiting subsection (2), in deciding whether to make an alternative insurance order, the adjudicator may consider any of the following matters—

(a) the number of insurers the body corporate attempted to take out insurance with;

(b) the reasons the body corporate was not insured by the insurers it attempted to take out insurance with;

(c) the cost of complying with the requirement to insure under the regulation module applying to the scheme.

(4) Subsection (5) applies if—

(a) for a community titles scheme other than a specified two-lot scheme—the alternative insurance the body corporate proposes to put in place was not approved at a general meeting; or

(b) for a specified two-lot scheme—the alternative insurance the body corporate proposes to put in place was not authorised under a lot owner agreement for the scheme.

(5) The adjudicator may make an alternative insurance order on the condition that—

(a) if subsection (4)(a) applies—the alternative insurance is approved at a general meeting within the period stated in the order; or

(b) if subsection (4)(b) applies—the alternative insurance is confirmed under a lot owner agreement within the period stated in the order.

(1) This section applies if an adjudicator makes an order under this chapter against a person in relation to a contravention of this Act by the person.

(2) The order does not prevent proceedings for an offence in relation to the contravention being taken against the person.

With the consent of the body corporate, the order of the adjudicator may include a change of the body corporate’s financial year and of the dates when later financial years begin.

Note—

See also section 321A.

(1) The adjudicator’s order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.

(2) The adjudicator’s order may fix the time—

(a) when the order takes effect; or

(b) within which the order must be complied with.

(3) If the adjudicator’s order does not fix the time when it takes effect, it takes effect when served on the person against whom it is made or, if it is not made against a particular person, when it is served on the body corporate.

(4) The adjudicator’s order may provide that the order is to have effect as a resolution without dissent, special resolution, ordinary resolution or lot owner agreement.

The adjudicator does not have power to resolve a question about title to land.

Part 10 Enforcement of adjudicator’s orders

(1) This section applies if the following are filed with the registrar of a Magistrates Court—

(a) a copy of an adjudicator’s order for the payment of an amount, certified by the commissioner as a copy of the adjudicator’s order;

(b) a sworn statement by the person in whose favour the order is made stating the amount outstanding under the order.

(2) The registrar must register the order in the court.

(3) The order may be enforced as if it were a judgment of the court properly given in the exercise of its civil jurisdiction.

(4) For this section, it is immaterial that the amount outstanding is more than the amount for which an action may be brought in a Magistrates Court.

(1) This section applies if the following are filed with the registrar of a Magistrates Court—

(a) a copy of an adjudicator’s order, other than an order for the payment of an amount, certified by the commissioner as a copy of the adjudicator’s order;

(b) a sworn statement by a person in whose favour the order is made stating that an obligation imposed under the order has not been performed.

(2) The registrar may register the order in the court.

(3) The Magistrates Court may, by order, appoint an administrator, and authorise the administrator to perform obligations, under the adjudicator’s order, of the body corporate, the committee for the body corporate, a member of the committee or the owner or occupier of a lot the subject of the order.

(4) If the Magistrates Court appoints an administrator to perform obligations of an entity mentioned in subsection (3), anything done by the administrator under the authority given under the order is taken to have been done by the entity.

(1) A person who contravenes an order under this chapter (other than an order for the payment of an amount) commits an offence.

Maximum penalty—400 penalty units.

(2) A proceeding for an offence under subsection (1) (other than a proceeding taken by the Attorney-General) may only be taken by—

(a) an applicant for the application for the original order; or

(b) a respondent to the application for the original order; or

(c) a person in whose favour the order mentioned in subsection (1) is made; or

(d) the body corporate; or

(e) an administrator appointed under this chapter who is authorised to perform obligations of the body corporate or its committee.

(3) Costs awarded against a defendant in a proceeding under this section may include the amount of the fee paid to the commissioner on making the application for the original order.

(4) In subsection (3)—

application for the original order means the application for the order of an adjudicator for the purposes of which the order mentioned in subsection (1) is made.

Part 11 Appeal from adjudicator on question of law

In this part—

appeal body...

order, for an application, includes a decision made under section 242 (4)(b) to refuse to waive noncompliance with the time limits stated in section 242 for the application, whether or not the decision is made by an order.

(1) This section applies if—

(a) an application is made under this chapter; and

(b) an adjudicator makes an order for the application (other than a consent order); and

(c) a person (the aggrieved person) is aggrieved by the order; and

(d) the aggrieved person is—

(i) for an order that is a decision mentioned in section 288A, definition order —an applicant; or

(ii) for another order—

(A) an applicant; or

(B) a respondent to the application; or

(C) the body corporate for the community titles scheme; or

(D) a person who, on an invitation under section 243 or 271 (1)(c), made a submission about the application; or

(E) an affected person for an application mentioned in section 243A; or

(F) a person not otherwise mentioned in this subparagraph against whom the order is made.

(2) The aggrieved person may appeal to the appeal tribunal, but only on a question of law.

(1) An appeal to the appeal tribunal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against.

(2) If requested by the principal registrar, the commissioner must send to the principal registrar copies of each of the following—

(a) the application for which the adjudicator’s order was made;

(b) the adjudicator’s order;

(c) the adjudicator’s reasons;

(d) other materials in the adjudicator’s possession relevant to the order.

(3) When the appeal is finished, the principal registrar must send to the commissioner a copy of any decision or order of the appeal tribunal.

(4) The commissioner must forward to the adjudicator all material the adjudicator needs to take any further action for the application, having regard to the decision or order of the appeal tribunal.

When the adjudicator has completed taking further action under this part, the adjudicator must refer all material relating to the application for which the adjudicator’s order was made and the decision or order of the appeal tribunal back to the commissioner.

(1) In deciding an appeal, in addition to the jurisdiction and powers of the appeal tribunal under the QCAT Act, the tribunal may also exercise all the jurisdiction and powers of an adjudicator under this Act.

(2) The appeal tribunal may amend or substitute an order only if the adjudicator, who made the order being appealed, would have had jurisdiction to make the amended or substituted order or decision.

(3) Subsection (2) does not limit any power of the appeal tribunal to award costs for a proceeding under the QCAT Act.

Part 12 Miscellaneous

Division 1 Stay of applications and proceedings

(1) This section applies if—

(a) an application is made under this chapter; and

(b) a proceeding is started under the QCAT Act for an order of QCAT about a matter relating to the dispute the subject of the application.

(2) If agreed between the commissioner and the president—

(a) the commissioner may stay the application by written notice given to the parties to the application, each affected person and the body corporate; or

(b) the president may stay the proceeding by written notice given to the parties to the proceeding.

Division 2 Other matters

(1) This section applies if an adjudicator, QCAT or a court orders the body corporate for a community titles scheme to lodge a request to record a new community management statement for the scheme.

(2) The body corporate must lodge a request to record the new community management statement within 3 months after the date of the order.

Maximum penalty—100 penalty units.

(1) In this section—

adjudication includes action taken in making arrangements for an adjudication or in the follow-up of an adjudication.

specialist conciliation session includes action taken for making arrangements for a specialist conciliation session or in the follow-up of the session.

specialist mediation session includes action taken for making arrangements for a specialist mediation session or in the follow-up of a mediation session.

(2) Subject to subsection (3), the like privilege that exists with respect to defamation for a proceeding before the Supreme Court, and a document produced in the proceeding, exists for—

(a) an adjudication or a department conciliation session, specialist conciliation session or specialist mediation session; or

(b) a document or other material—

(i) sent or given to a person, or produced at a place—

(A) for enabling a dispute resolution recommendation to be made; or

(B) for an adjudication or a department conciliation session, specialist conciliation session or specialist mediation session; or

(ii) produced in an adjudication or at a department conciliation session, specialist conciliation session or specialist mediation session; or

(c) a statement made to the commissioner or a dispute resolution officer—

(i) for enabling a dispute resolution recommendation to be made; or

(ii) for an adjudication or a department conciliation session, specialist conciliation session or specialist mediation session.

(3) The privilege conferred by subsection (2) does not extend to a publication made otherwise than—

(a) at an adjudication or a department conciliation session, specialist conciliation session or specialist mediation session; or

(b) as provided by subsection (2)(b) or (c).

(1) A person must not state anything to the commissioner or an adjudicator the person knows is false or misleading in a material particular.

Maximum penalty—60 penalty units.

(2) It is enough for a complaint under the Justices Act 1886 against a person for an offence against subsection (1) to state that the statement made was false or misleading to the person’s knowledge.

(1) A person must not give the commissioner or an adjudicator (each the receiver) a document containing information the person knows is false or misleading.

Maximum penalty—60 penalty units.

(2) Subsection (1) does not apply to a person who, when giving the document—

(a) informs the receiver, to the best of the person’s ability, how it is false or misleading; and

(b) if the person has, or can reasonably obtain, the correct information—gives the correct information to the receiver.

(3) It is enough for a complaint under the Justices Act 1886 against a person for an offence against subsection (1) to state that the document was false or misleading to the person’s knowledge.

(1) On receiving a written application accompanied by the fee prescribed under a regulation, the commissioner must inform the applicant in writing—

(a) whether an order has been made within the previous 6 years under this chapter or a corresponding previous law about a community titles scheme mentioned in the application and, if so, the nature and effect of the order; and

(b) whether there is, in relation to the scheme, an application that has not been disposed of and, if so, the nature of the application.

(2) The commissioner may make any of the following available for inspection by the public—

(a) a copy of an order made at any time under this chapter or a corresponding previous law about a community titles scheme;

(b) the reasons for the order.

(3) For subsection (2), the commissioner may publish the order and reasons in an appropriate way, including on the department’s website on the internet.

(1) This section applies if the enforcement debtor for an enforceable money order is the body corporate for a community titles scheme.

(2) A court in which the enforceable money order may be enforced may, on application by the enforcement creditor, by order, appoint an administrator and authorise the administrator to perform the body corporate’s obligations under the money order.

(3) If an application for subsection (2) is made in a court (the officiating court) that is not the court by which the money order was made, the officiating court may appoint an administrator if—

(a) for an officiating court that is the Supreme Court—the money order has been filed in the officiating court; or

(b) for an officiating court that is the District Court or Magistrates Court—unless the officiating court otherwise orders, the money order has been filed in the officiating court for the district—

(i) in which scheme land is located; or

(ii) closest to the court that made the money order.

(4) If a court appoints an administrator to perform obligations of the body corporate, anything done by the administrator under the authority given on the appointment for the money order is taken to have been done by the body corporate.

(5) In this section—

enforcement creditor and enforcement debtor see the Uniform Civil Procedure Rules 1999, section 793.

(1) This section applies if an order is made under this chapter appointing an administrator.

(2) The administrator has the powers given to the administrator under the order.

(3) Without limiting subsection (2), the power may include—

(a) for a specified two-lot scheme—power to authorise an item of expenditure for the body corporate to meet the cost of complying with obligations to which the order relates and the costs of the administration; or

(b) for a scheme other than a specified two-lot scheme—power to levy a special contribution against the owners of lots included in the scheme to meet the cost of complying with obligations to which the order relates and the costs of the administration.

(4) The order may—

(a) withdraw all or particular stated powers from the body corporate, a body corporate manager to whom a power has been given under section 119 or 120, or stated officers of the body corporate until the administrator has taken the necessary action to secure compliance with the obligations; and

(b) require officers of the body corporate or a body corporate manager mentioned in paragraph (a) to take stated action to help perform the work the administrator is required to perform; and

(c) fix the administrator’s remuneration.

(5) The administrator’s remuneration must be paid by the body corporate.

(6) This section does not apply to the enforcement of a monetary obligation of the body corporate arising under another Act unless it is an enforceable money order.

A proceeding under this chapter for enforcement of an adjudicator’s order must be taken in the Magistrates Court for a Magistrates Court district in which scheme land is situated.