Part 12Disputes and Tribunal
powers
Introductory
note—
This Part gives power to the Tribunal to make
orders to settle disputes about certain matters relating to the operation and
management of a strata scheme. It also contains general provisions about the
powers of the Tribunal and some other order-making powers of the
Tribunal.
Initially, an application for an order is
processed by the registrar. The registrar must refuse to deal with a matter if
satisfied that mediation was appropriate and was not attempted.
A person may either apply to the Secretary for
mediation of a matter or make other arrangements for mediation. If mediation
of a matter is unsuccessful or a matter is not appropriate for mediation, the
registrar may accept the application for the order.
The following table describes the types of orders
that may be made and who may apply for them.
To do
what?
Who may
apply?
Section
Orders relating to meetings and decisions of
owners corporation
To require
original owner to provide things to owners corporation
Owners
corporation
17
To require
meeting to be held
Owner
Owners corporation
Mortgagee
20
To
invalidate resolution or election
Owner
First mortgagee of lot
24
To nullify
resolution of owners corporation on ground that person was denied vote or
notice was not given
Person
entitled to vote on resolution
25
To require
meeting to be held if no officers or committee after first AGM
Owner
Mortgagee
Covenant chargee
48
Orders relating to covenants and other
restrictions
To waive,
vary or extinguish restriction relating to initial period or to authorise any
matter to be done in relation to the waiving, varying or extinguishing of such
a restriction
Owners corporation
Original owner
Owner
27
To comply
with obligation imposed by positive covenant
Authority
having benefit of positive covenant
234
To refrain
from breaching restriction on use of utility lot
Owners corporation
Lessor of leasehold strata scheme
Owner
Occupier of lot
235
To refrain
from breaching restriction on use of utility lot within area of local
council
Relevant
local council
235
Orders relating to strata managing agents and
building managers
To
terminate strata managing agent or building manager agreement or make other
order about an agreement
Owners
corporation
72
To appoint
strata managing agent
Person who obtained order under this Act that
imposed duty on owners corporation or office holder that has not been complied
with
Person having estate or interest in lot or, in the case
of leasehold strata scheme, lease of lot
Authority having benefit of positive covenant that
imposes duty on owners corporation
Judgment creditor to whom owners corporation owes
judgment debt
237
Orders relating to contributions and
funds
To allocate
payment of surplus money
Owners corporation
Covenant chargee
Owner
Mortgagee
77
To alter
amount of contributions
Owners corporation
Lessor of leasehold strata scheme
Owner
Mortgagee in possession
82
To prevent
owners corporation charging interest for late payment of
contribution
Owner
85
To require
original owner to compensate for inadequate
estimates/contributions
Owners corporation
Owner
89
Orders relating to
property
To require
occupier of lot to allow owners corporation to enter lot
Owners
corporation
124
To get
consent to existing or proposed alterations or repair of common
property
Lessor of leasehold strata scheme
Owner
126
To declare
work to be cosmetic work or minor renovation
Owner
127
To direct
owner to lodge documents under section 19 of Strata Schemes
Development Act 2015
Owners corporation
Lessor of leasehold strata scheme
Owner
128
To require
owner to comply with window safety device obligation
Owners
corporation
129
To require
owners corporation to carry out window safety device function
Interested
person (other than owners corporation)
129
To require
owners corporation to dispose of personal property
Owner
130
To prevent
owners corporation acquiring personal property
Owner
130
To require
owners corporation to acquire personal property
Owner
130
To use
specified common property for specified purposes
Owner
131
To require
owner or occupier to repair damage or compensate for damage
Owners
corporation
132
To
reallocate unit entitlements
Owners corporation
Lessor of leasehold strata scheme
Owner of lot (whether or not development lot)
Local council
Public authority or statutory body representing the
Crown, that is empowered to impose a rate, tax or other charge by reference to
a valuation of land
236
Orders relating to
by-laws
To revoke
amendment to by-laws, revive repealed by-law or repeal new
by-law
Person entitled to vote on motion relating to
by-law
Lessor of leasehold strata scheme
148
To change
by-law conferring exclusive rights or privileges over common
property
Owners corporation
Lessor of leasehold strata scheme
Owner
Interested person
149
To
invalidate by-law
Person entitled to vote on motion relating to
by-law
Lessor of leasehold strata scheme
150
Order relating to keeping of
animals
To require
removal of animal wrongly kept on lot
Interested
person
156
To allow
person to keep animal on lot
Owner
Occupier
157
To remove
animal causing nuisance or hazard
Interested person
158
To
terminate nuisance, hazard or unreasonable nuisance caused by
animal
Interested person
158
Orders relating to
insurance
To adjust
proportion of insurance premium to be paid
Person
liable to pay premium
162
To exempt
from requirement to insure
Person
required to insure
172
To require
person to make or pursue insurance claim
Owner
Lessor of a leasehold strata scheme
Sublessee in a leasehold strata scheme
Person in whom is vested estate in fee simple or a
leasehold estate (in case where part of building is included in part strata
parcel) of part of building not included in part strata
parcel
174
To require
insurance to be taken out
Owner
Enrolled mortgagee or person having interest in
lot
Lessor of leasehold strata scheme
Sublessee of common property in a leasehold strata
scheme
Person in whom is vested estate in fee simple or a
leasehold estate (in case where part of building is included in part strata
parcel) of part of building not included in part strata parcel
Authority having benefit of a positive covenant
affecting building or site
175
Orders relating to records of owners
corporation
To allow
owners corporation to enter information on strata roll
Owners corporation
Owner
Person having or acquiring estate or interest in
lot
187
To require
owners corporation, strata managing agent or office holder to supply records
or documents for inspection
Person
entitled to inspect records or documents
188
Orders relating to defective building
work
To permit
access to lot for inspection or building work
Owners corporation
Developer
Building inspector
Person entitled to enter
Secretary
211
To specify
contract price
Owners corporation
Developer
Secretary
211
General orders for settlement of
disputes
To resolve
dispute or complaint
Interested person
Original owner
Building manager
232
To resolve
dispute between contiguous strata schemes
Owners
corporation
233
Orders relating to strata
committee
To remove
person from strata committee
Interested
person
238
To remove
person from office
Interested
person
238
To prohibit
strata committee from determining a matter
Interested
person
238
Division 1Internal dispute
resolution
216Internal dispute resolution
procedures for strata schemes
(1)
An owners corporation for a strata scheme may
establish, by any means it thinks fit, a voluntary process for resolving
disputes between any one or more owners of lots in the scheme, other
interested persons, the owners corporation, the strata committee, the strata
managing agent and the building manager.
(2)
The fact that a person has or has not
participated in any such process, or the fact that a person has done or
omitted to do anything in the course of or as a result of any such process, is
not to be considered for the purposes of any mediation or other proceedings
under this Act and does not prevent mediation occurring, or proceedings being
taken, in any such case.
Division 2Alternative dispute resolution
by Secretary
217Definitions
In this Part:
mediation means a structured
negotiation process in which the mediator, as a neutral and independent party,
assists the parties to a dispute to achieve their own resolution of the
dispute.
mediation
session means a meeting arranged for the mediation of a
matter under this Part and, for the purposes of the provisions of this
Division relating to privilege, disclosure and admissibility, includes steps
taken in the course of arranging or following-up a session.
mediator means the Secretary or any
person approved by the Secretary in writing to be a mediator for the purposes
of this Division.
218Matters that may be subject to
mediation
(1)
A person may apply to the Secretary for mediation
of any matter for which an order may be sought from the Tribunal under this
Act.
(2)
On receipt of an application for mediation, the
Secretary must, if the Secretary thinks the circumstances of the case are
appropriate, arrange for mediation in accordance with the
regulations.
(3)
The Secretary may dismiss an application for
mediation if the Secretary believes that the application is frivolous,
vexatious, misconceived or lacking in substance.
219Mediation involving disputes
about part strata parcels
The Secretary may arrange mediation under section
218 of a dispute or complaint relating to the management of a building or its
site where part of the building is a part strata parcel only:
(a)
if any applicable strata management statement
provides for the mediation, or determination by the Tribunal, of disputes,
or
(b)
with the consent of all parties to the
dispute,
but is not required to arrange mediation before
exercising any other function under this Act, the by-laws or a strata
management statement.
220Representation of
parties
A party to a dispute is not entitled to be
represented by another person at a mediation session under this Division
unless all the other parties consent to the
representation.
221Effect of Division on other
agreements or arrangements
This Division does not affect the enforceability
of any other agreement or arrangement that may be made, whether or not arising
out of a mediation session, in relation to the matters the subject of a
mediation session.
222Privilege
(1)
The same privilege with respect to defamation as
exists with respect to judicial proceedings and a document produced in
judicial proceedings exists with respect to:
(a)
a mediation session, and
(b)
a document or other material sent to, or produced
at an office of, the Secretary for the purpose of enabling a mediation session
to be arranged.
(2)
The privilege conferred only extends to a
publication made:
(a)
at a mediation session, or
(b)
as provided by subsection (1) (b),
or
(c)
as a disclosure permitted by this
Division.
223Evidence of mediation sessions
not admissible
(1)
Evidence of anything said or of any admission
made in a mediation session is not admissible in any proceedings before any
court, tribunal or body.
(2)
A document prepared for the purposes of, or in
the course of, or as a result of, a mediation session, or any copy of any such
document, is not admissible in evidence in any proceedings before any court,
tribunal or body.
(3)
This section does not apply to any evidence or
document:
(a)
if the persons in attendance at, or identified
during, the mediation session and, in the case of a document, all persons
identified in the document, consent to the admission of the evidence or
document, or
(b)
in proceedings instituted with respect to any act
or omission in connection with which a disclosure has been made under this
Division on the ground specified in section 224
(c).
224Confidentiality
A mediator may disclose information obtained in
connection with the administration or execution of this Division only in one
or more of the following circumstances:
(a)
with the consent of the person from whom the
information was obtained,
(b)
in connection with the administration or
execution of this Division,
(c)
if there are reasonable grounds to believe that
the disclosure is necessary to prevent or minimise the danger of injury to any
person or damage to any property,
(d)
if the disclosure is reasonably required for the
purpose of referring any party or parties to a mediation session to any
person, agency, organisation or other body and the disclosure is made with the
consent of the parties to the mediation session for the purpose of aiding in
the resolution of a dispute between those parties or assisting the parties in
any other manner,
(e)
in accordance with a requirement imposed by or
under a law of the State (other than a requirement imposed by a subpoena or
other compulsory process) or the Commonwealth.
225Exoneration from liability for
mediators
No matter or thing done or omitted to be done by
a mediator subjects the mediator to any action, liability, claim or demand if
the matter or thing was done or omitted to be done in good faith for the
purposes of a mediation session under this Division.
Division 3Procedures for applications to
Tribunal
226Interested
persons
(1)
The following persons are interested persons for the purpose
of making an application to the Tribunal under this Act:
(a)
the owners corporation,
(b)
an officer of the owners
corporation,
(c)
a strata managing agent for the
scheme,
(d)
an owner of a lot in the scheme, a person having
an estate or interest in a lot or an occupier of a lot,
(e)
if the strata scheme is a leasehold strata
scheme, the lessor of the scheme.
(2)
The interested persons for the purpose
of making an application to the Tribunal under this Act relating to a strata
scheme for a part strata parcel also include the following:
(a)
the owners corporation or a strata managing agent
for, an owner of a lot in, a person having any other estate or interest in a
lot in, or an occupier of a lot in, any other scheme affecting the
building,
(b)
any other person for the time being bound by any
strata management statement for the building.
227Certain applications cannot be
accepted without prior mediation
(1)
A registrar must not accept an application made
to the Tribunal under this Act unless:
(a)
mediation by the Secretary under Division 2 or
otherwise has been attempted but was not successful, or
(b)
a party refused to participate in the mediation,
or
(c)
the registrar considers that mediation is
unnecessary or inappropriate in the circumstances.
(2)
The registrar must inform an applicant that the
applicant should arrange for mediation if the registrar rejects an application
under this section.
(3)
The applicant may arrange for mediation under
Division 2 or otherwise.
(4)
This section does not apply to applications for
the following orders:
(a)
an order to appoint, or requiring the appointment
of, a strata managing agent,
(b)
an order varying or revoking an order that varies
or revokes another order by the Tribunal,
(c)
an order with respect to waiving, varying or
extinguishing a restriction relating to the initial
period,
(d)
an order allocating unit
entitlements,
(e)
an order with respect to access to a lot by the
owners corporation to inspect or repair common property,
(f)
an order seeking provision of records to an
owners corporation by a former strata managing agent for the strata
scheme,
(g)
an order with respect to the inspection of
records of an owners corporation,
(h)
an order imposing a monetary penalty and any
associated order as to the payment of costs.
228Notice of applications to
Tribunal
(1)
The registrar must give the named parties to the
application, and any other person who in the registrar’s opinion would
be affected, a copy of an application for an order (other than an order
imposing a monetary penalty).
(2)
On receipt of an application, an owners
corporation given notice of an application for an order must:
(a)
immediately cause a copy of the application to be
prominently displayed on any notice board required to be maintained by or
under the by-laws on some part of the common property, and
(b)
so display the copy for the period specified in
the notice for the making of submissions.
Division 4Orders that may be made by
Tribunal
229General order-making power of
Tribunal
The Tribunal may, in any proceedings before it
under this Act, make any one or more of the following orders or other
decisions:
(a)
an order or decision that provides for any
ancillary or consequential matter the Tribunal thinks
appropriate,
(b)
an interlocutory decision within the meaning of
the Civil and Administrative Tribunal Act
2013.
230Agreements and arrangements
arising from mediation sessions
(1)
The Tribunal may make orders to give effect to
any agreement or arrangement arising out of a mediation
session.
(2)
An order may be made whether or not the mediation
was carried out in accordance with this Part or by a mediator within the
meaning of this Part.
(3)
Without limiting subsection (1), the Tribunal may
make an order that gives effect to the terms of a written agreement signed
during a mediation session by persons who were parties to the
mediation.
(4)
A mediator may request the registrar to refer a
matter to the Tribunal for the making of an order under this section, but only
with the consent of the parties to the mediation.
(5)
This Part does not affect the enforceability of
any other agreement or arrangement that may be made, whether or not arising
out of a mediation session, in relation to the matters the subject of a
mediation session.
231Interim
orders
(1)
If an applicant for an order by the Tribunal
under this Act requests the making of an interim order and the Tribunal is
satisfied on reasonable grounds that urgent considerations justify the making
of the order, the Tribunal may:
(a)
make an interim order in the form of any order
that could otherwise be made by the Tribunal, and
(b)
renew the interim order by giving notice that the
order is renewed if a request for its renewal is made not later than 3 months
after the order was made.
(2)
The Tribunal may revoke an interim order, or a
renewal of an order.
(3)
The Tribunal must give notice that the order has
been revoked.
(4)
A person must not in, or in connection with, a
request for an interim order or for the renewal of an interim order make a
statement that the person knows is false or misleading in a material
respect.
Maximum penalty: 5 penalty
units.
(5)
An interim order may be made or renewed even
if:
(a)
since receipt of the application, any procedure
under this Act has not been followed or a function of the Tribunal has not
been exercised in relation to the application, or
(b)
the time, or extended time, for making written
submissions on the application has not expired, or
(c)
a right of appearance or representation has not
been exercised.
(6)
An interim order continues in force until:
(a)
the end of the period of 3 months that commenced
with the making of the order or any earlier date specified in the order,
or
(b)
if application is duly made for its
renewal—until the renewal is granted or refused, or
(c)
if it is renewed—the end of the period of 6
months that commenced with the making of the order or any earlier date
specified in the order.
(7)
Subsection (6) does not apply if the order is
revoked by the Tribunal or the application is determined in accordance with
another provision of this Act.
232Orders to settle disputes or
rectify complaints
(1)Orders relating to complaints
and disputes
The Tribunal may, on application by an interested
person, original owner or building manager, make an order to settle a
complaint or dispute about any of the following:
(a)
the operation, administration or management of a
strata scheme under this Act,
(b)
an agreement authorised or required to be entered
into under this Act,
(c)
an agreement appointing a strata managing agent
or a building manager,
(d)
an agreement between the owners corporation and
an owner, mortgagee or covenant chargee of a lot in a strata scheme that
relates to the scheme or a matter arising under the
scheme,
(e)
an exercise of, or failure to exercise, a
function conferred or imposed by or under this Act or the by-laws of a strata
scheme,
(f)
an exercise of, or failure to exercise, a
function conferred or imposed on an owners corporation under any other
Act.
(2)Failure to exercise a
function
For the purposes of this section, an owners
corporation, strata committee or building management committee is taken not to
have exercised a function if:
(a)
it decides not to exercise the function,
or
(b)
application is made to it to exercise the
function and it fails for 2 months after the making of the application to
exercise the function in accordance with the application or to inform the
applicant that it has decided not to exercise the function in accordance with
the application.
(3)Other proceedings and
remedies
A person is not entitled:
(a)
to commence other proceedings in connection with
the settlement of a dispute or complaint the subject of a current application
by the person for an order under this section, or
(b)
to make an application for an order under this
section if the person has commenced, and not discontinued, proceedings in
connection with the settlement of a dispute or complaint the subject of the
application.
(4)Disputes involving management
of part strata parcels
The Tribunal must not make an order relating to a
dispute involving the management of a strata scheme for a part strata parcel
or the management of the building concerned or its site if:
(a)
any applicable strata management statement
prohibits the determination of disputes by the Tribunal under this Act,
or
(b)
any of the parties to the dispute fail to consent
to its determination by the Tribunal.
(5)
The Tribunal must not make an order relating to a
dispute involving a matter to which a strata management statement applies that
is inconsistent with the strata management statement.
(6)Disputes relating to consent
to development applications
The Tribunal must consider the interests of all
the owners of lots in a strata scheme in the use and enjoyment of their lots
and the common property in determining whether to make an order relating to a
dispute concerning the failure of an owners corporation for a strata scheme to
consent to the making of a development application under the Environmental Planning and Assessment Act
1979 relating to common property of the
scheme.
(7)Excluded complaints and
disputes
This section does not apply to a complaint or
dispute relating to an agreement that is not an agreement entered into under
this Act, or the exercise of, or failure to exercise, a function conferred or
imposed by or under any other Act, if another Act confers jurisdiction on
another court or tribunal with respect to the subject-matter of the complaint
or dispute and the Tribunal has no jurisdiction under a law (other than this
Act) with respect to that subject-matter.
233Order for settlement of
dispute between strata schemes
(1)
The Tribunal may, on application by an owners
corporation for a strata scheme, make an order to settle a dispute between
that strata scheme and another strata scheme if:
(a)
the strata schemes are contiguous or the dispute
relates to a lease of land, or other arrangement relating to property, of one
of the schemes, and
(b)
the matter in dispute is not regulated by or
under any other Act.
(2)
In this section, a strata scheme is contiguous with another strata
scheme even if it is divided by, or separated from the other scheme by, a
natural feature (such as a watercourse), a railway, a road, a public reserve
or a drainage reserve.
234Order enforcing positive
covenant
(1)
The Tribunal may, on application by an authority
having the benefit of a positive covenant, order an owners corporation for or
owner of a lot in a strata scheme to comply with an obligation imposed by the
covenant and relating to the maintenance, use, repair or insurance of a
building or lot in the scheme, if the Tribunal considers that the owners
corporation or owner has failed to comply with the
obligation.
(2)
If the authority has been refused an injunction
under section 88H of the Conveyancing Act
1919, the Tribunal must not make an order to the same
effect as the injunction refused.
235Orders enforcing restrictions
on uses of utility lots
(1)
The Tribunal may, on application by an owners
corporation, the lessor under a leasehold strata scheme or an owner or
occupier of a lot in a strata scheme, order the owner of a utility lot and any
other person who received notice of the application to refrain from committing
a breach of a restriction imposed under section 63 of the Strata
Schemes Development Act 2015 on the use of the utility
lot.
(2)
The Tribunal may, on application by the local
council, order the owner of a utility lot and any other person who received
notice of the application to refrain from committing a breach of a restriction
imposed under section 63 of the Strata Schemes
Development Act 2015 on the use of the utility
lot.
236Order for reallocation of unit
entitlements
(1)Tribunal may make order
allocating unit entitlements
The Tribunal may, on application, make an order
allocating unit entitlements among the lots that are subject to a strata
scheme in the manner specified in the order if the Tribunal considers that the
allocation of unit entitlements among the lots:
(a)
was unreasonable when the strata plan was
registered or when a strata plan of subdivision was registered,
or
(b)
was unreasonable when a revised schedule of unit
entitlement was lodged at the conclusion of a development scheme,
or
(c)
became unreasonable because of a change in the
permitted land use, being a change (for example, because of a rezoning) in the
ways in which the whole or any part of the parcel could lawfully be used,
whether with or without planning approval.
(2)Matters to be taken into
consideration
In making a determination under this section, the
Tribunal is to have regard to the respective values of the lots and to such
other matters as the Tribunal considers relevant.
(3)Persons who may apply for
order
An application for an order under this section
may be made by any of the following:
(a)
an owner of a lot (whether or not a development
lot) within the parcel for the strata scheme,
(b)
the owners corporation,
(c)
the lessor, in the case of a leasehold strata
scheme,
(d)
the local council, or by any other public
authority or statutory body representing the Crown, being an authority or body
that is empowered to impose a rate, tax or other charge by reference to a
valuation of land.
(4)Application to be accompanied
by valuation
An application for an order must be accompanied
by a certificate specifying the valuation, at the relevant time of
registration or immediately after the change in the permitted land use, of
each of the lots to which the application relates.
(5)Qualifications of person
making valuation
The certificate must have been given by a a
person who is a qualified valuer within the meaning of the Strata Schemes Development Act
2015.
(6)Ancillary orders that may be
made if original valuation unsatisfactory
The Tribunal may, if it makes an order allocating
unit entitlements that were not allocated in accordance with a valuation of a
qualified valuer and, in the opinion of the Tribunal, were allocated
unreasonably by an original owner, also order:
(a)
the payment by the original owner to the
applicant for the order of the costs incurred by the applicant, including fees
and expenses reasonably incurred in obtaining the valuation and the giving of
evidence by a qualified valuer, and
(b)
the payment by the original owner to any or all
of the following people of the amounts (if any) assessed by the Tribunal to
represent any overpayments (due to the unreasonable allocation) for which
liability arose not earlier than 6 years before the date of the order:
(i)
the lessor, in the case of a leasehold strata
scheme,
(ii)
the owners corporation,
(iii)
the owners of lots.
(7)Lodgment of
order
The owners corporation must ensure that a copy of
an order made by the Tribunal under this section is lodged in the
Registrar-General’s office no more than 6 months after the order is
made. Nothing in this section prevents a person who is entitled to apply for
an order under this section from lodging a copy of an order made under this
section.
Note—
Section 246 contains provisions with respect to
the recording of an order made under this section.
237Orders for appointment of
strata managing agent
(1)Order appointing or requiring
the appointment of strata managing agent to exercise functions of owners
corporation
The Tribunal may, on its own motion or on
application, make an order appointing a person as a strata managing agent or
requiring an owners corporation to appoint a person as a strata managing
agent:
(a)
to exercise all the functions of an owners
corporation, or
(b)
to exercise specified functions of an owners
corporation, or
(c)
to exercise all the functions other than
specified functions of an owners corporation.
(2)Order may confer other
functions on strata managing agent
The Tribunal may also, when making an order under
this section, order that the strata managing agent is to have and may
exercise:
(a)
all the functions of the chairperson, secretary,
treasurer or strata committee of the owners corporation,
or
(b)
specified functions of the chairperson,
secretary, treasurer or strata committee of the owners corporation,
or
(c)
all the functions of the chairperson, secretary,
treasurer or strata committee of the owners corporation other than specified
functions.
(3)Circumstances in which order
may be made
The Tribunal may make an order only if satisfied
that:
(a)
the management of a strata scheme the subject of
an application for an order under this Act or an appeal to the Tribunal is not
functioning or is not functioning satisfactorily, or
(b)
an owners corporation has failed to comply with a
requirement imposed on the owners corporation by an order made under this Act,
or
(c)
an owners corporation has failed to perform one
or more of its duties, or
(d)
an owners corporation owes a judgment
debt.
(4)Qualifications of person
appointed
A person appointed as a strata managing agent as
a consequence of an order made by the Tribunal must:
(a)
hold a strata managing agent’s licence
issued under the Property, Stock and Business
Agents Act 2002, and
(b)
have consented in writing to the appointment,
which consent, in the case of a strata managing agent that is a corporation,
may be given by the Secretary or other officer of the corporation or another
person authorised by the corporation to do so.
(5)Terms and conditions of
appointment
A strata managing agent may be appointed as a
consequence of an order under this section on the terms and conditions
(including terms and conditions relating to remuneration by the owners
corporation and the duration of appointment) specified in the order making or
directing the appointment.
(6)Return of documents and other
records
A strata managing agent appointed as a
consequence of an order under this section must cause a general meeting of the
owners corporation to be held not later than 14 days before the end of the
agent’s appointment and must on or before that meeting make arrangements
to return to the owners corporation all documents and other records of the
owners corporation held by the agent.
(7)Revocation of certain
appointments
An order may be revoked or varied on application
and, unless sooner revoked, ceases to have effect at the expiration of the
period after its making (not exceeding 2 years) that is specified in the
order.
(8)Persons who may make an
application
The following persons may make an application
under this section:
(a)
a person who obtained an order under this Act
that imposed a duty on the owners corporation or on the strata committee or an
officer of the owners corporation and that has not been complied
with,
(b)
a person having an estate or interest in a lot in
the strata scheme concerned or, in the case of a leasehold strata scheme, in a
lease of a lot in the scheme,
(c)
the authority having the benefit of a positive
covenant that imposes a duty on the owners corporation,
(d)
a judgment creditor to whom the owners
corporation owes a judgment debt.
238Orders relating to strata
committee and officers
(1)
The Tribunal may, on its own motion or on
application by an interested person, make any of the following orders:
(a)
an order removing a person from a strata
committee,
(b)
an order prohibiting a strata committee from
determining a specified matter and requiring the matter to be determined by
resolution of the owners corporation,
(c)
an order removing one or more of the officers of
an owners corporation from office and from the strata
committee.
(2)
Without limiting the grounds on which the
Tribunal may order the removal from office of a person, the Tribunal may
remove a person if it is satisfied that the person has:
(a)
failed to comply with this Act or the regulations
or the by-laws of the strata scheme, or
(b)
failed to exercise due care and diligence, or
engaged in serious misconduct, while holding the
office.
Division 5General provisions relating to
Tribunal powers and orders
239Orders relating to title to
land
(1)
The Tribunal may determine a question of title to
land only for the purpose of deciding a matter under this
Act.
(2)
Any determination under this section does not
have any force or effect except as provided by this Act.
240Tribunal may make order of
another kind
The Tribunal may deal with an application for an
order under a specified provision of this Act by making an order under a
different provision of this Act if it considers it appropriate to do
so.
241Tribunal may prohibit or
direct taking of specific actions
The Tribunal may order any person the subject of
an application for an order to do or refrain from doing a specified act in
relation to a strata scheme.
242Dismissal of application on
certain grounds
The Tribunal may dismiss an application for an
order if:
(a)
the ground for the application is the absence of
a quorum at a meeting or a defect, irregularity or deficiency of notice or
time, and
(b)
the Tribunal believes no substantial injustice
has resulted.
243Copies of
orders
(1)
The Tribunal is to cause a copy of an order under
this Act to be given to the owners corporation for the strata scheme to which
the order relates (whether or not the owners corporation is a party to the
proceedings).
(2)
The owners corporation must:
(a)
display the copy of the order in a prominent
position on the notice board of the owners corporation within 3 days after
receiving it, and for 14 days after that, or
(b)
if the owners corporation does not have a notice
board, cause a further copy of the order to be given to each person whose name
appears on the strata roll.
244Tribunal to be provided with
strata report and inspections
(1)
An owners corporation must, if required to do so
by the Tribunal for the purposes of its functions under this Act, provide to
the Tribunal:
(a)
information under Division 2 of Part 10,
or
(b)
an opportunity to inspect items under that
Division.
Maximum penalty: 5 penalty
units.
(2)
The Tribunal is not liable to pay a fee for any
information provided or inspection under this section.
245Effect of certain orders
imposing obligations on owners corporation
(1)
The terms of the following orders, to the extent
to which they impose a requirement on an owners corporation, are taken to have
effect as a resolution of the owners corporation to do what is needed to
comply with the requirement:
(a)
an order relating to a resolution under section
25 (except subsection (4)),
(b)
an order relating to interest or contributions
under section 85 or 87,
(c)
an order relating to property under section 126,
127, 128, 129 or 130,
(d)
an order relating to insurance under section 174
or 175,
(e)
an order under section 232 in which the Tribunal
declares that the order is to have effect as a decision of the owners
corporation.
(2)
The owners corporation must cause the terms of
any such order to be recorded in its minute book when it is given a copy of
the order by the registrar.
(3)
If any such order specifies a period (a limitation period) during which a
resolution of an owners corporation purporting to alter the effect of the
order would be inoperative, a resolution passed by the owners corporation
during that period has no force or effect unless:
(a)
it is a unanimous resolution,
or
(b)
it is passed on a motion submitted to a general
meeting after being authorised, by order, by the
Tribunal.
(4)
A resolution that is so authorised and passed may
amend or revoke an order before the end of a limitation
period.
(5)
An application to the Tribunal for an order
authorising a motion for submission to a general meeting may be made by any
person who, at the time of the application, could have applied for the order
to which the proposed motion relates.
246Recording in Register of
effect of certain orders
(1)
The Registrar-General is to make any recordings
in the Register with respect to an order under this Act that appear to the
Registrar-General to be necessary or proper to give effect to the order
if:
(a)
a copy of the order, certified by the Tribunal as
a true copy, has been lodged in the office of the Registrar-General,
and
(b)
the copy is accompanied by the certificate of
title comprising the common property in the strata scheme,
and
(c)
any fee payable for the recordings has been
paid.
(2)
The Registrar-General may waive the requirement
for the certificate of title under subsection (1) if:
(a)
the certificate of title has not been lodged
within 21 days after written notice is given by the person lodging the copy of
the order to the owners corporation requesting the lodging of the certificate
of title, or
(b)
an application under section 111 of the Real Property Act 1900 for the issue of
a new certificate of title has not been made within that
period.
247Changes to Register after
orders allocating unit entitlements
(1)
This section applies if:
(a)
a copy of an order allocating unit entitlements
among lots in a strata plan is lodged with the Registrar-General in accordance
with this Act, or
(b)
a copy of an order made by a superior court with
respect to any such order is lodged with the Registrar-General and is
certified by the appropriate officer of that court to be a true
copy.
(2)
The Registrar-General must amend the schedule of
unit entitlement recorded in the folio of the Register comprising the common
property to which the order relates, to the extent necessary to give effect to
the order.
248Recovery of unpaid civil
penalty
Any civil penalty imposed by the Tribunal as a
result of a contravention of an order under this Act that is to be paid by an
owner of a lot to the owners corporation may be recovered under this Act as if
it were an amount of unpaid contributions.
Note—
Section 72 (3) of the Civil
and Administrative Tribunal Act 2013 provides for a civil
penalty for a contravention of an order of the Tribunal. A monetary penalty of
up to $11,000 for an individual and $22,000 for a corporation may be imposed
for the contravention and may be recovered as a debt due to the Crown in a
court of competent jurisdiction (see section 77 of that Act). Other penalties
ordered to be paid by the Tribunal may also be recovered as debts under that
Act (see section 78 of that Act).
Note—
Section 86 of this Act provides for the recovery
of unpaid contributions.