VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL OWNERS CORPORATIONS. Alan Vassie Ian Lulham Bernadette Steele

Transcription

1 VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL OWNERS CORPORATIONS Alan Vassie Ian Lulham Bernadette Steele

2 Published by Anstat Pty Ltd ACN All legislation herein is reproduced by Anstat Pty Ltd with permission from the State of Victoria. Copyright in individual Acts and Statutory Rules belongs to the State of Victoria. The annotated version of this Act is not an official copy of legislation and is not published by authority of the Government Printer or on behalf of the State. The State of Victoria accepts no responsibility for the accuracy of all information reproduced herein. This publication is subject to copyright and no part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 and with the prior written consent of the Government Printer and/or Anstat Pty Ltd. Address all enquiries to: General Manager Anstat Pty Ltd PO Box 447 South Melbourne 3205 Victoria Australia This service is not intended to be and is not a complete or definitive statement of the law on the relevant subject matter. It is made available with the understanding that VCAT and Anstat Pty Ltd are not engaged in rendering legal advice. No person should take any action or refrain from taking any action in reliance upon the contents of this service without first obtaining advice from a competent practitioner. VCAT and Anstat Pty Ltd and each of them expressly disclaim liability for any loss or damage suffered by any person arising out of any errors or omissions in this service or any reliance in part or in full upon the contents of this service Anstat Pty Ltd How to Order Mail Order Anstat Customer Services PO Box 447 South Melbourne 3205 Victoria Australia DX Melbourne Telephone (03) Fax (03)

3 INTRODUCTION This volume is a commentary upon the Owners Corporations Act 2006 ( the Act or the OC Act ) and Part 5 of the Subdivision Act 1988 ( the Subdivision Act or the S Act ). The commentary explains the provisions of those Acts, and of related legislation, regulations and rules, which have the most significance for the jurisdiction of the Owners Corporation List of the Victorian Civil and Administrative Tribunal ( the Tribunal or VCAT ). The commentary is designed also to assist readers to navigate the Acts and related legislation, regulations and rules. Emphasis is placed on the practical operation of the Acts. Where possible, all comments pertaining to a particular section are included in the commentary under that section. To avoid unnecessary repetition, however, there is extensive cross-referencing. The commentary should be read together with the Commentary on the Victorian Civil and Administrative Tribunal Act 1998 ( the VCAT Act ) in Volume 1, related legislation and the Victorian Civil and Administrative Tribunal Rules 2008 ( the Rules ). July 2012 Anstat I-1

4 VCAT Owners Corporations Further information of interest to Tribunal users is contained in information sheets and guidelines. These may be obtained from the Tribunal at the following address: Ground floor 55 King Street Melbourne Vic 3000 GPO Box 5408 Melbourne Vic 3001 DX Melbourne Internet: Telephone Facsimile In particular, the Tribunal s internet website contains information and documentation of interest to Tribunal users. Cases of interest may be found at by searching Victorian Civil and Administrative Tribunal Decisions 1998 under Victoria Vic Case Law. Decisions of the Supreme Court of Victoria and of other Australian Courts and Tribunal may also be found at that website. Parties may refer to decided cases for assistance in understanding the legislation and its application to particular factual situations. This does not mean, however, that the Tribunal will require, or will necessarily be assisted, by the citation of cases. Parties should also be aware that while relevant Tribunal decisions may be persuasive, they are not binding upon the Tribunal in a later case. The law is stated as at 1 July I-2 Anstat July 2012

5 Introduction THE AUTHORS Ian Lulham is a Deputy President of VCAT and is the Head of the Civil Claims List. He was formerly Head of the Owners Corporations List. Before joining the Tribunal as a full time member, he was a partner in a law firm in Melbourne and practised in commercial litigation. In that role he developed a practice as a third party neutral, including acting as the supervising solicitor in the execution of Anton Piller injunctions, as an Arbitrator, as a Mediator, as an expert under expert determination procedures. He was a Chair of the Housing Guarantee Fund Ltd when it had an internal Appeals Committee, and acted on internal disciplinary boards occasionally, including for the Housing Industry Association and the Architects Registration Board. He had a considerable involvement in the Law Institute of Victoria, including as a member and then Chair of its Alternative Dispute Resolution Committee, as a member of its Specialisation Advisory Committee on ADR, and as a member of the Executive Committee of its Litigation Lawyers Section. Bernadette Steele is a sessional Senior Member of VCAT. She has been a VCAT member since March Between 2006 and 2011 she was a Deputy President of VCAT, heading the Civil Claims, Residential Tenancies and Owners Corporation Lists. Before her appointment to VCAT she was Director of Consumer Affairs Victoria and a Deputy Secretary in the Department of Justice. She began her legal career drafting legislation for the Victorian Parliament and worked mostly in government. At present, as a sessional Senior Member, she sits in a number of different VCAT Lists. July 2012 Anstat I-3

6 VCAT Owners Corporations Alan Vassie is a full time Senior Member of VCAT. He has been Head of the Owners Corporation List since 1 January He also sits regularly in the Civil Claims List and occasionally in other Lists. He was admitted to practice in Victoria as a barrister and solicitor in 1969 and practised at the Victorian Bar between 1977 and 2002 when he was appointed a full time Member of VCAT. Before 1977 he was a member of a city firm of solicitors for five years. The authors acknowledge their debt to John Billings, a former Deputy President of VCAT. In paras [1.04] to [1.35] of the commentary the authors have adapted comparable paragraphs, for which he was primarily responsible, in the volumes which are commentaries on the Residential Tenancies Act and upon the Guardianship and Administration Act. His was the initiative of writing commentaries on those Acts, and this volume continues that initiative. The authors derive no financial benefit personally from their involvement with this volume. I-4 Anstat July 2012

7 Owners Corporations Act 2006 No. 69 of 2006 PART 1 INTRODUCTORY 1 Purposes The main purposes of this Act are (a) to provide for the management, powers and functions of owners corporations; and (b) to provide for appropriate mechanisms for the resolution of disputes relating to owners corporations; and (c) to amend the Subdivision Act 1988 in relation to the creation of owners corporations. Commentary [1.01] Unless otherwise stated, references in paras [1.01] to [1.35] to the VCAT Act are references to the Victorian Civil and Administrative Tribunal Act 1998; to the OC Act are references to the Owners Corporations Act 2006; and to the Subdivision Act are references to the Subdivision Act The OC Act came into operation on 31 December Before that date the legislation to which owners corporations (then called bodies corporate ) were subject was the Subdivision Act and the regulations made under the Subdivision Act. Commencing the Second Reading speech which introduced the 2006 legislation as a bill, the Attorney- General said: In 1988, when the Subdivision Act was passed to govern the operations of bodies corporate, there July 2012 Anstat P1-1

8 VCAT Owners Corporations were approximately bodies corporate in Victoria in which people lived and worked. Most were small suburban apartment blocks of between two and six units. Even a brief examination of the changing number and range of bodies corporate reveals that there has been a profound social transformation in the way Victorians live and work over the past two decades. Today there are more than bodies corporate in Victoria, incorporating over lots. It is estimated that at least 1 million people, or approximately 20 per cent of all Victorians, own, live or work in bodies corporate. We have seen the rise of large multistorey apartment developments. While bodies corporate with less than five lots account for around 30 per cent of the total number of bodies corporate, those consisting of more than 100 lots now represent a quarter of all lots in Victoria. These different sets of numbers indicate two significant developments since Firstly, there has been an enormous increase in the number of Victorians living and working in bodies corporate. Secondly, the average body corporate is growing in size, with more lots per body corporate. In 1988, a much larger proportion of bodies corporate were under five lots, and were selfmanaged. A one-size-fits-all approach was adopted under the Subdivision Act and regulations, with the relatively minimal regulatory framework encouraging informal dispute resolution. However, the days when body corporate only meant granny flats or small blocks of four or five flats are long gone. Increasingly, bodies corporate are complex entities. Growing numbers of high-rise apartment buildings present a new set of policy challenges. These P1-2 Anstat July 2012

9 Part 1- Introductory challenges increase when we consider the mix of uses for bodies corporate, which can relate to common property owned by residential, commercial, or industrial interests. Apart from the flats, units and apartments that first come to mind with the words body corporate, office blocks, hotels, retirement villages and farms can all belong to a body corporate. This range gives some idea of why the existing regulatory regime, built for a different, simpler era, is no longer appropriate to contemporary needs. Later in the speech the Attorney-General said: The current regulatory scheme for bodies corporate is not serving Victorians well. The regulatory scheme is sparse and limited in the guidance it provides to bodies corporate and lot owners. Parts of it are not clear or appear contradictory, and in many areas little guidance is provided to individuals trying to run these community organisations we call bodies corporate. At a minimum this bill will fix the situation. It provides much more detail on the roles and responsibilities of the participants in the owners corporation, the office bearers and the lot owners. It provides clearer procedures and clarifies provisions that in the previous act and regulations were unclear or contradictory. In addition, this bill also provides for a range of new features to assist in the smooth running of owners corporations. It provides for more types of decisions by ballot, it allows owners corporations to establish maintenance plans and maintenance funds, and it provides for much better access to key information July 2012 Anstat P1-3

10 VCAT Owners Corporations needed to run and participate in an owners corporation. This new regulatory scheme should benefit everyone living in an owners corporation. Reference may be made to the Second Reading speech as an aid to construction: see Interpretation of Legislation Act 1984 s 35(b)(ii). Reference may also be made to the explanatory memorandum: see s 35(b)(iii) of that Act. [1.02] By s 211 of the OC Act (since repealed), a new Part 5, headed Part 5 Subdivisions with Owners Corporations was substituted for Part 5 of the Subdivision Act as it was before the commencement of the OC Act. So this work, as well as reproducing the OC Act and being a commentary on the OC Act, reproduces and is a commentary on Part 5 of the Subdivision Act (ss 27 to 34H, inclusive). The repeal of s 211 of the OC Act was effected by s 92 of the Consumer Affairs Legislation Amendment Act 2010, which came into effect on 1 January That s 92 repealed Parts 14 (which included s 211), 15 and 16 of, and Schedule 3 to, the OC Act. They were all consequential amendment provisions. The repeal of those provisions did not affect the continued operation of the amendments made by them: see s 15(1) of the Interpretation of Legislation Act [1.03] A commentary on the VCAT Act is to be found in the VCAT Laws and Procedure volume. There follows, however, in paras [1.04]-[1.36], brief reference to those sections of the VCAT Act which have particular significance for the Owners Corporation List, and to the P1-4 Anstat July 2012

11 Part 1- Introductory Practice Notes and application forms that VCAT has published. Index to paragraphs [1.04] to [1.35] Abridgement of time, [1.33] Affidavits, [1.35] Amending documents and orders, [1.22], [1.32] Appeals, [1.31] Applications, [1.12] Application forms, [1.36] Certified copy of documents, [1.21] Compulsory conferences, [1.18] Consolidation of proceedings and hearing cases together, [1.17] Contempt of Tribunal, [1.29] Costs, [1.25] Declarations, [1.28] Documents to accompany applications, [1.12] Documents retention by Tribunal, [1.21] Enforcement of orders, [1.27] Entry and inspection of premises by Tribunal, [1.23] Evidence, [1.07] Extension of time, [1.33] False or misleading information, [1.29] Failure to attend hearing, [1.19], [1.29] Fairness duty to act fairly, [1.07] Fees and waiver of fees, [1.12] Hearings telephone, video link or other telecommunication, [1.20] Inconsistency between legislation, [1.06] Injunctions, [1.28] Interpreters, [1.11] Joinder of parties, [1.09] Mediation, [1.18] July 2012 Anstat P1-5

12 VCAT Owners Corporations Natural justice, [1.07] Notice of hearing, [1.19] Orders conditions and further orders, [1.24] Orders correction, [1.32] Original jurisdiction of Tribunal, [1.08] Parties to proceedings, [1.09] Possession order right to representation, [1.10] professional advocate, [1.10] Reasons for decision, [1.26] Representation of parties, [1.10] Representative costs order against, [1.25] Rejection of applications, [1.12] Review or re-opening of order, [1.30] Service of applications and documents, [1.13], [1.34] Submissions, [1.08] Submissions in writing, [1.21] Summary dismissal of applications, [1.15] Summons to witness, [1.16] Summons to witness failure to comply, [1.16], [1.29] VCAT commencement of Tribunal, [1.04] VCAT divisions of Tribunal, [1.05] VCAT establishment of Tribunal, [1.04] VCAT membership, [1.05] VCAT Online, [1.12] VCAT Practice Notes, [1.36] VCAT Rules, [1.05] Waiver of non-compliance with procedure, [1.32] Withdrawal of applications, [1.14] Witness examination, cross-examination and reexamination, [1.07] Witness refusal to answer questions etc, [1.16] [1.04] The VCAT Act established the Victorian Civil and Administrative Tribunal ( VCAT or the Tribunal ). It came into operation on 1 July P1-6 Anstat July 2012

13 Part 1- Introductory On establishment of the Tribunal see the VCAT Laws and Procedure volume at paras [1.01-[1.07]. The VCAT Act establishes the Tribunal and provides for its membership. The Act also vests the Tribunal with its general powers and procedures, some of the more important of which are discussed below. It is important to highlight, however, that Schedule 1 to the Act contains jurisdictional and procedural variations from parts of the Act for certain proceedings: ss 39 and 58 and Schedule 1 of the VCAT Act. [1.05] On 30 June 2008 the Victorian Civil and Administrative Tribunal Rules 2008 ( the Rules ) came into operation. They replaced the 1998 Rules which had been in operation since 1 July The Rules establish 3 divisions of the Tribunal: the administrative division, the civil division and the human rights division: r The Owners Corporation List is a list of the civil division: r The functions of the Tribunal to be exercised in the Owners Corporation List are those under the OC Act, the Subdivision Act Part 5 and ss 36 and 39, and the Fair Trading Act 1999: r 2.03 and Schedule 1 to the Rules. The Fair Trading Act 1999 was repealed, but many of its provisions were re-enacted, on 1 July 2012 by the Australian Consumer Law and Fair Trading Act By virtue of Schedule 4 clause 3(1) of the 2012 Act, a reference to the Fair Trading Act in any instrument made under any Act must be read as a reference to the 2012 Act, unless the context otherwise requires. Hence the Rules, when enabling functions under the Fair Trading Act to be exercised in the Owners Corporation List, are to be read as also enabling functions under the Australian Consumer Law and Fair Trading Act to be exercised in the Owners Corporation List. See also Interpretation of Legislation Act 1984 s16. July 2012 Anstat P1-7

14 VCAT Owners Corporations On the membership of the Tribunal see the VCAT Laws and Procedures volume at paras [10.01]-[14.01]. [1.06] In the event of any inconsistency between the VCAT Act (or the Regulations made under it or the Rules) and the OC Act or the Subdivision Act, the provisions of the OC Act or the Subdivision Act prevail to the extent of the inconsistency: see s 159 and the VCAT Laws and Procedure volume at para [159.01]. [1.07] The Tribunal is under a duty to act fairly: s 97. It is bound by the rules of natural justice but is not bound by the rules of evidence and may inform itself of any matter as it sees fit: s 98. The Tribunal is expressly required, however, to permit parties a reasonable opportunity to examine, cross-examine and re-examine witnesses, and to make submissions: s 102. The Tribunal is to act with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the OC Act and a proper consideration of the matters before it permit: s 98. See also the VCAT Practice Note PNVCAT3 Fair Hearing obligation, referred to in para [1.36]. On the powers and duties of the Tribunal see the VCAT Laws and Procedure volume at paras [97.01]-[108.02]. [1.08] The original jurisdiction of the Tribunal is usually brought into operation by a person entitled under the OC Act or the Subdivision Act applying in accordance with the VCAT Act: ss 43 and 67: see also paras [1.12]. [1.09] The parties to proceedings in the List include those who apply and those joined by the Tribunal (s 60): see the VCAT Act, s 59. As to s 60 see the VCAT Laws and Procedure volume at paras [60.01]-[60.04]. P1-8 Anstat July 2012

15 Part 1- Introductory [1.10] Representation is dealt with in s 62: see the VCAT Laws and Procedure volume at paras [62.01]-[62.05]. A party may be represented by a professional advocate in certain specified situations, or if permitted by the Tribunal. A professional advocate is a lawyer or person considered by the Tribunal to have substantial experience in the kind of case before the Tribunal. [1.11] Unless the Tribunal otherwise directs, a party may be assisted by an interpreter: s 63. A party should notify the principal registrar at the earliest opportunity to request that an interpreter attend a hearing. [1.12] Applications to the Owners Corporation List must be in the form, and contain the particulars, required by the Rules. Application forms can be obtained from 55 King Street, Melbourne or from Consumer Affairs Victoria, or can be downloaded from the VCAT website, which is If the matter is urgent, a downloaded application can be lodged by facsimile transmission ((03) ) with the fee (see discussion below) paid by credit card. A guide for applications to the Tribunal in the Owners Corporation List is available from the registry and can be downloaded from the website. An applicant must pay the prescribed fee: s 68. The VCAT website contains up to date information about application and other fees. The fee for applications under the OC Act or under Part 5 of the Subdivision Act is currently $ The fee may be paid in cash (at 55 King Street), credit card, cheque or EFTPOS. All fees are reviewable annually under the Monetary Units Act 2004 which provides for the fixing of the value of a fee unit. The principal registrar has the power to waive the fee: s 132. There is a form of application for fee waiver including an affidavit available from the registry or which July 2012 Anstat P1-9

16 VCAT Owners Corporations may be downloaded from the VCAT website. A common reason for which waiver is sought is that the applicant has no income other than a social security pension or benefit and no savings. If the fee is not paid at the time the application is lodged the Tribunal is to take no further action until the fee is paid or waived: s 68(3). If the fee is not paid or waived within 30 days after the day on which the application is lodged the Tribunal may strike out the proceeding: s 68(4). For the purposes of s 67(1)(a) of the VCAT Act applications must be in Form 2 of Schedule 2 of the Rules but may contain any necessary modifications: r The principal registrar may reject an application which is made by a person not entitled to make it; or does not otherwise comply with the VCAT Act, the Regulations or the Rules. If the principal registrar rejects an application he or she must inform the applicant of the right to require the principal registrar to refer the application to the Tribunal for a review of the rejection: s 71. See further the VCAT Laws and Procedure volume at paras [71.01]-[71.04]. [1.13] The principal registrar undertakes service of applications made to the Owners Corporation List. By virtue of s 72(2)(a) it is therefore not necessary for an applicant to serve the application upon any other party, unless the Tribunal orders otherwise. Service upon a respondent who resides interstate can be effected under the Service and Execution of Process Act 1992 (Commonwealth) s 50. There are difficulties, however, where a respondent resides outside Australia. P1-10 Anstat July 2012

17 Part 1- Introductory A VCAT proceeding cannot be served outside Australia. Nothing in the VCAT Act or in the Rules permits such service. See Apollo Marble and Granite Imports Pty Ltd v Industry & Commerce (Civil Claims) [2008] VCAT Nor can there be an order for substituted service if the respondent was not within Victoria at the time that the proceeding was commenced. OC Act s 135(2), which permits service on a lot owner to be effected in any manner VCAT considers appropriate if no address in Australia of the lot owner is known, is of no assistance because it deals only with notices under the OC Act, not with VCAT applications. For further explanation of those difficulties see Owners Corporation No 1 & No 2 PS P v Nguyen (Civil Claims) [2009] VCAT 450 and Owners Corporation No 1 PS v Sivanesan (Owners Corporation) [2012] VCAT 391. Nevertheless, if the applicant provides evidence that the overseas respondent lot owner has a real estate managing agent in Australia who collects the rent from a tenant of the lot or who has the lot on the market for prospective renting, the Tribunal may regard the agent s office address as the lot owner s usual business address for the purposes of s 140(1)(a) and direct under s 140(1)(d)(ii) that the principal registrar serve the application upon the respondent by posting it to that address. The Tribunal made such an order in Owners Corporation No 1 & No 2 PS P v Nguyen (Civil Claims) [2009] VCAT 450. [1.14] An application to the Owners Corporation List may be withdrawn with the leave of the Tribunal: s 74. The principal registrar will notify the parties of the withdrawal. July 2012 Anstat P1-11

18 VCAT Owners Corporations [1.15] Proceedings may be dismissed if frivolous, vexatious, misconceived or lacking in substance: s 75. They may also be dismissed for want of prosecution : s 76. Further, where it is considered that a party has been conducting a proceeding in a way which unnecessarily causes disadvantage to another party, the Tribunal may make appropriate orders: s 78. See the VCAT Laws and Procedure volume at paras [75.01]-[78.02]. [1.16] The principal registrar may (and, if directed by the Tribunal, must) issue a summons to a person to attend the Tribunal and produce any documents referred to in the summons: s 104. The fee for issuing a summons is $ (A summons is sometimes referred to as a subpoena.) See the VCAT Laws and Procedure volume at paras [104.01]-[104.04]. Once a hearing date is known a party or representative should apply to the principal registrar by attending the Tribunal during normal business hours. If necessary the application may be dealt with by a Member. In urgent cases the party or representative should notify the principal registrar at the earliest opportunity that a summons or summonses will be required. The consequences of failure to comply with a summons are set out in s 134. Similarly, the consequences of a witness refusing to be sworn in, make an affirmation, or answer a question which the witness is required by the Member to answer are set out in s 135. A person must not knowingly give false or misleading information to the Tribunal or a registrar: s 136. Contempt is dealt with in s 137. See the VCAT Laws and Procedure volume at paras [137.01]-[137.03]. In addition to the power to direct that a summons be issued (s 104), the Tribunal may order that a person who is not a party but who has or is likely to have a relevant document produce that document: s 81. P1-12 Anstat July 2012

19 Part 1- Introductory The Tribunal may set aside a summons on the application of a party or the witness, or on its own initiative, if there is an abuse of process. [1.17] The Tribunal may direct that proceedings be consolidated or remain separate but be heard together: s 82. See VCAT Laws and Procedure volume at paras [82.01]-[82.03]. This may occur where, for instance, two different members of an owners corporation make applications against each other. It may also occur where, because a defect has appeared in a building on a lot, the tenant, seeking a remedy, brings one proceeding in the Residential Tenancies List of the Tribunal against the landlord lot owner and another proceeding in the Owners Corporation List against the owners corporation. See commentary under s 163. [1.18] The VCAT Act contains provisions concerning compulsory conferences (s 83) and mediation (s 88). A Member who acts as mediator can constitute the Tribunal for the purpose of hearing the proceeding, but a party may object before or at the commencement of the hearing: Schedule 1, Part 17, cls See the VCAT Laws and Procedure volume at paras [83.01]-[93.01]. See also the VCAT Practice Note PNVCAT4 Alternative Dispute Resolution, referred to in para [1.36]. [1.19] The principal registrar must give notice of hearing to parties and others entitled to notice or directed by the Tribunal to be given notice. If any person given notice fails to attend, the hearing may be held in that person s absence: s 99. See the VCAT Laws and Procedure volume at paras [99.09]-[99.02]. [1.20] Hearings may be conducted by conference using telephones, video links or other system of telecommunication. In addition, if the parties agree, the Tribunal may conduct all or parts of a hearing entirely on July 2012 Anstat P1-13

20 VCAT Owners Corporations the basis of documents: s 100. Hearings must be held in public unless otherwise ordered: s 101. [1.21] The Tribunal may retain for a reasonable time any document produced to the Tribunal in the course of a proceeding, whether or not it is an exhibit formally tendered in evidence during a hearing, may make a copy of any such document, and may provide a certified copy of it: s 128. [1.22] The Tribunal has power to amend any document in a proceeding: s 127. The power to correct mistakes in an order is conferred by s 119: see para [1.32]. [1.23] The Tribunal may enter and inspect any land or building: s 129. Ordinarily this will not be required either because by the time of the hearing the state of the premises has altered or because photographic or other evidence is sufficient. [1.24] The Tribunal s power to make orders includes power to impose conditions and make appropriate further orders: s 30. See also the VCAT Laws and Procedure volume at paras [130.01] ]. [1.25] Subject to ss each party is to bear their own costs in a proceeding. The Tribunal has power, however, to award costs if satisfied that it is fair to do so having regard to the matters set out in s 109(3). These include the relative strengths of the claims made by each of the parties, including whether a party has made a claim which has no tenable basis in fact or in law. If the Tribunal considers that the representative of a party, rather than the party, has engaged in conduct which unnecessarily disadvantaged another party or prolonged unreasonably the time taken to finalise the proceeding, the Tribunal may make a costs order against the representative: see s 109(4). The representative must first be given a reasonable opportunity to be heard: s 109(5). See the P1-14 Anstat July 2012

21 Part 1- Introductory VCAT Laws and Procedure volume at paras [109.01]- [115.01]. Schedule 1 to the VCAT Act, Part 15AB, cl 51ADA provides that in an application relating to the recovery of fees and charges imposed by an owners corporation under Division 1 of Part 3 of the OC Act the Tribunal may make an order for costs incurred by a lot owner or an owners corporation, including the costs of a manager. Such costs are not limited to costs incurred by a professional advocate under s 62 of the VCAT Act. [1.26] In proceedings before the Owners Corporation List the Tribunal must give reasons for final orders but is not obliged to give reasons in writing unless a request has been made within 14 days of the Tribunal s giving of oral reasons: s 117. [1.27] Monetary orders may be enforced in the Magistrates Court: s 121. Information about the process may be obtained from the Tribunal. Non-monetary orders may be enforced in the Supreme Court: s 122. There are penalties for non-compliance with Tribunal orders (other than a monetary order): s 133. See the VCAT Laws and Procedure volume at paras [121.01], [122.01]-[122.02] and paras [133.01]-[133.02]. A person may obtain a certified copy of an order: s 145. [1.28] The VCAT Act confines power to grant injunctions or make declarations to Members who are legal practitioners: ss 123 and 124. Members sitting in the Owners Corporation List are legal practitioners. See also the VCAT Laws and Procedure volume at paras [123.01]- [124.04]. [1.29] Other provisions of the Act deal with failing to comply with a summons (s 134); failing to give evidence (s 135); giving false or misleading information (s 136); and July 2012 Anstat P1-15

22 VCAT Owners Corporations contempt (s 137). See also commentary under those sections in the VCAT Laws and Procedure volume. [1.30] Applications for review, that is to re-open an order and hold a re-hearing, are dealt with in s 120 of the VCAT Act. An application is made under s 120 if the person in respect of whom the order was made did not attend and was not represented at the hearing at which the order was made. An application for review must be made within 14 days after the applicant becomes aware of the order. Not more than one application may be made under s 120 in respect of the same person without the leave of the Tribunal. See the VCAT Laws and Procedure volume at paras [120.01]-[120-02]. [1.31] Appeals from VCAT (to the Court of Appeal or the Trial Division of the Supreme Court) are provided for in s 148. See the VCAT Laws and Procedure volume at paras [148.01]-[148.04]. [1.32] If an order contained a mistake, such as a miscalculation of figures, a party may apply for the order to be corrected under s 119 of the VCAT Act and must do so in writing, giving particulars of the matter requiring correction: r See the VCAT Laws and Procedure volume at paras [119.01]-[119.03]. [1.33] Rule 4.20 makes it clear that the Tribunal s power to extend or abridge time or waive compliance extends to proceedings under the OC Act or under Part 5 of the Subdivision Act. [1.34] Rule 4.23 provides an alternative method of service of documents. Post, fax or other electronic transmission to the current address for service of the person to be served is permissible. [1.35] An affidavit may be lodged with the Tribunal by fax although the principal registrar may refuse to accept the P1-16 Anstat July 2012

23 Part 1- Introductory document if it is illegible. The original of any document lodged by fax must be retained by or on behalf of the party on whose behalf it was lodged and provided to the Tribunal at the request of the principal registrar: see r [1.36] The Tribunal has published Practice Notes effective as from 15 March They are designed to introduce greater uniformity and efficiency in Tribunal practices. The Practice Notes are: PNVCAT 1 Common Procedures PNVCAT 2 Expert Evidence PNVCAT 3 Fair Hearing Obligation PNVCAT 4 Alternative Dispute Resolution PNVCAT 5 Directions Hearings and Urgent Hearings. The Tribunal has also published forms which are linked to those Practice Notes. They are: Application for an Adjournment (Linked to PNVCAT 1) Application for Directions or Orders (Linked to PNVCAT 5) Application for leave to withdraw a proceeding (Linked to PNVCAT 1) Request for Consent to an Adjournment (Linked to PNVCAT 1) Telephone Attendance Request (Linked to PNVCAT 1). The Practice Notes, and the forms linked to them, can be downloaded from the VCAT website, which is July 2012 Anstat P1-17

24 VCAT Owners Corporations 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 31 December 2007, it comes into operation on that day. Commentary [2.01] Unless otherwise stated, references to the Act or the the OC Act in the remainder of this commentary are references to the Owners Corporations Act. [2.02] By virtue of s 2(2) the Act came into operation on 31 December 2007, there having been no relevant proclamation before that date. Before the Act commenced operation, the law governing bodies corporate (as they used to be called) was a combination of the Subdivision Act 1988, the Subdivision (Procedures) Regulations 2000 ( the 2000 Regulations ) and the Subdivision (Body Corporate) Regulations 2001 ( the 2001 Regulations ). The 2001 Regulations were revoked by the Subdivision (Procedures) (Owners Corporations Amendment) Regulations on 31 December 2007, when the Act came into operation. The 2000 Regulations remained in force until they were revoked by the Subdivision (Procedures) Regulations 2011 on 8 October The law that now governs owners corporations is: the Owners Corporations Act 2006; the Subdivision Act 1988, Part 5; the Owners Corporations Regulations 2007, which came into operation on 31 December 2007, made under s 204 of the Act; and P1-18 Anstat July 2012

25 Part 1- Introductory the Subdivision (Registrar s Requirements) Regulations 2011, which came into operation on 8 October [2.03] Schedule 2 of the Act contains transitional and savings provisions that apply to bodies corporate created before the commencement of the Act and to things done by those bodies corporate before that date. Broadly, their effect is that each body corporate became an owners corporation with its rules intact, its committee intact and resolutions made by its members effective, to the extent that they were not inconsistent with the new Act: clauses 3, 5, 7 and 8 of Schedule 2. A body corporate certificate issued before the commencement of the Act is deemed to be an owners corporation certificate under the Act: clause 6. In accordance with the presumption against the retrospective operation of legislation, the validity of and legal consequences of things done before the Act commenced are determined in accordance with the law that was in operation at the time they were done. 3 Definitions In this Act amend in relation to a rule, includes add to or replace; approved form means form approved by the Director under section 200; bank account means an account with an authorised deposittaking institution within the meaning of the Banking Act 1959 of the Commonwealth; building includes (a) a structure and part of a building or a structure; and July 2012 Anstat P1-19

26 VCAT Owners Corporations S. 3 def. of Director amended by No. 21/2012 s. 239(Sch. 6 item 33.1). S. 3 def. of inspector amended by No. 21/2012 s. 239(Sch. 6 item 33.2). (b) walls, out-buildings, service installations and other appurtenances of a building; and (c) a boat or a pontoon which is permanently moored or fixed to land; business day means a day that is not (a) a Saturday or Sunday; or (b) a public holiday appointed under the Public Holidays Act 1993; Business Licensing Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998; common property means land shown as common property on a plan of subdivision or a plan of strata or cluster subdivision; Council means the Council of the municipal district in which the land in the plan is located; CPA Australia means CPA Australia A.C.N ; Director has the same meaning as it has in the Australian Consumer Law and Fair Trading Act 2012; externally administered body corporate has the same meaning as it has in the Corporations Act; function includes duty and authority; inspector means an inspector appointed under the Australian Consumer Law and Fair Trading Act 2012; land includes buildings and airspace; land affected by an owners corporation means the lots the owners for the time being of which are members of the owners corporation together with the common property for which the owners corporation is responsible; P1-20 Anstat July 2012

27 Part 1- Introductory Licensing Registrar means the Registrar of the Business Licensing Authority appointed under the Business Licensing Authority Act 1998; limited owners corporation has the same meaning as it has in the Subdivision Act 1988; lot has the same meaning as it has in the Subdivision Act 1988; lot affected by an owners corporation means a lot the owner for the time being of which is a member of the owners corporation; lot entitlement in relation to a lot affected by an owners corporation, means a number specified in the plan as the lot entitlement for that lot, expressing the extent of the lot owner's interest in any common property affected by the owners corporation; lot liability in relation to a lot affected by an owners corporation, means a number specified in the plan as the lot liability for that lot, expressing the proportion of the administrative and general expenses of the owners corporation which the lot owner is obliged to pay; lot owner, in relation to an owners corporation, means an owner of a lot affected by the owners corporation; ordinary resolution means a resolution other than a special resolution or a unanimous resolution; owner has the same meaning as it has in the Subdivision Act 1988; owners corporation means a body corporate which is incorporated by registration of a plan of subdivision or a plan of strata or cluster subdivision; owners corporation register means the register kept by an owners corporation in accordance with section 147; S. 3 def. of ordinary resolution inserted by No. 2/2008 s. 12(1). July 2012 Anstat P1-21

28 VCAT Owners Corporations plan of subdivision has the same meaning as plan has in the Subdivision Act 1988; prescribed owners corporation means an owners corporation of a class prescribed by the regulations; Register means the Register under the Transfer of Land Act 1958; registered manager means a manager registered under Part 6; Registrar has the same meaning as it has in the Transfer of Land Act 1958; rules in relation to an owners corporation, means the rules of the owners corporation for the time being in force; unlimited owners corporation has the same meaning as it has in the Subdivision Act Commentary [3.01] By s 3, plan of subdivision in the Act has the same meaning as plan has in the Subdivision Act. The following definitions appear in s 3 of the Subdivision Act: plan means a plan under section 24A, 32B or 37 or Division 3 of Part 5 or a plan of (a) (b) (c) subdivision; or consolidation; or creation, variation or removal of an easement or restriction; plan of subdivision means a plan showing the subdivision of land. Elaboration upon the various types of plan, other than a plan of subdivision, referred to in the definition of plan is beyond the scope of this commentary. Technically the P1-22 Anstat July 2012

29 Part 1- Introductory meaning of plan of subdivision in the Owners Corporations Act is wider than the definition of plan of subdivision in the Subdivision Act. But in most cases that come before the Owners Corporation List the difference in width of definition is unlikely to matter. [3.02] By s 3, each of the following expressions in the Act has the same meaning as it has in the Subdivision Act: limited owners corporation lot owner unlimited owners corporation. In s 3 of the Subdivision Act limited owners corporation is defined as having the meaning set out in s 27C of that Act; s 27C(1) states that a limited owners corporation is an owners corporation specified on a plan as a limited owners corporation; lot is defined as follows: lot means a part (consisting of one or more pieces) of any land (except a road, a reserve or common property) shown on a plan which can be disposed of separately and includes a lot or accessory lot on a registered plan of strata subdivision and a lot or accessory lot on a registered cluster plan; owner is defined as follows: owner means (a) for land under the Transfer of Land Act 1958 (other than land in an identified folio under that Act), the registered proprietor of the fee simple in the land, or a person who is July 2012 Anstat P1-23

30 VCAT Owners Corporations empowered by or under an Act to execute a transfer of the land; (b) for land in an identified folio under the Transfer of Land Act 1958 or land not under the Transfer of Land Act 1958, a person who has an estate in fee simple in the land (except a mortgagee), or is empowered by or under an Act to convey an estate in fee simple in the land; unlimited owners corporation is defined as having the meaning set out in s 27B of that Act; s 27B(1) states that an unlimited owners corporation is an owners corporation that is not a limited owners corporation. [3.03] Director means the Director of Consumer Affairs Victoria: Australian Consumer Law and Fair Trading Act 2012 s 3. [3.04] By s 3, externally administered body corporate has the same meaning as it has in the Corporations Act 2001 (Commonwealth). In s 9 of that Act there is the following definition: externally-administered body corporate means a body corporate: (a) (b) (c) (ca) that is being wound up; or in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or that is under administration; or that has executed a deed of company arrangement that has not yet terminated; or P1-24 Anstat July 2012

31 Part 1- Introductory (d) that has entered into a compromise or arrangement with another person the administration of which has not been concluded. The phrase is used only in Part 12 of the Act, relating to registration of managers and eligibility for registration. [3.05] Registrar means the Registrar of Titles: Transfer of Land Act 1958 ss 3, 5. July 2012 Anstat P1-25