QLD: Q&A Dispute Resolution Proceedings and By-Law Breaches

An owner was accused of photographing/filming others without their permission. The body corporate (BC) recently introduced a new by-law prohibiting this practice.

The chairperson has written to the owner threatening action if the behaviour continues.

The accused owner has had no opportunity to defend himself and has asked for evidence.

Can the BC act on complaints without sufficient evidence?

Can the BC issue a warning without sufficient evidence?

Is the BC obliged to produce any evidence, including the names of the accuser/s?

Do complaints/accusations have to be in writing?

Answer: In some circumstances, the body corporate may reasonably act on complaints without sufficient evidence.

Yes. In some circumstances, the body corporate may reasonably act on complaints without sufficient evidence. Relevantly, Section 182 of the BCCMA provides that the body corporate may give the owner a continuing contravention notice if the body corporate reasonably believes that the owner:

is contravening the by-laws; and

the circumstances of the contravention make it likely that the contravention will continue.

Subject to the by-law, if a number of owners have made complaints about the owner’s conduct, there is an argument that the body corporate “reasonably believes” the contravention by the owner will continue.

Yes. The body corporate can issue a warning without sufficient evidence. Section 94(1)(b) of the BCCMA relevantly provides that the body corporate has a duty to enforce the by-laws. Similar to the above, if a number of owners have made complaints about the owner’s conduct, providing these complaints are reasonable (i.e., not vexatious), the body corporate may issue a warning to the owner requesting it to comply with the by-laws (such as by ceasing the taking of photos and films of other occupiers).

Yes. In some circumstances, the body corporate is obliged to produce evidence, including to the accuser/s. Relevantly, Section 205(2) of the BCCMA provides that the body corporate must, within 7 days of receipt of payment of a ‘prescribed fee’, provide an ‘interested person’ with access to or a copy of its records. A lot owner is an ‘interested person’ (see Section 205(6) of the BCCMA).

Accordingly, if the owner makes a valid request to the body corporate for its records (including payment of the prescribed fee), the body corporate has a statutory obligation to provide access to or give a copy of the records. This would include copies of complaints made by owners to the body corporate about the conduct of the accused lot owner (see Section 220(1)(h) of the Accommodation Module). An exemption to this obligation is where the material is defamatory (section 205(3) of the BCCMA).

While there is no requirement that any complaints or accusations be in writing, there is a risk that if a dispute ultimately proceeds to adjudication, the applicant may find it difficult to produce any evidence or rely on any substantive material to advance its legal position. This is more of an issue after the contravention notice is sent, but it is also preferable to have details of the complaints triggering the contravention notice. In this regard, it is generally best practice to record everything in writing, including any complaints against an occupier.

Liam Boudin Mahoneys E: lboudin@mahoneys.com.au P: 07 3007 3724

This post appears in the September 2024 edition of The QLD Strata Magazine.

Question: We’ve been issued a Form 11 notice for erecting a non-permanent shed. We’ve tried to contact the body corporate manager to discuss the situation but can’t get a response. What can we do now?

We are owner occupiers in a strata scheme. We’ve been issued a Form 11 notice for constructing a non-permanent shed. We feel we have been accused unfairly. We’ve tried to contact the strata manager and asked for clarification, but he will not return our calls or emails. How do we proceed? We welcome the opportunity to learn more and respond to the accusation.

Answer: The fact you have been issued the Form 11 does not automatically mean you have contravened the by-law.

It is good that you are trying to clarify (resolve) the situation informally in the first instance.

While I cannot comment on the specifics of your situation, I will note that the by-law enforcement process is highly prescriptive. Significantly, it is also about an alleged contravention. In other words, the fact you have been issued the Form 11 does not automatically mean you have contravened the by-law. I also cannot say whether the Form 11 has been correctly completed and issued or whether there is sufficient supporting evidence. If either of those things have not been properly compiled, this could render the contravention notice ineffective. Then, there is the matter of whether the by-law is valid in the first place.

You say you have tried contacting the body corporate manager. It is the committee that decides to issue the Form 11, not the manager, so I suggest writing to the committee (if necessary, via the manager and clearly marked for the attention of the committee) to acknowledge receipt of the Form 11 and outline why you believe there is no contravention.

After that, it is up to the committee to enforce the contravention notice. That usually occurs in the Commissioner’s Office, with the first step being conciliation. You can have your say at conciliation, as will the committee.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the February 2024 edition of The QLD Strata Magazine.

Question: After voting on the issue outside a formal committee meeting, we issued a Form 10 notice. If minutes were not distributed correctly, is the notice enforceable?

Our body corporate committee voted on an issue outside a formal committee meeting resulting in issuing a Form 10 Notice of Continuing Contravention.

Should minutes be circulated recording the decision to vote outside a meeting? If yes, and there were no minutes circulated, is the decision valid? Minutes of the vote were circulated but incorrectly recorded the votes. Is the Form 10 enforceable?

Answer: The owner is either breaching the by-law or they are not.

If a body corporate has made a decision via a VOC, both notice of that VOC and the minutes of the VOC should have been sent to all owners. If there was an issue with the minutes, an amended copy of the minutes could be issued.

It’s not quite clear, but the question here is around whether there was a technical issue with the way a contravention notice was issued and whether that invalidates the notice.

This seems to be missing the point of why a notice is issued – to advise an owner that they are breaching a body corporate by-law. If the owner agrees and stops, the issue will end there. If the owner disagrees with the rationale of the body corporate, they can respond. If they continue breaching the by-law, the body corporate can take further action.

Was there a technical issue with the way the body corporate issued the notice? Depending on the type of the problem and the nature of the by-law breach, this could potentially provide an area of dispute if the legal path was followed, but it doesn’t necessarily invalidate the complaint itself – the owner is either breaching the by-law or not.

If the body corporate has concerns about how the breach notice was issued, it could always re-run the process if necessary. This may be particularly worthwhile if the matter proceeds via the Commissioner’s office. It’s always good to ensure best practice is adhered to. Equally, if the owner who received the notice does not feel it was issued correctly, they are entitled to say so, but they should also acknowledge the content of the notice itself.

Body corporates should try to do things correctly. If they are not, there are means to address that, but errors will occur. It isn’t a game of gotcha – ad hominem attacks don’t resolve the issue.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the July 2023 edition of The QLD Strata Magazine.

Question: If we paint the front of our lot, the committee has told us they will serve us with a breach notice. Half of the committee members have painted their lots. Can we use this as a precedent?

Our committee told us we would receive a breach notice if we painted the front of our duplex. Four of the seven committee members, including all three executive members, have painted the front of their lots and, therefore, breached the same by-law. Do we go to the BCCM, or do we have our body corporate serve each committee member with a breach notice? Can we use the committee members’ breaches to argue their disregard for the by-law has set a precedent?

Answer: It is very unwise to apply any general or blanket approach to a single issue in a body corporate.

You might like to look at this excellent flowchart, published by the Commissioner’s Office, which outlines the step by step process for by-law enforcement. It should answer most, if not all, of your questions.

A note about ”precedent”. While I understand why you use the term, referring to ”precedent” in body corporate issues is not a great idea. Each body corporate is different to the next, and so, therefore, is each body corporate dispute or potential dispute. It is very unwise to apply any kind of general or blanket approach to a single issue in a body corporate for this reason.

A more general note to you: it appears your scheme is currently not in a happy place. If you and the committee are going to engage in a back-and-forth by-law enforcement process, that is only going to see things get unhappier. If at all possible, it would be good for you, and indeed all owners, to step back for a bit and see if there isn’t a better, more informal solution to these issues. Given that by-law enforcement will likely take up to 12 months, considerable expense and a lot of emotional toil, it might be in everyone’s interests.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #649.

Question: If the committee member nominated as the body corporate representative on a breach notice resigns, do I need to issue a new notice or can I update the original form?

Answer: Notices are provided to or from the body corporate rather than an individual.

Notices are provided to or from the body corporate rather than an individual so there shouldn’t be a need to update or reissue a notice just because an office holder has changed.

It’s not clear from the question but, it sounds like you may have presented the body corporate with a BCCM Form 1 – Notice to body corporate of a contravention of a body corporate by-law.

Section 1 of that form asks that you provide the ‘name and address of person authorised to receive notices on behalf of the body corporate’.

The person authorised is typically the secretary. You would list the person who fulfils that role at the time. However, the secretary is simply the person who receives the notice – it is not a matter for that specific individual. If that individual stops acting in their role, their responsibilities transfer to the next person who occupies the role.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #648.

Question: Does a body corporate committee require a resolution authorising it to appeal against the adjudicator’s orders to QCAT (Queensland Civil & Administrative Tribunal)?

Answer: While the starting position is that the body corporate needs to pass a special resolution to start a proceeding, there are exceptions in that legislation for what is called ‘prescribed proceedings’.

Take a look at section 312 of the Body Corporate and Community Management Act 1997. While the starting position is that the body corporate needs to pass a special resolution to start a proceeding, there are exceptions in that legislation for what is called ‘prescribed proceedings’. One of those prescribed proceedings is ‘a proceeding for…an appeal against an adjudicator’s order’. Remember also that a decision of the committee is a decision of the body corporate. So it would be open to the committee to decide to initiate an appeal, subject of course, to all the usual caveats on committee decision-making.

I would stress that all the above should ideally be subject to legal advice. It would be very unwise, and arguably not an appropriate execution of the committee’s responsibilities, for them to initiate an appeal without first obtaining advice. Appeals can be very long, costly and stressful for all concerned.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #644.

Question: Can an occupier or a body corporate refuse to comply with an Adjudicator’s Order?

Answer: No.

Unless an Adjudicator’s Order is successfully appealed in the Queensland Civil and Administrative Tribunal, it is binding on the parties involved. Neither an occupier nor a body corporate has the power to decide whether to comply with an Adjudicators Order.

Failure to comply with an Adjudicator’s Order is an offence pursuant to s.288 of the Body Corporate and Community Management Act 1997 (‘Act’), which is punishable by a maximum penalty of 400 penalty units, which is currently a total of $57,500 (s.288 of the Act). If either an occupier or a body corporate fails to comply with an Adjudicator’s Order, the other party involved in the matter has a right to commence proceedings in the Magistrates Court for Orders:

appointing an administrator to perform the obligations under the Orders (s.287 of the Act); and/or

imposing a penalty of up to 400 penalty units. Furthermore, if a body corporate is found guilty of the offence of failing to comply with an Adjudicator’s Order, the Magistrates Court has the discretion to impose a penalty five times higher than that for an occupier pursuant to s.181B of the Penalties and Sentences Act 1992. This could result in a penalty of up to $287,500 being imposed.

It is therefore extremely important that all occupiers and bodies corporate comply with Adjudicator’s Orders to avoid significant costs and penalties being imposed by the Magistrates Court.

Alanna Hill Mathews Hunt Legal E: peter.hunt@mathewshuntlegal.com.au

This post appears in Strata News #637.

Question: My body corporate announced that residents who make messes in common areas will be charged a clean up fee. Can they do this? I have checked our by-laws and there is nothing about charging residents clean up fees.

Answer: The body corporate is limited in its capacity to enforce payment.

If an occupant damages the common property in some way by making an excess mess, I don’t see anything wrong with the body corporate issuing the invoice to the owner for the costs of rectification provided they have reasonable evidence of the event.

If the owner or tenant accepts responsibility and pays, then great.

However, what if they don’t pay? The reality is that the body corporate is limited in its capacity to enforce payment of that invoice.

The general view is that bylaws cannot impose monetary liabilities on owners and occupiers. This is an opinion that has been supported by adjudicators over the years. See this interesting case regarding this over payment for a fire door: Can a Body Corporate impose monetary liabilities on residents?

The problem with having the legislation written and interpreted this way is that it frequently results in a negative outcome for body corporates: bad owners do damage and good owners pay for the repairs. How is this viewed as an effective system?

I can understand that legislators don’t want body corporates to be able to issue their own fines – the issues need to be assessed by an independent person based on a credible standard of evidence. However, the current option of issuing by-law breach notices and then entering the drawn out adjudication process is hardly a solution at all. Some rethink is required here.

From an owner’s perspective, if you do get an invoice from the body corporate for an issue like this, it may be helpful to think through the implications of why you are being asked to pay. Ultimately you can refuse, but if you do then you can’t complain when the next person refuses and the person after that. And maybe the damage you did would cost $100 to rectify, but the next one could be $1000 or $10,000. Every time the body corporate pays these amounts, it comes out of the levies owners have contributed. If the body corporate is responsible for all these costs, then the only outcome is that levies go up.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the March 2023 edition of The QLD Strata Magazine.

Question: If holiday guests breach a bylaw, who do I list as the respondent?

Answer: The ‘respondent’ for a breach of by-laws is the occupier and this is the difficulty with short term tenancies. The reality is, by the time the by-law enforcement process has any teeth, the person breaching the by-laws are long gone from the lot.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #617.

Question: As a lot owner, if I have concerns about the way in which voting for an office bearer was conducted at our recent AGM, do I challenge the strata manager or the committee?

I have a problem with the inappropriate way the Strata Manager conducted the voting at our AGM. The voting was for a ‘from-the-floor’ election of an Office bearer.

As an owner, can I dispute this with the strata manager in the Commissioner’s Office, or do I need to need to raise the matter with the Body Corp Committee?

Answer: It is usually worth working through the hierarchy until you get to a point of resolution you can accept.

If any issue with the body corporate, it is usually worth working through the hierarchy until you get to a point of resolution you can accept. Broadly that is:

The body corporate manager

The Committee

All owners – at a general meeting

The Commissioner’s Office

In this case you might start by asking the body corporate manager about the voting procedure at the meeting. Perhaps they explained at the meeting, but information can get mixed or lost in those situations. Ask them to record in writing what happened – maybe there is a good reason for the actions taken.

If you are not happy with that response, raise the matter with the Committee. This could be either general correspondence or you could ask for a letter or motion to be formally tabled at the next committee meeting to review. Are you aware of any other owners who have the same issue as you? Perhaps they could express the same opinion.

If you are not happy with the answers from the Committee then you could look at either the general meeting option or, more likely, referring the matter to the Commissioner’s office.

If you are referring the matter to the Commissioner’s office it is more likely to be a complaint against the body corporate as the body corporate manager acts on their behalf, but that may depend on the nature of your complaint.

In all of these steps, it’s important that you present your evidence clearly and state a preferred outcome or means of resolution. When you say they votes were taken ‘inappropriately’ what do you mean? Did anyone else complain at the meeting or afterwards? If not you may want to think about why. If the votes were taken in a different manner would there have been a different outcome? It’s OK to be unhappy about something, but the more clearly you can demonstrate what that is and what alternative is better the more likely you are to have a positive resolution.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #607.

Question: Our committee requested our strata manager assist in the preparation of conciliation/adjudication forms. The strata manager has refused to assist, insisting the document is beyond their qualification to assist with. Is this usual?

The committee requested our body corporate managing company prepare necessary documentation to submit conciliation/adjudication forms concerning a parking issue in cooperation with the committee. We are aware that only the committee can lodge the forms.

The Strata Manager refused the request for assistance, stating:

The completion of these forms does not form a part of our “Agreed Services”. This is an intricate legal document which is beyond our qualification to assist with. We are also not qualified to draft a motion for owners to vote on this. When you look at the Conciliation application (copy attached) you can see that the body corporate manager can only be the applicant when the body corporate is the respondent. We are not a party to this application as the body corporate are the applicant and an owner or occupier are the respondents. Should the application proceed to a hearing, we as body corporate managers cannot represent the body corporate, it has to be a committee member. Also, our liability insurance does not cover us completing this form as we would then be a party to the action.”

Is this a reasonable response?

Answer: In my experience, most managers would not complete conciliation or adjudication application forms.

The response from the body corporate manager is fair enough. In my experience, most managers would not complete conciliation or adjudication application forms. It is often left to legal practitioners to do so. Rarely if ever would doing this work form part of the manager’s agreement with the body corporate. Put it this way: not everything which happens in a body corporate is up to the body corporate manager to attend to.

I assume from your query the issue is in relation to by-laws about parking. You should note that it is open to an individual to pursue a by-law breach, if the body corporate will not or does not. This flowchart, published by the Commissioner’s Office, clarifies the by-law enforcement process and options.

You say that this parking issue is ‘straightforward’. Parking issues are rarely ‘straightforward’. Then again, if it is, then surely the committee can either complete the paperwork itself, or engage a practitioner to assist them to do so. Or at the very least, contact the Commissioner’s Office for information on how to go about it.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #604.

QLD Body Corporate Micro Webinar Series: Dispute Resolution

Prevention is better than cure: Dispute prevention in strata.

Strata disputes are emotive and intensive, but is there a way to prevent it from happening before it even begins? We think there is. So what might that entail?

Why is it important to prevent rather than cure? Because:

Resolving disputes takes a lot of time, a lot of money and a lot of emotional turmoil
Records surrounding the dispute can actually cost you money – think prospective buyers
Strata disputes are not like other kinds of disputes. You still all need to live together at the end.

Chris provides best practice tips to help you prevent disputes from happening. Unfortunately, sometimes prevention isn’t an option, so what can you do then?

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #604.

Question: Should details of breach notices (including serious breaches) be circulated to all unit owners either during the year or formally at the AGM?

Answer: If you had a recalcitrant owner and felt their behaviour may be altered by a more public recording of the notice this could be a reasonable strategy.

There is no requirement to do this and it wouldn’t be common practice. Once issued, the notices become part of the body corporate records and can be accessed the same as other records.

However, there is nothing to stop you doing this. If you wanted the notices recorded for a more public effect, it might make sense to record them in your committee meetings. Sending them to all owners is a step further still.

Probably not necessary in most instances, but if you had a recalcitrant owner and felt their behaviour may be altered by a more public recording of the notice this could be a reasonable strategy. I’d urge some caution though. The type of owners that don’t respond well to breach notices are also the type that won’t respond well to having those same notices sent to all owners. A judgement call may have to be made rather than having a blanket policy.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the December 2021 edition of THE QLD Strata Magazine.

Question: A lot owner breaches multiple bylaws after not receiving what she sees as a desirable outcome on a fence issue. What is the best way to handle this?

I am on the committee of our Body Corporate for our complex of 64 residences. We have various issues regarding parking. Although breach notices have been issued to the owner her defiance in not abiding by the notices have been received by email stating that she has no intention of moving the vehicles – her reply to the notices that went to all residents:

‘That’s our car and it’s staying there. When body corporate pays for our back fence! Then they can ask about car parking.

Until then the carparks are open slather. Bodycorp don’t own the roads.’

The issue with the back fence was that her property and others along that area had no back fence in the first instance. She applied for the Body Corporate to pay for the fence, but our reply was that Body Corporate is only responsible for a half share of repairs to an existing fence. Hence she erected and paid for the fence but now uses that excuse to park up to 4 cars in all 4 spaces around that area near her unit.

She also parks her car across her garage which is full of mechanical parts, a trailer and other paraphernalia.

Answer: The straightforward answer is that you should follow the established procedure for dispute resolution by issuing breach notices and ultimately bringing proceedings against the lot owner.

When a by-law issue is raised with an owner it is fairly common to get a whataboutery response like this. The people who engage in this type of conversation almost always know they are in the wrong and are just looking to deflect the issue away.

Still, it is one thing to know that and another to then bring the matter to resolution.

The straightforward answer is that you should follow the established procedure for dispute resolution by issuing breach notices and ultimately bringing proceedings against the lot owner. See the BCCM website for details about this: Queensland Government: Disputes in a body corporate

However, that process is lengthy and not always satisfying. Body corporate law is not very well set up to deal with people who don’t care much about breaking the by-laws.

You may then have to consider other methods of resolution. Nothing nefarious, but depending on the circumstances some out of the box thinking could be applied. I once managed a site that solved an issue with parking on the common property by adding some very heavy pot plants to the area that was being abused. People stopped parking there and the site became a bit more attractive. More commonly, many sites with parking issues will look at ways of restricting access to the visitor’s spots if they can’t be used properly. This could be by methods such as restricting garage access through a new key system or installing bollards. Yes, there are costs to these kinds of things and they reduce utility for those who do the right thing but if the problem is bad enough you have to consider all the options.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #519.

Question: If Dispute Resolution proceedings are necessary as self resolution has not been successful against a rental tenant for by-law contraventions, can the landlord be required to pay for the costs of the application?

Answer: Your application is against the tenant (occupier) and not the landlord (owner).

No. Firstly, your application is against the tenant (occupier) and not the landlord (owner). The owner may not even be a party to the matter. Secondly, if you are referring to applications in my former Office, then it will be highly likely the matter will go to conciliation in the first instance, where there is no capacity to consider costs. Finally, if you are referring to applications for adjudication, then an adjudicator can only award costs (capped at $2,000) if they dismiss an application that is frivolous, vexatious or misconceived. There is no other general costs power.

Judging by your query, it seems as though you think the landlord is or should be, responsible in some way for the occupier’s actions. Why is that? A body corporate has no involvement in who is selected to be a tenant, so is it perhaps that the landlord has not assisted the committee, or responded, while the by-law enforcement process has been going on? That’s a very different question and might need to be approached from a different angle to one of simply financial penalty.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #516.

Have a question about dispute resolution proceedings or something to add to the article? Leave a comment below.

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