Part 15 Miscellaneous

(1) A person must not sell a lot in a proposed community scheme before the plan of community division is deposited in the Lands Titles Registration Office unless the contract of sale provides, in accordance with any requirements specified in the regulations, for any consideration payable by the purchaser prior to the deposit of the plan to be held on trust by a specified legal practitioner, registered agent or registered conveyancer until the plan is deposited.

(2) All consideration payable by the purchaser prior to the deposit of the plan of community division in the Lands Titles Registration Office under a contract referred to in subsection (1) must be paid by the purchaser to the legal practitioner, registered agent or registered conveyancer named or specified in the contract of sale.

(3) In the event of a contravention of subsection (1), the purchaser may, by notice in writing given at any time before the plan of community division is deposited in the Lands Titles Registration Office, avoid the contract of sale.

(4) If the plan of community division is not deposited in the Lands Titles Registration Office—

(a) within such period after the date of the contract as is specified in the contract in accordance with any requirements specified in the regulations; or

(b) if the contract does not specify a period in accordance with paragraph (a)—within 6 months after the date of the contract,

the purchaser may, by notice in writing to the vendor, avoid the contract of sale at any time before the plan is deposited.

(5) Despite a provision of this section, a purchaser cannot avoid a contract of sale under this section if the purchaser has entered into a subsequent contract to sell the lot to another purchaser (unless that contract has been avoided by that purchaser).

(6) If a purchaser avoids a contract of sale, all consideration paid by the purchaser under the contract is recoverable by the purchaser from the legal practitioner, registered agent, registered conveyancer or other person to whom it was paid (but the purchaser may be liable to pay an occupation rent for any period during which he or she was in occupation of the lot or entitled to receive the rents and profits of the lot, if the payment of such rent has been agreed by the purchaser).

(7) In this section—

date of the contract means the day on which the contract of sale referred to in subsection (1) was signed or, if the parties signed it on different days, the last of those days;

registered agent means a person registered as an agent under the Land Agents Act 1994;

registered conveyancer means a person registered as a conveyancer under the Conveyancers Act 1994.

(1) For the avoidance of doubt—

(a) the developer stands in a fiduciary relationship with the community corporation and, before the community corporation is established, with the proposed community corporation; and

(b) the duties owed by the developer under this Act are in addition to, and do not derogate from, the duties arising out of that fiduciary relationship.

(2) Without derogating from subsection (1), where the community corporation intends, during the developer control period, to delegate functions or powers to a body corporate manager or to enter into a contract for services, the developer must exercise reasonable skill, care and diligence and act in the best interests of the community corporation (as it will be constituted after the developer control period ends).

Explanatory Note—

An application may be made under section 142 if the developer contravenes this subsection.

(3) In this section—

developer control period means a period during which—

(a) the community corporation is constituted solely by the developer; or

(b) the developer owns the majority of lots in the community scheme or in any other way controls the voting of the corporation.

(1) A community corporation may provide services of a class prescribed by regulation for the benefit of owners and occupiers of the lots of its scheme and the lots of a secondary or tertiary scheme that comprises part of its scheme.

(2) The corporation may charge for the provision of those services subject to any limitations imposed by the regulations.

The Registrar-General may, on payment of the fee prescribed by regulation, examine a plan to be lodged with an application under this Act before the application is lodged and, if he or she is satisfied with the plan, approve it for lodging.

The Registrar-General complies with a requirement of this Act to file a document with a plan of community division if he or she makes the document and the plan (or an electronic copy of the document or plan) available for public inspection at the Lands Titles Registration Office.

If a person has, in accordance with this or any other Act, certified as to any matter or thing, the Registrar-General may, for the purpose of discharging functions under this Act, rely on the certificate as establishing the matter or thing so certified.

(1) Where the owner of a lot needs to enter another lot or the common property, or the community corporation needs to enter a lot, in order to exercise rights under an easement for the establishment, maintenance and repair of part of the service infrastructure—

(a) the owner or the corporation must give notice to the owner of the lot to be entered; or

(b) where it is necessary to enter the common property, the owner must give notice to the corporation.

(2) Notice is unnecessary—

(a) in an emergency if there is insufficient time to give notice; or

(b) if the owner of the lot to be entered dispenses with the requirement for notice; or

(c) if, in the case of entry to the common property—

(i) the owner has the right to enter; or

(ii) the corporation has dispensed with the requirement for notice.

(3) The length of the notice must be reasonable in the circumstances of the particular case.

(4) If notice is not given (in an emergency) or the period of the notice has expired and it is not possible for the owner or the corporation, or a person acting on his, her or its behalf, to gain entry without using force, the person wishing to enter may use such force as is reasonable in the circumstances.

(5) Any damage caused by the use of force must be made good as soon as practicable by the owner or corporation entering the lot or common property unless the need for force was the result of an unreasonable act or omission on the part of the owner of the lot that was entered or, in the case of entry to the common property, on the part of the corporation.

(6) In an emergency the owner or occupier of a lot may enter another lot or the common property to assist a person on the lot or common property or to prevent or reduce damage to the lot or another lot or to the common property.

(7) A person who uses force when entering a lot or the common property or a building on a lot or the common property under subsection (6) is not liable for the damage caused if he or she acted reasonably in the circumstances.

(8) Where a primary scheme includes a secondary scheme or a secondary and tertiary scheme, a reference in this section to a lot or common property is a reference to a lot or common property in the primary, secondary or tertiary scheme.

(9) A person who is entitled under an Act or any other law to enter a lot is entitled where reasonably necessary to enter the common property in order to gain access to the lot.

(1) A community corporation may by notice in writing to a person who has possession of any record, key, or other property of the corporation require that person to deliver it to an officer of the corporation named in the notice on or before a specified time.

(2) A person who fails to comply with a requirement under subsection (1) is guilty of an offence.

Maximum penalty: $2 000.

(1) The rights and powers under this Act of the owner of a lot who is under a legal disability may be exercised on his or her behalf by a guardian.

(2) If the owner of a lot—

(a) is under a legal disability and does not have a guardian to act on his or her behalf; or

(b) cannot be found,

the District Court may, on application by the community corporation or any other person with a proper interest, dispense with any consent, approval or vote that would otherwise be required from that person under this Act.

(1) Where—

(a) this Act or the by-laws require the passing of a unanimous resolution and the community corporation passes a special or ordinary resolution but not a unanimous resolution; or

(b) this Act or the by-laws require the passing of a special resolution and the corporation passes an ordinary resolution but not a special resolution,

the corporation, or a member of the corporation who voted for the resolution or whose vote was cast by another person for the resolution, may apply to the District Court or the Magistrates Court to have the resolution declared sufficient for the purposes of this Act and, if the court makes that order, the resolution will be taken to be a resolution of the kind required by this Act or the by-laws.

(2) Notice of an application must be served on—

(a) every person who voted against the resolution and every person who was entitled to exercise the power of voting conferred under this Act but who did not exercise that power in relation to the resolution; and

(b) any other person whom the court declares to have a sufficient interest in the proceedings to require that the person should be served with notice of the application,

and the court may direct that any person served with, or to be served with, notice of the application be joined as a party to the proceedings.

(3) The court should not order a party who opposes an application under this section to pay the costs of a successful applicant unless the court considers the actions of that party in relation to the application were unreasonable.

If an application is made to the Magistrates Court under any provision of this Act (other than an application under section 49(2)), the Magistrates Court Act 1991 applies, with such modifications as may be necessary for the purpose or as may be prescribed, in relation to the application as if the proceedings were a minor civil action within the meaning of that Act.

Duty is not payable under the Stamp Duties Act 1923—

(a) in respect of the vesting of common property on the amalgamation of community plans under Part 7 Division 2; or

(b) in respect of the vesting of property on the dissolution of a community corporation under Part 7 Division 2 or 3; or

(c) in respect of the vesting of land in the owners of the community lots when the land becomes common property on its inclusion in the community parcel under section 112(2).

Any document that is required by this Act to be filed with a plan of community division must be kept by the Registrar-General for at least six years after another document has been substituted in its place or the plan has been cancelled, but after that period has expired the Registrar-General may destroy the document or dispose of it in such manner as he or she thinks fit.

(1) Where a provision of this Act authorises or requires an officer of a community corporation to certify as to any matter or thing, the officer incurs no civil or criminal liability in respect of an act or omission in good faith in the exercise of that function.

(2) A liability that would, but for subsection (1), attach to an officer of a community corporation attaches instead to the corporation.

(1) A prosecution for an offence against this Act cannot be commenced except by—

(a) the Commissioner for Consumer Affairs; or

(b) an authorised officer under the Fair Trading Act 1987; or

(c) a person who has the consent of the Minister to commence the prosecution.

(2) In any proceedings, an apparently genuine document purporting to be a certificate of the Minister certifying authorisation of, or consent to, a prosecution for an offence against this Act will be accepted, in the absence of proof to the contrary, as proof of the authorisation or consent.

It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.

(1) Where—

(a) application is made to the Registrar-General under this Act; and

(b) a person's consent to the application, or in respect of some other related matter is required; and

(c) the Registrar-General is satisfied by such evidence as the Registrar-General may require—

(i) that the applicant has been unable, after making reasonable inquiries, to ascertain the whereabouts of the person; and

(ii) that the applicant has complied with the notice requirements under subsection (2); and

(iii) that at least 28 days have elapsed since the applicant complied with those requirements; and

(iv) that no objection has been lodged by the person; and

(d) the Registrar-General determines (in his or her absolute discretion) that it is reasonable to proceed without the consent,

the person will be taken to have given his or her consent.

(2) The notice requirements referred to in subsection (1)(c)(ii) are that the applicant has—

(a) posted to the person whose consent is required, at the last address of the person known to the Registrar-General, a notice containing the information prescribed by regulation; and

(b) published a copy of the notice in a newspaper circulating generally throughout the State; and

(c) in a case involving an encroachment, left a copy of the notice in a conspicuous place on or near the land over which the encroachment has occurred.

(1) A notice to be served on a person under this Act may be served as follows—

(a) by giving it to the person or an agent of the person; or

(b) by leaving it for the person with someone apparently over the age of 16 years at his or her place of residence or at any place at which he or she carries on business; or

(c) by posting it to the person at his or her last known address; or

(ca) if the person consents to receiving the notice by email—by transmitting the notice by email to the email address provided by the person for that purpose; or

(d) where the person is the owner or occupier of a lot—by fixing the notice in the manner prescribed by regulation in a prominent position on the lot.

(2) Where a notice is to be served on the owner of a lot and the owner has died, the notice may be served on the executor or administrator of the owner's estate or, where an executor or administrator has not been appointed, by fixing the notice in the manner prescribed by regulation in a prominent position on the lot.

(3) If there are two or more owners or occupiers of a lot, a notice will be taken to have been served on all of them if it is served on any one of them.

(4) A community corporation must keep—

(a) a letter box, with the name of the corporation clearly shown on it, for postal delivery to the corporation at the community parcel; or

(b) where there is no postal delivery to the community parcel—a post office box.

(5) A document may be served on the community corporation—

(a) by placing it in the corporation's letter box; or

(b) by post addressed to the corporation or to the presiding officer, treasurer or secretary at the postal address of the corporation.

Money standing to the credit of the indemnity fund maintained under section 29 of the Land Agents Act 1994 may be applied by the Commissioner for Consumer Affairs for any of the following purposes:

(a) the costs of investigating compliance with this Act;

(b) the costs of prosecutions for offences against this Act;

(c) the payment of amounts, approved by the Minister and the Minister responsible for the administration of the Land Agents Act 1994, towards the cost of prescribed advisory services or educational programs relating to this Act conducted for the benefit of members of the public.

The Minister must, as soon as is practicable after the second anniversary of the commencement of the Statutes Amendment (Community and Strata Titles) Act 2012 or any provision of that Act—

(a) cause a report to be prepared on the operation of this Act insofar as it was amended by the Statutes Amendment (Community and Strata Titles) Act 2012; and

(b) cause a copy of the report to be laid before each House of Parliament.

(1) The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act.

(2) Without limiting subsection (1) the regulations may—

(a) prescribe fees payable to the Registrar-General in relation to an application under this Act or in relation to anything to be done by the Registrar-General under this Act;

(b) require a particular provision or a provision of a particular class to be included in, or excluded from, the by-laws of community schemes generally or of a specified class of community scheme;

(c) be of general or restricted application;

(d) may confer discretionary powers;

(da) assign specified functions to an officer of a community corporation of a specified class;

(e) may impose a fine (not exceeding $500) for breach of, or non-compliance with, the regulations.

Schedule—Transitional provisions

In this Schedule—

ordinary resolution of a strata corporation means a resolution passed at a properly convened meeting of the corporation by a simple majority of the votes of members present and voting on the resolution.

(1) A strata corporation under the Strata Titles Act 1988 may, by ordinary resolution, decide that this Act and not the Strata Titles Act 1988 will apply to, and in relation to, the corporation and the strata scheme.

(2) The corporation must lodge with the Registrar-General a copy of the resolution (certified in accordance with the regulations to be a true copy) and the Registrar-General must file the resolution with the strata plan.

(3) The following provisions apply from the time at which the resolution is filed with the strata plan—

(a) subject to subclause (5), this Act and not the Strata Titles Act 1988 applies to, and in relation to, the corporation and the strata scheme; and

(b) the strata plan will be taken to be a primary strata plan of community division deposited under this Act and the units created by the plan (including the unit subsidiaries (if any)) will be taken to be primary strata lots having the same boundaries as the units; and

(c) the common property vests in the owners of the lots but duty is not payable under the Stamp Duties Act 1923 in respect of that vesting; and

(d) the strata corporation continues in existence as a primary community corporation under this Act; and

(e) the articles of the strata corporation continue as the by-laws of the community scheme; and

(f) the number of votes that may be cast in respect of each community lot will be determined in accordance with section 87 except where, immediately before the application of this Act, the number of votes in respect of each unit was equivalent to the unit entitlement of the unit and, in that case, the voting entitlement will remain unchanged until one or more of the lots is used solely or predominantly for residential purposes or the by-laws are amended to change the voting entitlement; and

(g) the presiding officer, treasurer and secretary and the members of the management committee (if any) of the strata corporation will continue to hold office after the application of this Act as though this Act were in force when they were appointed and they had been appointed under it; and

(h) if an administrator of the strata corporation has been appointed, the administrator will continue to hold office after the application of this Act as though this Act were in force when he or she was appointed and he or she had been appointed under it; and

(i) money held by the strata corporation immediately before the application of this Act must be paid into the corporation's administrative or sinking fund under this Act according to the purpose for which the money will be used.

(4) The Registrar-General must either—

(a) cancel the certificates of title for the strata lots and common property and issue new certificates of title in their place and must state on the new certificates that the strata scheme is subject to this Act; or

(b) make endorsements on the certificates for the strata lots and common property to the effect that this Act and not the Strata Titles Act 1988 applies to, and in relation to, the strata scheme.

(5) Proceedings commenced under the Strata Titles Act 1988 in relation to, a strata corporation or strata scheme before the application of this Act to, or in relation to the corporation or scheme, may be continued and completed under that Act.

(1) Where—

(a) land was, before 22 February, 1968, laid out in a building unit scheme consisting of two or more units designed for separate occupation; and

(b) as at that date, buildings to which the scheme relates had been erected,

the scheme is one to which this clause applies.

(2) An application may be made under this Act for the deposit of a plan of community division in relation to land subject to a scheme to which this clause applies.

(2a) When deposited the plan will be a primary strata plan of community division even if there is no lot situated above another lot in the building (see section 19).

(3) An application cannot be made under subclause (2) without the consent of—

(a) the person on whom rights to occupation of the units have been conferred under the scheme; and

(b) any other person who holds a registered encumbrance (not being an easement) over the land; and

(c) any company formed to administer the scheme.

(4) Where a community plan is deposited in pursuance of an application under this clause—

(a) the scheme is terminated;

(b) all registered encumbrances (except easements and statutory encumbrances) that had been entered on the certificate for the land are extinguished and any related instrument is discharged (although the Registrar-General will, on due application being made, register any instrument in substitution for any instrument that is cancelled by the operation of this paragraph and may note a caveat on the title without the permission of the Court);

(c) the certificate for the community lots will be issued in the names of the persons who were entitled to occupation of the units under the scheme;

(d) the assets and liabilities of any company formed to administer the scheme are transferred to the community corporation.