VIC: Changes to Approved Forms for Fee Notices and Final Fee Notices

This article addresses changes to approved forms for fee notices and final fee notices.

Managing financial obligations is a fundamental responsibility of owners corporations (OCs) under the Owners Corporations Act 2006 (Vic) (OCA). Sections 31 and 32 of the OCA require fee and final fee notices to be issued in the approved form, detailing the lot owner’s obligations and consequences of failing to pay any fees and charges payable to the OCs.

In this article, we refer to recent updates to the approved forms for fee notices and final fee notices.

Approved forms under the OCA

The Director of Consumer Affairs Victoria (CAV) is authorised to approve the forms used under the OCA.¹ This includes fee and final fee notices. The approved forms are published on the CAV website. Where an Act prescribes a form, substantial compliance with the prescribed form is legally sufficient unless the legislation specifies otherwise.²

Recently, the Director of Consumer Affairs Victoria published new approved forms for fee and final fee notices. The approved forms now include statements for lot owners to request a payment plan if they are experiencing financial hardship.

Recent changes to approved forms

The following information is part of the new approved forms:

• Payment plan options: Lot owners can request a payment plan if they are unable to pay the full amount due to financial hardship.
• National Debt Helpline: Information for contacting the National Debt Helpline is included in the forms.
• Financial counselling: The updated forms recommend that lot owners seek professional financial advice from a financial counsellor if experiencing financial hardship.

While these changes are a positive step toward greater financial fairness, it is important to note that OCs are not legally required to accept a payment plan. Each request for a payment plan should be considered on a case-by-case basis, and the OC has the discretion to accept or reject the proposal based on the circumstances of the lot owner.

Compliance with approved form for fee notices

The recent case Owners Corporation Plan Number 1876 v Puppa³ dealt with compliance of fee notices with the approved form under the OCA.

The respondent was alleged to owe unpaid fees to the OC. The key issues included:

• Whether the fee notices and final fee notices complied with approved forms.
• Determining the validity of notices where an incorrect postal address was used.
• Whether substantial compliance with the form requirements was sufficient.

The Tribunal found:

• The fee notices, despite having incorrect postal addresses, substantially complied with the statutory requirements. Sections 31 and 32 do not expressly require that a postal address be correctly recorded in a fee notice or final fee notice for notices to be valid.⁴
• It aligns with the purposes of the OCA to support effective management of OCs, including fee recovery through fee notices, without requiring OCs to strictly comply with the completion of an approved form.⁵
• This case is distinguished from OC No SP034630W v Pekar⁶. In Pekar, a fee notice addressed to an incorrect party (someone who was not the lot owner) was found invalid. The Tribunal in Puppa noted that:
  
  • Pekar did not analyse substantial compliance
  • Addressing a notice to the wrong party differs materially from addressing it to the correct owner but listing an incorrect postal address. The former prevents the notice from reaching its intended recipient, while the latter does not necessarily hinder the notice’s purpose.

Key takeaways

It is important for OCs to keep updated with these forms to ensure they use the current approved versions when issuing fee and final fee notices to avoid challenges to the validity of the notices.

Although strict compliance with the completion of an approved form is not required under sections 31 and 32 of the OCA, the Tribunal’s findings in the above cases illustrate that the validity of fee and final fee notices are determined case-by-case. The Tribunal will not invalidate fee and final fee notices if they substantially comply with the requirements and errors do not compromise the purpose of the notices or the owner’s understanding of their obligations.

1. Owners Corporations Act 2006 (Vic), ss 3 & 200.
2. Interpretation of Legislation Act 1984 (Vic), s 54.
3. Owners Corporation Plan Number 1876 v Puppa (Owners Corporations) [2023] VCAT 821.
4. Ibid [43].
5. Ibid.
6. OC No SP034630W v Pekar [2019] VCAT 136.

Leila Idris
Grace Lawyers
E: enquiries@gracelawyers.com.au

This post appears in Strata News #732.

Have a question or something to add to the article? Leave a comment below.

Read next:

• VIC: Owners Corporations Act update – Form changes from Consumer Affairs Victoria
  

• VIC Owners Corporations Case law update: The Saint-John Decision. Lot owners have a right to emails and phone numbers!

This article has been republished with permission from the author and first appeared on the Grace Lawyers website.

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