Part 13 Tribunal proceedings

(1) This Part provides for resolution by the Tribunal of the following disputes (scheme disputes) —

(a) a dispute between scheme participants about —

(i) the scheme documents, including the validity of scheme by-laws; or

(ii) the performance of, or the failure to perform, a function conferred or imposed on a person by this Act or the scheme by-laws; or

(iii) an alleged contravention of this Act (other than an offence); or

(iv) a resolution or decision of a strata company or the council of a strata company, including its validity; or

(v) the appointment or election of a member of the council or an officer of a strata company, including its validity; or

(vi) any other matter arising under this Act or the scheme by-laws;

(b) a dispute between an applicant for the registration of a strata titles scheme or amendment of a strata titles scheme and a person whose consent to the application is required, or who may object to the application, relating to the consent or objection;

(c) if the scheme by-laws (other than leasehold by-laws, staged subdivision by-laws and exclusive use by-laws) require the approval or consent of a person, other than the Planning Commission or a local government, to the amendment or repeal of certain scheme by-laws, a dispute between that person and the strata company about a refusal to give an approval or consent;

(d) a dispute between an infrastructure owner and a strata company about a matter connected with a common property (utility and sustainability infrastructure) easement;

(e) a dispute between the scheme developer of a subdivision of land by a strata titles scheme and a strata company about a matter arising under Part 6;

(f) a dispute between an applicant under section 107 and the strata company about a matter arising under Part 8 Division 1 Subdivision 6;

(g) a dispute between a strata manager, or former strata manager, of a strata company and the strata company about —

(i) a matter arising under Part 9; or

(ii) the strata management contract; or

(iii) the performance of, or the failure to perform, a function conferred or imposed on the strata manager;

(h) a dispute between a buyer or prospective buyer of a lot in a strata titles scheme and the seller of the lot about a matter arising under Part 10;

(i) a dispute of a class specified in the regulations.

(2) The following are scheme participants —

(a) the strata company for the strata titles scheme;

(b) for a leasehold scheme, the owner of the leasehold scheme;

(c) a person who is appointed as an administrator of a strata company for the strata titles scheme;

(d) a member of the strata company for the strata titles scheme;

(e) the occupier of a lot in the strata titles scheme;

(f) the registered mortgagee of a lot in the strata titles scheme;

(g) a member of the council of a strata company, or an officer of the strata company, for the strata titles scheme, who is not a member of the strata company.

(3) The following are not scheme disputes —

(a) a dispute with the Planning Commission or some other planning authority or a dispute that can be the subject of a review under the Planning and Development Act 2005 Part 14;

(b) a dispute with the Registrar of Titles;

(c) a dispute with the Valuer-General or a rating or taxing authority;

(d) a dispute about a contract of mortgage insurance under section 84;

(e) a contractual dispute, or a dispute about an estate or interest in land, between —

(i) a scheme participant and a person who is not a scheme participant (other than a dispute arising out of termination of a contract under section 115); or

(ii) the owner of a lot and a buyer, mortgagee or prospective buyer or mortgagee of the lot (other than a dispute of a kind referred to in subsection (1)(f) or (h));

(f) a dispute about an amount owed as a debt (other than a debt owed under section 99(2) or clause 53E);

(g) a dispute of a kind declared by the regulations not to be a scheme dispute.

(4) An application for resolution of a scheme dispute can be made to the Tribunal by a party to the dispute.

(5) However, the occupier of a lot in a strata titles scheme can only apply for resolution of a scheme dispute under subsection (1)(a) if the dispute is about —

(a) the scheme by-laws; or

(b) a resolution or decision of the strata company that directly affects the occupier; or

(c) an obligation or right of the occupier under this Act or the scheme by-laws.

(1) The Tribunal may, on application by a member of a strata company, if it is satisfied that a strata company has unreasonably refused to make an application to the Tribunal under this Act —

(a) authorise the member to make the application on behalf of the strata company; and

(b) authorise expenditure up to a specified amount from a fund of the strata company for legal advice and legal action for the proceeding.

(2) For the State Administrative Tribunal Act 2004 section 45(1)(b), the following persons are entitled to a copy of, or notice of, an application to the Tribunal under this Act to which a strata company is a party —

(a) each member of the strata company;

(b) each mortgagee of a lot who has given written notice of the mortgagee’s interest to the strata company;

(c) the occupier of each lot in the strata titles scheme that would be affected if the order sought were made.

(3) For the State Administrative Tribunal Act 2004 section 45(1)(b), each mortgagee of a lot is entitled to a copy of, or notice of, an application to the Tribunal under this Act to which the owner of a leasehold scheme is a party.

(4) Despite the State Administrative Tribunal Act 2004 section 45 —

(a) the entitlement is to a copy of the application unless there is an approved form for the purpose, in which case, the entitlement is to notice in the approved form; and

(b) if the applicant is not the strata company —

(i) the obligation to give a copy of, or notice of, the application to the persons entitled under subsection (2) falls on the strata company rather than on the applicant; and

(ii) section 45(3) of that Act applies as if the strata company were the applicant.

(5) In addition to the circumstances in which the State Administrative Tribunal Act 2004 section 47 applies, that section applies to a scheme dispute if the Tribunal —

(a) is not satisfied that the nature of the dispute is more than trivial; or

(b) is not satisfied that the applicant has an interest in the matter that is more than trivial and warrants recourse by the applicant to the Tribunal; or

(c) is satisfied that the purpose of the application is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful; or

(d) is satisfied that the nature and gravity of the dispute is such that it is reasonable to expect the parties to resolve the dispute without recourse to the Tribunal.

(6) The Tribunal may make a final decision in proceedings under this Act at a directions hearing if the Tribunal considers that appropriate.

Note for this section:

Under the State Administrative Tribunal Act 2004 Part 4 Division 2 the Tribunal may, amongst other things —

strike out all, or any part, of a proceeding if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court or any other person; or

dismiss or strike out a proceeding if it believes that it is frivolous, vexatious, misconceived or lacking in substance, is being used for an improper purpose or is otherwise an abuse of process; or

direct that proceedings be consolidated or split.

Under section 38 of that Act, the Tribunal may order that a person be joined as a party to a proceeding.

(1) In a proceeding under this Act, the Tribunal may make a declaration concerning a matter in the proceeding instead of any order the Tribunal could make, or in addition to any order the Tribunal makes, in the proceeding.

(2) The Tribunal’s power to make a declaration is exercisable only by a legally qualified member (or by the Tribunal constituted of a legally qualified member and other members).

(3) Without limitation, a declaration may be made that —

(a) a specified person has or has not contravened a specified provision of this Act, the scheme by-laws or a strata lease; or

(b) a specified clause of a strata lease is or is not invalid; or

(c) a specified scheme by-law is or is not invalid; or

(d) a specified decision or resolution of a strata company is or is not invalid; or

(e) a specified appointment or election of a member of a council of a strata company or an officer of a strata company is or is not invalid; or

(f) a settlement date for a contract for the sale and purchase of a lot was or was not validly postponed under this Act; or

(g) a contract for the sale and purchase of a lot was or was not validly avoided under this Act.

(1) In a proceeding under this Act, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding.

(2) Without limitation, the orders that may be made by the Tribunal on an application under this Act include the following —

(a) an order requiring a scheme document to be amended in a specified manner (including in a manner that effects a subdivision);

(b) an order requiring a structural element by reference to which a lot in a strata scheme is defined to be reinstated following its damage, destruction or removal;

(c) an order determining the form and location of utility conduits to provide specified utility services subject to a utility service easement;

(d) an order requiring the scheme developer of a subdivision of land by a strata titles scheme to pay a specified amount to a strata company, being the whole or a part of the remuneration or the value of a benefit that the scheme developer failed to disclose as required under section 79;

(e) an order determining action that must be taken or refrained from being taken by a member of a strata company under section 98;

(f) an order authorising a specified person to convene and preside at a general meeting of a strata company —

(i) as the first annual general meeting; or

(ii) to appoint or elect members of the council or officers of the strata company; or

(iii) for some other specified purpose;

(g) an order authorising a specified person to convene and preside at a meeting of the council of a strata company —

(i) to appoint or elect officers of the strata company; or

(ii) for some other specified purpose;

Note for paragraphs (f) and (g):

The order may require the meeting to be held within a specified period or require notice of the meeting to be given in a specified manner.

(h) an order removing a specified person from office as a member of the council of a strata company or as an officer of a strata company;

(i) an order appointing a specified person as a member of the council of a strata company or as an officer of a strata company to replace a person removed from office;

(j) an order varying or terminating a strata management contract;

(k) an order requiring a strata manager to pay a specified amount to a strata company, being the whole or a part of the remuneration or the value of a benefit that the strata manager failed to disclose as required under section 145(2)(b) or section 147;

(l) an order requiring a strata company to take specified action or to refrain from taking specified action in the performance or exercise of its functions, including the following —

(i) an order to sell or acquire real or personal property;

(ii) an order to enter into, vary or terminate a contract, including a contract for services or amenities to the strata company or the members of the strata company;

(iii) an order that a particular insurance claim be pursued;

(iv) an order that the amount of insurance cover be varied;

(v) an order to allow the keeping of an animal on specified conditions or prohibit the keeping of an animal on a lot or common property;

(m) an order requiring a person to take specified action or to refrain from taking specified action to remedy a contravention or prevent further contraventions of this Act, scheme by-laws or a strata management contract;

(n) an order that the strata company is to be taken to have passed or not to have passed a specified resolution required under this Act or the scheme by-laws as an ordinary resolution, special resolution, resolution without dissent or unanimous resolution;

(o) an order requiring a party to the proceeding before it to pay money to —

(i) a person specified in the order by way of compensation for any pecuniary loss or damage suffered; or

(ii) another party to a contract for the purpose of adjusting the position or rights of the parties consequentially on the termination or variation of the contract under the order;

(p) if a declaration is made that a contract for the sale and purchase of a lot was validly avoided under this Act, an order requiring a person who is holding a deposit or other moneys in trust to pay the deposit or other moneys to the former buyer;

(q) an order appointing an administrator of a strata company (being a person who has given written consent to the appointment) to perform some or all scheme functions.

(3) If the Tribunal makes an order requiring the payment of money by a strata manager or scheme developer of a subdivision of land by a strata titles scheme, it may, on the application of a party to the proceeding or on its own initiative, by order, prohibit the strata manager or scheme developer from seeking or enforcing an indemnity from the strata company or any other party for the required payment.

(4) An order may specify that it is to be taken to have come into effect on a date earlier than the date of the order.

(5) An order may be made to take effect on default being made in complying with some other order made by it.

(6) An order requiring amendment of a scheme document —

(a) must specify the extent to which the amendment is subject to the obtaining of the approvals and consents that would otherwise be required under this Act; and

(b) does not take effect until the Registrar of Titles registers the amendment of the scheme document.

(7) An order may be expressed to remain in force for a specified period, until a specified event or until further order.

(1) In a proceeding under this Act, the Tribunal may make an order on an interim basis (an interim order) if satisfied that by reason of the urgent circumstances of the case it should do so.

(2) An interim order remains in force for the period (not exceeding 3 months) specified in the order and may be renewed by further order of the Tribunal for subsequent periods (not exceeding, in any case, 3 months).

(3) An interim order may be made or renewed even if the period for parties to make written submissions has not expired.

(4) An interim order is subject to variation or revocation by further order of the Tribunal.

In a proceeding under this Act, the Tribunal may make a decision not to make an order or declaration.

(1) The Tribunal’s power to make an order under this Act is exercisable only by a judicial member (or by the Tribunal constituted of a judicial member and other members) if —

(a) the order affects a title to land (including through re-entry of a strata lease); or

(b) the order is an order confirming a termination resolution (as set out in section 183(18)); or

(c) the order is of a class required by the regulations to be made by a judicial member.

(2) The Tribunal’s power to make an order under this Act is exercisable only by a legally qualified member (or by the Tribunal constituted of a legally qualified member and other members) if the order is of a class required by the regulations to be made by a legally qualified member.

In a proceeding under this Act, the Tribunal cannot —

(a) make an order requiring a schedule of unit entitlements for a strata titles scheme to be amended unless it is satisfied that, if unit entitlements were to be allocated at the time of the order, the schedule of unit entitlements would require amendment; or

(b) make an order that the strata company is to be taken to have passed —

(i) a termination resolution; or

(ii) a resolution required for postponement of the expiry day for a leasehold scheme; or

(iii) a resolution fixing or varying contributions unless the Tribunal is satisfied that the contributions fixed by the strata company are inadequate or excessive; or

(iv) a resolution fixing or varying the interest rate applicable to contributions unless the Tribunal is satisfied that the interest rate fixed by the strata company is unreasonable; or

(v) a resolution determining arrangements for payment of contributions in instalments unless the Tribunal is satisfied that the arrangements allowed by the strata company are unreasonable;

or

(c) make an order that the amount of insurance cover be varied unless satisfied that the amount for which the strata company has insurance as required by this Act is inadequate or excessive; or

(d) make an order to allow the keeping of an animal on specified conditions or prohibit the keeping of an animal on a lot or common property unless satisfied that the strata company has acted unreasonably; or

(e) make an order by way of compensation for personal injury or death; or

(f) make an order for the payment of money to resolve a dispute between a buyer or prospective buyer of a lot in a strata titles scheme and the seller of the lot about a matter arising under Part 10 (other than to order repayment of a deposit or other money); or

(g) make an order in circumstances prohibited under the regulations.

(1) An order of the Tribunal appointing an administrator of a strata company may specify conditions of appointment of the administrator.

(2) If the Tribunal makes an order appointing an administrator of a strata company —

(a) no person other than the administrator may, while the order remains in force, perform a function that the administrator is authorised to perform under the order; and

(b) any act or thing done or suffered by the administrator in the performance of a function under the order has the same effect as it would have had if the order had not been made and it had been done or suffered by the person or body who, but for the order, would have been entitled or required to perform the function; and

(c) the Tribunal may, by further order, vary or revoke the appointment.

(3) An administrator of a strata company appointed by the Tribunal must, after performing a function under the order —

(a) make a written record specifying the function and the manner of its performance; and

(b) serve the record on the strata company.

If the Tribunal makes an order that requires the payment of money by a strata company, the Tribunal may, on the application of a party to the proceeding or on its own initiative, by order —

(a) direct that the money (and any expenses and costs of making the payment) must be paid out of contributions levied in relation to the lots in the strata titles scheme, and in the proportions, specified in the order; and

(b) direct the strata company to levy contributions in accordance with the order; and

(c) prohibit the strata company from levying a contribution that would be payable by another party to the dispute.

(1) An application for an order under this section can be made by a person who was the applicant in a proceeding under this Act in which an order to act was made.

(2) If the Tribunal is satisfied that an order to act has not been complied with, or has been complied with in part only, by the person to whom it was given, the Tribunal may —

(a) vary, revoke or substitute the order to act; and

(b) make an order that the person to whom the order to act was given pay to the applicant a specified amount by way of compensation for the failure to act or to refrain from acting.

(3) Subsection (2) applies whether or not the person to whom the order to act was given has been convicted of an offence under the State Administrative Tribunal Act 2004 section 95 before the revocation of the order.

(4) The variation, revocation or substitution of an order does not affect —

(a) anything done under the order before the revocation; or

(b) a penalty that has been or may be imposed under the State Administrative Tribunal Act 2004 section 95 for the failure to comply with the order.

If an order of the Tribunal under this Act is inconsistent with scheme by-laws as in force when the order is made, the order prevails over the by-laws to the extent of the inconsistency.

Note for this section:

If scheme by-laws are inconsistent, the Tribunal may make an order requiring by-laws to be amended in a specified manner.

Unless otherwise provided in this Act, a proceeding before the Tribunal under this Act comes within the Tribunal’s original jurisdiction.

(1) If, in a proceeding before the Tribunal under this Act, the Tribunal is constituted without a judicial member and the Tribunal makes an order, or declaration, of a kind specified in the regulations, a party to the proceeding may apply for internal review of the order or declaration.

(2) However, an application for internal review of an order or declaration can be made only if —

(a) leave is given by the Tribunal (constituted as required for an internal review under this section); and

(b) the application is made within 28 days after the order or declaration is made or within an extension of that period given by the President.

(3) For an internal review of an order or declaration, the Tribunal must be constituted of —

(a) a judicial member or a senior member who is a legally qualified member; and

(b) such other members, if any, as the President considers appropriate.

(4) On an internal review of an order or declaration, the Tribunal may —

(a) affirm the order or declaration; or

(b) vary the order or declaration; or

(c) set aside the order or declaration and substitute another order or declaration.

(5) Unless otherwise provided by the regulations, the State Administrative Tribunal Act 2004 Part 3 Division 3 Subdivision 3 applies in relation to an internal review of an order or declaration.

(6) The regulations may modify the operation of the State Administrative Tribunal Act 2004 for an internal review of an order or declaration.