Part 9 Dispute resolution

This Part applies to a building to which Division 2 of Part XI of the Conveyancing and Law of Property Act 1884 applies.

(1) An application for relief under this Part –

(a) must be made in writing to the Recorder; and

(b) must set out in detail the grounds on which the applicant claims relief; and

(c) must state the general nature of the relief that the applicant seeks; and

(d) must be accompanied by the prescribed fee.

(2) The Recorder may require an applicant –

(a) to provide further information or materials that the Recorder requires for determination of the application; or

(b) to provide a more formal application identifying with greater particularity the legal rights on which the application is founded, and the nature of the relief sought, and complying with any other requirements imposed by the Recorder.

(3) The Recorder may decline to proceed until the applicant has complied with a requirement under subsection (2).

(4) In respect of any proceedings under this Part, the Recorder may apply to the Tribunal for directions on any matter arising in the course of the proceedings.

(1) The Recorder must, after receiving an application for relief under this Part, give written notice of the application, the grounds of the application and the nature of relief sought to –

(a) the body corporate; and

(b) any other person who would, in the Recorder's opinion, be affected if the relief sought in the application were granted.

(2) The body corporate must, after receiving notice under this section, give a copy of the notice to –

(a) every owner affected by the application; and

(b) a mortgagee who has given written notice of the mortgagee's interest to the body corporate; and

(c) any occupier who would be affected if the order sought were made.

The Recorder may allow the amendment of an application for relief under this Part on conditions the Recorder thinks fit.

(1) The Recorder must make such investigations as the Recorder considers necessary for the proper determination of an application for relief under this Part.

(2) The Recorder may (but need not) hold a hearing for the purpose of receiving evidence and representations.

(3) In conducting an investigation, the Recorder –

(a) must proceed as expeditiously and with as little formality and technicality as is consistent with the requirements of this Act and the proper investigation of the matter; and

(b) is not bound by the rules of evidence and may gather information in any way the Recorder considers appropriate; and

(c) may, subject to this Act and the rules of natural justice, determine the procedures to be followed.

(1) The Recorder may dismiss an application for relief under this Part if –

(a) the application is frivolous, vexatious, misconceived or lacking in substance; or

(b) the applicant has, without reasonable excuse, failed to comply with an order or direction given by the Recorder.

(2) If the Recorder dismisses an application before notice of the application is given under this Part, notice of the application is not required to be given under this Part.

(1) For the purposes of an investigation, the Recorder may by summons exercise one or both of the following powers:

(a) require the attendance of any person before the Recorder;

(b) require a person to produce books, papers and documents.

(2) The Recorder may inspect any books, papers or documents produced, retain them for such reasonable time as the Recorder thinks fit, and make copies of any of them or any of their contents.

(3) The Recorder may require any person appearing before the Recorder (whether summoned to appear or not) –

(a) to make an oath or affirmation to answer relevant questions truthfully; and

(b) to answer relevant questions.

(4) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.

Penalty: Fine not exceeding 50 penalty units.

(1) The Recorder (or a delegate of the Recorder) may enter on any site, and any lot, to which an application relates for the purpose of carrying out an investigation.

(2) The power conferred by subsection (1) may be exercised at any reasonable time after notice of the proposed entry has been given to the body corporate and to the owner of any lot that is to be entered.

A person must not obstruct or hinder the Recorder (or a delegate of the Recorder) in the exercise of powers under this Part.

(1) If, on an application for relief under this Part, the Recorder is satisfied that a person has contravened or failed to comply with a requirement of this Act or the by-laws, the Recorder may make an order –

(a) requiring a person to pay any contributions properly levied by the body corporate or to take, or refrain from taking, any other specified action; or

(b) require a party to proceedings to pay monetary compensation (not exceeding $5,000) to another party to the proceedings.

(2) An order –

(a) may require immediate compliance with the order or fix a period for compliance; and

(b) may be made subject to conditions specified in the order.

(3) An order may be made on an interim basis if necessary to preserve the subject matter of the application, or to prevent prejudice to a party while the application is investigated and determined.

(4) If an order is made on an interim basis, it operates for a period (not exceeding 3 months) fixed in the order and may be renewed from time to time for a further period (not exceeding 3 months).

If, on an application by the owner of a lot for relief under this Part, the Recorder is satisfied that the body corporate has unreasonably failed to implement a proposal by an owner –

(a) for repairing damage to the common property or other property of the body corporate; or

(b) for making alterations to the common property –

(1) If, on application by the owner of a lot for relief under this Part, the Recorder is satisfied that an acquisition or proposed acquisition of personal property by the body corporate is unreasonable, the Recorder may order –

(a) if the property has not yet been acquired, that the property be not acquired; or

(b) if the property has been acquired, that the body corporate sell or dispose of it within a specified time and deal with any proceeds of sale as directed in the order.

(2) If, on an application for relief under this Part, the Recorder is satisfied that the body corporate has unreasonably refused to acquire personal property for the benefit of owners and occupiers of lots, the Recorder may order the body corporate to acquire the property.

If, on an application for relief under this Part, the Recorder is satisfied that the body corporate has unreasonably refused to make or pursue an insurance claim in respect of property insured by the body corporate, the Recorder may order the body corporate to make or pursue the claim.

If, on an application for relief under this Part, the Recorder is satisfied that the rate of interest fixed by a body corporate for late payment of a contribution is unreasonable, the Recorder may make an order varying the rate of interest and remitting accrued interest wholly or in part.

If, on an application for relief under this Part, the Recorder is satisfied that the body corporate, or an officer of the body corporate, has wrongfully withheld information to which the applicant is entitled, or refused or failed to make available for inspection records that the applicant is entitled to inspect, the Recorder may order the body corporate, or the officer, to provide the information or to make the record available for inspection (as the case may require).

(1) If, on an application for relief under this Part, the Recorder is satisfied that –

(a) the owner or occupier of a lot is keeping an animal on a lot or common property, contrary to the by-laws; or

(b) an animal kept on a lot or common property causes a nuisance, hazard or unreasonable interference with the use or enjoyment of a lot or common property –

(2) The Recorder may, instead of making an order for removal of the animal in the case mentioned in subsection (1)(b), order the person keeping the animal to take specified action that will in the Recorder's opinion avoid the nuisance, hazard or unreasonable interference.

(1) If, on an application for relief under this Part, the Recorder is satisfied that a by-law –

(a) was made without power; or

(b) was not made in accordance with this Act or any other requirement that should have been observed; or

(c) should not have been made having regard to the interests of the owners and occupiers of lots in the use and enjoyment of the lots and common property –

(2) An order under this section may –

(a) declare the by-law to be invalid; or

(b) repeal the by-law; or

(c) reinstate any former by-law amended or repealed by the by-law in question.

(3) An order under this section has effect in accordance with its terms.

(4) This section does not apply to a by-law conferring on an owner rights to the exclusive use and enjoyment of, or special privileges in respect of, a specified part of the common property.

(1) If, on an application by the owner of a lot for relief under this Part, the Recorder is satisfied that –

(a) a licence of a particular kind in relation to the common property is necessary for the reasonable use or enjoyment of the lot; and

(b) such a licence could be granted without unduly interfering with the rights of owners or occupiers of other lots to the use and enjoyment of their lots and the common property; and

(c) the body corporate has unreasonably refused to grant such a licence –

(2) An order under this section operates as if it were a licence granted by the body corporate.

(1) If, on an application for relief under this Part, the Recorder is satisfied that the body corporate has unreasonably refused to make a by-law that is reasonably required for the proper enjoyment of a lot or common property, or the proper administration of a scheme, the Recorder may make an order in the terms on which the by-law should have been made.

(2) An order under this section operates as a by-law.

(1) If, on an application for relief under this Part, the Recorder is satisfied that the provisions of this Act or the by-laws have not been complied with in relation to the calling or conduct of a meeting of the members of the body corporate, the Recorder may, by order, invalidate a resolution of, or election held by, the persons present at the meeting.

(2) The Recorder need not make an order under subsection (1) if satisfied –

(a) that the failure to comply with the provisions of this Act or the by-laws did not prejudicially affect any person; or

(b) that the resolution would have been passed, or the election would have had the same result, even if the relevant provisions had been complied with.

(3) An application seeking relief under this section must be made within 30 days after the date of the meeting.

If, on application for relief under this Part, the Recorder is satisfied that the unit entitlements of lots or, if various classes of unit entitlements have been fixed, the unit entitlements of a particular class have been fixed on a basis that is not fair and equitable, the Recorder may, by order under this section, redetermine unit entitlements or unit entitlements of the relevant class on a basis that the Recorder considers fair and equitable.

(1) If, on an application for relief under this Part, the Recorder is satisfied that the contributions to be levied by the body corporate under this Act are inadequate or excessive, the Recorder may, by order –

(a) redetermine the contributions on a basis that the Recorder considers reasonable; and

(b) give directions in relation to payment of any additional amount that becomes payable as a result of the order, or the refund of any amount overpaid.

(2) If, on an application for relief under this Part, the Recorder is satisfied that the manner of payment of contributions determined by the body corporate is unreasonable, the Recorder may, by order, redetermine the manner in which the contributions are to be paid.

(1) If, on an application for relief under this Part, the Recorder is satisfied that the amount for which the body corporate has taken out insurance is unreasonable, the Recorder may order the body corporate to increase or decrease the amount of the insurance.

(2) If, on an application for relief under this Part, the Recorder is satisfied that an owner of a lot has taken out or maintained insurance following a breach by the body corporate of its obligation to do so, the Recorder may order the body corporate to reimburse the owner the cost of that insurance.

(1) If, on an application for relief under this Part, the Recorder is satisfied –

(a) that the body corporate has failed in the proper performance of a duty; and

(b) the applicant has a proper interest in the due performance of the relevant duty; and

(c) the circumstances are sufficiently serious to justify the appointment of an administrator under this section –

(2) The appointment of an administrator –

(a) is not to be made unless the proposed appointee consents in writing to the appointment; and

(b) is to be made on such terms and conditions (which may include terms and conditions for the remuneration of the administrator out of the funds of the body corporate) as the Recorder specifies in the order.

(3) The administrator has, in accordance with the terms of the order, power –

(a) to administer the affairs of the body corporate generally; or

(b) to carry out the function or functions of the body corporate or its officers specified in the order.

(4) If an administrator has power to administer the affairs of the body corporate generally, the administrator's powers operate to the exclusion of the powers of the body corporate and its officers and if an administrator has power to carry out a specified function or functions the powers of the body corporate are excluded so far as they relate to those functions.

(5) An act or omission of an administrator done or made in the course of exercising powers under this section is to be regarded as an act or omission of the body corporate.

(6) The administrator must give the body corporate written notice of the exercise of powers under this section as soon as practicable after the powers are exercised.

(1) If, on an application for relief under this Part, the Recorder is satisfied that the body corporate has failed to hold a general meeting of its members as required under this Act or the by-laws, the Recorder may, by order, appoint a person to convene a general meeting of the members of the body corporate.

(2) The order may –

(a) provide for the giving of notice of the meeting; and

(b) appoint a person to preside at the meeting; and

(c) provide (in an appropriate case) that the meeting is to be treated as the first general meeting of the body corporate (even though the time for holding that meeting may have expired); and

(d) deal with the business to be placed before the meeting and any incidental or consequential matters.

(3) The provisions of an order under this section prevail over inconsistent provisions of this Act or the by-laws.

(1) If, on an application for relief under this Part, the Recorder is satisfied that an agreement for the provision of services to the body corporate –

(a) is unfair to the owners of 25% or more of the lots; or

(b) is for an excessively long term –

(2) An order under this section may also require a party to the agreement pay a specified amount to another party for the purpose of adjusting the rights of the parties in consequence of the termination or shortening of the term of the agreement.

(1) If, on an application for relief under this Part, the Recorder is satisfied that a consent, approval or authorisation of the body corporate is required under the by-laws of the body corporate for –

(a) making or permitting a change to the exterior character, design or finish of buildings or structural improvements on a lot; or

(b) constructing any new building or make any structural improvements on a lot –

(2) If, on an application for relief under this Part, the Recorder is satisfied that a change, construction or improvements are being, or have been, made contrary to the by-laws, the Recorder may order the owner of the lot to restore the lot to its former condition.

(1) If, on an application for relief under this Part, the Recorder is satisfied that a developer under a staged development scheme or a community development scheme (or an agent, employee or contractor acting on behalf of the developer) is carrying out, or has carried out, work contrary to the requirements of –

(a) the relevant disclosure statement or management statement for the scheme; or

(b) by-laws relevant to the way the work is to be carried out –

(2) If, on an application for relief under this Part, the Recorder is satisfied that a person has obstructed the proper carrying out of development work contemplated by a staged development scheme or a community development scheme, the Recorder may make an order restraining the person from further obstruction of the work.

(1) A body corporate may apply to the Recorder or the Tribunal for an order that a person bound by the by-laws pay a penalty to the body corporate for breach of a by-law.

(2) A person bound by the by-laws may apply to the Recorder or the Tribunal for an order that the body corporate pay a penalty to the applicant for breach of a by-law.

(3) The Recorder or the Tribunal may make an order for the payment of a penalty on an application under this section if satisfied that –

(a) the by-law provides for a penalty for breach; and

(b) the person against whom the order is sought has wilfully and persistently breached the by-law.

(4) The maximum penalty that may be imposed by the Recorder under this section is 20 penalty units and the maximum penalty that may be imposed by the Tribunal is 50 penalty units.

(5) On application under this section, the Recorder or the Tribunal may order the payment of the costs of the application by or against the applicant.

(6) If an application is made to the Recorder under this section, but the Recorder considers that it would be more appropriately dealt with by the Tribunal, the Recorder may refer the application to the Tribunal for hearing and determination.

(7) If an application under this section is made or referred to the Tribunal, the chairperson of the Tribunal may –

(a) refer any questions arising out of the application to the Recorder for investigation and report; and

(b) act on the Recorder's report without further inquiry.

(1) An order made by the Recorder –

(a) must be in writing; and

(b) must set out the reasons on which it is based.

(2) The Recorder must have a copy of the order served on –

(a) the relevant body corporate; and

(b) the applicant for relief; and

(c) any person who was entitled to make, and made a written submission to, the Recorder in relation to the application; and

(d) any person who is required to do, or refrain from doing, a specified act by the order.

(3) In this section,

order includes –

(a) the variation of an order; and

(b) an interim order; and

(c) the renewal or revocation of an interim order.

(1) A person must not contravene an order under this Part to do or refrain from doing a specified act.

Penalty: Fine not exceeding 50 penalty units plus, in the case of a continuing contravention, a further penalty not exceeding 1 penalty unit for each day the contravention continues.

(2) In proceedings for contravention of an order, an apparently genuine document purporting to be a copy of the order is admissible, in the absence of evidence to the contrary, as proof of the making and terms of the order.

(1) If a person is required by an order to take or refrain from taking specified action, and the person fails to comply with the order within the time allowed by the order, any other person with a proper interest in the matter may apply to the Recorder for an order –

(a) authorising the applicant to take or refrain from taking the necessary action; and

(b) if appropriate, requiring the person in default to reimburse the applicant for the cost of taking the relevant action.

(2) An order cannot be made under this section if the time for commencing an appeal against the original order has not yet expired or, if an appeal has been commenced, until the appeal has been determined, withdrawn or discontinued.

(1) If the Recorder makes an order for the payment of money, the order may be registered in a court having jurisdiction for the recovery of debts up to the amount ordered to be paid.

(2) Proceedings for the enforcement of an order registered under subsection (1) may be taken as if the direction were a judgment of the court in which the order is registered.

(1) An order under this Part may provide that the order or a specified part of the order is to have effect as a unanimous resolution or an ordinary resolution passed at a duly convened meeting of the members of the body corporate.

(2) If an order contains such a provision, it operates, or the specified part of the order operates, as a unanimous resolution or an ordinary resolution of the body corporate accordingly.

(1) The Recorder must maintain a register (to be known as the "Relief Register") for keeping records of proceedings taken under this Part.

(2) Subject to any regulation about how the register is to be kept, the register may be kept wholly or partly –

(a) on paper, microfilm or another medium approved by the Recorder; or

(b) by means of a device for storing and processing information approved by the Recorder.

(3) The Recorder may, with the written permission of the State Archivist given in accordance with section 20(2)(b) of the Archives Act 1983, sell, destroy or otherwise dispose of records, or any class of documents, related to proceedings under this Part that the Recorder considers to be of no value for the purposes of the register.

(4) Before selling or disposing of a record, the Recorder must mark it as no longer valid.

The Recorder must, on receiving a written inquiry accompanied by the prescribed fee, give the inquirer a notice in writing informing the inquirer whether or not an order of a prescribed class has been made with respect to a particular scheme referred to in the inquiry or an application for such an order that is yet to be finally determined has been made with respect to the scheme and, if so, give particulars of the order or application (as the case may require).

(1) If an order under this Part affects –

(a) the administration or management of a scheme; or

(b) the rights of owners or occupiers of lots –

(2) The Recorder may –

(a) of his or her own motion; or

(b) on application by an interested person and on payment of the prescribed fee –

(3) For the purposes of this section, each of the following is an interested person:

(a) the developer;

(b) the body corporate;

(c) each owner and each prospective owner of a lot;

(d) each occupier of a lot;

(e) the council in the municipal area of which the relevant land is situated;

(f) any other person who has, in the opinion of the Recorder or the Tribunal, a proper interest in the matter.

The Recorder may determine any question of title to land that arises in the course of proceedings before the Recorder under this Act.