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Queensland
BODY CORPORATE AND
COMMUNITY MANAGEMENT
AND OTHER LEGISLATION
AMENDMENT BILL 2002
Queensland
BODY CORPORATE AND COMMUNITY
MANAGEMENT AND OTHER
LEGISLATION AMENDMENT BILL 2002
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
PART 2--AMENDMENT OF BODY CORPORATE AND
COMMUNITY MANAGEMENT ACT 1997
3 Act amended in pt 2 and schedule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4 Amendment of s 15 (Meaning of "body corporate manager") . . . . . . . . . . . 16
5 Amendment of s 23 (Names of community titles schemes) . . . . . . . . . . . . . 17
6 Replacement of ss 24 and 25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
24 Reservation of name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7 Insertion of new s 30A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
30A Notice about change of scheme being developed progressively . . . . 17
8 Omission of ch 2, pt 3 (Scheme land) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9 Replacement of s 42 (Body corporate cannot own lot included in its
own scheme) ............................................. 18
Division 2--Body corporate acquisition of, and dealing with, lot included
in its own scheme
42 Acquisition for letting agent purposes . . . . . . . . . . . . . . . . . . . . . . . . 18
42A Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
42B Prohibition on benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
42C Effect of ending of authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
42D Body corporate interest in lot included in its own scheme . . . . . . . . 20
10 Amendment of s 44 (Lot entitlements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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Other Legislation Amendment Bill 2002
11 Amendment of s 46 (Court adjustment of lot entitlement schedule) . . . . . . 21
12 Insertion of new s 46A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
46A Criteria for deciding just and equitable circumstances . . . . . . . . . . . 22
13 Insertion of new s 47A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
47A Limited adjustment of lot entitlement schedule--after formal
acquisition of part of scheme land . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14 Replacement of s 48 (Registrar may record community management
statements) ............................................ 24
48 Recording of community management statement . . . . . . . . . . . . . . . 24
15 Amendment of s 50 (Subsequent community management statement) . . . . 24
16 Insertion of new s 50A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
50A Requirements for motion to change community management
statement .......................................... 25
17 Amendment of s 51 (New statements and subsequent plans of subdivision) 25
18 Insertion of new s 51A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
51A Other matters about new statements for schemes developed
progressively ...................................... 25
19 Amendment of s 54 (Local government community management
statement notation) ....................................... 28
20 Insertion of new s 54A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
54A Giving copy of community management statement to local
government ...................................... 30
21 Amendment of s 55 (Body corporate to consent to recording of new
statement) ............................................. 30
22 Insertion of new ss 55A and 55B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
55A Responsibility for preparing, and for costs of preparing, new
statement ......................................... 32
55B New community management statement must be consistent with
body corporate's consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
23 Replacement of s 56 (Three months limit for lodging request for
recording new statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
56 Time for lodging request to record new statement . . . . . . . . . . . . . . 33
24 Amendment of s 57 (Requirements for community management statement) 33
25 Omission of s 58 (When registrar records community management
statement) ............................................. 35
26 Replacement of ss 5965. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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Other Legislation Amendment Bill 2002
59 Application of pt 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
27 Insertion of new s 67A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
67A Services location diagrams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
28 Amendment of s 69 (Reinstatement process under court approval) . . . . . . . 36
29 Insertion of new s 69A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
69A Variation and substitution of court orders . . . . . . . . . . . . . . . . . . . . . 37
30 Replacement of s 71 (Registration for changes to scheme under
approved reinstatement process) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
71 Registration for changes to scheme under approved
reinstatement process ................................. 38
31 Replacement of ss 76 and 77. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
76 Effecting termination of scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
77 Effect of termination on accrued charge, levy, rate or tax . . . . . . . . . 38
32 Replacement of ss 83 and 84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
83 Effecting amalgamation of community titles schemes . . . . . . . . . . . 39
33 Insertion of new ch 2, pt 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
PART 12--CREATION OF A LAYERED ARRANGEMENT FROM
EXISTING BASIC SCHEMES
Division 1--Introduction
86A General principles of creation of layered arrangement from
basic schemes ...................................... 39
86B Schemes that may become a layered arrangement . . . . . . . . . . . . . . 39
86C Agreement or court order for creation of layered arrangement . . . . . 40
86D Effecting creation of layered arrangement. . . . . . . . . . . . . . . . . . . . . 40
86E Effect of creation of layered arrangement . . . . . . . . . . . . . . . . . . . . . 41
34 Amendment of s 87 (Body corporate's general functions) . . . . . . . . . . . . . . 41
35 Insertion of new s 89A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
89A No delegation of body corporate's powers . . . . . . . . . . . . . . . . . . . . 42
36 Amendment of s 98 (Counting of votes for special resolution) . . . . . . . . . . 42
37 Insertion of new s 98A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
98A Counting of votes for majority resolution . . . . . . . . . . . . . . . . . . . . . 42
38 Insertion of new s 101B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
101B Original owner's obligations about engagements and authorisations 43
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39 Amendment of s 102 (No consideration for engagement or authorisation) . 44
40 Amendment of s 103 (Limitation on benefit to body corporate under
service contractor engagement). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
41 Amendment of s 104 (Limitation on benefit to body corporate under
letting agent authorisation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
42 Insertion of new s 104A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
104A Letting agent must hold letting agent lot in letting agent's name . . . 45
43 Insertion of new s 105A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
105A Code of conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
44 Replacement of ch 2, pt 2, div 2 (Delegations) . . . . . . . . . . . . . . . . . . . . . . . 46
Division 2--Performance of powers of body corporate committee and
executive members by body corporate manager
106 Schemes for which there is a committee for the body corporate. . . . 46
106A Schemes for which there is no committee for the body corporate. . . 47
106B Power of body corporate manager to act for body corporate. . . . . . . 47
45 Amendment of s 107 (Regulation module) . . . . . . . . . . . . . . . . . . . . . . . . . . 47
46 Insertion of new ss 109A and 109B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
109A Requirement for financier's address for service . . . . . . . . . . . . . . . . 48
109B Notice of changes affecting financed contract . . . . . . . . . . . . . . . . . . 48
47 Replacement of s 110 (Limitation on termination of financed contract) . . . 48
110 Limitation on termination of financed contract . . . . . . . . . . . . . . . . . 48
110A Agreements between body corporate and financier prohibited . . . . . 50
48 Amendment of s 112 (Review of remuneration under engagement of
service contractor) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
49 Insertion of new ch 3, pt 2, divs 7 and 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Division 7--Review of terms of service contracts
112A Review of terms of service contracts . . . . . . . . . . . . . . . . . . . . . . . . . 51
112B Purpose of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
112C Procedure for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
112D Disputes arising out of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
112E Review criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
112F Other provisions about review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Division 8--Required transfer of letting agent's management rights
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Subdivision 1--Preliminary
112G Application of div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
112H Effect of div 8 on other provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Subdivision 2--Transfer of management rights
112I Grounds for requiring transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
112J Code contravention notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
112K Requirement for transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
112L Transfer--letting agent's choice of transferee . . . . . . . . . . . . . . . . . . 56
112M Giving financier copy of transfer notice . . . . . . . . . . . . . . . . . . . . . . 57
112N Transfer--body corporate's choice of transferee. . . . . . . . . . . . . . . . 57
112O Terms of service contract on transfer. . . . . . . . . . . . . . . . . . . . . . . . . 58
Subdivision 3--Termination and replacement of letting agent
authorisation and service contract
112P Termination of letting agent authorisation if management rights
not transferred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
112Q Termination and replacement of letting agent authorisation and
service contract in particular circumstances . . . . . . . . . . . . . . . . . . . 59
Subdivision 4--Reviewing terms of letting agent's service contract
112R Reviewing terms of service contract . . . . . . . . . . . . . . . . . . . . . . . . . 60
112S Review criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
112T Giving copy of review advice to letting agent and prospective
buyer of management rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
50 Amendment of s 113 (Financial management arrangements). . . . . . . . . . . . 62
51 Insertion of new s 113A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
113A Body corporate's financial institution accounts . . . . . . . . . . . . . . . . . 62
52 Amendment of s 124 (Body corporate's power to remedy defective
building work) ........................................... 63
53 Amendment of s 134 (Requirements for exclusive use by-law) . . . . . . . . . . 63
54 Replacement of s 137 (Making and notifying allocations) . . . . . . . . . . . . . . 63
137 Making allocations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
137A Notifying allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
55 Amendment of s 138 (Making and notifying further allocations). . . . . . . . . 66
56 Amendment of s 140 (Review of exclusive use by-law) . . . . . . . . . . . . . . . . 66
57 Amendment of s 142 (Limitations for by-laws) . . . . . . . . . . . . . . . . . . . . . . 66
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58 Amendment of s 144 (Continuing contravention notice) . . . . . . . . . . . . . . . 67
59 Amendment of s 145 (Future contravention notice) . . . . . . . . . . . . . . . . . . . 68
60 Insertion of new ss 145A145D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
145A Preliminary procedure for application by body corporate for
resolution of dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
145B Preliminary procedure for application by owner and occupier for
resolution of dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
145C Dispensing with preliminary procedures . . . . . . . . . . . . . . . . . . . . . . 70
145D Copy of contravention notice to be given to owner . . . . . . . . . . . . . . 71
61 Amendment of s 149 (Responsibility of original owner) . . . . . . . . . . . . . . . 71
62 Amendment of s 154 (Utility services not separately charged for). . . . . . . . 72
63 Insertion of new s 154A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
154A Registering charge on land under this Act . . . . . . . . . . . . . . . . . . . . . 74
64 Amendment of s 162 (Information to be given to interested persons) . . . . . 74
65 Amendment of s 163 (Statement to be given by seller to buyer) . . . . . . . . . 75
66 Amendment of s 166 (Cancelling contract for inaccuracy of statement) . . . 76
67 Amendment of s 170 (Statement to be given by seller to buyer) . . . . . . . . . 76
68 Amendment of s 174 (Cancelling contract for inaccuracy of statement) . . . 76
69 Amendment of s 180 (Implied warranties) . . . . . . . . . . . . . . . . . . . . . . . . . . 77
70 Amendment of s 181 (Cancellation for breach of warranty). . . . . . . . . . . . . 78
71 Insertion of new ch 5, pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
PART 4--COSTS NOT RECOVERABLE BY ORIGINAL OWNER ON
THE SALE OF A LOT
181A Costs incurred in entering contracts of engagement or authorisation 78
72 Amendment of s 182 (Definitions for ch 6) . . . . . . . . . . . . . . . . . . . . . . . . . 79
73 Insertion of new s 182A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
182A Meaning of "dispute". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
74 Amendment of s 184 (Exclusivity of dispute resolution provisions) . . . . . . 80
75 Amendment of s 187 (Responsibilities) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
76 Insertion of new s 187A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
187A Practice directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
77 Replacement of s 189 (Delegation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
189 Delegation by commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
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78 Replacement of ch 6, pt 3 (Adjudicators) . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
PART 3--DISPUTE RESOLUTION OFFICERS
190 Appointment of dispute resolution officers . . . . . . . . . . . . . . . . . . . . 83
191 Protection of dispute resolution officers . . . . . . . . . . . . . . . . . . . . . . 83
79 Replacement of s 192 (How to make application for order) . . . . . . . . . . . . . 84
192 Who may make an application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
192A How to make an application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
192B Further information or material for applications . . . . . . . . . . . . . . . . 85
192C Rejecting applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
80 Replacement of s 194 (Notice of application to be given) . . . . . . . . . . . . . . 86
194 Notice to affected persons and body corporate . . . . . . . . . . . . . . . . . 86
81 Insertion of new s 194A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
194A Notice to applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
82 Replacement of s 196 (Inspection of applications and submissions) . . . . . . 88
196 Inspection of applications and submissions. . . . . . . . . . . . . . . . . . . . 88
83 Replacement of ss 198200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
198 Dispute resolution recommendation . . . . . . . . . . . . . . . . . . . . . . . . . 88
199 Restriction on who may conduct further dispute resolution process . 89
84 Amendment of s 201 (Dismissing application). . . . . . . . . . . . . . . . . . . . . . . 89
85 Amendment of s 202 (Preparation for making a case management
recommendation). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
86 Replacement of s 203 (Making a case management recommendation) . . . . 91
203 Making a dispute resolution recommendation for specialist
mediation, conciliation or adjudication . . . . . . . . . . . . . . . . . . . . . . . 91
87 Replacement of ch 6, pts 7 and 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
PART 7--SPECIALIST MEDIATION AND CONCILIATION
214 Purpose of pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
215 Conditions for recommending specialist mediation or conciliation . 92
216 Referral to dispute resolution officer . . . . . . . . . . . . . . . . . . . . . . . . . 92
216A Conduct of specialist mediation and conciliation sessions . . . . . . . . 93
216B Specialist mediation or conciliation is voluntary. . . . . . . . . . . . . . . . 93
216C Representation by agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
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216D Referral back to the commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . 94
PART 8--SPECIALIST ADJUDICATION
216E Purpose of pt 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
216F Specialist adjudication by agreement . . . . . . . . . . . . . . . . . . . . . . . . 95
216G Specialist adjudication of particular disputes . . . . . . . . . . . . . . . . . . 95
88 Replacement of s 217 (Purpose of part) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
217 Purpose of pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
89 Amendment of s 218 (Referral to adjudicator for specialist or
department adjudication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
90 Amendment of s 220 (Investigation by adjudicator) . . . . . . . . . . . . . . . . . . . 97
91 Insertion of new s 220A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
220A Dismissal of applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
92 Amendment of s 221 (Investigative powers of adjudicator) . . . . . . . . . . . . . 98
93 Amendment of s 223 (Orders of adjudicators) . . . . . . . . . . . . . . . . . . . . . . . 99
94 Insertion of new s 223A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
223A Order may be made if party fails to attend to be interviewed . . . . . . 100
95 Amendment of s 225 (Interim orders in context of adjudication) . . . . . . . . . 100
96 Replacement of s 226 (Costs of adjudication). . . . . . . . . . . . . . . . . . . . . . . . 101
226 Costs of specialist adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
97 Amendment of s 227 (Order to repair damage or pay compensation) . . . . . 102
98 Amendment of s 232 (Notice of order to be given). . . . . . . . . . . . . . . . . . . . 102
99 Amendment of s 235 (Failure to comply with adjudicator's order) . . . . . . . 103
100 Amendment of s 237 (Right to appeal to District Court) . . . . . . . . . . . . . . . 103
101 Amendment of s 244 (Privilege) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
102 Amendment of s 245 (False or misleading information) . . . . . . . . . . . . . . . 104
103 Amendment of s 246 (False or misleading documents) . . . . . . . . . . . . . . . . 105
104 Amendment of s 247 (Commissioner must give certain information
on application). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
105 Insertion of new s 247A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
247A Appointment of administrator for enforceable money orders . . . . . . 106
106 Replacement of s 250 (Definitions for pt 1) . . . . . . . . . . . . . . . . . . . . . . . . . 107
250 Definitions for pt 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
9
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107 Amendment of s 256 (Associates). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
108 Amendment of s 263 (Powers of entry by local government or other
authorised entity). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
109 Insertion of new s 263A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
263A Restriction on irrevocable powers of attorney . . . . . . . . . . . . . . . . . . 109
110 Amendment of s 264 (Prevention of contracting out) . . . . . . . . . . . . . . . . . . 109
111 Insertion of new s 269A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
269A Numbering and renumbering of Act . . . . . . . . . . . . . . . . . . . . . . . . . 110
112 Amendment of s 290 (Body corporate contracts) . . . . . . . . . . . . . . . . . . . . . 110
113 Insertion of new ch 8, pts 3 and 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
PART 3--TRANSITIONAL PROVISIONS FOR BODY CORPORATE
AND COMMUNITY MANAGEMENT AND OTHER LEGISLATION
AMENDMENT ACT 2002
295 Adjusting contribution schedule lot entitlement . . . . . . . . . . . . . . . . 110
296 Community management statements for particular schemes . . . . . . 111
297 Particular community management statements to be given to
local governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
298 Existing easements for lots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
299 Existing powers of body corporate managers . . . . . . . . . . . . . . . . . . 113
300 Existing applications for an order of an adjudicator . . . . . . . . . . . . . 113
PART 4--VALIDATION
301 Declaration about dispensation given by commissioner . . . . . . . . . . 114
114 Insertion of new schs 1A and 1B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
SCHEDULE 1A
CODE OF CONDUCT FOR BODY CORPORATE MANAGERS AND
CARETAKING SERVICE CONTRACTORS
SCHEDULE 1B
CODE OF CONDUCT FOR LETTING AGENTS
115 Amendment of sch 2 (By-laws). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
116 Insertion of new sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
SCHEDULE 3
ADJUDICATOR'S ORDERS
117 Amendment of sch 4 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
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PART 3--AMENDMENT OF ACQUISITION OF LAND ACT 1967
118 Act amended in pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
119 Amendment of s 12 (Effect of gazette resumption notice) . . . . . . . . . . . . . . 130
120 Insertion of new s 12A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
12A Constructing authority must lodge new plan of survey for
particular land ..................................... 130
121 Amendment of s 14 (Dealing with title to land affected by resumption) . . . 131
PART 4--AMENDMENT OF INTEGRATED PLANNING ACT 1997
122 Act amended in pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
123 Amendment of s 1.3.5 (Definitions for terms used in "development"). . . . . 131
124 Amendment of s 3.7.8 (When pt 7 does not apply). . . . . . . . . . . . . . . . . . . . 132
125 Amendment of sch 8 (Assessable, self-assessable and exempt development) 132
PART 5--AMENDMENT OF INTEGRATED PLANNING AND
OTHER LEGISLATION AMENDMENT ACT 2001
126 Act amended in pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
127 Amendment of s 8 (Replacement of s 1.3.5 (Definitions for terms used
in "development")) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
128 Amendment of s 27 (Replacement of ch 3 (Integrated development
assessment system (IDAS))) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
129 Amendment of s 84 (Replacement of sch 8 (Assessable, self-assessable
and exempt development)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
PART 6--AMENDMENT OF INTEGRATED RESORT
DEVELOPMENT ACT 1987
130 Act amended in pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
131 Insertion of new s 179A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
132 Insertion of new pt 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
PART 11--VALIDATION
PART 7--AMENDMENT OF LAND ACT 1994
133 Act amended in pt 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
134 Amendment of s 289 (Consent to be written on document etc.). . . . . . . . . . 135
135 Insertion of new s 290AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
290AA Offence not to use appropriate form. . . . . . . . . . . . . . . . . . . . . . . . . 136
136 Omission of s 293 (Chief executive may authorise printing and sale of
forms) ................................................. 136
11
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137 Amendment of s 296 (Tenure document to be returned to land registry) . . . 136
138 Insertion of new s 305A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
305A Electronic communication of statutory declaration or affidavit. . . . . 137
139 Amendment of s 315 (Destroying document in certain circumstances) . . . . 137
140 Amendment of s 373A (Covenant by registration) . . . . . . . . . . . . . . . . . . . . 138
141 Amendment of sch 6 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
PART 8--AMENDMENT OF LAND TITLE ACT 1994
142 Act amended in pt 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
143 Insertion of new s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
4A References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
144 Amendment of s 12 (Consent to be written on instrument etc.) . . . . . . . . . . 140
145 Replacement of s 14 (Registrar may authorise printing and sale of forms) . 140
14 Offence not to use appropriate form . . . . . . . . . . . . . . . . . . . . . . . . . 140
146 Insertion of new s 41BA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
41BA Ownership of common property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
147 Insertion of new s 49DA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
49DA Creation of common property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
148 Amendment of s 49E (Division of lot on standard format plan of
subdivision) ........................................... 141
149 Amendment of s 50 (Requirements for registration of plan of subdivision). 141
150 Amendment of s 54B (Circumstances under which building
management statement may be registered) . . . . . . . . . . . . . . . . . . . . . . . . . . 142
151 Amendment of s 97A (Covenant by registration) . . . . . . . . . . . . . . . . . . . . . 142
152 Insertion of new pt 6A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
PART 6A--COMMUNITY TITLES SCHEMES
Division 1--Preliminary
115A Basic concept for pt 6A--community titles scheme . . . . . . . . . . . . . 143
115B Meaning of "community titles scheme" . . . . . . . . . . . . . . . . . . . . . . 143
115C Meaning of "layered arrangement of community titles schemes". . . 144
115D Provisions about lots that are community titles schemes. . . . . . . . . . 145
Division 2--Names of community titles schemes
115E Names of community titles schemes . . . . . . . . . . . . . . . . . . . . . . . . . 146
12
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115F Reservation of name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
115G Period of reservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Division 3--Scheme land
115H Single area for scheme land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
115I Enlarging the number of lots through progressive subdivision . . . . . 148
Division 4--Community management statements
115J Lodging request to record a new statement . . . . . . . . . . . . . . . . . . . . 149
115K Recording community management statements . . . . . . . . . . . . . . . . 149
115L When registrar records community management statement . . . . . . . 150
Division 5--Statutory easements
115M Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
115N Easements for support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
115O Easements in favour of lots for utility services and utility
infrastructure ..................................... 152
115P Easements for utility services and utility infrastructure . . . . . . . . . . 152
115Q Easements for shelter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
115R Easements for projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
115S Easement for maintenance of building close to boundary . . . . . . . . . 153
Division 6--Changes to community titles schemes
under reinstatement process
115T Registration for changes to scheme under approved reinstatement
process ........................................... 153
Division 7--Terminating community titles schemes
115U Instruments required for terminating scheme . . . . . . . . . . . . . . . . . . 154
115V Recording termination of scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Division 8--Amalgamating community titles schemes
115W Request to record amalgamation of schemes. . . . . . . . . . . . . . . . . . . 155
115X Recording amalgamation of schemes . . . . . . . . . . . . . . . . . . . . . . . . 156
Division 9--Creating a layered arrangement of community titles schemes
from basic schemes
115Y Request to record creation of layered arrangement . . . . . . . . . . . . . . 157
115Z Recording creation of layered arrangement. . . . . . . . . . . . . . . . . . . . 158
153 Amendment of s 154 (Lodging certificate of title) . . . . . . . . . . . . . . . . . . . . 158
13
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154 Insertion of new s 156A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
156A Electronic communication of statutory declaration or affidavit. . . . . 158
155 Amendment of s 166 (Destroying instrument in certain circumstances) . . . 159
156 Amendment of sch 2 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
PART 9--AMENDMENT OF MIXED USE DEVELOPMENT ACT
1993
157 Act amended in pt 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
158 Insertion of new s 214A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
159 Insertion of new pt 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
PART 13--VALIDATION
PART 10--AMENDMENT OF SANCTUARY COVE RESORT ACT 1985 162
160 Act amended in pt 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
161 Insertion of new s 104A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
162 Insertion of new pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
PART 9--VALIDATION
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . 164
MINOR AND CONSEQUENTIAL AMENDMENTS OF BODY
CORPORATE AND COMMUNITY MANAGEMENT ACT 1997
2002
A BILL
FOR
An Act to amend the Body Corporate and Community Management Act
1997, and certain other Acts
s1 16 s4
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
1 Short title
Clause 3
This Act may be cited as the Body Corporate and Community 4
Management and Other Legislation Amendment Act 2002. 5
2 Commencement
Clause 6
The following provisions commence on a day to be fixed by 7
proclamation-- 8
· section 44 to the extent it inserts new sections 106A and 106B 9
· section 49 to the extent it inserts new chapter 3, part 2, division 8 10
· section 52. 11
PART 2--AMENDMENT OF BODY CORPORATE AND 12
COMMUNITY MANAGEMENT ACT 1997 13
3 Act amended in pt 2 and schedule
Clause 14
This part and the schedule amend the Body Corporate and Community 15
Management Act 1997. 16
4 Amendment of s 15 (Meaning of "body corporate manager")
Clause 17
Section 15, from `supply'-- 18
omit, insert-- 19
`supply administrative services to the body corporate, whether or not the 20
person is also engaged to carry out the functions of a committee, and the 21
executive members of a committee, for a body corporate.'. 22
s5 17 s7
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
5 Amendment of s 23 (Names of community titles schemes)
Clause 1
(1) Section 23(1)(c), from `by'-- 2
omit, insert-- 3
`under the Land Title Act, section 115E(2).1'. 4
(2) Section 23(2)-- 5
omit. 6
6 Replacement of ss 24 and 25
Clause 7
Sections 24 and 25-- 8
omit, insert-- 9
`24 Reservation of name 10
`A name may be reserved under the Land Title Act, section 115F,2 as the 11
identifying name to be shown in the community management statement for 12
a proposed community titles scheme.'. 13
7 Insertion of new s 30A
Clause 14
Chapter 2, part 1-- 15
insert-- 16
`30A Notice about change of scheme being developed progressively 17
`(1) This section applies if-- 18
(a) a community titles scheme is intended to be developed 19
progressively; and 20
(b) the developer intends to change the scheme in a way that, if 21
carried out-- 22
(i) would affect the nature of the development or 1 or more 23
stages of the development; and 24
(ii) would not be consistent with the current development 25
approval for the scheme. 26
1 Land Title Act, section 115E (Names of community titles schemes)
2 Land Title Act, section 115F (Reservation of name)
s8 18 s9
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(2) The developer must give written notice of the change as required 1
under this section to-- 2
(a) the body corporate; and 3
(b) each person who has entered into a contract with the developer to 4
buy a proposed lot in the scheme. 5
Maximum penalty for subsection (2)--300 penalty units. 6
`(3) The notice must be given at least 30 days before the developer 7
applies for development approval for the changed scheme under the 8
Planning Act.'. 9
8 Omission of ch 2, pt 3 (Scheme land)
Clause 10
Chapter 2, part 3-- 11
omit. 12
9 Replacement of s 42 (Body corporate cannot own lot included in
Clause 13
its own scheme) 14
Section 42-- 15
omit, insert-- 16
`Division 2--Body corporate acquisition of, and dealing with, lot 17
included in its own scheme 18
`42 Acquisition for letting agent purposes 19
`(1) This section applies to the body corporate for a community titles 20
scheme if the original owner control period for the scheme has ended. 21
`(2) The body corporate may acquire a lot included in the scheme if-- 22
(a) the lot is to become common property for use solely for-- 23
(i) a residence for a letting agent or service contractor (each 24
a "body corporate lessee") for the scheme; or 25
(ii) a residence for the letting agent and an office for conducting 26
the letting agent business; and 27
(b) the body corporate, by resolution without dissent, authorises the 28
acquisition for the use. 29
s9 19 s9
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`42A Lease 1
`If the body corporate acquires a lot under section 42, the body corporate 2
must-- 3
(a) incorporate the lot with common property for the scheme; and 4
(b) lease the part of the common property that is the incorporated lot 5
(the "lessee common property") to the body corporate lessee 6
for a period not longer than the term of the person's authorisation 7
as letting agent or engagement as a service contractor. 8
`42B Prohibition on benefits 9
`(1) The body corporate must not receive, whether directly or indirectly, 10
an amount or benefit by way of a premium for the lease. 11
`(2) If an amount or benefit is given to or accepted by the body corporate 12
in contravention of subsection (1), the person who paid the amount or 13
conferred the benefit may recover from the body corporate the amount, or 14
the value of the benefit, as a debt. 15
`(3) Subsection (1) does not apply to an amount or benefit representing 16
fair market value for an entitlement conferred by the body corporate under 17
the lease. 18
`42C Effect of ending of authorisation 19
`(1) If the body corporate lessee's authorisation as a letting agent or 20
engagement as service contractor ends, whether by termination or 21
otherwise-- 22
(a) the lease ends immediately; and 23
(b) if the lessee common property is no longer to be used for a 24
purpose mentioned in section 42(2)(a), the body corporate must 25
convert the lessee common property to a lot in the scheme. 26
`(2) In incorporating a lot with common property under section 42A(a), 27
or in converting lessee common property to a lot under subsection (1)(b), 28
the body corporate must ensure any necessary titling and subdivisional 29
arrangements are carried out under the Land Title Act. 30
s 10 20 s 10
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`42D Body corporate interest in lot included in its own scheme 1
`The body corporate for a community titles scheme may have an interest 2
in a lot included in the scheme if the interest is-- 3
(a) a registered easement for 1 or more basic utility services for the 4
scheme; or 5
(b) an interest acquired in a lot for section 39 or 42.'. 6
10 Amendment of s 44 (Lot entitlements)
Clause 7
Section 44(6) and (7)-- 8
omit, insert-- 9
`(6) A lot entitlement must be a whole number, but must not be 0. 10
`(7) For the contribution schedule for a scheme for which development 11
approval is given after the commencement of this subsection, the respective 12
lot entitlements must be equal, except to the extent to which it is just and 13
equitable in the circumstances for them not to be equal. 14
15
Examples for subsection (7) of circumstances in which it may be just and equitable for lot
16
entitlements not to be equal--
17
1. A layered arrangement of community titles schemes, the lots of which have
18
different uses (including, for example, car parking, commercial, hotel and
19
residential uses) and different requirements for public access, maintenance or
20
insurance.
21
2. A commercial community titles scheme in which the owner of 1 lot uses a larger
22
volume of water or conducts a more dangerous or a higher risk industry than the
23
owners of the other lots.
`(8) In deciding the contribution schedule lot entitlements and interest 24
schedule lot entitlements for a scheme mentioned in subsection (7), regard 25
must be had to-- 26
(a) how the scheme is structured; and 27
(b) the nature, features and characteristics of the lots included in the 28
scheme; and 29
(c) the purposes for which the lots are used. 30
`(9) A change to a lot entitlement takes effect on the recording of a new 31
community management statement incorporating the change.'. 32
s 11 21 s 11
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
11 Amendment of s 46 (Court adjustment of lot entitlement
Clause 1
schedule) 2
(1) Section 46, heading, `Court adjustment'-- 3
omit, insert-- 4
`Adjustment'. 5
(2) Section 46(1) to (3)-- 6
omit, insert-- 7
`(1) The owner of a lot in a community titles scheme may apply-- 8
(a) to the District Court for an order for the adjustment of a lot 9
entitlement schedule; or 10
(b) under chapter 6, for an order of a specialist adjudicator for the 11
adjustment of a lot entitlement schedule. 12
`(2) Despite any other law or statutory instrument-- 13
(a) the respondent for an application mentioned in subsection (1) is 14
the body corporate; and 15
(b) at the election of another owner of a lot in the scheme, the other 16
owner may be joined as a respondent for the application; and 17
(c) each party to the application is responsible for the party's own 18
costs of the application. 19
`(3) An owner who elects, under subsection (2)(b), to become a 20
respondent for the application must give written notice of the election to 21
the body corporate. 22
`(3A) The order of the court or specialist adjudicator must be consistent 23
with-- 24
(a) if the order is about the contribution schedule--the principle 25
stated in subsection (5); or 26
(b) if the order is about the interest schedule--the principle stated in 27
subsection (6).'. 28
(3) Section 46(5), after `court'-- 29
insert-- 30
`or specialist adjudicator'. 31
(4) Section 46(6), `(5)'-- 32
s 12 22 s 12
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
omit, insert-- 1
`(6)'. 2
(5) Section 46(8), after `court'-- 3
insert-- 4
`or specialist adjudicator'. 5
(6) Section 46(8), `with the registrar'-- 6
omit. 7
(7) Section 46(8), penalty, `(8)'-- 8
omit, insert-- 9
`(9)'. 10
(8) Section 46(3A) to (8)-- 11
renumber as section 46(4) to (9). 12
12 Insertion of new s 46A
Clause 13
After section 46-- 14
insert-- 15
`46A Criteria for deciding just and equitable circumstances 16
`(1) This section applies if an application is made for an order of the 17
District Court or a specialist adjudicator for the adjustment of a lot 18
entitlement schedule. 19
`(2) This section sets out matters to which the court or specialist 20
adjudicator may, and may not, have regard for deciding-- 21
(a) for a contribution schedule--if it is just and equitable in the 22
circumstances for the respective lot entitlements not to be equal; 23
and 24
(b) for an interest schedule--if it is just and equitable in the 25
circumstances for the individual lot entitlements to reflect other 26
than the respective market values of the lots. 27
`(3) However, the matters the court or specialist adjudicator may have 28
regard to for deciding a matter mentioned in subsection (2) are not limited 29
to the matters stated in this section. 30
s 13 23 s 13
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(4) The court or specialist adjudicator may have regard to-- 1
(a) how the community titles scheme is structured; and 2
(b) the nature, features and characteristics of the lots included in the 3
scheme; and 4
(c) the purposes for which the lots are used. 5
`(5) The court or specialist adjudicator may not have regard to any 6
knowledge or understanding the applicant had, or any lack of knowledge or 7
misunderstanding on the part of the applicant, at the relevant time, about-- 8
(a) the lot entitlement for the subject lot or other lots included in the 9
community titles scheme; or 10
(b) the purpose for which a lot entitlement is used. 11
`(6) In this section-- 12
"relevant time" means the time the applicant entered into a contract to buy 13
the subject lot. 14
"subject lot" means the lot owned by the applicant.'. 15
13 Insertion of new s 47A
Clause 16
Chapter 2, part 6-- 17
insert-- 18
`47A Limited adjustment of lot entitlement schedule--after formal 19
acquisition of part of scheme land 20
`(1) This section applies if a constructing authority advises the body 21
corporate for a community titles scheme that it proposes to lodge-- 22
(a) a new plan of subdivision for the scheme as required under the 23
Acquisition of Land Act 1967, section 12A;1 and 24
(b) a request to record a new community management statement for 25
the scheme as required under section 51(1). 26
`(2) Within 3 months after receiving the constructing authority's advice 27
and before consenting to the new community management statement, the 28
body corporate must-- 29
1 Acquisition of Land Act 1967, section 12A (Constructing authority must lodge new
plan of survey for particular land)
s 14 24 s 15
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) obtain, from an appropriate person, independent professional 1
advice (the "lot entitlement adjustment advice") about any just 2
and equitable changes required to the lot entitlement schedules 3
for the scheme to take account of the boundary change shown in 4
the new plan of subdivision; and 5
6
Example of appropriate person for paragraph (a)--
7
A lawyer or registered valuer.
(b) call a general meeting of its members to decide any changes to 8
the lot entitlement schedules to take account of the boundary 9
change. 10
`(3) The notice of the meeting must state or be accompanied by a copy of 11
the lot entitlement adjustment advice. 12
`(4) Within 30 days after the meeting is held, the body corporate must 13
give the constructing authority written notice of the body corporate's 14
decision made under this section about any changes to the lot entitlement 15
schedules. 16
`(5) The constructing authority is responsible for the costs of obtaining 17
the lot entitlement adjustment advice.'. 18
14 Replacement of s 48 (Registrar may record community
Clause 19
management statements) 20
Section 48-- 21
omit, insert-- 22
`48 Recording of community management statement 23
`A community management statement has no effect unless it is 24
recorded.'. 25
15 Amendment of s 50 (Subsequent community management
Clause 26
statement) 27
(1) Section 50(2)(a), after `consents'-- 28
insert-- 29
`, under section 55,'. 30
(2) Section 50(3), including example-- 31
s 16 25 s 18
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
omit, insert-- 1
`(3) For giving the consent, the body corporate need not have before it 2
the new community management statement in the form in which it is to be 3
recorded.'. 4
16 Insertion of new s 50A
Clause 5
After section 50-- 6
insert-- 7
`50A Requirements for motion to change community management 8
statement 9
`(1) Subject to subsection (2), a motion proposing to change an existing 10
community management statement for a community titles scheme may be 11
submitted by only-- 12
(a) the committee for the body corporate; or 13
(b) the owner of a lot included in the scheme; or 14
(c) the body corporate manager. 15
`(2) The body corporate manager may submit the motion if the body 16
corporate manager may, under the regulation module applying to the 17
scheme, submit the motion.'. 18
17 Amendment of s 51 (New statements and subsequent plans of
Clause 19
subdivision) 20
Section 51(3) and (4)-- 21
omit. 22
18 Insertion of new s 51A
Clause 23
After section 51-- 24
insert-- 25
`51A Other matters about new statements for schemes developed 26
progressively 27
`(1) This section applies-- 28
s 18 26 s 18
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) only to a community titles scheme intended to be developed 1
progressively; and 2
3
Examples for paragraph (a)--
4
1. The subdivision of scheme land to create further lots for the scheme or
5
to establish a subsidiary scheme.
6
2. The excision of a lot from, or the addition of a lot to, scheme land.
(b) if the circumstances stated in subsection (2) or (3) also apply to 7
the scheme. 8
`(2) For subsection (1)(b), the circumstances are-- 9
(a) a new plan of subdivision proposed to be lodged for the 10
scheme-- 11
(i) is consistent with all statements about proposed future 12
subdivision contained in the existing community 13
management statement for the scheme; or 14
(ii) is inconsistent with the existing community management 15
statement only to the extent the development of a stage is to 16
be done out of order; and 17
(b) the difference between the existing statement and a new 18
community management statement required under section 51(1) 19
is limited to ensuring that, after registration of the new plan of 20
subdivision and recording of the new statement, the scheme's 21
community management statement will-- 22
(i) be consistent with all plans of subdivision for the scheme 23
that are registered under the Land Title Act; and 24
(ii) contain the statements about proposed future subdivision 25
that are contained in the existing statement, changed only to 26
the extent necessary to take account of the registration of the 27
new plan of subdivision. 28
`(3) Alternatively, for subsection (1)(b), the circumstances are that a new 29
plan of subdivision proposed to be lodged for the development is 30
inconsistent with the existing community management statement for the 31
scheme because the plan changes the scheme in a way that affects the 32
nature of the development or 1 or more stages of the development. 33
34
Examples of changes affecting the nature of a development for subsection (3)--
35
1. A development for a scheme intended to be a resort is changed to a development
36
comprising only standard format lots for residential purposes.
s 18 27 s 18
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
1
2. A stage of a development comprising standard format lots for residential purposes
2
and a marina is changed to a stage comprising only standard format lots for
3
residential purposes.
`(4) For subsection (2)(a)(ii), the development of a stage is done out of 4
order if it is not consistent with the order of the development of the stages 5
stated in the development approval or existing community management 6
statement for the scheme. 7
`(5) The developer must-- 8
(a) prepare the new community management statement required 9
under section 51(1) for the scheme; and 10
(b) give the new statement to the body corporate. 11
`(6) The body corporate must, within 30 days after receiving the new 12
statement, endorse its consent on the statement. 13
Maximum penalty--50 penalty units. 14
`(7) However, if this section applies because of the circumstances stated 15
in subsection (3), the body corporate is not required to endorse its consent 16
on the statement unless-- 17
(a) the developer has-- 18
(i) given the body corporate a notice as required under 19
section 30A(2)(a); and 20
(ii) obtained development approval for the changed scheme; 21
and 22
(b) the new community management statement is consistent with the 23
development approval for the changed scheme; and 24
(c) the local government has endorsed a community management 25
statement notation on the new community management 26
statement. 27
`(8) The developer must, within 30 days after receiving the endorsed 28
statement, lodge a request to record the statement. 29
Maximum penalty for subsection (8)--300 penalty units. 30
`(9) Within 14 days after the new statement is recorded, the developer 31
must give to the body corporate-- 32
(a) a copy of the new statement; and 33
s 19 28 s 19
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(b) evidence of its recording. 1
Maximum penalty for subsection (9)--300 penalty units. 2
`(10) The developer is responsible for the costs of preparing and 3
recording the new community management statement.'. 4
19 Amendment of s 54 (Local government community management
Clause 5
statement notation) 6
(1) Section 54(1), `A'-- 7
omit, insert-- 8
`Subject to subsection (6), a'. 9
(2) Section 54(3) and (4)-- 10
omit, insert-- 11
`(3) Subject to subsection (4), the local government must endorse the 12
community management statement notation on the proposed community 13
management statement. 14
`(4) For a community titles scheme intended to be developed 15
progressively, the local government is not required to endorse the notation 16
on the proposed statement if there is an inconsistency between a provision 17
of the statement and-- 18
(a) a lawful requirement of, or an approval given by, the local 19
government under the Planning Act; or 20
(b) the local government's planning scheme; or 21
(c) a lawful requirement of, or an approval given by, the local 22
government under its planning scheme. 23
24
Example for subsection (4)--
25
A local government would be expected to refuse to endorse a proposed community
26
management statement with a community management statement notation if the
27
statement envisages development of part of the scheme land in a way prohibited under
28
the local government's planning scheme. However, the local government would be
29
expected to endorse the proposed statement with a community management statement
30
notation if the proposed community management statement acknowledges that
31
development of the part of the land in the way proposed will proceed only if and when
32
a suitable amendment of the planning scheme is made.
`(4A) For subsection (4), a provision of the statement is not inconsistent 33
with a planning scheme if-- 34
s 20 29 s 20
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) the planning scheme allows a person to do an act or engage in an 1
activity in the area in which the community titles scheme is 2
established; and 3
(b) the provision requires the person to obtain the body corporate's 4
permission before doing the act or engaging in the activity on 5
scheme land. 6
`(4B) Despite subsection (1), a new community management statement 7
may be recorded without the endorsement on it of a community 8
management statement notation if-- 9
(a) there is no difference between the existing statement for the 10
scheme and the new statement for any issue that the local 11
government could have regard to for identifying an inconsistency 12
mentioned in subsection (4); or 13
14
Example for paragraph (a)--
15
The new statement includes an interest schedule that is different from the
16
interest schedule included in the existing statement, but there is otherwise
17
no difference between the 2 statements.
(b) any difference between the statements is limited to changes to 18
reflect-- 19
(i) a lot entitlement adjustment agreed to under section 47; or 20
(ii) a formal acquisition affecting the scheme; or 21
(iii) a change in a services location diagram for the scheme; or 22
(iv) the incorporation of a lot with common property, or 23
conversion of lessee common property to a lot, under 24
section 42.'. 25
(3) Section 54(4A) to (5)-- 26
renumber as section 54(5) to (7). 27
20 Insertion of new s 54A
Clause 28
After section 54-- 29
insert-- 30
s 21 30 s 21
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`54A Giving copy of community management statement to local 1
government 2
`(1) This section applies if either of the following is recorded for a 3
community titles scheme-- 4
(a) a community management statement that, under section 54(4), is 5
not endorsed with a community management statement notation; 6
(b) a community management statement containing a lot entitlement 7
for a lot included in the scheme that is different from the lot 8
entitlement for the lot contained in the previous statement 9
recorded for the scheme. 10
`(2) The body corporate must give a copy of the statement to each local 11
government in whose local government area scheme land is located. 12
`(3) The copy must be given-- 13
(a) for a statement other than a statement to which section 51A 14
applies--within 14 days after the statement is recorded; or 15
(b) for a statement to which section 51A applies--within 14 days 16
after the body corporate receives a copy of the statement under 17
section 51A(9).'. 18
21 Amendment of s 55 (Body corporate to consent to recording of
Clause 19
new statement) 20
(1) Section 55(4)(b), `with the registrar'-- 21
omit. 22
(2) Section 55(4)-- 23
insert-- 24
`(ca) changing the community titles scheme to reflect a formal 25
acquisition affecting the scheme; 26
(f) showing the location of a service easement for the community 27
titles scheme by including a services location diagram; 28
(g) amalgamating or subdividing lots included in the community 29
titles scheme; 30
(h) reproducing the existing statement without any change of 31
substance.'. 32
s 21 31 s 21
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(3) Section 55(4)(a) to (c) and (d), after `;'-- 1
omit. 2
(4) Section 55(4)(ca) to (h)-- 3
renumber as section 55(4)(d) to (i). 4
(5) Section 55-- 5
insert-- 6
`(4A) However, subsection (4)(h) applies only if the associated plan of 7
subdivision-- 8
(a) does not affect the common property; and 9
(b) does not change-- 10
(i) the contribution schedule lot entitlements, or interest 11
schedule lot entitlements, for lots included in the scheme 12
(other than the lots being amalgamated or subdivided under 13
the plan); or 14
(ii) the total of the contribution schedule lot entitlements for the 15
lots included in the scheme; or 16
(iii) the total of the interest schedule lot entitlements for the lots 17
included in the scheme.'. 18
(6) Section 55(5), from `section'-- 19
omit, insert-- 20
`section 51A.'. 21
(7) Section 55-- 22
insert-- 23
`(6) A consent to which subsection (4) or (6) applies must be given by 24
ordinary resolution if, under the regulation module applying to the scheme, 25
the body corporate has engaged a body corporate manager to carry out the 26
functions of a committee, and the executive members of a committee, for a 27
body corporate. 28
`(7) In this section-- 29
"associated plan of subdivision", for a proposed new community 30
management statement, means the plan of subdivision proposed to be 31
lodged with the request to record the statement.'. 32
s 22 32 s 22
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(8) Section 55(4A) to (7)-- 1
renumber as section 55(5) to (8). 2
22 Insertion of new ss 55A and 55B
Clause 3
After section 55-- 4
insert-- 5
`55A Responsibility for preparing, and for costs of preparing, new 6
statement 7
`(1) This section applies if the body corporate for a community titles 8
scheme consents to a new community management statement, other than a 9
statement to which section 51A applies, being recorded for the scheme. 10
`(2) The new community management statement must be prepared by-- 11
(a) if the body corporate manager may, under the body corporate 12
manager's engagement, prepare the statement--the body 13
corporate manager; or 14
(b) if paragraph (a) does not apply to the scheme--the committee for 15
the body corporate. 16
`(3) The body corporate is responsible for the costs of preparing and 17
recording the new community management statement, unless this Act 18
provides otherwise.1 19
`(4) Despite subsections (2) and (3), if the difference between the new 20
community management statement and the existing statement is limited to 21
changes to reflect a formal acquisition affecting the scheme, the 22
constructing authority for the acquisition-- 23
(a) must prepare the new statement; and 24
(b) is responsible for the costs of preparing and recording the new 25
statement. 26
1 For example, in addition to subsection (4), see section 47 (Limited adjustment of lot
entitlement schedule--with agreement of owners of 2 or more lots).
s 23 33 s 24
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`55B New community management statement must be consistent with 1
body corporate's consent 2
`If a new community management statement when recorded is 3
inconsistent with the new statement for which the body corporate gave its 4
consent, the statement as recorded is void to the extent of the 5
inconsistency.'. 6
23 Replacement of s 56 (Three months limit for lodging request for
Clause 7
recording new statement) 8
Section 56-- 9
omit, insert-- 10
`56 Time for lodging request to record new statement 11
`(1) If the body corporate consents to a new community management 12
statement being recorded for a community titles scheme, the body 13
corporate must, within 3 months after the relevant event happens, lodge a 14
request to record the new statement. 15
`(2) This section does not apply to a new community management 16
statement to which section 51A applies. 17
`(3) In this section-- 18
"relevant event" means-- 19
(a) if the difference between the new statement and the existing 20
statement for the scheme is limited to changes to reflect a formal 21
acquisition affecting the scheme--the acquisition; or 22
(b) if paragraph (a) does not apply--the body corporate consents to 23
the recording of the new statement.'. 24
24 Amendment of s 57 (Requirements for community management
Clause 25
statement) 26
(1) Section 57(1)-- 27
insert-- 28
s 24 34 s 24
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(ca) for a scheme (other than a scheme created under chapter 2, 1
part 121) for which development approval is given after the 2
commencement of this paragraph-- 3
(i) if the contribution schedule lot entitlements for each lot 4
included in the scheme are not equal--explain why they are 5
not equal; and 6
(ii) include 1 or more services location diagrams for all service 7
easements for-- 8
(A) the standard format lots included in the scheme; and 9
(B) common property for the standard format lots; and 10
(iii) identify the lots affected, or proposed to be affected, by a 11
statutory easement, and state the type of statutory easement; 12
and'. 13
(2) Section 57(1)(e), from `explain'-- 14
omit, insert-- 15
`(i) explain the proposed development and illustrate it by 16
concept drawings; and 17
(ii) state the purpose of any future allocations for the scheme 18
and the stages in which the future allocations are to be 19
made; and'. 20
(3) Section 57(1)(ca) to (f)-- 21
renumber as section 57(1)(d) to (g). 22
(4) Section 57(3)-- 23
omit, insert-- 24
`(3) The community management statement must not include anything 25
other than the things that this Act, or the regulation module applying to the 26
scheme, says the statement must or may include. 27
`(4) Subsection (1)(d)(ii) applies to a community management statement 28
for a scheme existing before the commencement of the subparagraph 29
(the "commencement")-- 30
1 Chapter 2 (Basic operation of community titles schemes), part 12 (Creation of a
layered arrangement from existing basic schemes)
s 25 35 s 26
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) only if, after the commencement, a service easement is 1
established for the scheme; and 2
(b) only for service easements established after the commencement. 3
`(5) If the requirement mentioned in subsection (1)(d)(ii) applies to a 4
community management statement because of subsection (4), the 5
requirement must be complied with, initially, within 1 year after the first 6
establishment of a service easement after the commencement. 7
`(6) In this section-- 8
"future allocation", for a community titles scheme, means a future 9
allocation of common property or a body corporate asset under an 10
exclusive use by-law.'. 11
25 Omission of s 58 (When registrar records community
Clause 12
management statement) 13
Section 58-- 14
omit. 15
26 Replacement of ss 5965
Clause 16
Sections 59 to 65-- 17
omit, insert-- 18
`59 Application of pt 8 19
`(1) This part applies to a community titles scheme if the lots included in 20
the scheme are lots on-- 21
(a) a building format plan of subdivision; or 22
(b) a volumetric format plan of subdivision; or 23
(c) a standard format plan of subdivision registered under the Land 24
Title Act on or after 13 July 1997. 25
`(2) If a lot is a standard format lot in a community titles scheme 26
intended to be developed progressively and there are no buildings on the 27
lot, this part applies for the lot. 28
`(3) This part has effect for the scheme subject to the provisions of an 29
easement established under the Land Title Act.'. 30
s 27 36 s 28
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
27 Insertion of new s 67A
Clause 1
Chapter 2, part 8-- 2
insert-- 3
`67A Services location diagrams 4
`(1) This section applies if-- 5
(a) because of a change in the service easements for the standard 6
format lots included in a community titles scheme, a services 7
location diagram (the "original diagram") included in the 8
community management statement no longer reflects the location 9
of the current service easements; or 10
(b) a services location diagram is not included in the community 11
management statement and, after the commencement of this 12
section, a service easement ("new easement") is established for 13
a standard format lot included in the scheme. 14
`(2) The body corporate must prepare a services location diagram 15
(the "new diagram") so that-- 16
(a) if subsection (1)(a) applies--the location of the current service 17
easements for the standard format lots is shown in-- 18
(i) the new diagram; or 19
(ii) the original diagram, together with the new diagram and any 20
other services location diagrams previously prepared under 21
this section for the scheme; or 22
(b) if subsection (1)(b) applies--the new easement is shown in the 23
new diagram. 24
`(3) The body corporate must lodge a request to record a new community 25
management statement including the new diagram within 1 year after-- 26
(a) if subsection (1)(a) applies--the change mentioned in the 27
paragraph happens; or 28
(b) if subsection (1)(b) applies--the new easement is established.'. 29
28 Amendment of s 69 (Reinstatement process under court approval)
Clause 30
Section 69-- 31
insert-- 32
s 29 37 s 30
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(7) The body corporate is the respondent to an application made under 1
subsection (2)(b) or (c).'. 2
29 Insertion of new s 69A
Clause 3
After section 69-- 4
insert-- 5
`69A Variation and substitution of court orders 6
`(1) The District Court may, for an order made by it for an approved 7
reinstatement process, and as it considers just and equitable-- 8
(a) vary the order; or 9
(b) revoke the order and substitute another order. 10
`(2) An order substituted under subsection (1)(b) must be an order of a 11
kind the court is authorised to make under section 69(4). 12
`(3) The court may take action under subsection (1) on application by an 13
entity that made, or was entitled to make, the application for the approved 14
reinstatement process. 15
`(4) An insurer of the building, including a part of the building, is a party 16
to an application under this section. 17
`(5) If the application for an order under subsection (1) is made by an 18
entity other than the body corporate, the body corporate is the respondent 19
to the application.'. 20
30 Replacement of s 71 (Registration for changes to scheme under
Clause 21
approved reinstatement process) 22
Section 71-- 23
omit, insert-- 24
s 31 38 s 31
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`71 Registration for changes to scheme under approved 1
reinstatement process 2
`If an approved reinstatement process provides for a change to a 3
community titles scheme, the change must be registered under the Land 4
Title Act, section 115T.1'. 5
31 Replacement of ss 76 and 77
Clause 6
Sections 76 and 77-- 7
omit, insert-- 8
`76 Effecting termination of scheme 9
`(1) Termination of the scheme must be recorded under the Land Title 10
Act, sections 115U and 115V.2 11
`(2) The termination takes effect under that Act, section 115V. 12
`77 Effect of termination on accrued charge, levy, rate or tax 13
`(1) When the scheme is terminated-- 14
(a) a liability for a charge, levy, rate or tax that had accrued on a lot 15
included in the scheme before the scheme was terminated is not 16
affected; and 17
(b) for recovery under the Local Government Act 1993 or the Land 18
Tax Act 1915, the charge, levy, rate or tax is taken to have been 19
levied on the former owner's interest in the land as tenant in 20
common. 21
`(2) In this section-- 22
"former owner" means the person who, immediately before the scheme 23
was terminated, was the owner of the lot.'. 24
1 Land Title Act, section 115T (Registration for changes to scheme under approved
reinstatement process)
2 Land Title Act, sections 115U (Instruments required for terminating scheme)
and 115V (Recording termination of scheme)
s 32 39 s 33
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
32 Replacement of ss 83 and 84
Clause 1
Sections 83 and 84-- 2
omit, insert-- 3
`83 Effecting amalgamation of community titles schemes 4
`(1) The amalgamation of schemes A and B must be recorded under the 5
Land Title Act, sections 115W and 115X.1 6
`(2) The amalgamation takes effect under that Act, section 115X.'. 7
33 Insertion of new ch 2, pt 12
Clause 8
Chapter 2-- 9
insert-- 10
`PART 12--CREATION OF A LAYERED 11
ARRANGEMENT FROM EXISTING BASIC SCHEMES 12
`Division 1--Introduction 13
`86A General principles of creation of layered arrangement from 14
basic schemes 15
`(1) Two or more basic schemes may become a layered arrangement of 16
community titles schemes (a "layered arrangement") under this part. 17
`(2) The basic schemes may become a layered arrangement if the 18
scheme land for the layered arrangement conforms with the Land Title Act, 19
section 115H.2 20
`86B Schemes that may become a layered arrangement 21
`Only basic schemes that are not subsidiary schemes may become a 22
layered arrangement under this part. 23
1 Land Title Act, sections 115W (Request to record amalgamation of schemes)
and 115X (Recording amalgamation of schemes)
2 Land Title Act, section 115H (Single area for scheme land)
s 33 40 s 33
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`Division 2--Process for creating layered arrangement 1
`86C Agreement or court order for creation of layered arrangement 2
`(1) Two or more basic schemes ("scheme A" and "scheme B") may 3
become a layered arrangement if the body corporate for scheme A and the 4
body corporate for scheme B each agree, by resolution without dissent-- 5
(a) to become a layered arrangement ("scheme C"); and 6
(b) to the community management statement being recorded for 7
scheme C; and 8
(c) if the existing community management statements for schemes A 9
and B will no longer be accurate after the layered arrangement is 10
created--to new community management statements being 11
recorded for schemes A and B. 12
`(2) Alternatively, schemes A and B may become a layered arrangement 13
if the District Court, on the application of the owner of a lot included in 14
scheme A or scheme B or the body corporate for scheme A or scheme B, 15
decides it is just and equitable for the schemes to become a layered 16
arrangement (also "scheme C"), and makes an appropriate order. 17
`(3) If schemes A and B are to become a layered arrangement under 18
subsection (1) or (2), the District Court may make an order, if it considers it 19
is just and equitable to make the order, about-- 20
(a) the contents of the community management statements for each 21
of schemes A, B and C; or 22
(b) the disposition of liabilities that, immediately before the creation 23
of the layered arrangement, are liabilities of the body corporate 24
for scheme A or scheme B. 25
`(4) The court may make an order under subsection (3) on application by 26
the body corporate for scheme A or B. 27
`86D Effecting creation of layered arrangement 28
`(1) The creation of the layered arrangement must be recorded under the 29
Land Title Act, sections 115Y and 115Z.1 30
1 Land Title Act, sections 115Y (Request to record creation of layered arrangement)
and 115Z (Recording creation of layered arrangement)
s 34 41 s 34
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(2) A request to record the creation of the layered arrangement may be 1
lodged by or for-- 2
(a) the bodies corporate for schemes A and B; or 3
(b) a person on whose application the court made an order under 4
section 86C(2). 5
`(3) The creation of the layered arrangement takes effect under the Land 6
Title Act, section 115Z.1 7
`86E Effect of creation of layered arrangement 8
`When schemes A and B become a layered arrangement-- 9
(a) a liability for a charge, levy, rate or tax that had accrued on a lot 10
included in scheme A or B, or on the body corporate for 11
scheme A or B, before the layered arrangement was created is 12
not affected; and 13
(b) anything done in relation to scheme A or B before the layered 14
arrangement was created continues in effect to the extent there is 15
no inconsistency with the community management statements 16
recorded for schemes A, B and C, including, for example, the 17
following-- 18
(i) an application under the dispute resolution provisions; 19
(ii) an order of an adjudicator or court about a lot or common 20
property; 21
(iii) liabilities and obligations attaching to the owners of lots 22
included in schemes A or B.'. 23
34 Amendment of s 87 (Body corporate's general functions)
Clause 24
Section 87(1)(b), `the by-laws affecting the common property'-- 25
omit, insert-- 26
`any by-laws for the scheme'. 27
1 Land Title Act, section 115Z (Recording creation of layered arrangement)
s 35 42 s 37
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
35 Insertion of new s 89A
Clause 1
Chapter 3, part 1, division 1-- 2
insert-- 3
`89A No delegation of body corporate's powers 4
`A body corporate can not delegate its powers.1'. 5
36 Amendment of s 98 (Counting of votes for special resolution)
Clause 6
Section 98(3)(a)-- 7
omit, insert-- 8
`(a) for a meeting notice of which is given-- 9
(i) before the commencement of subparagraph (ii)--the votes 10
counted for the motion are more than the votes counted 11
against the motion; or 12
(ii) after the commencement of this subparagraph--at least 13
two-thirds of the votes cast are in favour of the motion; 14
and'. 15
37 Insertion of new s 98A
Clause 16
After section 98-- 17
insert-- 18
`98A Counting of votes for majority resolution 19
(1) This section applies if a motion is to be decided by majority 20
resolution at a general meeting of the body corporate for a community titles 21
scheme. 22
(2) One vote only may be exercised for each lot included in the scheme. 23
(3) The vote-- 24
(a) must be written; and 25
1 But see, chapter 3 (Management of community titles schemes), part 2 (Body
corporate managers, service contractors and letting agents), division 2 (Performance
of powers of body corporate committee and executive members by body corporate
manager)
s 38 43 s 38
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(b) can not be exercised by proxy. 1
(4) The motion is passed by majority resolution only if the votes counted 2
for the motion are more than 50% of the lots for which persons are entitled 3
to vote on the motion.'. 4
38 Insertion of new s 101B
Clause 5
Chapter 3, part 2, division 1-- 6
insert-- 7
`101B Original owner's obligations about engagements and 8
authorisations 9
`(1) This section applies if-- 10
(a) the body corporate for a community titles scheme intends to-- 11
(i) engage a person as the body corporate manager or a service 12
contractor (the "contracted party"); or 13
(ii) authorise a person to conduct a letting agent business (also 14
the "contracted party"); and 15
(b) the engagement or authorisation is to be made or given in the 16
original owner control period. 17
`(2) The original owner must exercise reasonable skill, care and 18
diligence and act in the best interests of the body corporate, as constituted 19
after the original owner control period ends, in ensuring each of the 20
following-- 21
(a) the terms of the engagement or authorisation achieve a fair and 22
reasonable balance between the interests of-- 23
(i) the contracted party; and 24
(ii) the body corporate as constituted after the original owner 25
control period ends; 26
(b) the terms are appropriate for the scheme; 27
(c) the powers able to be exercised, and functions required to be 28
performed, by the contracted party under the engagement or 29
authorisation-- 30
(i) are appropriate for the scheme; and 31
s 39 44 s 40
Body Corporate and Community Management and
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(ii) do not adversely affect the body corporate's ability to carry 1
out its functions. 2
Maximum penalty--300 penalty units. 3
`(3) If the body corporate or an owner of a lot included in the scheme 4
incurs loss or damage because of the original owner's contravention of 5
subsection (2), the body corporate or owner may claim compensation from 6
the original owner in a proceeding brought in a court of competent 7
jurisdiction.'. 8
39 Amendment of s 102 (No consideration for engagement or
Clause 9
authorisation) 10
(1) Section 102-- 11
insert-- 12
`(1A) Subsection (1)(b) does not apply to the first authorisation given 13
after the original owner control period ends if-- 14
(a) the amount or benefit sought or accepted for the authorisation 15
represents fair market value for the authorisation; and 16
(b) no authorisation was given during the original owner control 17
period.'. 18
(2) Section 102(1A) and (2)-- 19
renumber as section 102(2) and (3). 20
40 Amendment of s 103 (Limitation on benefit to body corporate
Clause 21
under service contractor engagement) 22
(1) Section 103-- 23
insert-- 24
`(3A) Also, subsection (1) does not apply to an amount or benefit for the 25
reasonable costs incurred by the body corporate in preparing an agreement 26
between the body corporate and service contractor for the engagement.'. 27
(2) Section 103 (3A) and (4)-- 28
renumber as section 103(4) and (5). 29
s 41 45 s 42
Body Corporate and Community Management and
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41 Amendment of s 104 (Limitation on benefit to body corporate
Clause 1
under letting agent authorisation) 2
(1) Section 104-- 3
insert-- 4
`(3A) Also, subsection (1) does not apply to-- 5
(a) an amount or benefit for the actual authorisation as letting agent 6
if-- 7
(i) the amount or benefit represents fair market value for the 8
authorisation; and 9
(ii) the authorisation is the first authorisation given after the 10
original owner control period ends; and 11
(iii) no authorisation was given during the original owner control 12
period; or 13
(b) an amount or benefit for the reasonable costs incurred by the 14
body corporate in preparing an agreement between the body 15
corporate and letting agent for the authorisation.'. 16
(2) Section 104 (3A) and (4)-- 17
renumber as section 104(4) and (5). 18
42 Insertion of new s 104A
Clause 19
After section 104-- 20
insert-- 21
`104A Letting agent must hold letting agent lot in letting agent's name 22
`(1) This section applies to a person who becomes a letting agent for a 23
community titles scheme after the commencement of this section. 24
`(2) If the letting agent business is conducted from a lot included in the 25
scheme that is not lessee common property, the registered owner of the lot 26
must be the letting agent. 27
`(3) If the letting agent business is conducted from a lot that is lessee 28
common property, the lessee of the lot must be the letting agent.'. 29
s 43 46 s 44
Body Corporate and Community Management and
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43 Insertion of new s 105A
Clause 1
Chapter 3, part 2, division 1-- 2
insert-- 3
`105A Code of conduct 4
`(1) The code of conduct in schedule 1A applies to-- 5
(a) a body corporate manager in performing obligations under the 6
person's engagement as the body corporate manager; and 7
(b) a caretaking service contractor in performing obligations under 8
the person's engagement as a service contractor. 9
`(2) The provisions of the code are taken to be included in the terms of 10
the contract providing for the person's engagement. 11
`(3) If there is an inconsistency between a provision of the code and 12
another term of the contract, the provision of the code prevails. 13
`(4) If the contract was in force immediately before the commencement 14
of this section, this section applies only for things done or omitted to be 15
done by the person after the commencement.'. 16
44 Replacement of ch 2, pt 2, div 2 (Delegations)
Clause 17
Chapter 2, part 2, division 2-- 18
omit, insert-- 19
`Division 2--Performance of powers of body corporate committee and 20
executive members by body corporate manager 21
`106 Schemes for which there is a committee for the body corporate 22
`(1) This section applies if there is a committee for the body corporate. 23
`(2) The body corporate, in writing, may authorise the body corporate 24
manager to exercise some or all of the powers ("authorised powers") of 25
an executive member of the committee. 26
`(3) However, the body corporate must not prevent the executive 27
member from-- 28
(a) exercising an authorised power; or 29
s 45 47 s 46
Body Corporate and Community Management and
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(b) directing the body corporate manager about how an authorised 1
power is to be exercised. 2
`(4) The body corporate, in writing, may revoke the authorisation at any 3
time. 4
`106A Schemes for which there is no committee for the body corporate 5
`(1) This section applies if, under a regulation module applying to a 6
community titles scheme, there is no committee for the body corporate. 7
`(2) The body corporate, in writing, may authorise the body corporate 8
manager to exercise some or all of the powers ("authorised powers") of a 9
committee for a body corporate and an executive member of a committee. 10
`(3) The body corporate, in writing, may revoke the authorisation at any 11
time. 12
`106B Power of body corporate manager to act for body corporate 13
`(1) A decision of a body corporate manager in exercising a power under 14
an authorisation given under section 106A is a decision of the body 15
corporate. 16
`(2) Subsection (1) does not apply to a decision that, under the regulation 17
module applying to the scheme, is a decision on a restricted issue for a 18
committee for a body corporate.'. 19
45 Amendment of s 107 (Regulation module)
Clause 20
Section 107(1)-- 21
insert-- 22
`(g) matters about a service contractor's right of access over common 23
property for performing obligations, other than an obligation to 24
supply utility services, under the engagement.'. 25
46 Insertion of new ss 109A and 109B
Clause 26
After section 109-- 27
insert-- 28
s 47 48 s 47
Body Corporate and Community Management and
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`109A Requirement for financier's address for service 1
`(1) This section applies if a notice under section 109 given to a body 2
corporate does not state the financier's address for service for notices given 3
by the body corporate under this division. 4
`(2) The financier must, as soon as practicable after the notice is given, 5
give the body corporate a further written notice stating the address for 6
service. 7
`109B Notice of changes affecting financed contract 8
`If the body corporate and a contractor for a financed contract change the 9
contract or enter into an arrangement that affects the contract, the body 10
corporate must give the financier written notice of the change or 11
arrangement.'. 12
47 Replacement of s 110 (Limitation on termination of financed
Clause 13
contract) 14
(1) Section 110-- 15
omit, insert-- 16
`110 Limitation on termination of financed contract 17
`(1) The body corporate under a financed contract may terminate the 18
contract if-- 19
(a) the body corporate has given the financier for the contract written 20
notice, addressed to the financier at the financier's address for 21
service, that the body corporate has the right to terminate the 22
contract; and 23
(b) when the notice was given, circumstances existed under which 24
the body corporate had the right to terminate the contract; and 25
(c) at least 21 days have passed since the notice was given. 26
`(2) However, the body corporate can not terminate the contract if, under 27
arrangements between the financier and the contractor for the contract, the 28
financier-- 29
(a) is acting under the contract in place of the contractor; or 30
(b) has appointed a person as a receiver or receiver and manager for 31
the contract. 32
s 47 49 s 47
Body Corporate and Community Management and
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`(3) A financier may take the action mentioned in subsection (2)(a) or (b) 1
only if the financier has previously given written notice to the body 2
corporate of the financier's intention to take the action. 3
`(4) The financier may authorise a person to act for the financier for 4
subsection (2)(a) if-- 5
(a) the person is not the contractor or an associate of the contractor; 6
and 7
(b) the body corporate has first approved the person. 8
`(5) For deciding whether to approve a person under subsection (4), the 9
body corporate-- 10
(a) must act in reasonably in the circumstances and as quickly as 11
practicable; and 12
(b) may have regard only to-- 13
(i) the character of the person; and 14
(ii) the competence, qualifications and experience of the person. 15
`(6) However, the body corporate must not-- 16
(a) unreasonably withhold approval of the person; or 17
(b) require or receive a fee or other consideration for approving the 18
person, other than reimbursement for legal or administrative 19
expenses reasonably incurred by the body corporate for the 20
application for its approval. 21
`(7) Subsection (2) does not operate to stop the body corporate from 22
terminating the contract for something done or not done after the financier 23
started to act under the subsection. 24
`(8) Nothing in this section stops the ending of a financed contract by the 25
mutual agreement of the body corporate, the contractor and the financier. 26
`(9) In this section-- 27
"address for service", for a financier, means the financier's address for 28
service-- 29
(a) for notices given by the body corporate under this division; and 30
(b) stated in a notice given to the body corporate under section 109 31
or 109A. 32
s 48 50 s 48
Body Corporate and Community Management and
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`110A Agreements between body corporate and financier prohibited 1
`(1) A financier for a financed contract must not enter into or be a party 2
to an agreement or other arrangement with the body corporate under the 3
contract for a matter about-- 4
(a) the role of the financier for the contract; or 5
(b) arrangements entered into between the financier and contractor 6
for the contract under which the financier is acting, or may act, 7
under the contract in the place of the contractor; or 8
(c) the operation of this division in relation to the contract. 9
`(2) An agreement or arrangement entered into, or to which a financier is 10
a party, is void to the extent it contravenes this section.'. 11
48 Amendment of s 112 (Review of remuneration under engagement
Clause 12
of service contractor) 13
(1) Section 112(2)(c)-- 14
omit. 15
(2) Section 112(3)-- 16
omit, insert-- 17
`(3) An application under this section may be made-- 18
(a) only by the body corporate; and 19
(b) if the level of remuneration payable to the service contractor 20
under the engagement has not been reviewed previously under 21
division 7.'. 22
(3) Section 112-- 23
insert-- 24
`(4A) This section does not apply to a service contract entered into after 25
the commencement of section 112A. 26
`(4B) This section expires on 30 June 2007.'. 27
(4) Section 112(4A) to (5)-- 28
renumber as section 112(5) to (7). 29
s 49 51 s 49
Body Corporate and Community Management and
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49 Insertion of new ch 3, pt 2, divs 7 and 8
Clause 1
Chapter 3, part 2-- 2
insert-- 3
`Division 7--Review of terms of service contracts 4
`112A Review of terms of service contracts 5
`(1) This section applies if-- 6
(a) the body corporate for a community titles scheme-- 7
(i) enters into a service contract with a person after the 8
commencement of this section and within the original 9
owner control period and the person's term of engagement 10
as the service contractor under the contract has not ended; 11
or 12
(ii) intends to extend or vary, before 1 January 2005, an existing 13
service contract entered into between the body corporate 14
and a person within the original owner control period; and 15
(b) the original owner control period has ended. 16
`(2) If requested by the body corporate or person (each a "reviewing 17
party"), the reviewing parties must, as provided under this division and for 18
the purpose mentioned in section 112B, review the terms of the contract 19
that provide for-- 20
(a) the functions and powers of the person as the service contractor; 21
or 22
(b) the remuneration payable to the person as the service contractor. 23
`(3) The body corporate may make a request under subsection (2) only if 24
the body corporate, by ordinary resolution, has authorised the making of 25
the request. 26
`(4) Subsection (2)(b) does not apply to an existing service contract if its 27
terms that provide for the remuneration payable to the person as the service 28
contractor have been reviewed by the reviewing parties before the 29
commencement of this section. 30
`(5) The review applies to the contract even if the contract also provides 31
for 1 or more of the following-- 32
s 49 52 s 49
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(a) the person's engagement as a body corporate manager; 1
(b) the person's authorisation as a letting agent. 2
`(6) The contract may be reviewed under this division only once. 3
`112B Purpose of review 4
`The purpose of the review is to help the reviewing parties decide-- 5
(a) if the terms mentioned in section 112A(2) (the "reviewable 6
terms") are currently fair and reasonable; and 7
(b) if the reviewable terms are not currently fair and 8
reasonable--how the reviewable terms should be changed to 9
ensure they are fair and reasonable. 10
`112C Procedure for review 11
`(1) Within 2 months after requesting the review, the reviewing party 12
who requested it must-- 13
(a) obtain from an appropriate person independent written advice 14
(the "review advice"), based on the review criteria, about the 15
matters mentioned in section 112B(a) and (b); and 16
(b) give a copy of the advice to the other reviewing party. 17
18
Example of appropriate person for subsection (1)(a)--
19
A person who, in the ordinary course of the person's business, has knowledge of the
20
functions and powers of service contractors and the remuneration for performing the
21
functions and powers.
`(2) The review must be carried out having regard to the review criteria. 22
`(3) The body corporate's final decision about the outcome of the review 23
must be made by ordinary resolution. 24
`(4) The review must be finished as soon as reasonably practicable after 25
a copy of the review advice is given to a reviewing party under 26
subsection (1)(b) and-- 27
(a) before the term of the engagement as service contractor ends; 28
and 29
(b) within the review period. 30
s 49 53 s 49
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`112D Disputes arising out of review 1
`(1) This section applies if a dispute arising out of a review carried out, 2
or required to be carried out, under this division exists between the 3
reviewing parties. 4
`(2) An order may be made under the dispute resolution provisions to 5
resolve the dispute. 6
`(3) The adjudication to which the application for the order is referred by 7
the commissioner must be specialist adjudication. 8
`(4) The adjudicator investigating the application for the order must have 9
regard to the review criteria. 10
`(5) Subsection (6) applies if only 1 of the reviewing parties has carried 11
out the review. 12
`(6) A dispute is taken to exist between the reviewing parties, and to have 13
arisen in the way mentioned in subsection (1), if the reviewing party who 14
carried out the review considers the reviewable terms are not currently fair 15
and reasonable. 16
`112E Review criteria 17
`(1) The review criteria are each of the following-- 18
(a) the appropriateness of the reviewable terms for achieving a fair 19
and reasonable balance between the interests of the reviewing 20
parties; 21
(b) whether the reviewable terms impose conditions that-- 22
(i) are unreasonably difficult to comply with; or 23
(ii) are not necessary and reasonable for the protection of the 24
legitimate interests of a reviewing party; 25
(c) the consequences of complying with, or contravening, the 26
reviewable terms and whether the consequences are unfairly 27
harsh or beneficial to a reviewing party; 28
(d) whether the reviewable terms are appropriate for the scheme; 29
(e) the term of the engagement as service contractor and the period 30
of the term remaining. 31
s 49 54 s 49
Body Corporate and Community Management and
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`(2) The review criterion mentioned in subsection (1)(d) is to be applied 1
having regard, in particular, to the nature, features and characteristics of the 2
scheme. 3
`112F Other provisions about review 4
`(1) A member of a body corporate can not vote, whether personally or 5
by proxy, on a motion about a review of a service contract or existing 6
service contract for which the member is the service contractor or an 7
associate of the service contractor. 8
`(2) A following matter can not be a ground for terminating the contract 9
or changing the service contractor's term of engagement under the 10
contract-- 11
(a) the carrying out of a review under this division; 12
(b) a change in the terms of the contract as a result of the review or 13
an order of a specialist adjudicator; 14
(c) a dispute arising out of the review. 15
`Division 8--Required transfer of letting agent's management rights 16
`Subdivision 1--Preliminary 17
`112G Application of div 8 18
`This division applies only to a community titles scheme-- 19
(a) that is not a managed investment scheme within the meaning of 20
the Corporations Act 2001 (Cwlth); and 21
(b) for which the original owner control period has ended. 22
`112H Effect of div 8 on other provisions 23
`(1) Division 41 does not apply to the termination of a contract under this 24
division. 25
1 Division 4 (Protection for financier of contract)
s 49 55 s 49
Body Corporate and Community Management and
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`(2) The provisions of a letting agent authorisation or service contract 1
providing for its transfer or termination are void to the extent the provisions 2
are inconsistent with this division. 3
`Subdivision 2--Transfer of management rights 4
`112I Grounds for requiring transfer 5
`The body corporate may require the transfer of the letting agent's 6
management rights under this division based on either of the following 7
grounds-- 8
(a) the letting agent failed to comply with a code contravention 9
notice; 10
(b) the body corporate reasonably believes the letting agent, after 11
being given the notice, contravened a provision of the code of 12
conduct for-- 13
(i) letting agents; or 14
(ii) body corporate managers and caretaking service 15
contractors.1 16
`112J Code contravention notice 17
`(1) The body corporate must, if required by ordinary resolution decided 18
by secret ballot conducted in the way prescribed under the regulation 19
module applying to the scheme, give the letting agent a signed notice under 20
this section (a "code contravention notice"). 21
`(2) The code contravention notice must state-- 22
(a) that the body corporate believes the person has or is contravening 23
a provision of the code of conduct for-- 24
(i) letting agents; or 25
(ii) body corporate managers and caretaking service 26
contractors; and 27
1 See schedules 1A (Code of conduct for body corporate managers and caretaking
service contractors) and 1B (Code of conduct for letting agents).
s 49 56 s 49
Body Corporate and Community Management and
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(b) the provision the body corporate believes has been or is being 1
contravened; and 2
(c) details sufficient to identify the contravention; and 3
(d) the reasonable period within which the letting agent must remedy 4
the contravention; and 5
(e) that the body corporate may, without further notice, give the 6
letting agent a transfer notice if-- 7
(i) the letting agent does not comply with the code 8
contravention notice; or 9
(ii) the body corporate reasonably believes the letting agent, 10
after being given the notice, has contravened a provision of 11
a code mentioned in paragraph (a). 12
`112K Requirement for transfer 13
`The letting agent must transfer the letting agent's management rights 14
for the scheme if-- 15
(a) a ground exists for the body corporate to require the transfer; and 16
(b) the body corporate-- 17
(i) by majority resolution decided by secret ballot conducted in 18
the way prescribed under the regulation module applying to 19
the scheme requires the transfer; and 20
(ii) gives written notice of the requirement (the "transfer 21
notice") to the letting agent. 22
`112L Transfer--letting agent's choice of transferee 23
`(1) The letting agent must transfer the management rights-- 24
(a) within the following period after the transfer notice is given to 25
the letting agent-- 26
(i) if section 112R does not apply--9 months; 27
(ii) if section 112R applies--11 months; and 28
(b) to a person, other than an associate of the letting agent, chosen by 29
the letting agent and approved by the body corporate. 30
s 49 57 s 49
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`(2) For deciding whether to approve a person under subsection (1)(b), 1
the body corporate-- 2
(a) must act reasonably and as quickly as practicable; and 3
(b) may have regard only to the person's-- 4
(i) character; and 5
(ii) financial standing; and 6
(iii) competence, qualifications and experience. 7
`(3) However, the body corporate must not-- 8
(a) unreasonably withhold approval of the person; or 9
(b) require or receive a fee or other consideration for approving the 10
person, other than reimbursement for legal expenses reasonably 11
incurred by the body corporate in relation to the application for 12
its approval. 13
Maximum penalty for subsection (3)--50 penalty units. 14
`(4) If the letting agent transfers the management rights to a person who 15
is not approved by the body corporate, the transfer is of no effect. 16
`112M Giving financier copy of transfer notice 17
`When the body corporate gives the transfer notice to the letting agent, 18
the body corporate must give a copy of it to each person who is a financier 19
for a contract of the letting agent under section 109. 20
`112N Transfer--body corporate's choice of transferee 21
`(1) If the letting agent does not transfer the management rights as 22
required under section 112L, the letting agent must transfer the 23
management rights-- 24
(a) to a replacement letting agent chosen by the committee for the 25
body corporate and named in a written notice given by the 26
committee to the letting agent; and 27
(b) at the price stated in the notice; and 28
(c) within the period, of at least 2 months after the notice is given, 29
stated in the notice. 30
s 49 58 s 49
Body Corporate and Community Management and
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`(2) The price stated must be 1 of the following-- 1
(a) the average of 2 valuations, obtained by the body corporate from 2
2 independent registered valuers, stating the value of the 3
management rights; 4
(b) the highest bid for the management rights, excluding a bid by the 5
letting agent or an associate of the letting agent, made at an 6
auction-- 7
(i) conducted at the request of the body corporate; and 8
(ii) of which at least 60 days notice was given; 9
(c) the highest amount tendered, excluding by tender by the letting 10
agent or an associate of the letting agent, for the management 11
rights after reasonable efforts made by the body corporate to 12
market the management rights for at least 60 days. 13
`(3) The letting agent must pay to the body corporate, from the proceeds 14
of the sale, the reasonable costs incurred by the body corporate under 15
subsection (2). 16
`112O Terms of service contract on transfer 17
`(1) This section applies to a service contract (the "transferred service 18
contract") transferred to a person (the "transferee") under section 112L 19
or 112N. 20
`(2) Unless the body corporate and transferee agree otherwise, the terms 21
of the transferred service contract are-- 22
(a) the terms applying to the service contract under subsection (3); 23
or 24
(b) if paragraph (a) does not apply--the terms applying to the 25
service contract immediately before the transfer (the "existing 26
terms"). 27
`(3) The terms of the transferred service contract are the existing terms 28
as changed under a review advice about the contract if-- 29
(a) the review advice states how the contract's reviewable terms 30
should be changed to ensure they are fair and reasonable; and 31
(b) the body corporate gave the letting agent a copy of the review 32
advice as required under section 112T(1). 33
s 49 59 s 49
Body Corporate and Community Management and
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`Subdivision 3--Termination and replacement of letting agent 1
authorisation and service contract 2
`112P Termination of letting agent authorisation if management rights 3
not transferred 4
`If the letting agent does not transfer the management rights as required 5
under section 112N, the body corporate may terminate the letting agent's 6
authorisation under the regulation module applying to the scheme. 7
`112Q Termination and replacement of letting agent authorisation and 8
service contract in particular circumstances 9
`(1) This section applies if the remainder of the term of the letting 10
agent's authorisation (the "transferred authorisation"), including any 11
rights or options of extension or renewal, is less than 7 years when 12
transferred to a person (the "transferee") under this division. 13
14
Example for subsection (1)--
15
If the authorisation was given for a term of 5 years with 4 rights of renewal of 5 years
16
each and 5 years have expired, the remainder of the term is 20 years.
`(2) On the transfer-- 17
(a) the transferred authorisation and any service contract 18
(the "transferred service contract") forming part of the 19
transferred management rights terminate; and 20
(b) the body corporate must-- 21
(i) authorise the transferee to conduct a letting agent business 22
for the scheme; and 23
(ii) if a service contract formed part of the transferred 24
management rights--engage the transferee as a service 25
contractor. 26
`(3) The authorisation and engagement must be given for a term of 27
9 years starting immediately after the transfer. 28
`(4) Subject to subsection (3)-- 29
(a) the authorisation must be given on the terms applying to the 30
transferred authorisation immediately before the transfer; and 31
s 49 60 s 49
Body Corporate and Community Management and
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(b) unless the body corporate and transferee agree otherwise, the 1
engagement must be given on-- 2
(i) the terms applying to the transferred service contract under 3
subsection (5); or 4
(ii) if subparagraph (i) does not apply--the terms applying to 5
the transferred service contract immediately before the 6
transfer (the "existing terms"). 7
`(5) The engagement must be given on the existing terms of the 8
transferred service contract as changed under a review advice about the 9
contract if-- 10
(a) the review advice states how the contract's reviewable terms 11
should be changed to ensure they are fair and reasonable; and 12
(b) the body corporate gave the letting agent a copy of the review 13
advice as required under section 112T(1). 14
`Subdivision 4--Reviewing terms of letting agent's service contract 15
`112R Reviewing terms of service contract 16
`(1) This section applies if-- 17
(a) the letting agent's management rights include a service contract; 18
and 19
(b) when the body corporate passes the majority resolution 20
mentioned in section 112K, the body corporate also passes, by 21
ordinary resolution, a motion (a "review motion") that a review 22
advice about the service contract be obtained. 23
`(2) Within 1 month after the review motion is passed, the body 24
corporate must obtain the review advice from an independent appropriate 25
person. 26
27
Example of appropriate person for subsection (2)--
28
A person who, in the ordinary course of the person's business, has knowledge of the
29
functions and powers of service contractors and the remuneration for performing the
30
functions and powers.
`(3) The review advice must be based on the review criteria stated in 31
section 112S. 32
s 49 61 s 49
Body Corporate and Community Management and
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`(4) This section applies to the contract even if the contract also provides 1
for either or both of the following-- 2
(a) the letting agent's engagement as a body corporate manager; 3
(b) the letting agent's authorisation as a letting agent. 4
`112S Review criteria 5
`(1) The review criteria are each of the following-- 6
(a) the appropriateness of the reviewable terms for achieving a fair 7
and reasonable balance between the interests of the body 8
corporate and the service contractor; 9
(b) whether the reviewable terms impose conditions that-- 10
(i) are unreasonably difficult to comply with; or 11
(ii) are not necessary and reasonable for the protection of the 12
legitimate interests of the body corporate or the service 13
contractor; 14
(c) the consequences of complying with, or contravening, the 15
reviewable terms and whether the consequences are unfairly 16
harsh or beneficial to the body corporate or the service 17
contractor; 18
(d) whether the reviewable terms are appropriate for the scheme; 19
(e) the term of the engagement as service contractor and the period 20
of the term remaining. 21
`(2) The review criterion mentioned in subsection (1)(d) is to be applied 22
having regard, in particular, to the nature, features and characteristics of the 23
scheme. 24
`112T Giving copy of review advice to letting agent and prospective 25
buyer of management rights 26
`(1) Within 14 days after obtaining the review advice, the body corporate 27
must give a copy of it to the letting agent. 28
`(2) If requested by a prospective buyer of the letting agent's 29
management rights, the body corporate must give a copy of the review 30
advice to the prospective buyer.'. 31
s 50 62 s 51
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
50 Amendment of s 113 (Financial management arrangements)
Clause 1
Section 113(1), `The'-- 2
omit, insert-- 3
`Subject to section 113A, the'. 4
51 Insertion of new s 113A
Clause 5
Chapter 3, part 3, division 1-- 6
insert-- 7
`113A Body corporate's financial institution accounts 8
`(1) This section applies to a financial institution account opened for a 9
body corporate on or after the commencement of this section. 10
`(2) The account must be opened with the consent, and in the name, of 11
the body corporate. 12
`(3) If the body corporate manager's contract of engagement requires or 13
authorises the body corporate manager or an associate of the body 14
corporate manager to operate the account for the body corporate, the 15
account must provide for it to be operated for the body corporate by any of 16
the following-- 17
(a) the body corporate manager or associate; 18
(b) the authorised members acting jointly. 19
`(4) If subsection (3) does not apply, the account must provide for it to be 20
operated jointly for the body corporate by the authorised members. 21
`(5) If the body corporate gives the financial institution written notice in 22
the approved form that the body corporate manager's contract of 23
engagement has ended-- 24
(a) the financial institution must not allow the person or the person's 25
associate to operate the account; and 26
(b) the account is taken to provide for it to be operated for the body 27
corporate by a person nominated by the body corporate and 28
stated in the notice. 29
`(6) In this section-- 30
"authorised members", for operating a financial institution account of the 31
body corporate, means-- 32
s 52 63 s 54
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) for a community titles scheme in which all the lots are in 1
identical ownership-- 2
(i) the individual who is the owner; or 3
(ii) a nominee of the owner; or 4
(b) for a community titles scheme other than a small scheme--at 5
least 2 members of the committee for the body corporate who are 6
authorised by the body corporate to operate the account; or 7
(c) for a small scheme--at least 1 member of the committee for the 8
body corporate who is authorised by the body corporate to 9
operate the account.'. 10
52 Amendment of s 124 (Body corporate's power to remedy defective
Clause 11
building work) 12
Section 124, from `if' to `affected'-- 13
omit. 14
53 Amendment of s 134 (Requirements for exclusive use by-law)
Clause 15
(1) Section 134(2)(a) and (b), `by-law'-- 16
omit, insert-- 17
`by-law, or the lot owner votes personally in the resolution'. 18
(2) Section 134(3)(b)(ii)-- 19
omit, insert-- 20
`(ii) the passing of the resolution without dissent-- 21
(A) consenting to the recording of the new community 22
management statement that does not incorporate the 23
exclusive use by-law; or 24
(B) in which the lot owner voted personally.'. 25
54 Replacement of s 137 (Making and notifying allocations)
Clause 26
Section 137-- 27
omit, insert-- 28
s 54 64 s 54
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`137 Making allocations 1
`(1) An authorised or agreed allocation has no effect unless details of the 2
allocation are given to the body corporate. 3
`(2) Also, an authorised allocation has no effect unless-- 4
(a) if paragraph (b) does not apply for the allocation--the allocation 5
is made in the period (the "base allocation period") ending 6
1 year after the recording of the relevant community 7
management statement; or 8
(b) if a period (the "extended allocation period") for making the 9
allocation is stated in an order of an adjudicator under the dispute 10
resolution provisions--the allocation is made in the extended 11
allocation period. 12
`(3) An order mentioned in subsection (2)(b)-- 13
(a) may only state a period ending later than 1 year, and not later 14
than 2 years, after the recording of the relevant community 15
management statement; and 16
(b) may be sought or made before or after the base allocation period 17
ends. 18
`(4) If an order mentioned in subsection (2)(b) is made about an 19
authorised allocation after the base allocation period ends, the base 20
allocation period is taken never to have applied to the allocation for 21
subsection (2). 22
`(5) In this section-- 23
"relevant community management statement", for an authorised 24
allocation, means-- 25
(a) the community management statement that first includes the 26
exclusive use by-law; or 27
(b) for a community titles scheme that is to be progressively 28
developed--the new community management statement that 29
replaces the existing community management statement. 30
`137A Notifying allocations 31
`(1) The body corporate must lodge a request to record a new community 32
management statement (the "first subsequent statement") showing-- 33
s 54 65 s 54
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) all authorised allocations made in the base allocation period; and 1
(b) all authorised and agreed allocations currently in place when the 2
body corporate consented to the recording of the first subsequent 3
statement. 4
`(2) Also, if an extended allocation period applies for an authorised 5
allocation, the body corporate must lodge a request to record a new 6
community management statement (the "second subsequent statement") 7
showing-- 8
(a) all authorised allocations made between the end of the base 9
allocation period and the end of the extended allocation period; 10
and 11
(b) all authorised and agreed allocations currently in place when the 12
body corporate consented to the recording of the second 13
subsequent statement. 14
`(3) The request to record the first subsequent statement must be lodged 15
within 3 months, or a longer time stated in an order of an adjudicator under 16
the dispute resolution provisions, after the end of the base allocation 17
period. 18
`(4) If the body corporate is required to lodge a request to record a 19
second subsequent statement, the request must be lodged within 3 months, 20
or a longer time stated in an order of an adjudicator under the dispute 21
resolution provisions, after the end of the extended allocation period. 22
`(5) If the body corporate fails to lodge the request to record the first 23
subsequent statement as required under this section, all authorised and 24
agreed allocations made in the base allocation period cease to have effect. 25
`(6) If the body corporate fails to lodge a request to record a second 26
subsequent statement as required under this section, all authorised and 27
agreed allocations made between the end of the base allocation period and 28
the end of the extended allocation period cease to have effect. 29
`(7) An order mentioned in subsection (3) or (4) relating to an authorised 30
allocation may be sought or made before or after the 3 months mentioned 31
in the subsection end and, if the order is made after the 3 months end, the 32
allocation is taken to have remained in effect despite the 3 months having 33
ended.'. 34
s 55 66 s 57
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
55 Amendment of s 138 (Making and notifying further allocations)
Clause 1
(1) Section 138, heading, `Making and notifying'-- 2
omit, insert-- 3
`Notifying'. 4
(2) Section 138(1), from `an authorised' to `registrar'-- 5
omit, insert-- 6
`a further allocation, the body corporate must lodge'. 7
(3) Section 138-- 8
insert-- 9
`(4) In this section-- 10
"further allocation" means an agreed allocation, other than an allocation 11
shown in a subsequent statement under section 137A(1) or (2).'. 12
56 Amendment of s 140 (Review of exclusive use by-law)
Clause 13
(1) Section 140(1)(c)-- 14
omit, insert-- 15
`(c) the exclusive use by-law is not for the continuing engagement or 16
authorisation of the lot owner as a body corporate manager, 17
service contractor or letting agent for the scheme.'. 18
(2) Section 140(3)(a), `with the registrar'-- 19
omit. 20
(3) Section 140(4), from `specialist adjudication,'-- 21
omit, insert-- 22
`specialist adjudication.'. 23
57 Amendment of s 142 (Limitations for by-laws)
Clause 24
(1) Section 142(1)-- 25
omit, insert-- 26
s 58 67 s 58
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(1) If a by-law for a community titles scheme is inconsistent with this 1
Act (including a regulation module applying to the scheme) or another Act, 2
the by-law is invalid to the extent of the inconsistency. 3
4
Example for subsection (1)--
5
If a by-law for a community titles scheme purporting to give a body corporate manager,
6
service contractor or letting agent exclusive use of common property is inconsistent
7
with the regulation module applying to the scheme, the by-law is invalid to the extent of
8
the inconsistency.
`(1A) Subsection (1) does not apply to an inconsistency between a 9
by-law and a local law if the inconsistency is about keeping animals on 10
scheme land.'. 11
(2) Section 142(1A) to (5)-- 12
renumber as section 142(2) to (6). 13
58 Amendment of s 144 (Continuing contravention notice)
Clause 14
(1) Section 144-- 15
insert-- 16
`(2A) If the continuing contravention notice is given following a request 17
under section 145B(2), the body corporate must, within 14 days after 18
receiving the request, advise the person who made the request that the 19
continuing contravention notice has been given.'. 20
(2) Section 144(3)(e), from `further notice,'-- 21
omit, insert-- 22
`further notice-- 23
(i) start proceedings in the Magistrates Court for the failure to 24
comply with the notice; or 25
(ii) make an application under chapter 6 for resolution of the 26
dispute.'. 27
(3) Section 144(4), `5 penalty units'-- 28
omit, insert-- 29
`20 penalty units'. 30
(4) Section 144(5), `subsection (4)'-- 31
omit, insert-- 32
s 59 68 s 59
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`subsection (5)'. 1
(5) Section 144(5), `subsection (3)(c)'-- 2
omit, insert-- 3
`subsection (4)(c)'. 4
(6) Section 144(2A) to (5)-- 5
renumber as section 144(3) to (6). 6
59 Amendment of s 145 (Future contravention notice)
Clause 7
(1) Section 145-- 8
insert-- 9
`(2A) If the future contravention notice is given following a request 10
under section 145B(2), the body corporate must, within 14 days after 11
receiving the request, advise the person who made the request that the 12
future contravention notice has been given.'. 13
(2) Section 145(3)(e), from `further notice,'-- 14
omit, insert-- 15
`further notice-- 16
(i) start proceedings in the Magistrates Court for the failure to 17
comply with the notice; or 18
(ii) make an application under chapter 6 for resolution of the 19
dispute.'. 20
(3) Section 145(5), `5 penalty units'-- 21
omit, insert-- 22
`20 penalty units'. 23
(4) Section 145(6), `subsection (3)(c)'-- 24
omit, insert-- 25
`subsection (4)(c)'. 26
(5) Section 145(6), `subsection (5)'-- 27
omit, insert-- 28
`subsection (6)'. 29
s 60 69 s 60
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(6) Section 145(2A) to (6)-- 1
renumber as section 145(3) to (7). 2
60 Insertion of new ss 145A145D
Clause 3
After section 145-- 4
insert-- 5
`145A Preliminary procedure for application by body corporate for 6
resolution of dispute 7
`(1) This section applies if-- 8
(a) a dispute exists between the body corporate for a community 9
titles scheme and the owner or occupier of a lot included in the 10
scheme; and 11
(b) the dispute arises because the body corporate reasonably 12
believes-- 13
(i) the owner or occupier has contravened a provision of the 14
by-laws for the scheme; and 15
(ii) the circumstances of the contravention make it likely the 16
contravention will continue or be repeated. 17
`(2) The body corporate may make an application under chapter 6 for 18
resolution of the dispute only if the body corporate has given the owner or 19
occupier a contravention notice for the contravention the subject of the 20
dispute. 21
`(3) This section is subject to section 145C. 22
`145B Preliminary procedure for application by owner and occupier 23
for resolution of dispute 24
`(1) This section applies if-- 25
(a) a dispute exists between the owner or occupier of a lot included 26
in a community titles scheme (the "complainant") and the 27
owner or occupier of another lot included in the scheme 28
(the "accused person"); and 29
(b) the dispute arises because the complainant reasonably believes 30
that-- 31
s 60 70 s 60
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(i) the accused person has contravened a provision of the 1
by-laws for the scheme; and 2
(ii) the circumstances of the contravention make it likely the 3
contravention will continue or be repeated. 4
`(2) The complainant may make an application under chapter 6 for 5
resolution of the dispute only if-- 6
(a) the complainant has, in the approved form, asked the body 7
corporate to give the accused person a contravention notice for 8
the contravention the subject of the dispute; and 9
(b) the body corporate does not advise the complainant, as required 10
under section 144(3) or 145(3), that the contravention notice has 11
been given to the accused person. 12
`(3) This section is subject to section 145C. 13
`145C Dispensing with preliminary procedures 14
`(1) A body corporate involved in a dispute of a kind mentioned in 15
section 145A(1) may make an application under chapter 6, without 16
complying with section 145A(2), if-- 17
(a) the requirement mentioned in subsection (3) is satisfied; or 18
(b) the dispute is incidental to an application by the body corporate 19
for an order under section 227(1)(a) or (b)1. 20
`(2) The owner or occupier of a lot involved, as a complainant, in a 21
dispute of a kind mentioned in section 145B(1) may make an application 22
under chapter 6, without complying with section 145B(2), if-- 23
(a) the requirement mentioned in subsection (3) is satisfied; or 24
(b) the dispute is incidental to an application by the complainant for 25
an order under section 227(1)(a) or (b). 26
`(3) For subsection (1)(a) or (2)(a), the requirement is that-- 27
(a) the body corporate, owner or occupier (the "initiating party") 28
reasonably believes-- 29
1 Section 227 (Order to repair damage or reimburse amount paid for carrying out
repairs)
s 61 71 s 61
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(i) special circumstances apply for the contravention that is 1
believed by the initiating party to have taken place and is the 2
subject of the dispute; and 3
(ii) because of the special circumstances, it is necessary for the 4
dispute to be resolved urgently; and 5
(b) the application is for an interim order of an adjudicator. 6
`(4) For subsection (3), special circumstances apply for a contravention 7
if the contravention-- 8
(a) is likely to cause-- 9
(i) injury to persons; or 10
(ii) serious damage to property; or 11
(b) is a risk to the health or safety of persons; or 12
(c) is causing a serious nuisance to persons; or 13
(d) for another reason, gives rise to an emergency. 14
`145D Copy of contravention notice to be given to owner 15
`(1) If, under this division, the body corporate for a community titles 16
scheme gives a contravention notice to a person who is not the owner of a 17
lot included in the scheme, the body corporate must give a copy of the 18
notice to the owner of the lot. 19
`(2) The copy of the notice must be given to the owner when, or as soon 20
as practicable after, the notice is given to the person mentioned in 21
subsection (1).'. 22
61 Amendment of s 149 (Responsibility of original owner)
Clause 23
(1) Section 149-- 24
insert-- 25
`(2A) If the regulation module requires a building to be insured for full 26
replacement value, the original owner-- 27
(a) must obtain from a quantity surveyor or registered valuer an 28
independent valuation stating the replacement value of the 29
building; and 30
s 62 72 s 62
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(b) must ensure the policy of insurance for the building, taken out by 1
the original owner as required under subsection (2), covers the 2
full replacement value stated in the independent valuation. 3
Maximum penalty--150 penalty units.'. 4
(2) Section 149(2A) to (4)-- 5
renumber as section 149(3) to (5). 6
62 Amendment of s 154 (Utility services not separately charged for)
Clause 7
(1) Section 154(1)(a), from `the supplier' to `scheme land'-- 8
omit, insert-- 9
`a utility service provider'. 10
(2) Section 154(5), from `and--'-- 11
omit, insert-- 12
`and the body corporate must satisfy the liability to the utility service 13
provider out of-- 14
(a) the contributions paid by lot owners to the body corporate under 15
the regulation module applying to the scheme; or 16
(b) a levy imposed on the individual lot owners in the way stated in 17
subsection (6).'. 18
(3) Section 154-- 19
insert-- 20
`(5A) The levy must be made-- 21
(a) for lots for which the body corporate has a way of measuring the 22
extent to which the utility service is supplied to each 23
lot--according to the extent of supply; and 24
(b) for lots for which the body corporate does not have a way of 25
measuring the extent to which the utility service is supplied to 26
each lot-- 27
(i) equally between the lot owners; or 28
(ii) proportionately among the lot owners according to the 29
contribution schedule lot entitlement for each lot. 30
s 62 73 s 62
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(5B) Subsections (8) and (9) apply if-- 1
(a) an arrangement is in force under subsection (4); and 2
(b) the body corporate fails to satisfy the liability to the utility 3
service provider under the arrangement by the day the liability 4
becomes payable. 5
`(5C) If the utility service provider is a local government, the unpaid 6
amount of the liability becomes an overdue rate under the Local 7
Government Act 1993, section 10161 that is payable proportionately by 8
each lot owner according to the contribution schedule lot entitlement for 9
the lot. 10
`(5D) If the utility service provider is not a local government-- 11
(a) the unpaid amount is payable proportionately by each lot owner, 12
according to the contribution schedule lot entitlement for the lot; 13
and 14
(b) the amount payable by a lot owner is a charge on the lot. 15
`(5E) Subsection (9) is in addition to any other remedy the utility service 16
provider has for recovery of the unpaid amount.'. 17
(4) Section 154(6)-- 18
insert-- 19
` "liability", for an owner or occupier of a lot for which a utility service is 20
supplied for the benefit of the owner or occupier, does not include the 21
owner's or occupier's liability for a fee charged by the utility service 22
provider for providing the utility infrastructure for the service.'. 23
(5) Section 154(6), definition "utility service provider", after `located'-- 24
insert-- 25
`but does not include-- 26
(a) a body corporate manager, service contractor or letting agent; or 27
(b) an associate of a person mentioned in paragraph (a)'. 28
(6) Section 154(5A) to (6)-- 29
renumber as section 154(6) to (11). 30
1 Local Government Act 1993, section 1016 (Meaning of "overdue rate")
s 63 74 s 64
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
63 Insertion of new s 154A
Clause 1
After section 154-- 2
insert-- 3
`154A Registering charge on land under this Act 4
`(1) If an amount payable to a utility service provider is a charge on a lot 5
under section 154(9)(b), the utility service provider may ask the registrar to 6
register the charge. 7
`(2) The request must be accompanied by a certificate signed by the 8
utility service provider stating there is a charge on the lot under 9
section 154(9)(b). 10
`(3) Immediately after the amount secured by the charge is paid to the 11
utility service provider-- 12
(a) the charge ceases to have effect; and 13
(b) the utility service provider must take the action necessary to 14
release the charge.'. 15
64 Amendment of s 162 (Information to be given to interested
Clause 16
persons) 17
(1) Section 162(2)-- 18
insert-- 19
`Maximum penalty--20 penalty units.'. 20
(2) Section 162-- 21
insert-- 22
`(2A) However, the body corporate is not required to allow a person to 23
inspect or obtain a copy of a part of a record under subsection (2) if the 24
body corporate reasonably believes the part contains defamatory material.'. 25
(3) Section 162(3)-- 26
insert-- 27
`Maximum penalty--20 penalty units.'. 28
(4) Section 162(4), `subsection (3)'-- 29
s 65 75 s 65
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
omit, insert-- 1
`subsection (4)'. 2
(5) Section 162(2A) to (5)-- 3
renumber as section 162(3) to (6). 4
65 Amendment of s 163 (Statement to be given by seller to buyer)
Clause 5
Section 163(2)-- 6
omit, insert-- 7
`(2) The statement must-- 8
(a) state the name, address and contact telephone number for-- 9
(i) the secretary of the body corporate; or 10
(ii) if it is the duty of a body corporate manager to act for the 11
body corporate for issuing body corporate information 12
certificates--the body corporate manager; and 13
(b) state the amount of annual contributions currently fixed by the 14
body corporate as payable by the owner of the lot; and 15
(c) if the seller is the original owner and the contribution schedule 16
lot entitlements for each lot included in the scheme are not 17
equal--state the reason stated in the community management 18
statement for the lot entitlements not being equal; and 19
(d) identify improvements on common property for which the owner 20
is responsible; and 21
(e) list the body corporate assets required to be recorded on a 22
register the body corporate keeps; and 23
(f) identify the regulation module applying to the scheme; and 24
(g) state whether there is a committee for the body corporate or a 25
body corporate manager is engaged to perform the functions of a 26
committee; and 27
(h) include other information prescribed under the regulation module 28
applying to the scheme.'. 29
s 66 76 s 68
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
66 Amendment of s 166 (Cancelling contract for inaccuracy of
Clause 1
statement) 2
Section 166(2), from `the contract'-- 3
omit, insert-- 4
`the buyer's copy of the contract is received by the buyer or a person 5
acting for the buyer.'. 6
67 Amendment of s 170 (Statement to be given by seller to buyer)
Clause 7
(1) Section 170(2)(b)(i)-- 8
omit, insert-- 9
`(i) the terms of the engagement, other than any provisions of 10
the code of conduct that are taken to be included in the 11
terms under section 105A; and'. 12
(2) Section 170(2)-- 13
insert-- 14
`(ea) must identify the regulation module proposed to apply to the 15
scheme; and'. 16
(3) Section 170(2)(ea) and (f)-- 17
renumber as section 170(2)(f) and (g). 18
68 Amendment of s 174 (Cancelling contract for inaccuracy of
Clause 19
statement) 20
(1) Section 174(b)-- 21
insert-- 22
`(iia)the community management statement most recently 23
advised to the buyer is required under section 57(1)(d) to 24
explain why the contribution schedule lot entitlements are 25
not equal and does not contain the explanation;'. 26
(2) Section 174(d)-- 27
omit, insert-- 28
`(d) the cancellation is effected by written notice given to the seller 29
by the buyer not later than the latest of the following-- 30
s 69 77 s 69
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(i) 3 days before the buyer is otherwise required to complete 1
the contract; 2
(ii) 14 days after the buyer is given notice that the scheme is 3
established or changed; 4
(iii) another day agreed between the buyer and the seller.'. 5
(3) Section 174(b)(iia) and (iii)-- 6
renumber as section 174(b)(iii) and (iv). 7
69 Amendment of s 180 (Implied warranties)
Clause 8
(1) Section 180(2) and (3)-- 9
omit, insert-- 10
`(2) The seller warrants that, as at the date of the contract-- 11
(a) to the seller's knowledge, there are no latent or patent defects in 12
the common property or body corporate assets, other than the 13
following-- 14
(i) defects arising through fair wear and tear; 15
(ii) defects disclosed in the contract; and 16
(b) the body corporate records do not disclose any defects to which 17
the warranty in paragraph (a) applies; and 18
(c) to the seller's knowledge, there are no actual, contingent or 19
expected liabilities of the body corporate that are not part of the 20
body corporate's normal operating expenses, other than liabilities 21
disclosed in the contract; and 22
(d) the body corporate records do not disclose any liabilities of the 23
body corporate to which the warranty in paragraph (c) applies.'. 24
(2) Section 180(4), after `contract,'-- 25
insert-- 26
`to the seller's knowledge,'. 27
(3) Section 180(4), `subsection (4)'-- 28
omit, insert-- 29
`subsection (3)'. 30
s 70 78 s 71
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(4) Section 180-- 1
insert-- 2
`(5) For subsection (2), a seller is taken to have knowledge of a matter if 3
the seller has actual knowledge of the matter or ought reasonably to have 4
knowledge of the matter.'. 5
(5) Section 180(4) and (5)-- 6
renumber as section 180(3) and (4). 7
70 Amendment of s 181 (Cancellation for breach of warranty)
Clause 8
Section 181(2)(b), from `to happen'-- 9
omit, insert-- 10
`happen-- 11
(i) the buyer's copy of the contract is received by the buyer or a 12
person acting for the buyer; 13
(ii) another period agreed between the buyer and the seller 14
ends.'. 15
71 Insertion of new ch 5, pt 4
Clause 16
Chapter 5-- 17
insert-- 18
`PART 4--COSTS NOT RECOVERABLE BY ORIGINAL 19
OWNER ON THE SALE OF A LOT 20
`181A Costs incurred in entering contracts of engagement or 21
authorisation 22
`(1) The original owner of a lot in a community titles scheme must not 23
recover from a buyer of the lot or the body corporate any part of the 24
original owner's costs incurred, in the original owner control period, in 25
entering into a contract that provides for-- 26
(a) the engagement of a person as a body corporate manager or 27
service contractor; or 28
s 72 79 s 73
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(b) the authorisation of a person as a letting agent. 1
`(2) If an amount is given to or accepted by the original owner in 2
contravention of subsection (1), the buyer may recover the amount from the 3
original owner as a debt. 4
`(3) To remove any doubt, it is declared that subsection (1) does not 5
apply to the recovery from the buyer of costs incurred after the buyer 6
becomes the owner of the lot and for which the buyer is liable, under this 7
Act, as a lot owner.'. 8
72 Amendment of s 182 (Definitions for ch 6)
Clause 9
Section 182, definition "dispute"-- 10
omit, insert-- 11
` "dispute" see section 182A.'. 12
73 Insertion of new s 182A
Clause 13
After section 182-- 14
insert-- 15
`182A Meaning of "dispute" 16
`(1) A "dispute" is a dispute between-- 17
(a) the owner or occupier of a lot included in a community titles 18
scheme and the owner or occupier of another lot included in the 19
scheme; or 20
(b) the body corporate for a community titles scheme and the owner 21
or occupier of a lot included in the scheme; or 22
(c) the body corporate for a community titles scheme and a body 23
corporate manager for the scheme; or 24
(d) the body corporate for a community titles scheme and a 25
caretaking service contractor for the scheme; or 26
(e) the body corporate for a community titles scheme and a service 27
contractor for the scheme, if the dispute arises out of a review 28
s 74 80 s 74
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
carried out, or required to be carried out, under chapter 3, part 2, 1
division 7;1 or 2
(f) the body corporate for a community titles scheme and a letting 3
agent for the scheme; or 4
(g) the body corporate for a community titles scheme and a member 5
of the committee for the body corporate; or 6
(h) the committee for the body corporate for a community titles 7
scheme and a member of the committee; or 8
(i) the body corporate for a community titles scheme and a former 9
body corporate manager for the scheme about the return, by the 10
former body corporate manager to the body corporate, of body 11
corporate property. 12
`(2) An application by a person mentioned in subsection (1)(a) to (h) for 13
a declaratory order about the operation of this Act is also a "dispute" even 14
if there is no affected person for the application. 15
16
Example for subsection (2)--
17
An application by a body corporate for an order declaring the financial year for the
18
body corporate.'.
74 Amendment of s 184 (Exclusivity of dispute resolution provisions)
Clause 19
(1) Section 184(1) and (2)-- 20
omit, insert-- 21
`(1) Subsection (2) applies to a dispute if it may be resolved under this 22
chapter by a dispute resolution process. 23
`(2) The only remedy for the dispute is-- 24
(a) the resolution of the dispute by a dispute resolution process; or 25
(b) an order of the District Court on appeal from an adjudicator on a 26
question of law.'. 27
(2) Section 184(3)(a), from `for' to `dispute'-- 28
omit. 29
1 Chapter 3 (Management of community titles schemes). part 2 (Body corporate
managers, service contractors and letting agents), division 7 (Review of terms of
service contracts)
s 75 81 s 76
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(3) Section 184-- 1
insert-- 2
`(4) Also, subsection (2) does not apply to a dispute about the adjustment 3
of a lot entitlement schedule.'. 4
75 Amendment of s 187 (Responsibilities)
Clause 5
(1) Section 187(3)(a) and (b)-- 6
omit, insert-- 7
`(a) lot owners, bodies corporate and other persons who have rights 8
and obligations under this Act to become aware of the rights and 9
obligations; and 10
(b) members of the public to become aware of the rights and 11
obligations under this Act of persons mentioned in paragraph (a); 12
and 13
(c) dispute resolution officers to increase their proficiency.'. 14
(2) Section 187(4), example, from `case'-- 15
omit, insert-- 16
`dispute resolution recommendation for a particular application.'. 17
(3) Section 187(5)-- 18
omit, insert-- 19
`(5) Once an application is referred to an adjudicator, the commissioner 20
has no role in relation to the substance of the dispute or the outcome sought 21
by the application.'. 22
76 Insertion of new s 187A
Clause 23
After section 187-- 24
insert-- 25
`187A Practice directions 26
`(1) The commissioner may make practice directions for the dispute 27
resolution service. 28
`(2) Practice directions may be made about all or any of the following-- 29
s 77 82 s 78
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) the contents of-- 1
(i) applications; or 2
(ii) documents supporting applications; or 3
(iii) submissions to the commissioner about applications; 4
(b) dispute resolution recommendations; 5
(c) procedures for conducting the dispute resolution service. 6
`(3) The doing of anything by a person for the dispute resolution service 7
is subject to a practice direction about doing the thing. 8
`(4) To remove any doubt, it is declared that a practice direction is not 9
subordinate legislation.'. 10
77 Replacement of s 189 (Delegation)
Clause 11
Section 189-- 12
omit, insert-- 13
`189 Delegation by commissioner 14
`(1) The commissioner may delegate a power the commissioner has 15
under this chapter to a public service employee who is appropriately 16
qualified to exercise the power delegated. 17
`(2) Also, the commissioner may delegate a power the commissioner has 18
under parts 5 to 9 to-- 19
(a) an adjudicator appointed for specialist adjudication; or 20
(b) another adjudicator who is not a public service employee. 21
`(3) A delegation under subsection (2) may only be made on a case by 22
case basis.'. 23
78 Replacement of ch 6, pt 3 (Adjudicators)
Clause 24
Chapter 6, part 3-- 25
omit, insert-- 26
s 78 83 s 78
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`PART 3--DISPUTE RESOLUTION OFFICERS 1
`190 Appointment of dispute resolution officers 2
`(1) The chief executive must appoint department adjudicators for 3
conducting the dispute resolution service. 4
`(2) An adjudicator appointed under subsection (1)-- 5
(a) is appointed under the Public Service Act 1996; and 6
(b) may hold the office of department adjudicator as well as another 7
position under that Act; and 8
(c) is appointed for conducting the dispute resolution processes 9
stated in the appointment for applications referred to the 10
adjudicator. 11
`(3) The chief executive may enter into a contract with a person under 12
which the person-- 13
(a) agrees to provide department adjudication; and 14
(b) is appointed as a department adjudicator for conducting 15
department adjudication for applications referred to the person 16
while the contract is in force. 17
`(4) The chief executive may enter into a contract under subsection (3) if 18
the chief executive and the commissioner agree that the person to be 19
appointed has the qualifications, experience or standing appropriate for 20
conducting department adjudication. 21
`(5) A person is appointed for specialist mediation, specialist 22
conciliation or specialist adjudication, in the way provided in this chapter, 23
only on a case by case basis.1 24
`191 Protection of dispute resolution officers 25
`In performing functions under this chapter, a dispute resolution officer 26
has the privileges and immunities from liability a magistrate has in 27
exercising the jurisdiction of a Magistrates Court.'. 28
1 See parts 7 (Specialist mediation and conciliation) and 8 (Specialist adjudication).
s 79 84 s 79
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
79 Replacement of s 192 (How to make application for order)
Clause 1
Section 192-- 2
omit, insert-- 3
`192 Who may make an application 4
`(1) A person, including, if appropriate, the body corporate for a 5
community titles scheme, may make an application if the person is a party 6
to, or is directly concerned with, a dispute to which this chapter applies. 7
`(2) Subsection (1) is subject to sections 145A to 145D.1 8
`192A How to make an application 9
`(1) An application must be-- 10
(a) made in the approved form; and 11
(b) given to the commissioner; and 12
(c) accompanied by the fee prescribed under a regulation. 13
`(2) The approved form for the application must provide for each of the 14
following matters to be stated in the form-- 15
(a) the outcome sought by the application; 16
(b) the name and address of each affected person for the application; 17
(c) the grounds, in detail, on which the outcome is sought; 18
(d) for an order about a dispute mentioned in section 216G2--the 19
name and address of 1 or more persons-- 20
(i) considered by the applicant as having the appropriate 21
qualifications, experience or standing for acting as a 22
specialist adjudicator for the application; and 23
(ii) nominated by the applicant for appointment as the specialist 24
adjudicator. 25
1 Sections 145A (Preliminary procedure for application by body corporate for
resolution of dispute), 145B (Preliminary procedure for application by owner and
occupier for resolution of dispute), 145C (Dispensing with preliminary procedures)
to 145D (Copy of contravention notice to be given to owner)
2 Section 216G (Specialist adjudication of particular disputes)
s 79 85 s 79
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(3) If the application is for an outcome affecting owners or occupiers 1
generally, or a particular class of owners or occupiers, of lots included in 2
the scheme, the application may identify affected persons as the owners or 3
occupiers generally or by reference to the class instead of stating their 4
names and addresses. 5
`192B Further information or material for applications 6
`(1) After receiving the application, the commissioner may require the 7
applicant to give further information or material about the application to 8
help the commissioner decide the further action to be taken on the 9
application. 10
11
Example--
12
The commissioner may require the application to be amended to more accurately
13
identify affected persons for the application.
`(2) A requirement under subsection (1)-- 14
(a) may require the information to be verified by statutory 15
declaration; and 16
(b) must state the period within which the information or material 17
must be given to the commissioner. 18
`192C Rejecting applications 19
`(1) The commissioner may reject an application if-- 20
(a) the outcome sought is not within the jurisdiction of a dispute 21
resolution officer; or 22
(b) the person fails, without reasonable excuse, to comply with a 23
requirement of the commissioner under section 192B about the 24
application. 25
`(2) The commissioner may also reject an application if-- 26
(a) the commissioner-- 27
(i) reasonably considers the applicant does not wish to proceed 28
with the application; and 29
(ii) by written notice, informs the applicant that the application 30
may be rejected unless the applicant, within 28 days after 31
s 80 86 s 80
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
receiving the notice, advises the commissioner that the 1
applicant wishes to proceed; and 2
(b) the applicant-- 3
(i) advises the commissioner that the applicant does not wish to 4
proceed; or 5
(ii) does not respond to the notice within the period mentioned 6
in subparagraph (a)(ii). 7
`(3) If the commissioner decides to reject an application, the 8
commissioner must immediately give the applicant a written notice 9
stating-- 10
(a) the decision; and 11
(b) the reasons for the decision; and 12
(c) that the applicant may appeal against the decision to the District 13
Court within 6 weeks after the applicant receives the notice.'. 14
80 Replacement of s 194 (Notice of application to be given)
Clause 15
(1) Section 194-- 16
omit, insert-- 17
`194 Notice to affected persons and body corporate 18
`(1) The commissioner must give written notice (the "original notice") 19
of the application to-- 20
(a) the body corporate; and 21
(b) each affected person who is not entitled to be given a copy of the 22
notice under subsection (4). 23
`(2) The original notice must-- 24
(a) include a copy of the application; and 25
(b) invite each person who is given the original notice, or a copy of it 26
under subsection (4), to make written submissions to the 27
commissioner about the application within a stated time. 28
`(3) The commissioner may extend the time for making the submissions 29
by a further notice given in the way the original notice was given, and to 30
the persons to whom the original notice was given. 31
s 81 87 s 81
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(4) Unless the commissioner has advised the body corporate otherwise, 1
the body corporate must, within the shortest practicable time after 2
receiving the original notice, give-- 3
(a) a copy of the original notice, including a copy of the application, 4
to each person whose name appears on the roll as the owner of a 5
lot included in the scheme; and 6
(b) a written notice ("confirmation notice"), as required under this 7
section, to the commissioner. 8
Maximum penalty--20 penalty units. 9
`(5) The confirmation notice must-- 10
(a) state-- 11
(i) the persons to whom the body corporate gave a copy of the 12
original notice; and 13
(ii) when the copy was given; and 14
(b) if requested by the commissioner, be verified by statutory 15
declaration.'. 16
81 Insertion of new s 194A
Clause 17
After section 194-- 18
insert-- 19
`194A Notice to applicant 20
`(1) This section applies if 1 or more persons are invited under 21
section 194(2)(b) to make submissions in response to the application. 22
`(2) The commissioner must give written notice to the applicant advising 23
that if the applicant wishes to reply to any of the submissions, the applicant 24
must, within the period stated in the notice-- 25
(a) apply to the commissioner to inspect the submissions; and 26
(b) make a written reply. 27
`(3) The notice must state that the reply must be given to the 28
commissioner and may only relate to issues raised by the submissions. 29
`(4) The commissioner, by written notice given to the applicant, may 30
extend the period for making the reply.'. 31
s 82 88 s 83
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
82 Replacement of s 196 (Inspection of applications and submissions)
Clause 1
Section 196-- 2
omit, insert-- 3
`196 Inspection of applications and submissions 4
`(1) The commissioner must, on application by an interested person for 5
an application-- 6
(a) allow the person to inspect all or any of the following-- 7
(i) the application; 8
(ii) submissions made about the application; 9
(iii) the applicant's reply to the submissions; or 10
(b) give the person copies of all or any of the documents mentioned 11
in paragraph (a). 12
`(2) An application under this section must be written and accompanied 13
by the fee prescribed under a regulation. 14
`(3) In this section-- 15
"interested person", for an application, means-- 16
(a) the applicant or an affected person; or 17
(b) the body corporate or a member of its committee; or 18
(c) a person who has made a submission on the application.'. 19
83 Replacement of ss 198200
Clause 20
Sections 198 to 200-- 21
omit, insert-- 22
`198 Dispute resolution recommendation 23
`(1) The commissioner may make 1 or more dispute resolution 24
recommendations for an application after the application is made and 25
before it is resolved by a dispute resolution process. 26
`(2) However, the commissioner must not make a dispute resolution 27
recommendation after the commissioner refers the application to a dispute 28
resolution officer, unless the dispute resolution officer refers the 29
application back to the commissioner. 30
s 84 89 s 84
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(3) A dispute resolution recommendation must be for 1 of the following 1
dispute resolution processes-- 2
(a) dispute resolution centre mediation; 3
(b) specialist mediation; 4
(c) specialist conciliation; 5
(d) department adjudication; 6
(e) specialist adjudication. 7
`(4) If the commissioner has made a dispute resolution recommendation 8
for the application, a further recommendation may be that the application 9
be the subject of the same type of dispute resolution process or a different 10
type. 11
`199 Restriction on who may conduct further dispute resolution 12
process 13
`(1) This section applies if-- 14
(a) the initial dispute resolution process for an application was 15
specialist conciliation; and 16
(b) a further dispute resolution recommendation is that the 17
application be the subject of department or specialist 18
adjudication; and 19
(c) the person who conducted the conciliation is an adjudicator. 20
`(2) The adjudicator may be the same person who conducted the 21
conciliation, if, at the end of the conciliation, all parties to the application 22
consent to the person being the adjudicator.'. 23
84 Amendment of s 201 (Dismissing application)
Clause 24
(1) Section 201(1)-- 25
omit, insert-- 26
`(1) Instead of making a dispute resolution recommendation for an 27
application, the commissioner may dismiss the application.'. 28
(2) Section 201(2), after `court'-- 29
insert-- 30
s 85 90 s 85
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`or tribunal'. 1
(3) Section 201(3)-- 2
omit, insert-- 3
`(3) If the commissioner dismisses the application, the commissioner 4
must give a certificate in the approved form evidencing the dismissal to 5
each party to the application.'. 6
85 Amendment of s 202 (Preparation for making a case management
Clause 7
recommendation) 8
(1) Section 202, heading, `case management'-- 9
omit, insert-- 10
`dispute resolution'. 11
(2) Section 202(1), from `an initial' to `adjudicator'-- 12
omit, insert-- 13
`a dispute resolution for an application'. 14
(3) Section 202(2), `an initial or supplementary case management'-- 15
omit, insert-- 16
`a dispute resolution'. 17
(4) Section 202(2)(c)(i), after `asset'-- 18
insert-- 19
`or record or other document of the body corporate'. 20
(5) Section 202(3)(a), `case management'-- 21
omit, insert-- 22
`dispute resolution'. 23
(6) Section 202(4), `and', second mention-- 24
omit. 25
(7) Section 202(6)-- 26
omit, insert-- 27
s 86 91 s 87
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(6) The body corporate or someone else who has access to the body 1
corporate's records must, if asked by the commissioner and without 2
payment of a fee-- 3
(a) allow the commissioner access to the records within 24 hours 4
after the request is made; and 5
(b) give the commissioner copies of the records or allow the 6
commissioner to make the copies. 7
Maximum penalty--20 penalty units.'. 8
(8) Section 202(8), from `information,'-- 9
omit, insert-- 10
`information or a document, if giving the information or document might 11
tend to incriminate the person.'. 12
86 Replacement of s 203 (Making a case management
Clause 13
recommendation) 14
Section 203-- 15
omit, insert-- 16
`203 Making a dispute resolution recommendation for specialist 17
mediation, conciliation or adjudication 18
`(1) The commissioner may make a recommendation that an application 19
be the subject of specialist mediation, specialist conciliation or specialist 20
adjudication if the commissioner may make the recommendation under the 21
conditions applying under this chapter to the making of the 22
recommendation. 23
`(2) However, the commissioner must make the recommendation if-- 24
(a) the parties ask for it to be made; and 25
(b) the commissioner may make it under the conditions applying 26
under this chapter to the making of the recommendation.'. 27
87 Replacement of ch 6, pts 7 and 8
Clause 28
Chapter 6, parts 7 and 8-- 29
omit, insert-- 30
s 87 92 s 87
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`PART 7--SPECIALIST MEDIATION AND 1
CONCILIATION 2
`214 Purpose of pt 7 3
`The purpose of this part is to provide for-- 4
(a) the conditions under which the commissioner may make a 5
dispute resolution recommendation that an application be the 6
subject of-- 7
(i) specialist mediation; or 8
(ii) specialist conciliation; and 9
(b) what happens if the commissioner recommends the application 10
be the subject of the dispute resolution process. 11
`215 Conditions for recommending specialist mediation or conciliation 12
`The commissioner may recommend an application be the subject of 13
specialist mediation or specialist conciliation if-- 14
(a) the parties to the application agree on a person who is to be the 15
dispute resolution officer for the application; and 16
(b) the commissioner considers the person agreed on has the 17
qualifications, experience or standing appropriate for acting as 18
the dispute resolution officer for the application; and 19
(c) the parties and the dispute resolution officer (or, if the officer is 20
an officer or employee of the department, the commissioner) 21
agree on each of the following-- 22
(i) the amount to be paid for the mediation or conciliation; 23
(ii) how it is to be paid; 24
(iii) by whom it is to be paid. 25
`216 Referral to dispute resolution officer 26
`As soon as practicable after the commissioner recommends the 27
application be the subject of specialist mediation or specialist conciliation, 28
the commissioner must refer the application to a dispute resolution officer 29
s 87 93 s 87
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
agreed to by the parties and the commissioner for conducting the dispute 1
resolution process. 2
`216A Conduct of specialist mediation and conciliation sessions 3
`(1) The mediation or conciliation session must be conducted as quickly 4
and with as little formality and technicality as possible. 5
`(2) A person who is not a party to the application may attend and take 6
part in the session if the dispute resolution officer is satisfied the person 7
may help resolve the dispute. 8
`(3) The session must be held in private. 9
`(4) A person may use an interpreter in the session. 10
`(5) Evidence of anything said or done in a mediation session is 11
inadmissible in a proceeding. 12
`(6) Evidence of anything said or done in a conciliation session is 13
inadmissible in a proceeding, unless the proceeding is an adjudication and 14
the parties have consented, under section 199, to the dispute resolution 15
officer conducting the adjudication. 16
`(7) The mediation or conciliation session may be terminated at any time 17
by the dispute resolution officer. 18
`216B Specialist mediation or conciliation is voluntary 19
`(1) Attendance at, and participation in, a specialist mediation or 20
specialist conciliation session is voluntary. 21
`(2) A party may withdraw from the session at any time. 22
`(3) Except as expressly stated in this chapter, this part does not affect a 23
right or remedy that a party to an application has apart from this part. 24
`216C Representation by agent 25
`(1) A party to the application may be represented by an agent at the 26
specialist mediation or specialist conciliation session if the dispute 27
resolution officer approves and is satisfied an agent should be permitted to 28
help the dispute resolution process. 29
`(2) Subsection (1) does not prevent-- 30
s 87 94 s 87
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) if a corporation under the Corporations Act is a party to the 1
application--an officer of the corporation from representing the 2
corporation; or 3
(b) if another corporation is a party to the application--an agent 4
appointed by the corporation from representing the corporation; 5
or 6
(c) if more than 1 owner constitutes the body corporate--1 or more 7
of the owners from representing the body corporate. 8
`(3) The approval may be given without conditions or on the conditions 9
the dispute resolution officer considers reasonable to ensure no other party 10
to the application is substantially disadvantaged by the agent appearing at 11
the session. 12
`(4) If the approval is given on conditions, the entitlement of the party to 13
be represented by an agent is subject to the agent complying with the 14
conditions. 15
`216D Referral back to the commissioner 16
`(1) The dispute resolution officer must refer the application back to the 17
commissioner if the officer considers there is no further action the officer 18
can take in the dispute resolution process because, for example-- 19
(a) a party to the application does not attend or withdraws from the 20
mediation or conciliation session; or 21
(b) no agreement is reached at the session; or 22
(c) agreement is reached at the session. 23
`(2) In referring the application back to the commissioner, the dispute 24
resolution officer must inform the commissioner of the reason for the 25
referral. 26
`PART 8--SPECIALIST ADJUDICATION 27
`216E Purpose of pt 8 28
`(1) The purpose of this part is to provide for-- 29
s 87 95 s 87
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) the conditions under which the commissioner may make a 1
dispute resolution recommendation that an application be the 2
subject of specialist adjudication; and 3
(b) specialist adjudication of particular disputes. 4
`(2) The commissioner may recommend an application be the subject of 5
specialist adjudication if authorised under this part. 6
`216F Specialist adjudication by agreement 7
`Subject to section 216G, the commissioner may recommend an 8
application be the subject of specialist adjudication if-- 9
(a) the parties to the application agree on a person who is to be the 10
adjudicator for the application; and 11
(b) the commissioner considers the person agreed on has the 12
qualifications, experience or standing appropriate for acting as an 13
adjudicator for the application; and 14
(c) the parties and the adjudicator agree on the amount to be paid for 15
the adjudication; and 16
(d) for the amount agreed to be paid for the adjudication--the parties 17
either-- 18
(i) agree on how, and by whom, the amount is to be paid; or 19
(ii) agree the amount is to be paid in the way decided by the 20
adjudicator; and 21
(e) the adjudicator gives the parties written confirmation of the 22
agreement mentioned in paragraph (c). 23
`216G Specialist adjudication of particular disputes 24
`(1) The adjudication of a dispute must be specialist adjudication if-- 25
(a) the dispute is about a claimed or anticipated contractual matter 26
about-- 27
(i) the engagement of a person as a body corporate manager or 28
caretaking service contractor for a community titles 29
scheme; or 30
s 88 96 s 89
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(ii) the authorisation of a person as a letting agent for a 1
community titles scheme; or 2
(b) the dispute is about the transfer, under chapter 3, part 2, 3
division 8, of a letting agent's management rights; or 4
(c) another provision of this Act requires the adjudication to be 5
specialist adjudication.1 6
`(2) The specialist adjudicator must be the person chosen by the 7
commissioner, and need not be a person nominated by a party to the 8
application.'. 9
88 Replacement of s 217 (Purpose of part)
Clause 10
Section 217-- 11
omit, insert-- 12
`217 Purpose of pt 9 13
`The purpose of this part is to provide for-- 14
(a) what happens if the commissioner makes a dispute resolution 15
recommendation that an application be the subject of specialist 16
or department adjudication, including adjudication limited to 17
making an order with the consent of all parties to the application; 18
and 19
(b) the referral of particular applications to specialist adjudication; 20
and 21
(c) the making of adjudicators' orders.'. 22
89 Amendment of s 218 (Referral to adjudicator for specialist or
Clause 23
department adjudication) 24
(1) Section 218(a), `case management'-- 25
omit. 26
(2) Section 218-- 27
1 See sections 46 (Adjustment of lot entitlement schedule), 112 (Review of
remuneration under engagement of service contractor), 112D (Disputes arising out
of review) and 140 (Review of exclusive use by-law).
s 90 97 s 91
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
insert-- 1
`(2) As soon as practicable after receiving an application for a dispute 2
mentioned in section 216G, the commissioner must refer the application to 3
the adjudicator chosen by the commissioner.'. 4
90 Amendment of s 220 (Investigation by adjudicator)
Clause 5
(1) Section 220(2)-- 6
omit. 7
(2) Section 220(3)-- 8
renumber as section 220(2). 9
91 Insertion of new s 220A
Clause 10
After section 220-- 11
insert-- 12
`220A Dismissal of applications 13
`(1) The adjudicator may make an order dismissing the application if-- 14
(a) it appears to the adjudicator that the adjudicator does not have 15
jurisdiction to deal with the application; or 16
(b) the adjudicator is satisfied the dispute should be dealt with in a 17
court or tribunal of competent jurisdiction; or 18
(c) it appears to the adjudicator that the application is frivolous, 19
vexatious, misconceived or without substance; or 20
(d) the applicant fails, without reasonable excuse, to comply with a 21
requirement of the adjudicator under section 221(1). 22
`(2) The adjudicator's power to make an order under this section may be 23
exercised-- 24
(a) without investigating the detail of the application; or 25
(b) before an investigation has ended. 26
`(3) If the adjudicator makes an order under subsection (1)(c), the 27
adjudicator-- 28
s 92 98 s 92
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) may order costs against the applicant to compensate the person 1
against whom the application was made for loss resulting from 2
the application; and 3
4
Example of `loss' for paragraph (a)--
5
Legal expenses reasonably incurred by the person in relation to the
6
application.
(b) in ordering the costs, may have regard to previous applications 7
made by the applicant. 8
`(4) The amount of costs ordered under subsection (3) must not be more 9
than $2 000.'. 10
92 Amendment of s 221 (Investigative powers of adjudicator)
Clause 11
(1) Section 221(1)(a), after `application'-- 12
insert-- 13
`, or someone else the adjudicator considers may be able to help resolve 14
issues raised by the application'. 15
(2) Section 221(1)(b)-- 16
omit, insert-- 17
`(b) require a body corporate manager, service contractor or letting 18
agent who is a party to the application to give to the adjudicator a 19
record held by the person and relating to a dispute about a service 20
provided by the person; 21
(ba) invite persons the adjudicator considers may be able to help 22
resolve issues raised by the application to make written 23
submissions to the adjudicator within a stated time;'. 24
(3) Section 221(1)(c)(i), after `asset'-- 25
insert-- 26
`or record or other document of the body corporate'. 27
(4) Section 221(1)(ba) and (c)-- 28
renumber as section 221(1)(c) and (d). 29
(5) Section 221(3) and (4), `(1)(c)'-- 30
omit, insert-- 31
s 93 99 s 93
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(1)(d)'. 1
(6) Section 221(5)-- 2
omit, insert-- 3
`(5) The body corporate or someone else who has access to the body 4
corporate's records must, if asked by an adjudicator and without payment 5
of a fee-- 6
(a) allow the adjudicator access to the records within 24 hours after 7
the request is made; and 8
(b) give the adjudicator copies of the records or allow the adjudicator 9
to make the copies. 10
Maximum penalty--20 penalty units.'. 11
(7) Section 221(6), after `subsection (1)(a)'-- 12
insert-- 13
`or (b)'. 14
(8) Section 221(7), from `information,'-- 15
omit, insert-- 16
`information or a document, if giving the information or document might 17
tend to incriminate the person.'. 18
93 Amendment of s 223 (Orders of adjudicators)
Clause 19
(1) Section 223(1), `for an order of an adjudicator'-- 20
omit. 21
(2) Section 223(1)(c), from `contravention' to `terms of--'-- 22
omit, insert-- 23
`contractual matter about--'. 24
(3) Section 223(3)-- 25
omit, insert-- 26
`(3) Without limiting subsections (1) and (2), the adjudicator may make 27
an order mentioned in schedule 3.1'. 28
1 Schedule 3 (Adjudicator's orders)
s 94 100 s 95
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(4) Section 223-- 1
insert-- 2
`(5) If the adjudicator makes an order in a form agreed to by the parties 3
to the application following mediation or conciliation, the order-- 4
(a) may include only matters that may be dealt with under this Act; 5
and 6
(b) must not include matters that are inconsistent with this Act or 7
another Act.'. 8
94 Insertion of new s 223A
Clause 9
After section 223-- 10
insert-- 11
`223A Order may be made if party fails to attend to be interviewed 12
`If an adjudicator considers it just and equitable in the circumstances, the 13
adjudicator may make an order under this part even if a party to the 14
application fails, without reasonable excuse, to comply with a requirement 15
made by the adjudicator under section 221(1)(a)(ii).'. 16
95 Amendment of s 225 (Interim orders in context of adjudication)
Clause 17
(1) Section 225(2)(a), `3 months'-- 18
omit, insert-- 19
`1 year'. 20
(2) Section 225(2)(b), after `extended,'-- 21
insert-- 22
`varied,'. 23
(3) Section 225(2)(d)-- 24
omit, insert-- 25
`(d) if it does not lapse or is not cancelled earlier, lapses when-- 26
(i) the application is withdrawn; or 27
s 96 101 s 96
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(ii) the commissioner gives the person who made the 1
application a written notice under section 192C rejecting the 2
application; or 3
(iii) a final order is made by an adjudicator to whom the 4
application is referred.'. 5
(4) Section 225(3), before paragraph (a)-- 6
insert-- 7
`(aa) the order is stayed under section 239;'. 8
(5) Section 225(3)(c), `appeal'-- 9
omit, insert-- 10
`application'. 11
(6) Section 225(3)(aa) to (d)-- 12
renumber as section 225(3)(a) to (e). 13
(7) Section 225-- 14
insert-- 15
`(4) As soon as the adjudicator to whom the commissioner refers an 16
application under section 1971 makes an interim order or decides not to 17
make an interim order, the adjudicator must refer the application back to 18
the commissioner.'. 19
96 Replacement of s 226 (Costs of adjudication)
Clause 20
Section 226-- 21
omit, insert-- 22
`226 Costs of specialist adjudication 23
`(1) This section applies to an application dealt with by specialist 24
adjudication mentioned in section 216G.2 25
`(2) Unless the adjudicator otherwise orders, the applicant is responsible 26
for the costs of the adjudication.'. 27
1 Section 197 (Referral to adjudicator for possible interim order)
2 Section 216G (Specialist adjudication of particular disputes)
s 97 102 s 98
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
97 Amendment of s 227 (Order to repair damage or pay
Clause 1
compensation) 2
(1) Section 227, heading, `pay compensation'-- 3
omit, insert-- 4
`reimburse amount paid for carrying out repairs'. 5
(2) Section 227(1), `for the order'-- 6
omit. 7
(3) Section 227(1)(b)-- 8
omit, insert-- 9
`(b) to pay the applicant an amount fixed by the adjudicator as 10
reimbursement for repairs carried out to the property by the 11
applicant.'. 12
(4) Section 227(1), example, `appropriate compensation'-- 13
omit, insert-- 14
`an appropriate amount as reimbursement for amounts incurred by the owner in 15
16
repairing the property'.
(5) Section 227(2)(b), `of the compensation is'-- 17
omit, insert-- 18
`fixed by the adjudicator would be'. 19
98 Amendment of s 232 (Notice of order to be given)
Clause 20
(1) Section 232(1), `for an order of an adjudicator'-- 21
omit. 22
(2) Section 232(1)(d)-- 23
omit, insert-- 24
`(d) a person who, on an invitation under section 194 or 221(1)(c),1 25
made a submission about the application.'. 26
1 Section 194 (Notice to affected persons and body corporate) or 221 (Investigative
powers of adjudicator)
s 99 103 s 101
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(3) Section 232-- 1
relocate to chapter 6, part 9, division 3 (as renumbered). 2
99 Amendment of s 235 (Failure to comply with adjudicator's order)
Clause 3
Section 235(2), from `by the applicant'-- 4
omit, insert-- 5
`by-- 6
(a) the applicant for the application for the original order; or 7
(b) a person in whose favour the order mentioned in subsection (1) is 8
made; or 9
(c) the body corporate; or 10
(d) an administrator appointed under this chapter who is authorised 11
to perform obligations of the body corporate or its committee.'. 12
100 Amendment of s 237 (Right to appeal to District Court)
Clause 13
(1) Section 237(1)(a), `for an order of an adjudicator'-- 14
omit. 15
(2) Section 237(1)(d)(iv)-- 16
omit, insert-- 17
`(iv) a person who, on an invitation under section 194 18
or 221(1)(c),1 made a submission about the application.'. 19
101 Amendment of s 244 (Privilege)
Clause 20
(1) Section 244(1)-- 21
insert-- 22
` "specialist conciliation session" includes action taken for making 23
arrangements for a specialist conciliation session or in the follow-up 24
of the session.'. 25
1 Section 194 (Notice to affected persons and body corporate) or 221 (Investigative
powers of adjudicator)
s 102 104 s 102
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(2) Section 244(2)(a), before `specialist'-- 1
insert-- 2
`specialist conciliation session or'. 3
(3) Section 244(2)(b)-- 4
omit, insert-- 5
`(b) a document or other material-- 6
(i) sent or given to a person, or produced at a place-- 7
(A) for enabling a dispute resolution recommendation to be 8
made; or 9
(B) for an adjudication or a specialist conciliation session 10
or specialist mediation session; or 11
(ii) produced in an adjudication or at a specialist conciliation 12
session or specialist mediation session; or 13
(c) a statement made to the commissioner or a dispute resolution 14
officer-- 15
(i) for enabling a dispute resolution recommendation to be 16
made; or 17
(ii) for an adjudication or a specialist conciliation session or 18
specialist mediation session.'. 19
(4) Section 244(3)(a), before `specialist'-- 20
insert-- 21
`specialist conciliation session or'. 22
(5) Section 244(3)(b), after `(2)(b)'-- 23
insert-- 24
`or (c)'. 25
102 Amendment of s 245 (False or misleading information)
Clause 26
(1) Section 245(1), after `to'-- 27
insert-- 28
`the commissioner or'. 29
s 103 105 s 104
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(2) Section 245(2), after `complaint'-- 1
insert-- 2
`under the Justices Act 1886'. 3
103 Amendment of s 246 (False or misleading documents)
Clause 4
(1) Section 246(1), `an adjudicator'-- 5
omit, insert-- 6
`the commissioner or an adjudicator (each the "receiver")'. 7
(2) Section 246(2)(a) and (b), `adjudicator'-- 8
insert-- 9
`receiver'. 10
(3) Section 246(3), after `complaint'-- 11
insert-- 12
`under the Justices Act 1886'. 13
104 Amendment of s 247 (Commissioner must give certain
Clause 14
information on application) 15
(1) Section 247, heading-- 16
omit, insert-- 17
`247 Public access to information about orders'. 18
(2) Section 247(b), `for an order of an adjudicator'-- 19
omit. 20
(3) Section 247-- 21
insert-- 22
`(2) The commissioner may make any of the following available for 23
inspection by the public-- 24
(a) a copy of an order made at any time under this chapter or a 25
corresponding previous law about a community titles scheme; 26
(b) the reasons for the order. 27
s 105 106 s 105
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(3) For subsection (2), the commissioner may publish the order and 1
reasons in an appropriate way, including on the department's web site on 2
the Internet.'. 3
105 Insertion of new s 247A
Clause 4
After section 247-- 5
insert-- 6
`247A Appointment of administrator for enforceable money orders 7
`(1) This section applies if the enforcement debtor for an enforceable 8
money order is the body corporate for a community titles scheme. 9
`(2) A court in which the enforceable money order may be enforced may, 10
on application by the enforcement creditor, by order, appoint an 11
administrator and authorise the administrator to perform the body 12
corporate's obligations under the money order. 13
`(3) If an application for subsection (2) is made in a court 14
(the "officiating court") that is not the court by which the money order 15
was made, the officiating court may appoint an administrator if-- 16
(a) for an officiating court that is the Supreme Court--the money 17
order has been filed in the officiating court; or 18
(b) for an officiating court that is the District Court or Magistrates 19
Court--unless the officiating court otherwise orders, the money 20
order has been filed in the officiating court for the district-- 21
(i) in which scheme land is located; or 22
(ii) closest to the court that made the money order. 23
`(4) If a court appoints an administrator to perform obligations of the 24
body corporate, anything done by the administrator under the authority 25
given on the appointment for the money order is taken to have been done 26
by the body corporate. 27
`(5) In this section-- 28
s 106 107 s 106
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
"enforcement creditor" and "enforcement debtor" see the Uniform Civil 1
Procedure Rules 1999, section 793.1'. 2
106 Replacement of s 250 (Definitions for pt 1)
Clause 3
Section 250-- 4
omit, insert-- 5
`250 Definitions for pt 1 6
`In this part-- 7
"aggrieved person", for a decision, means the applicant for the application 8
for which the decision was made. 9
"application" means an application made under chapter 6 for the 10
resolution of a dispute. 11
"decision" means-- 12
(a) action taken by the commissioner on an application, if the action 13
is 1 of the following-- 14
(i) the rejection the application under section 192C; 15
(ii) the withholding of permission to change the application; 16
(iii) the imposition of conditions on permission to change the 17
application; or 18
(b) a refusal by an adjudicator to waive, for the making of an 19
application, non-compliance under section 193(3)(b).2 20
"decision maker" means-- 21
(a) for a decision mentioned in the definition "decision", 22
paragraph (a)--the commissioner; or 23
1 Uniform Civil Procedure Rules 1999, section 793 (Definitions for ch 19)--
"enforcement creditor" means--
(a) a person entitled to enforce an order for the payment of money; or
(b) a person to whom the benefit of part of the order has passed by way or
assignment or in another way.
"enforcement debtor" means a person required to pay money under an order.
2 Section 193 (Time limit on certain applications)
s 107 108 s 109
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(b) for a decision mentioned in the definition "decision", 1
paragraph (b)--the adjudicator concerned.'. 2
107 Amendment of s 256 (Associates)
Clause 3
(1) Section 256-- 4
insert-- 5
`(2A) Despite subsection (2)(e) and (f), the owner of a lot in a 6
community titles scheme and a letting agent for the scheme are not 7
associated merely because of their relationship as owner and letting agent.'. 8
(2) Section 256(2A) and (3)-- 9
renumber as section 256(3) and (4). 10
108 Amendment of s 263 (Powers of entry by local government or
Clause 11
other authorised entity) 12
(1) Section 263, heading, `government'-- 13
omit, insert-- 14
`government, utility service provider'. 15
(2) Section 263-- 16
insert-- 17
`(2) An employee or agent of a utility service provider may enter the 18
common property at all reasonable times if the entry is necessary to-- 19
(a) install, repair, remove, replace or inspect the service provider's 20
infrastructure on the property; or 21
(b) read an infrastructure supply measuring device on the property; 22
or 23
(c) investigate the future placement, removal, repair or replacement 24
of utility service infrastructure on the property.'. 25
109 Insertion of new s 263A
Clause 26
After section 263-- 27
insert-- 28
s 110 109 s 110
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`263A Restriction on irrevocable powers of attorney 1
`(1) This section applies if a power is conferred on, or exercisable by, a 2
relevant person for a community titles scheme under a power of attorney 3
that-- 4
(a) is given by the owner of a lot included in the scheme; and 5
(b) is stated to be irrevocable. 6
`(2) The relevant person must not exercise, or purport to exercise, the 7
power for any matter relating to the scheme, including the owner's rights 8
under this Act. 9
Maximum penalty--100 penalty units. 10
`(3) However, the relevant person does not contravene subsection (2) 11
if-- 12
(a) the owner gives the power of attorney under section 168 or 176;1 13
or 14
(b) the power of attorney is contained in a registered security 15
document, including a mortgage registered under the Land Title 16
Act, and the power is exercised solely for acting under the 17
security. 18
`(4) In this section-- 19
"relevant person", for a community titles scheme, means 1 of the 20
following who is not a relative of the lot owner-- 21
(a) the original owner; 22
(b) a body corporate manager, service contractor or letting agent; 23
(c) an associate of a person mentioned in paragraph (a) or (b).'. 24
110 Amendment of s 264 (Prevention of contracting out)
Clause 25
Section 264, after `Act'-- 26
insert-- 27
`or contract out of the provisions of this Act'. 28
1 Section 168 (Restriction on powers of attorney in favour of original owner)
and 176 (Restriction on powers of attorney in favour of seller)
s 111 110 s 113
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
111 Insertion of new s 269A
Clause 1
Chapter 7, after section 269-- 2
insert-- 3
`269A Numbering and renumbering of Act 4
`In the next reprint of this Act produced under the Reprints Act 1992, the 5
provisions of this Act must be numbered and renumbered as permitted by 6
the Reprints Act 1992, section 43.'. 7
112 Amendment of s 290 (Body corporate contracts)
Clause 8
Section 290(4)(d)-- 9
omit, insert-- 10
`(d) until 14 July 2022--a new contract entered into because of a 11
right or option for 1 or more renewals contained in the original 12
contract, whether or not the right or option allowed the new 13
contract to contain a similar right or option.'. 14
113 Insertion of new ch 8, pts 3 and 4
Clause 15
Chapter 8-- 16
insert-- 17
`PART 3--TRANSITIONAL PROVISIONS FOR BODY 18
CORPORATE AND COMMUNITY MANAGEMENT AND 19
OTHER LEGISLATION AMENDMENT ACT 2002 20
`295 Adjusting contribution schedule lot entitlement 21
`(1) This section applies to a basic scheme-- 22
(a) consisting of lots created under a standard format plan of 23
subdivision and a building format plan of subdivision; and 24
(b) established-- 25
(i) before the commencement of this section; or 26
s 113 111 s 113
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(ii) if the application for development approval for the scheme 1
was made before the commencement--after the 2
commencement. 3
`(2) The body corporate, by ordinary resolution without the use of 4
proxies, may change the contribution schedule lot entitlements of the lots 5
included in the scheme. 6
`(3) The resolution must be passed-- 7
(a) for a scheme mentioned in subsection (1)(b)(i)--within 8
15 months after commencement of this section; or 9
(b) for a scheme mentioned in subsection (1)(b)(ii)--within 10
15 months after the scheme is established. 11
`(4) The notice of the meeting at which the resolution is proposed to be 12
passed must state or be accompanied by a copy of independent professional 13
advice, obtained by the body corporate from an appropriate person, about 14
any changes required to the contribution schedule lot entitlements to 15
equitably reflect the difference in the maintenance requirements of the 16
standard format lots and the building format lots. 17
18
Example of appropriate person for subsection (4)--
19
A lawyer or registered valuer.
`(5) The body corporate may exercise the power under subsection (2) 20
only once. 21
`(6) The changed lot entitlements-- 22
(a) must equitably reflect the difference in the maintenance 23
requirements of the standard format lots and the building format 24
lots; and 25
(b) unless the body corporate, by ordinary resolution, decides 26
otherwise, apply only for contributions levied after the resolution 27
is passed. 28
`296 Community management statements for particular schemes 29
`(1) This section applies to a basic scheme mentioned in section 295. 30
`(2) Within 3 months after passing a resolution under section 295, the 31
body corporate must lodge a request to record a new community 32
management statement. 33
s 113 112 s 113
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(3) The difference between the new community management statement 1
and the existing community management statement must be limited to 2
changes to reflect the changed contribution schedule lot entitlements. 3
`(4) Despite section 54(1),1 the new community management statement 4
may be recorded for the scheme without the endorsement on it of a 5
community management statement notation. 6
`(5) The fees payable under the Land Title Act for recording a 7
community management statement do not apply to the new community 8
management statement. 9
`297 Particular community management statements to be given to 10
local governments 11
`(1) Subsection (2) applies if a new community management statement 12
mentioned in section 296-- 13
(a) is recorded for a community titles scheme; and 14
(b) is not endorsed with a community management statement 15
notation. 16
`(2) The body corporate must, within 14 days after the statement is 17
recorded, give a copy of the statement to each local government in whose 18
local government area scheme land is located. 19
`298 Existing easements for lots 20
`(1) This section applies to an easement for a lot if the easement was in 21
existence, under repealed sections 60 to 65, immediately before the 22
commencement of this section. 23
`(2) On the commencement, the easement is taken to be a statutory 24
easement. 25
`(3) In this section-- 26
"repealed sections 60 to 65" means sections 60 to 65 as in force 27
immediately before the commencement. 28
1 Section 54 (Local government community management statement notation)
s 113 113 s 113
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`299 Existing powers of body corporate managers 1
`(1) This section applies to a committee power or executive member 2
power in force immediately before the commencement of this section. 3
`(2) On the commencement-- 4
(a) the executive member power is taken to be given under 5
section 106 as in force on the commencement; and 6
(b) the committee power continues subject to the previous section 106 7
as if the previous section 106 were still in force. 8
`(3) In this section-- 9
"committee power" means a power of a committee for a body corporate 10
given to a body corporate manager under the previous section 106. 11
"executive member power" means a power of an executive member of a 12
committee for a body corporate given to a body corporate manager 13
under the previous section 106. 14
"previous section 106" means section 106 as in force immediately before 15
the commencement. 16
`300 Existing applications for an order of an adjudicator 17
`(1) This section applies if an application for an order of an adjudicator 18
made under the previous dispute resolution provisions has not been finally 19
dealt with before the commencement of this section. 20
`(2) The application may continue to be dealt with under the previous 21
dispute resolution provisions, and by a person authorised to deal with the 22
application immediately before the commencement, as if the Body 23
Corporate and Community Management and Other Legislation 24
Amendment Act 2002, other than section 113 to the extent it inserts 25
section 301, had not been enacted. 26
`(3) In this section-- 27
"previous dispute resolution provisions" means the dispute resolution 28
provisions in force immediately before the commencement. 29
s 114 114 s 114
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`PART 4--VALIDATION 1
`301 Declaration about dispensation given by commissioner 2
`(1) To remove any doubt, it is declared that a dispensation given by the 3
commissioner under, or purportedly under, section 194(5)1 before the 4
commencement of this section is taken to be, and always to have been, 5
validly given.'. 6
`(2) This section expires 3 years after it commences.'. 7
114 Insertion of new schs 1A and 1B
Clause 8
After schedule 1-- 9
insert-- 10
`SCHEDULE 1A 11
`CODE OF CONDUCT FOR BODY CORPORATE 12
MANAGERS AND CARETAKING SERVICE 13
CONTRACTORS 14
section 105A and schedule 4, definition "code of conduct" 15
1 Knowledge of Act, including code 16
A body corporate manager or caretaking service contractor must have a 17
good working knowledge and understanding of this Act, including this 18
code of conduct, relevant to the person's functions. 19
2 Honesty, fairness and professionalism 20
A body corporate manager or caretaking service contractor must act 21
honestly, fairly and professionally in performing the person's functions 22
under the person's engagement. 23
1 Section 194 (Notice to affected persons and body corporate)
s 114 115 s 114
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
3 Skill, care and diligence 1
A body corporate manager or caretaking service contractor must 2
exercise reasonable skill, care and diligence in performing the person's 3
functions under the person's engagement. 4
4 Acting in body corporate's best interests 5
A body corporate manager or caretaking service contractor must act in 6
the best interests of the body corporate unless it is unlawful to do so. 7
5 Keeping body corporate informed of developments 8
A body corporate manager or caretaking service contractor must keep 9
the body corporate informed of any significant development or issue about 10
an activity performed for the body corporate. 11
6 Ensuring employees comply with Act and code 12
A body corporate manager or caretaking service contractor must take 13
reasonable steps to ensure an employee of the person complies with this 14
Act, including this code, in performing the person's functions under the 15
person's engagement. 16
7 Fraudulent or misleading conduct 17
A body corporate manager or caretaking service contractor must not 18
engage in fraudulent or misleading conduct in performing the person's 19
functions under the person's engagement. 20
8 Unconscionable conduct 21
A body corporate manager or caretaking service contractor must not 22
engage in unconscionable conduct in performing the person's functions 23
under the person's engagement. 24
25
Examples of unconscionable conduct--
26
1. Taking unfair advantage of the person's superior knowledge relative to the body
27
corporate.
s 114 116 s 114
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
1
2. Requiring the body corporate to comply with conditions that are unlawful or not
2
reasonably necessary.
3
3. Exerting undue influence on, or using unfair tactics against, the body corporate or
4
the owner of a lot in the scheme.
9 Conflict of duty or interest 5
A body corporate manager or caretaking service contractor for a 6
community titles scheme (the "first scheme") must not accept an 7
engagement for another community titles scheme if doing so will place the 8
person's duty or interests for the first scheme in conflict with the person's 9
duty or interests for the other scheme. 10
10 Goods and services to be supplied at competitive prices 11
A body corporate manager or caretaking service contractor must take 12
reasonable steps to ensure goods and services the person obtains for or 13
supplies to the body corporate are obtained or supplied at competitive 14
prices. 15
11 Body corporate manager to demonstrate keeping of particular 16
records 17
If a body corporate or its committee requests, in writing, the body 18
corporate manager to show that the manager has kept the body corporate 19
records as required under this Act, the manager must comply with the 20
request within the reasonable period stated in the request. 21
`SCHEDULE 1B 22
`CODE OF CONDUCT FOR LETTING AGENTS 23
schedule 4, definition "code of conduct" 24
s 114 117 s 114
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
1 Honesty, fairness and professionalism 1
A letting agent must act honestly, fairly and professionally in conducting 2
the letting agent business under the letting agent's authorisation. 3
2 Skill, care and diligence 4
A letting agent must exercise reasonable skill, care and diligence in 5
conducting the letting agent business under the letting agent's 6
authorisation. 7
3 Acting in body corporate's and individual lot owner's best 8
interests 9
Unless it is unlawful to do so, a letting agent must, as far as practicable, 10
act in the best interests of the body corporate and individual lot owners. 11
4 Ensuring employees comply with Act and code 12
A letting agent must take reasonable steps to ensure an employee of the 13
letting agent complies with this Act, including this code, in conducting the 14
letting agent business under the letting agent's authorisation. 15
5 Fraudulent or misleading conduct 16
A letting agent must not engage in fraudulent or misleading conduct in 17
conducting the letting agent business under the letting agent's 18
authorisation. 19
6 Unconscionable conduct 20
A letting agent must not engage in unconscionable conduct in 21
conducting the letting agent business under the letting agent's 22
authorisation. 23
24
Examples of unconscionable conduct--
25
1. Taking unfair advantage of the person's position as letting agent relative to the
26
body corporate or the owner of a lot in the scheme.
27
2. Exerting undue influence on, or using unfair tactics against, the body corporate or
28
the owner of a lot in the scheme.
s 115 118 s 115
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
7 Nuisances 1
A letting agent must not-- 2
(a) cause a nuisance or hazard on scheme land; or 3
(b) interfere unreasonably with the use or enjoyment of a lot 4
included in the scheme; or 5
(c) interfere unreasonably with the use or enjoyment of the common 6
property by a person who is lawfully on the common property; or 7
(d) otherwise behave in a way that unreasonably affects a person's 8
lawful use or enjoyment of a lot or common property. 9
8 Goods and services to be supplied at competitive prices 10
A letting agent must take reasonable steps to ensure goods and services 11
the letting agent obtains for or supplies to the body corporate are obtained 12
or supplied at competitive prices.'. 13
115 Amendment of sch 2 (By-laws)
Clause 14
(1) Schedule 2, section 2-- 15
omit, insert-- 16
`2 Vehicles 17
`(1) The occupier of a lot must not-- 18
(a) park a vehicle, or allow a vehicle to stand, in a regulated parking 19
area; or 20
(b) without the approval of the body corporate, park a vehicle, or 21
allow a vehicle to stand, on any other part of the common 22
property; or 23
(c) permit an invitee to park a vehicle, or allow a vehicle to stand, on 24
the common property, other than in a regulated parking area. 25
`(2) An approval under subsection (1)(b) must state the period for which 26
it is given. 27
`(3) The body corporate may cancel the approval by giving 7 days 28
written notice to the occupier. 29
s 116 119 s 116
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(4) In this section-- 1
"regulated parking area" means an area of scheme land designated as 2
being available for use, by invitees of occupiers of lots included in the 3
scheme, for parking vehicles.'. 4
(2) Schedule 2, section 6, after `or'-- 5
insert-- 6
`someone else's peaceful enjoyment of'. 7
(3) Schedule 2, section 8-- 8
insert-- 9
`(2A) Subsection (2)(b) does not apply to a real estate advertising sign 10
for the sale or letting of the lot if the sign is of a reasonable size.'. 11
(4) Schedule 2, section 8(2A) and (3)-- 12
renumber as section 8(3) and (4). 13
116 Insertion of new sch 3
Clause 14
After schedule 2-- 15
insert-- 16
`SCHEDULE 3 17
`ADJUDICATOR'S ORDERS 18
section 223(3) 19
1. An order requiring the body corporate to lodge a request to record a 20
new community management statement consistent with the statement 21
for which the body corporate gave its consent. 22
2. An order requiring the body corporate to lodge a request to record a 23
new community management statement, regardless of whether the 24
body corporate consents to the recording. 25
3. An order requiring the body corporate to take out insurance or to 26
increase the amount of insurance. 27
s 116 120 s 116
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
4. An order requiring the body corporate to take action under an 1
insurance policy to recover an amount or to have repairs carried out. 2
5. An order requiring the body corporate-- 3
(a) to acquire, within a stated time, stated property the adjudicator 4
considers necessary for the use or convenience of the owners or 5
occupiers of lots; or 6
(b) not to acquire stated property, or to dispose of stated common 7
property, within a stated time. 8
6. An order requiring the body corporate to call a general meeting of its 9
members to deal with stated business or to change the date of an 10
annual general meeting. 11
7. An order declaring that a meeting of the committee for the body 12
corporate, or a general meeting of the body corporate, is void for 13
irregularity. 14
8. An order declaring that a resolution purportedly passed at a meeting 15
of the committee for the body corporate, or a general meeting of the 16
body corporate was, at all times void. 17
9. An order declaring that a resolution purportedly passed at a meeting 18
of the committee for the body corporate, or a general meeting of the 19
body corporate, is a valid resolution of the meeting. 20
10. If satisfied a motion (other than a motion for reinstatement of scheme 21
land or termination or amalgamation of the scheme) considered by a 22
general meeting of the body corporate and requiring a resolution 23
without dissent was not passed because of opposition that in the 24
circumstances is unreasonable--an order giving effect to the motion 25
as proposed, or a variation of the motion as proposed. 26
11. If satisfied a contribution levied on lot owners, or the way it is to be 27
paid, is unreasonable--an order reducing or increasing the 28
contribution to a reasonable amount or providing for its payment in a 29
different way. 30
12. An order requiring the body corporate to have its accounts, or 31
accounts for a stated period, audited by an auditor stated in the order 32
or appointed by the body corporate. 33
13. If satisfied the applicant has been wrongfully denied access to, or a 34
copy of, information or documents--an order requiring the body 35
corporate to give stated information to the applicant, to make 36
s 116 121 s 116
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
particular information available for inspection by the applicant, or to 1
give copies of stated documents to the applicant. 2
14. If satisfied the body corporate has the right to terminate a person's 3
engagement as a body corporate manager or service contractor--an 4
order declaring that the engagement is terminated. 5
15. If satisfied the body corporate does not have the right to terminate a 6
person's engagement as a body corporate manager or service 7
contractor--an order declaring that the engagement is not terminated. 8
16. An order requiring a body corporate manager, letting agent or service 9
contractor to comply with the terms of the person's engagement, 10
including the code of conduct, or authorisation. 11
17. If satisfied the body corporate's decision about a proposal by the 12
owner of a lot to make improvements on or changes to common 13
property is an unreasonable decision--an order requiring the body 14
corporate-- 15
(a) to reject the proposal; or 16
(b) to agree to the proposal; or 17
(c) to ratify the proposal on stated terms. 18
18. If satisfied an animal is being kept on common property or a lot 19
contrary to the by-laws--an order requiring the person in charge of 20
the animal to remove it and keep it away. 21
19. If satisfied an animal kept on common property or a lot under the 22
by-laws is causing a nuisance or a hazard or unduly interfering with 23
someone else's peaceful use and enjoyment of another lot or common 24
property--an order requiring the person in charge of the animal-- 25
(a) to take stated action to remedy the nuisance, hazard or 26
interference; or 27
(b) to remove the animal and keep it away. 28
20. If satisfied a by-law is, having regard to the interests of all owners and 29
occupiers of lots included in the scheme, oppressive or 30
unreasonable--an order requiring the body corporate to lodge a 31
request to record a new community management statement-- 32
(a) to remove the by-law; and 33
(b) if it is appropriate to restore an earlier by-law, to restore the 34
earlier by-law. 35
s 117 122 s 117
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
21. If satisfied a by-law is invalid--an order declaring that the by-law is 1
invalid and requiring the body corporate to lodge a request to record a 2
new community management statement to remove the by-law. 3
22. If satisfied the owner of a lot reasonably requires a licence over part 4
of the common property for the appropriate enjoyment of the lot, and 5
the body corporate has unreasonably refused to give the licence--an 6
order requiring the body corporate to give a licence to the owner on 7
terms (that may require a payment or periodic payments to the body 8
corporate) over a stated part of the common property. 9
23. An order appointing an administrator, and authorising the 10
administrator to perform-- 11
(a) obligations of the body corporate, its committee, or a member of 12
the committee under this Act or the community management 13
statement; or 14
(b) obligations of the body corporate under another Act.'. 15
117 Amendment of sch 4 (Dictionary)
Clause 16
(1) Schedule 4, definitions "adjudicator", "affected person", "auditor", 17
"ceiling", "dispute", "lot", "occupier", "order", "original owner", "owner", 18
"party", and "utility infrastructure"-- 19
omit. 20
(2) Schedule 4-- 21
insert-- 22
` "adjudicator" means a person appointed-- 23
(a) under section 190 as a department adjudicator; or 24
(b) under chapter 6, part 8, as a specialist adjudicator. 25
"affected person", for an application for the resolution of a dispute, 26
means-- 27
(a) a person against whom the application is made; or 28
(b) a person who would be affected by the outcome sought by the 29
application. 30
"aggrieved person", for chapter 7, part 1, see section 250. 31
s 117 123 s 117
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
"application"-- 1
(a) for chapter 6, means an application for the resolution of a 2
dispute; or 3
(b) for chapter 7, part 1, see section 250. 4
"appropriately qualified", for the delegation of a power to a person, 5
includes having the qualifications, experience or standing appropriate 6
to exercise the power. 7
8
Example of standing--
9
A person's classification level in the public service.
"auditor", for an audit for a community titles scheme-- 10
(a) means a person who-- 11
(i) is a registered company auditor; or 12
(ii) has the qualifications and experience in accountancy 13
approved under the regulation module applying to the 14
community titles scheme; and 15
(b) includes an unincorporated body of auditors. 16
"base allocation period" see section 137. 17
"basic utility service" means any of the following utility services-- 18
(a) water reticulation or supply; 19
(b) gas reticulation or supply; 20
(c) electricity; 21
(d) telephone; 22
(e) computer data or television; 23
(f) a sewer system; 24
(g) drainage. 25
"body corporate contract", for a community titles scheme, see 26
section 288. 27
"body corporate lessee" see section 42. 28
"caretaking service contractor", for a community titles scheme, means a 29
a service contractor for the scheme who is also-- 30
(a) a letting agent for the scheme; or 31
s 117 124 s 117
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(b) an associate of the letting agent. 1
"code contravention notice", see section 112J(1). 2
"code of conduct" means-- 3
(a) for a body corporate manager or caretaking service 4
contractor--the code in schedule 1A; or 5
(b) for a letting agent--the code in schedule 1B. 6
"commencement", for chapter 8, part 1, see section 272. 7
"constructing authority" see the Acquisition of Land Act 1967, section 2. 8
"contractual matter", about an engagement or authorisation of a body 9
corporate manager, service contractor or letting agent, means-- 10
(a) a contravention of the terms of the engagement or authorisation; 11
or 12
(b) the termination of the engagement or authorisation; or 13
(c) the exercise of rights or powers under the terms of the 14
engagement or authorisation; or 15
(d) the performance of duties under the terms of the engagement or 16
authorisation. 17
"contravention notice" means a continuing contravention notice under 18
section 144 or a future contravention notice under section 145. 19
"decision", for chapter 7, part 1, see section 250. 20
"decision maker", for chapter 7, part 1, see section 250. 21
"developer", for a community titles scheme intended to be developed 22
progressively, means the original owner or other person responsible 23
for developing the scheme. 24
"development approval" means a development approval given under the 25
Planning Act. 26
"dispute"-- 27
(a) generally, includes complaint; and 28
(b) for chapter 6, see section 182A. 29
"dispute resolution officer" means a specialist mediator, specialist 30
conciliator or an adjudicator, appointed under the dispute resolution 31
provisions. 32
s 117 125 s 117
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
"dispute resolution process" means-- 1
(a) dispute resolution centre mediation; or 2
(b) specialist mediation; or 3
(c) specialist conciliation; or 4
(d) department adjudication; or 5
(e) specialist adjudication. 6
"dispute resolution service" means the service provided for in chapter 6 7
for resolving disputes. 8
"enforceable money order" see the Uniform Civil Procedure Rules 1999, 9
section 793. 10
"exempted provisions", for a body corporate contract for a community 11
titles scheme, see section 288. 12
"existing 1980 Act plan" see section 272. 13
"existing service contract" means a service contract-- 14
(a) entered into on or after 13 July 1997 and before the 15
commencement of section 112A; and 16
(b) to which, under section 290, the exempted provisions for a body 17
corporate contract for a community titles scheme do not apply. 18
"extended allocation period" see section 137. 19
"formal acquisition", affecting a community titles scheme, means an 20
acquisition, including an acquisition by agreement, that-- 21
(a) is made of a lot included in, or common property for, the scheme; 22
and 23
(b) is made under the Acquisition of Land Act 1967 by a constructing 24
authority for a purpose set out in the schedule to that Act. 25
"future 1980 Act plan" see section 272. 26
"Land Title Act" means the Land Title Act 1994. 27
"layered arrangement", for chapter 2, part 12, see section 86A. 28
"lessee common property" see section 42A. 29
"lot" means-- 30
s 117 126 s 117
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) a lot under the Land Title Act, but if the lot is included in a 1
community titles scheme other than a basic scheme, the lot could 2
be another community titles scheme; or 3
(b) for chapter 5, part 3, see section 177. 4
"majority resolution" means a resolution under section 98A. 5
"management rights", of a letting agent for a community titles scheme, 6
means-- 7
(a) the letting agent business for the scheme, including the letting 8
agent authorisation; and 9
(b) the business conducted by the letting agent under a service 10
contract for the scheme, including the service contract; and 11
(c) the letting agent's interest in a lot used for conducting a business 12
mentioned in paragraph (a) or (b); and 13
(d) any right of the letting agent to use and occupy a part of the 14
common property for a business mentioned in paragraph (a) 15
or (b). 16
"mediator" means a person appointed as a specialist mediator under the 17
dispute resolution provisions. 18
"new scheme", for chapter 8, part 1, see section 272. 19
"1980 Act" see section 272. 20
"1980 Act plan" see section 272. 21
"notification day" see section 288. 22
"occupier", of a lot included in a community titles scheme-- 23
(a) means-- 24
(i) a resident owner or resident lessee of the lot, or someone 25
else who lives on the lot; or 26
(ii) a person who occupies the lot for business purposes or 27
works on the lot in carrying on a business from the lot; and 28
(b) for chapter 3, part 4, see section 126; and 29
(c) for chapter 6, see section 182. 30
"order", for an application under chapter 6 for the resolution of a dispute, 31
includes an order dismissing the application. 32
s 117 127 s 117
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
"original owner"-- 1
(a) generally, see section 14; and 2
(b) for chapter 8, part 1, division 6, see section 288. 3
"original owner control period" means the period in which-- 4
(a) the body corporate is constituted solely by the original owner; or 5
(b) the original owner owns, or has an interest in, the majority of lots 6
in the scheme or, in any other way, controls the voting of the 7
body corporate. 8
"owner", of a lot (other than a lot that is a community titles scheme) 9
included in a community titles scheme, means-- 10
(a) the person who is, or is entitled to be, the registered owner of the 11
lot, and includes-- 12
(i) a mortgagee in possession of the lot; and 13
(ii) if, under the Land Title Act, 2 or more persons are the 14
registered owners, or are entitled to be the registered 15
owners, of the lot--each of the persons; and 16
(b) for chapter 6, see section 182. 17
"parties", to an application for the resolution of a dispute, see section 202. 18
"power", for sections 106 to 106B and 299, includes doing an act or 19
making a decision for the purpose of performing a function. 20
"reasonably believes" means believes on grounds that are reasonable in all 21
the circumstances. 22
"recorded", for a community management statement, means recorded by 23
the registrar under the Land Title Act. 24
"registered valuer" means a valuer registered under the Valuers 25
Registration Act 1992. 26
"reviewable terms", for a service contract-- 27
(a) for chapter 3, part 2, division 7, see section 112B; or 28
(b) for chapter 3, part 2, division 8, means the terms of the contract 29
that provide for-- 30
(i) the functions and powers of the letting agent as a service 31
contractor; or 32
s 117 128 s 117
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(ii) the remuneration payable to the letting agent as a service 1
contractor. 2
"review advice", about a service contract, for chapter 3, part 2, division 8, 3
means written advice about whether the contract's reviewable terms-- 4
(a) are currently fair and reasonable; and 5
(b) if the reviewable terms are not currently fair and 6
reasonable--how the reviewable terms should be changed to 7
ensure they are fair and reasonable. 8
"review criteria", for chapter 3, part 2, division 7, means the criteria stated 9
in section 112E. 10
"reviewing party" see section 112A. 11
"review motion" see section 112R(1)(b). 12
"review period" means-- 13
(a) for a service contract entered into after the commencement of 14
section 112A (the "commencement") for a term of not longer 15
than 3 years--the first of the following periods to end-- 16
(i) the period of the term; 17
(ii) the period ending immediately before the contract is first 18
extended or varied; or 19
(b) for a service contract entered into after the commencement that is 20
for a term longer than 3 years--the later of the following periods 21
to end-- 22
(i) 3 years after the start of the term; 23
(ii) 1 year after the annual general meeting next held after the 24
original owner control period ends; or 25
(c) for an existing service contract that is for a term ending after the 26
commencement--the first of the following periods to end-- 27
(i) the period ending 31 December 2004; 28
(ii) the period ending immediately before the service contract is 29
first extended or varied after the commencement. 30
"scheme A", for a layered arrangement, see section 86C(1). 31
"scheme B", for a layered arrangement, see section 86C(1). 32
s 117 129 s 117
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
"scheme C", for a layered arrangement, see section 86C(1) and (2). 1
"service contract" means a contract entered into with a person for the 2
engagement of the person as a service contractor for a community 3
titles scheme. 4
"service easement", for a community titles scheme, means a statutory 5
easement for-- 6
(a) supplying basic utility services to lots included in, and common 7
property for, the scheme; or 8
(b) establishing and maintaining utility infrastructure for supplying 9
the services. 10
"services location diagram" means a diagram, complying with the 11
registrar's directions about its required format, showing the location 12
of service easements for a community titles scheme. 13
"small scheme" means a community titles scheme to which all of the 14
following apply-- 15
(a) the scheme is a basic scheme; 16
(b) there is no letting agent for the scheme; 17
(c) there are no more than 6 lots included in the scheme; 18
(d) the Body Corporate and Community Management (Small 19
Schemes Module) Regulation 1997. 20
"specified Act" see section 272. 21
"statutory easement" means an easement provided for in the Land Title 22
Act, part 6A, division 5. 23
"term limitation provision" see section 288. 24
"transfer notice", for chapter 3, part 2, division 8, see section 112K(b). 25
"utility infrastructure" means-- 26
(a) cables, wires, pipes, sewers, drains, ducts, plant and equipment 27
by which lots or common property are supplied with utility 28
services; and 29
(b) a device for measuring the reticulation or supply of a utility 30
service. 31
"utility service provider" means the supplier of a utility service to scheme 32
land.'. 33
s 118 130 s 120
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(3) Schedule 4, definition "improvement"-- 1
insert-- 2
`(c) a non-structural change, including, for example, the installation 3
of air conditioning.'. 4
PART 3--AMENDMENT OF ACQUISITION OF LAND 5
ACT 1967 6
118 Act amended in pt 3
Clause 7
This part amends the Acquisition of Land Act 1967. 8
119 Amendment of s 12 (Effect of gazette resumption notice)
Clause 9
Section 12(3A)(a) and (c)-- 10
omit, insert-- 11
`(a) to register a plan of survey identifying the remaining scheme 12
land; and 13
(c) to record a new community management statement for the 14
scheme.'. 15
120 Insertion of new s 12A
Clause 16
After section 12-- 17
insert-- 18
`12A Constructing authority must lodge new plan of survey for 19
particular land 20
`(1) This section applies if-- 21
(a) land taken under this Act is part of-- 22
(i) land subject to a building units plan registered under the 23
Building Units and Group Titles Act 1980; or 24
s 121 131 s 123
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(ii) scheme land for a community titles scheme under the Body 1
Corporate and Community Management Act 1997; and 2
(b) the taking of the land affects the integrity of a boundary of a lot 3
or common property shown on a plan registered under the 4
Building Units and Group Titles Act 1980, Land Title Act 1994 or 5
another Act for the land. 6
`(2) The constructing authority for the acquisition must lodge with the 7
registrar of titles a plan of survey showing a new boundary for the lot or 8
common property.'. 9
121 Amendment of s 14 (Dealing with title to land affected by
Clause 10
resumption) 11
Section 14(3), `registration and issue'-- 12
omit, insert-- 13
`recording or registration'. 14
PART 4--AMENDMENT OF INTEGRATED PLANNING 15
ACT 1997 16
122 Act amended in pt 4
Clause 17
This part amends the Integrated Planning Act 1997. 18
123 Amendment of s 1.3.5 (Definitions for terms used in
Clause 19
"development") 20
Section 1.3.5, definition "reconfiguring a lot", paragraph (d), after 21
`years'-- 22
insert-- 23
`, or an agreement for the exclusive use of part of the common property 24
for a community titles scheme under the Body Corporate and Community 25
Management Act 1997'. 26
s 124 132 s 125
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
124 Amendment of s 3.7.8 (When pt 7 does not apply)
Clause 1
Section 3.7.8(2)-- 2
omit, insert-- 3
`(2) Also, this part does not apply to a plan lodged under the Acquisition 4
of Land Act 1967, section 12A,1 as a result of a reconfiguration of a lot 5
mentioned in subsection (1)(a). 6
`(3) If, under subsection (1) or (2), this part does not apply to a plan, the 7
Land Title Act 1994, sections 50(g) and (h) and 83(2)2 do not apply to the 8
registration of the plan.'. 9
125 Amendment of sch 8 (Assessable, self-assessable and exempt
Clause 10
development) 11
(1) Schedule 8, part 3, item 15-- 12
insert-- 13
`(ba)is for the incorporation, under the Body Corporate and 14
Community Management Act 1997, section 42A,3 of a lot with 15
common property for a community titles scheme; or 16
(bb) is for the conversion, under the Body Corporate and Community 17
Management Act 1997, section 42C,4 of lessee common property 18
within the meaning of that Act to a lot in a community titles 19
scheme; or'. 20
(2) Schedule 8, part 3, item 15(ba) to (f)-- 21
renumber as item 15(c) to (h). 22
1 Acquisition of Land Act 1967, section 12A (Constructing authority must lodge new
plan of survey for particular land)
2 Land Title Act 1994, sections 50 (Requirements for registration of plan of
subdivision) and 83 (Registration of easement)
3 Body Corporate and Community Management Act 1997, section 42A (Lease)
4 Body Corporate and Community Management Act 1997, section 42C (Effect of
ending of authorisation)
s 126 133 s 128
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
PART 5--AMENDMENT OF INTEGRATED PLANNING 1
AND OTHER LEGISLATION AMENDMENT ACT 2001 2
126 Act amended in pt 5
Clause 3
This part amends the Integrated Planning and Other Legislation 4
Amendment Act 2001. 5
127 Amendment of s 8 (Replacement of s 1.3.5 (Definitions for terms
Clause 6
used in "development")) 7
Section 8, in replaced section 1.3.5, definition "reconfiguring a lot", 8
paragraph (d), after `years'-- 9
insert-- 10
`, or an agreement for the exclusive use of part of the common property 11
for a community titles scheme under the Body Corporate and Community 12
Management Act 1997'. 13
128 Amendment of s 27 (Replacement of ch 3 (Integrated development
Clause 14
assessment system (IDAS))) 15
Section 27, replaced section 3.7.8(2)-- 16
omit, insert-- 17
`(2) Also, this part does not apply to a plan lodged under the Acquisition 18
of Land Act 1967, section 12A,1 as a result of a reconfiguration of a lot 19
mentioned in subsection (1)(a). 20
`(3) If, under subsection (1) or (2), this part does not apply to a plan, the 21
Land Title Act 1994, sections 50(g) and (h) and 83(2)2 do not apply to the 22
registration of the plan.'. 23
1 Acquisition of Land Act 1967, section 12A (Constructing authority must lodge new
plan of survey for particular land)
2 Land Title Act 1994, sections 50 (Requirements for registration of plan of
subdivision) and 83 (Registration of easement)
s 129 134 s 131
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
129 Amendment of s 84 (Replacement of sch 8 (Assessable,
Clause 1
self-assessable and exempt development)) 2
(1) Section 84, in inserted schedule 9, item 7-- 3
insert-- 4
`(ba)is for the incorporation, under the Body Corporate and 5
Community Management Act 1997, section 42A,1 of a lot with 6
common property for a community titles scheme; or 7
(bb) is for the conversion, under the Body Corporate and Community 8
Management Act 1997, section 42C,2 of lessee common property 9
within the meaning of that Act to a lot in a community titles 10
scheme; or'. 11
(2) Section 84, in inserted schedule 9, item 7(ba) to (f)-- 12
renumber as item 7(c) to (h). 13
PART 6--AMENDMENT OF INTEGRATED RESORT 14
DEVELOPMENT ACT 1987 15
130 Act amended in pt 6
Clause 16
This part amends the Integrated Resort Development Act 1987. 17
131 Insertion of new s 179A
Clause 18
Part 10-- 19
insert-- 20
1 Body Corporate and Community Management Act 1997, section 42A (Lease)
2 Body Corporate and Community Management Act 1997, section 42C (Effect of
ending of authorisation)
s 132 135 s 134
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`179A Dealing with disputes 1
`Unless otherwise provided in this Act, a dispute about the operation of 2
this Act or the rights and obligations of persons under this Act may be dealt 3
with under the Building Units and Group Titles Act 1980, part 5.1'. 4
132 Insertion of new pt 11
Clause 5
After part 10-- 6
insert-- 7
`PART 11--VALIDATION 8
`183 Declaration about resolution of disputes under Building Units 9
and Group Titles Act 1980 10
`(1) This section applies to all acts, matters and things done before the 11
commencement of section 179A for the resolution, under the Building 12
Units and Group Titles Act 1980, part 5, of a dispute about the operation of 13
this Act or the rights and obligations of persons under this Act. 14
`(2) To remove any doubt, it is declared that the acts, matters and things 15
are taken to be, and always to have been, as validly done as if they were 16
done after the commencement.'. 17
PART 7--AMENDMENT OF LAND ACT 1994 18
133 Act amended in pt 7
Clause 19
This part amends the Land Act 1994. 20
134 Amendment of s 289 (Consent to be written on document etc.)
Clause 21
Section 289-- 22
insert-- 23
1 Building Units and Group Titles Act 1980, part 5 (Disputes)
s 135 136 s 137
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(2) Subsection (3) applies if, under the Electronic Transactions 1
(Queensland) Act 2001, an electronic form of the relevant document is 2
lodged or deposited by electronic communication. 3
`(3) The person is taken to have complied with subsection (1) if-- 4
(a) a method is used to identify the person and to indicate the 5
person's consent; and 6
(b) having regard to all the relevant circumstances when the method 7
was used, the method was as reliable as was appropriate for the 8
purposes for which the consent was communicated; and 9
(c) the chief executive consents to the requirement being met by 10
using the method mentioned in paragraph (a).'. 11
135 Insertion of new s 290AA
Clause 12
Chapter 6, part 1, division 3-- 13
insert-- 14
`290AA Offence not to use appropriate form 15
`If there is an appropriate form for a document, a person must not 16
knowingly use a form for the document that is not the appropriate form. 17
Maximum penalty--20 penalty units.'. 18
136 Omission of s 293 (Chief executive may authorise printing and
Clause 19
sale of forms) 20
Section 293-- 21
omit. 22
137 Amendment of s 296 (Tenure document to be returned to land
Clause 23
registry) 24
Section 296(2)(a), after `execution'-- 25
insert-- 26
`or a charge created under an Act'. 27
s 138 137 s 139
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
138 Insertion of new s 305A
Clause 1
After section 305-- 2
insert-- 3
`305A Electronic communication of statutory declaration or affidavit 4
`(1) A person is taken to have complied with a requirement under 5
section 305(2) to give the chief executive a statutory declaration or affidavit 6
(the "verifying document") if the person gives a signed electronic form of 7
the verifying document by electronic communication and-- 8
(a) having regard to all the relevant circumstances when the 9
communication was sent, the method of generating the electronic 10
form of the verifying document provided a reliable way of 11
maintaining the integrity of the information it contained; and 12
(b) when the communication was sent, it was reasonable to expect 13
the information contained in the electronic form of the verifying 14
document would be readily accessible so as to be useable for 15
subsequent reference; and 16
(c) the chief executive consents to the electronic form of the 17
verifying document being given by electronic communication. 18
`(2) The person is taken to have signed the electronic form of the 19
verifying document if-- 20
(a) a method is used to identify the person and to indicate the 21
person's approval of the information communicated; and 22
(b) having regard to all the relevant circumstances when the method 23
was used, the method was as reliable as was appropriate for the 24
purposes for which the information was communicated; and 25
(c) the chief executive consents to the electronic form of the 26
verifying document being signed by using the method mentioned 27
in paragraph (a).'. 28
139 Amendment of s 315 (Destroying document in certain
Clause 29
circumstances) 30
(1) Section 315-- 31
insert-- 32
s 140 138 s 141
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(1A) The chief executive may authorise a person to destroy a document 1
held in a place other than an office of the department if the document-- 2
(a) was lodged at the place for evidencing, in the land registry, an 3
interest; and 4
(b) is evidence of an existing interest for which there is accurate 5
evidence in the land registry.'. 6
(2) Section 315(3), after `executive'-- 7
insert-- 8
`, or person acting under an authority given under subsection (2),'. 9
(3) Section 315(5), `power under subsection (1) is'-- 10
omit, insert-- 11
`powers under subsections (1) and (2) are'. 12
(4) Sections 315(1A) to (5)-- 13
renumber as section 315(2) to (6). 14
140 Amendment of s 373A (Covenant by registration)
Clause 15
(1) Section 373A-- 16
insert-- 17
`(5A) The covenant must not prevent a person from-- 18
(a) registering an interest under this Act; or 19
(b) exercising the person's rights under a registered interest; or 20
(c) releasing or surrendering a registered interest.'. 21
(2) Section 373A(5A) and (6)-- 22
renumber as section 373A(6) and (7). 23
141 Amendment of sch 6 (Dictionary)
Clause 24
(1) Schedule 6-- 25
insert-- 26
s 142 139 s 143
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
"electronic communication" means a communication of information in 1
the form of data, text or images by guided or unguided 2
electromagnetic energy.'. 3
(2) Schedule 6, definition "appropriate form"-- 4
insert-- 5
`(c) if the chief executive has given consent for an electronic form of 6
the document under section 305A(1) or the Electronic 7
Transactions (Queensland) Act 2001--the electronic form.'. 8
PART 8--AMENDMENT OF LAND TITLE ACT 1994 9
142 Act amended in pt 8
Clause 10
This part amends the Land Title Act 1994. 11
143 Insertion of new s 4A
Clause 12
After section 4-- 13
insert-- 14
`4A References 15
`In a provision of this Act about a community titles scheme, a reference 16
to-- 17
(a) scheme land, is a reference to the scheme land for the scheme; 18
and 19
(b) the body corporate, is a reference to the body corporate for the 20
scheme; and 21
(c) common property, is a reference to common property for the 22
scheme; and 23
(d) the community management statement, is a reference to the 24
community management statement for the scheme.'. 25
s 144 140 s 146
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
144 Amendment of s 12 (Consent to be written on instrument etc.)
Clause 1
Section 12-- 2
insert-- 3
`(2) Subsection (3) applies if, under the Electronic Transactions 4
(Queensland) Act 2001, an electronic form of the relevant instrument is 5
lodged or deposited by electronic communication. 6
`(3) The person is taken to have complied with subsection (1) if-- 7
(a) a method is used to identify the person and to indicate the 8
person's consent; and 9
(b) having regard to all the relevant circumstances when the method 10
was used, the method was as reliable as was appropriate for the 11
purposes for which the consent was communicated; and 12
(c) the registrar consents to the requirement being met by using the 13
method mentioned in paragraph (a).'. 14
145 Replacement of s 14 (Registrar may authorise printing and sale of
Clause 15
forms) 16
(1) Section 14-- 17
omit, insert-- 18
`14 Offence not to use appropriate form 19
`If there is an appropriate form for an instrument, a person must not 20
knowingly use a form for the instrument that is not the appropriate form. 21
Maximum penalty--20 penalty units.'. 22
146 Insertion of new s 41BA
Clause 23
After section 41B-- 24
insert-- 25
`41BA Ownership of common property 26
`(1) Common property for a community titles scheme is owned by the 27
owners of the lots included in the scheme, as tenants in common, in shares 28
proportionate to the interest schedule lot entitlements of their respective 29
lots. 30
s 147 141 s 149
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(2) Subsection (1) applies even though, under section 41A, the registrar 1
creates an indefeasible title for the common property. 2
`(3) An owner's interest in a lot is inseparable from the owner's interest 3
in the common property. 4
5
Examples for subsection (3)--
6
1. A dealing affecting the lot affects, without express mention, the interest in the
7
common property.
8
2. An owner can not separately deal with or dispose of the owner's interest in the
9
common property.'.
147 Insertion of new s 49DA
Clause 10
After section 49D-- 11
insert-- 12
`49DA Creation of common property 13
`If scheme land for a community titles scheme is to be subdivided by a 14
plan of subdivision under sections 49B to 49D to create common property, 15
the registration of the plan and recording of the new community 16
management statement for the scheme operate, without anything further, to 17
create the common property.'. 18
148 Amendment of s 49E (Division of lot on standard format plan of
Clause 19
subdivision) 20
Section 49E(1), from `lot'-- 21
omit, insert-- 22
`standard format lot, creating 2 or more lots.'. 23
149 Amendment of s 50 (Requirements for registration of plan of
Clause 24
subdivision) 25
(1) Section 50-- 26
insert-- 27
`(ca) distinctly show all proposed common property; and'. 28
(2) Section 50(g)-- 29
s 150 142 s 151
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
omit, insert-- 1
`(g) have been approved by the local government concerned, unless 2
the plan of subdivision provides only for-- 3
(i) the amalgamation of 2 or more lots to create a smaller 4
number of lots; or 5
(ii) the redefinition of a lot on a resurvey; or 6
(iii) under the BCCM Act, chapter 2, part 4, division 2,1 the 7
incorporation of a lot with common property or conversion 8
of lessee common property within the meaning of that Act; 9
and'. 10
150 Amendment of s 54B (Circumstances under which building
Clause 11
management statement may be registered) 12
(1) Section 54B(2)(a) and (b), before `lots'-- 13
insert-- 14
`format'. 15
(2) Section 54B(3)-- 16
omit. 17
151 Amendment of s 97A (Covenant by registration)
Clause 18
(1) Section 97A-- 19
insert-- 20
`(4A) The covenant must not prevent a person from-- 21
(a) registering an interest under this Act; or 22
(b) exercising the person's rights under a registered interest; or 23
(c) releasing or surrendering a registered interest.'. 24
1 BCCM Act, chapter 2 (Basic operation of community titles schemes), part 4
(Common property), division 2 (Body corporate acquisition of, and dealing with, lot
included in its own scheme)
s 152 143 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(2) Section 97A(4A) and (5)-- 1
renumber as section 97A(5) and (6). 2
152 Insertion of new pt 6A
Clause 3
After part 6-- 4
insert-- 5
`PART 6A--COMMUNITY TITLES SCHEMES 6
`Division 1--Preliminary 7
`115A Basic concept for pt 6A--community titles scheme 8
`(1) A community titles scheme is the basic concept for this part. 9
`(2) A community titles scheme can only be over freehold land. 10
`115B Meaning of "community titles scheme" 11
`(1) A "community titles scheme" is-- 12
(a) a single community management statement recorded by the 13
registrar identifying land (the "scheme land"); and 14
(b) the scheme land. 15
`(2) Land may be identified as scheme land if it consists of-- 16
(a) 2 or more lots; and 17
(b) other land (the "common property" for the community titles 18
scheme) that is not included in a lot mentioned in paragraph (a). 19
`(3) Land can not be common property for more than 1 community titles 20
scheme. 21
`(4) For each community titles scheme, there must be-- 22
(a) at least 2 lots; and 23
(b) common property; and 24
(c) a single body corporate; and 25
s 152 144 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(d) a single community management statement. 1
`(5) A community titles scheme is a "basic scheme" if all the lots 2
mentioned in subsection (2)(a) are lots under this Act. 3
`(6) However, under this part, a lot may be, for its inclusion in a 4
community titles scheme other than a basic scheme, another community 5
titles scheme.1 6
`115C Meaning of "layered arrangement of community titles schemes" 7
`(1) A "layered arrangement of community titles schemes" is a 8
grouping of community titles schemes-- 9
(a) in which there is 1 community titles scheme (the "principal 10
scheme")2 that-- 11
(i) is not a lot included in another community titles scheme; 12
and 13
(ii) is made up of-- 14
(A) the scheme land for all other community titles schemes 15
in the grouping; and 16
(B) its own common property; and 17
(C) each lot, if any, that is not a community titles scheme, 18
but that is included in the scheme; and 19
(b) in which there is at least 1 basic scheme; and 20
(c) in which there may or may not be 1 or more community titles 21
schemes located between the principal scheme and each basic 22
scheme. 23
`(2) Each community titles scheme, other than the principal scheme, in a 24
layered arrangement of community titles schemes-- 25
(a) is a subsidiary scheme for the principal scheme; and 26
1 BCCM Act, schedule 1 (Illustrations) contains examples of possible structures of
community titles schemes.
2 See BCCM Act, schedule 1, parts 2 and 3 for examples of layered arrangements of
community titles schemes.
s 152 145 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(b) unless it is a lot included in the principal scheme, may also be a 1
subsidiary scheme for another community titles scheme forming 2
part of the layered arrangement. 3
`(3) A "subsidiary scheme", for a community titles scheme 4
("scheme A"), is a community titles scheme the scheme land for which 5
forms part of the scheme land for scheme A. 6
`(4) In this Act, the expression "included in", if used in the context of 7
the inclusion of a lot in a community titles scheme-- 8
(a) establishes the relationship the lot has to the scheme; and 9
(b) in general terms, is used to establish that the lot is directly a part 10
of the scheme, rather than only indirectly a part of the scheme. 11
`(5) The diagram and notes in the BCCM Act, schedule 1, part 31 12
illustrate more comprehensively how the expression `included in' is used. 13
`115D Provisions about lots that are community titles schemes 14
`If a community titles scheme ("scheme A") includes a lot that is 15
another community titles scheme ("scheme B")-- 16
(a) a reference in this Act to the owner of the lot is a reference to the 17
body corporate for scheme B; but 18
(b) a reference in this Act to a lot included in scheme A does not 19
include a reference to scheme B if the provision is about-- 20
(i) the subdivision of a lot; or 21
(ii) the indefeasible title for a lot; or 22
(iii) a lease or mortgage of a lot; or 23
(iv) the occupier or registered proprietor of a lot. 24
1 BCCM Act, schedule 1 (Illustrations), part 3 (Example of more complex layered
arrangement of schemes)
s 152 146 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`Division 2--Names of community titles schemes 1
`115E Names of community titles schemes 2
`(1) The registrar may refuse to record a community management 3
statement for a community titles scheme if the scheme's identifying name 4
shown in the statement is-- 5
(a) the identifying name in the community management statement 6
for another community titles scheme; or 7
(b) a name reserved under this division, other than a name reserved 8
by the person seeking to record the community management 9
statement; or 10
(c) a name reserved under the Building Units and Group Titles Act 11
1980, section 120;1 or 12
(d) a name reserved under the South Bank Corporation Act 1989;2 or 13
14
(e) in the registrar's opinion formed on reasonable grounds, 15
undesirable. 16
`(2) The registrar must allocate a unique identifying number for a 17
scheme when the first community management statement is recorded for 18
the scheme. 19
`115F Reservation of name 20
`(1) The registrar may, on application, reserve a name stated in the 21
application as the identifying name to be shown in the community 22
management statement for a proposed community titles scheme. 23
`(2) The reservation must identify the proposed scheme land for the 24
proposed scheme. 25
`(3) The registrar must reserve the name unless satisfied he or she would 26
refuse to record a community management statement showing the name. 27
1 Building Units and Group Titles Act 1980, section 120 (Reservation of name)
2 See South Bank Corporation Act 1989, schedule 7, section 9(3A).
s 152 147 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`115G Period of reservation 1
`(1) The reservation of an identifying name for a proposed community 2
titles scheme is for an initial period of 2 years and may be extended by the 3
registrar, but only once, for an additional period of 1 year. 4
`(2) The extension may be given only on an application made, within the 5
initial period, by the person for whom the name is reserved. 6
`(3) However, the reservation ends if-- 7
(a) the person withdraws the reservation; or 8
(b) a community titles scheme is established and the reserved name 9
is the identifying name shown in the community management 10
statement for the scheme. 11
`Division 3--Scheme land 12
`115H Single area for scheme land 13
`(1) Scheme land for a community titles scheme must be made up of a 14
single, continuous area of land. 15
`(2) Scheme land is taken to be made up of a single, continuous area of 16
land even if-- 17
(a) a lot is subdivided under section 54;1 or 18
(b) if paragraph (a) does not apply--there is nevertheless a road or 19
watercourse within the external boundaries of the scheme land. 20
`(3) However, a community titles scheme may be established with 21
scheme land not made up of a single, continuous area of land if all lots that 22
become the scheme land are-- 23
(a) created under a single plan of subdivision; or 24
(b) in the opinion of the registrar formed on reasonable grounds, 25
located within an area that is sufficiently limited to ensure the 26
scheme can be administered under the BCCM Act efficiently and 27
effectively as a single scheme. 28
1 Section 54 (Division excluding road or watercourse)
s 152 148 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(4) Nevertheless, if subsection (3) applies, and the scheme is later 1
changed to include additional lots or common property, each of the 2
additional lots or common property must form a single, continuous area of 3
land with a part of the scheme land in existence for the scheme 4
immediately before the inclusion of the additional lots or common 5
property. 6
`115I Enlarging the number of lots through progressive subdivision 7
`(1) This section applies to a basic scheme for which an application for 8
development approval is made under the Integrated Planning Act 1997 on 9
or after the commencement of this section. 10
`(2) The number of lots included in the scheme may be increased 11
through the progressive subdivision of lots to create further lots included in 12
the scheme.1 13
`(3) Subject to subsection (4), the lots may be subdivided by plans of 14
subdivision of a different format from the plan of subdivision that created 15
the original lots if the subdivision is to create a layered arrangement of 16
community titles schemes. 17
`(4) The lots may be subdivided by plans of subdivision of a different 18
format from the plan of subdivision that created the original lots, without 19
creating a layered arrangement of community titles schemes, if each of the 20
following apply to the scheme-- 21
(a) the community management statement states that the lots 22
included in the scheme are to be subdivided by different format 23
plans of subdivision; 24
(b) the lots are subdivided by different format plans of subdivision; 25
(c) the contribution schedule lot entitlements equitably reflect the 26
difference in the maintenance requirements of the standard 27
format lots, building format lots and volumetric format lots. 28
1 BCCM, schedule 1 (Illustrations), part 4 (Example of progressive subdivision for
creating more lots in a scheme) gives an example of the operation of this section.
s 152 149 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`Division 4--Community management statements 1
`115J Lodging request to record a new statement 2
`(1) A request to record a new community management statement for a 3
community titles scheme must be lodged when a new plan of subdivision 4
affecting the scheme (including affecting a lot in, or the common property 5
for, the scheme) is lodged. 6
`(2) A request to record a new community management statement for a 7
community titles scheme may be lodged, and the new statement may be 8
recorded for the scheme, even though a plan of subdivision is not lodged, if 9
all plans of subdivision relating to the scheme, and the new statement, will 10
still be consistent after the new statement is recorded. 11
`115K Recording community management statements 12
`(1) The registrar may record a community management statement if-- 13
(a) a request to record the statement is lodged; and 14
(b) the statement is deposited with the request; and 15
(c) the statement complies with the directions of the registrar about 16
the required format for a community management statement; and 17
(d) the statement otherwise complies with-- 18
(i) section 115H; and 19
(ii) the requirements of the BCCM Act for a community 20
management statement; and 21
(e) for a new community management statement--the body 22
corporate's consent to the recording of the new statement is 23
endorsed on the statement. 24
`(2) A community management statement is not an instrument under this 25
Act. 26
`(3) However, a request to record a community management statement is 27
an instrument, and is lodged, under this Act. 28
`(4) An interest created under a community management statement 29
recorded under subsection (1) does not have effect as a registered interest. 30
s 152 150 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`115L When registrar records community management statement 1
`(1) When the registrar records a community management statement for 2
a community titles scheme, the registrar must-- 3
(a) give the statement a unique identifying number; and 4
(b) record a reference to the community management statement, 5
including its unique identifying number, on-- 6
(i) the indefeasible title for each lot that is scheme land; and 7
(ii) the indefeasible title for any common property that is 8
scheme land. 9
`(2) However-- 10
(a) the registrar is not obliged to examine, but may examine, a 11
community management statement for its validity, including, in 12
particular, its-- 13
(i) consistency with any plan of subdivision; or 14
(ii) compliance with the requirements for a community 15
management statement; and 16
(b) it must not be presumed that a community management 17
statement is valid or enforceable, including, for example, that the 18
by-laws for the scheme included in the statement are valid and 19
enforceable, because the registrar records it; and 20
(c) neither the validity nor the enforceability of a community 21
management statement, as recorded by the registrar, is 22
guaranteed by the State. 23
`(3) The community management statement takes effect when it is 24
recorded by the registrar as the community management statement for the 25
scheme. 26
`Division 5--Statutory easements 27
`115M Application of div 5 28
`(1) This division provides for easements for lots included in, and 29
common property for, a community titles scheme. 30
s 152 151 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(2) However, subject to subsection (3), this division applies to the 1
scheme only if the lots included in the scheme are lots on-- 2
(a) a building format plan of subdivision; or 3
(b) a volumetric format plan of subdivision; or 4
(c) a standard format plan of subdivision registered under this Act on 5
or after 13 July 1997. 6
`(3) If a lot is a standard format lot in a community titles scheme 7
intended to be developed progressively and there are no buildings on the 8
lot, this division applies for the lot. 9
`(4) This division has effect for the scheme subject to the provisions of 10
an easement established under another part of this Act. 11
`115N Easements for support 12
`(1) An easement of lateral or subjacent support exists-- 13
(a) in favour of a lot against another lot capable of supplying lateral 14
or subjacent support; and 15
(b) in favour of a lot against common property capable of supplying 16
lateral or subjacent support; and 17
(c) in favour of common property against a lot capable of supplying 18
lateral or subjacent support; and 19
(d) in favour of common property against other common property 20
capable of supplying lateral or subjacent support. 21
`(2) An easement for support under subsection (1)-- 22
(a) entitles the owner of a lot ("lot X") to enter a lot or common 23
property supplying support to lot X under the easement to 24
maintain or replace any support; and 25
(b) entitles the body corporate to enter a lot or common property 26
supplying support to common property under the easement to 27
maintain or replace any support. 28
`(3) An easement for support under subsection (1) subsists until the 29
scheme no longer exists. 30
s 152 152 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`115O Easements in favour of lots for utility services and utility 1
infrastructure 2
`(1) An easement exists in favour of a lot and against other lots and 3
common property for supplying utility services to the lot and establishing 4
and maintaining utility infrastructure reasonably necessary for supplying 5
the utility services. 6
`(2) However, the exercise of rights under the easement must not 7
interfere unreasonably with the use or enjoyment of the lot or part of 8
common property against which the easement lies. 9
`115P Easements for utility services and utility infrastructure 10
`(1) An easement exists in favour of common property and against the 11
lots for supplying utility services to the common property and establishing 12
and maintaining utility infrastructure reasonably necessary for supplying 13
utility services to the common property. 14
`(2) However, the exercise of rights under the easement must not 15
interfere unreasonably with the use or enjoyment of the lots against which 16
the easement lies. 17
`115Q Easements for shelter 18
`(1) An easement entitling the owner of a lot to have the lot sheltered by 19
parts of a building within scheme land necessary to supply shelter exists 20
against the lots or parts of common property where the relevant parts of the 21
building are situated. 22
`(2) The easement for shelter under subsection (1) entitles the owner of 23
the lot to enter a lot or common property supplying shelter under the 24
easement to maintain or replace the shelter. 25
`115R Easements for projections 26
`(1) If eaves, guttering, drainpipes, awnings, window sills, or other 27
minor parts of a building within a lot ("lot A") project over the boundaries 28
of another lot ("lot B") or common property, an easement exists in favour 29
of lot A and against the part of lot B or common property over which the 30
projection lies, permitting the projection. 31
s 152 153 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(2) The easement entitles the owner of lot A to enter lot B or the 1
common property to maintain or replace the building parts. 2
`115S Easement for maintenance of building close to boundary 3
`(1) If a building is on the boundary of a lot ("lot A") or so close to the 4
boundary of lot A that maintenance or replacement of the building is not 5
able to be carried out without entering another lot ("lot B") or common 6
property, an easement exists in favour of lot A and against lot B or the 7
common property. 8
`(2) The easement entitles the owner of lot A to enter lot B or common 9
property to carry out the maintenance or replacement. 10
`Division 6--Changes to community titles schemes 11
under reinstatement process 12
`115T Registration for changes to scheme under approved 13
reinstatement process 14
`(1) If an approved reinstatement process provides for a change to a 15
community titles scheme, the body corporate must lodge-- 16
(a) if appropriate, having regard to the approved reinstatement 17
process, or a community management statement mentioned in 18
paragraph (b)--a plan of subdivision reflecting the approved 19
reinstatement process; and 20
(b) if appropriate, having regard to the approved reinstatement 21
process, or a plan of subdivision mentioned in paragraph (a)--a 22
request to record a new community management statement; and 23
(c) a true copy of the approved reinstatement process. 24
`(2) If an approved reinstatement process provides for a change to 25
subdivisional arrangements (not including a change to a community titles 26
scheme), the owners of lots the subject of the approved reinstatement 27
process must lodge-- 28
(a) if appropriate, having regard to the approved reinstatement 29
process--a plan of subdivision reflecting the approved 30
reinstatement process; and 31
(b) a true copy of the approved reinstatement process. 32
s 152 154 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`(3) In this section-- 1
"approved reinstatement process" means a process, approved under the 2
BCCM Act, section 69 or 70,1 for reinstating a building. 3
`Division 7--Terminating community titles schemes 4
`115U Instruments required for terminating scheme 5
`(1) If a community titles scheme is to be terminated, a plan cancelling 6
the lots in the scheme must be lodged. 7
`(2) The plan must be lodged by or for-- 8
(a) the body corporate; or 9
(b) if the District Court made an order under the BCCM Act, 10
section 75(2), for terminating the scheme--a person on whose 11
application the court made the order. 12
`(3) The plan must be accompanied by, as well as any other instrument 13
required under this Act, a copy of-- 14
(a) if the scheme is terminated under a resolution of the body 15
corporate--the resolution to terminate the scheme, and any 16
agreement entered into about termination issues; or 17
(b) if the scheme is terminated under an order of the District 18
Court--the order. 19
`(4) In this section-- 20
"termination issues" see the BCCM Act, schedule 4.2 21
`115V Recording termination of scheme 22
`(1) If section 115U is complied with, the registrar must record the 23
cancellation of the community management statement, and must also-- 24
(a) register the termination in the freehold land register; and 25
1 BCCM Act, section 69 (Reinstatement process under court approval)
or 70 (Reinstatement process under resolution without dissent)
s 152 155 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(b) cancel the particulars (other than particulars of easements, 1
covenants and other dealings capable of being maintained against 2
scheme land after termination of the scheme) recorded in the 3
freehold land register about scheme land. 4
`(2) The termination takes effect when the registrar completes the action 5
mentioned in subsection (1). 6
`(3) On the termination of the scheme, the registrar must create 1 or 7
more indefeasible titles for all land that, immediately before the 8
termination, was scheme land. 9
`(4) The registered owners for a title mentioned in subsection (3)-- 10
(a) are the persons ("former owners") who, immediately before the 11
scheme's termination, were the owners of the scheme land; and 12
(b) must be recorded as tenants in common in the shares 13
proportionate to their respective interest schedule lot 14
entitlements immediately before the termination. 15
`(5) If a lot included in the scheme was subject to a mortgage 16
immediately before the scheme was terminated, the former owner's interest 17
in the land as tenant in common is subject to the mortgage. 18
`Division 8--Amalgamating community titles schemes 19
`115W Request to record amalgamation of schemes 20
`(1) A request to record the amalgamation of 2 or more community titles 21
schemes ("scheme A" and "scheme B") must be lodged. 22
`(2) The request must be-- 23
2 BCCM Act, schedule 4--
"termination issues" means--
(a) the disposal, and disposition of proceeds from the disposal, of the land that,
immediately before the termination of a community titles scheme, is scheme
land; and
(b) custody, management and distribution (including the disposal, and disposition
of proceeds from the disposal) of items of property that, immediately before
the termination of a community titles scheme are body corporate assets; and
(c) the sharing of liabilities that, immediately before the termination of a
community titles scheme, are liabilities of the body corporate.
s 152 156 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(a) signed by or for the body corporate for scheme A or scheme B; 1
and 2
(b) lodged by or for-- 3
(i) the bodies corporate for schemes A and B; or 4
(ii) if the District Court made an order under the BCCM Act, 5
section 82(3), for amalgamating the schemes--a person on 6
whose application the court made the order. 7
`(3) The request must be accompanied by each of the following-- 8
(a) a copy of each resolution, or the order, for the amalgamation of 9
schemes A and B; 10
(b) the community management statement intended to be recorded 11
for the single, newly established, community titles scheme 12
formed, or to be formed from the amalgamation ("scheme C"), 13
showing the appropriate consents and notifications; 14
(c) if schemes A and B are lots included in another community titles 15
scheme and the existing statement for the other scheme is not 16
consistent with the amalgamation of schemes A and B--a new 17
community management statement for the other scheme; 18
(d) any other instrument required under this Act. 19
`115X Recording amalgamation of schemes 20
`(1) If the request to record the amalgamation of schemes A and B 21
complies with the BCCM Act (including with an order of the District Court 22
made under that Act about the amalgamation), the registrar must-- 23
(a) record the cancellation of the community management 24
statements for schemes A and B; and 25
(b) record the community management statement for scheme C and 26
any other community management statement accompanying the 27
request; and 28
(c) register the amalgamation in the freehold land register. 29
`(2) The amalgamation takes effect when the registrar completes the 30
action mentioned in subsection (1). 31
s 152 157 s 152
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`Division 9--Creating a layered arrangement of community titles 1
schemes from basic schemes 2
`115Y Request to record creation of layered arrangement 3
`(1) A request to record the creation of a layered arrangement of 4
community titles schemes from 2 or more basic schemes ("scheme A" 5
and "scheme B") must be lodged. 6
`(2) The request must be-- 7
(a) signed by or for the body corporate for scheme A or scheme B; 8
and 9
(b) lodged by or for-- 10
(i) the bodies corporate for schemes A and B; or 11
(ii) if the District Court made an order under the BCCM Act, 12
section 86C(2), for creating the layered arrangement--a 13
person on whose application the court made the order. 14
`(3) The request must be accompanied by each of the following-- 15
(a) a copy of each resolution, or the order, for the creation of the 16
layered arrangement; 17
(b) the community management statements intended to be recorded 18
for schemes A and B and the principal scheme in the layered 19
arrangement, showing the body corporate consents required 20
under the BCCM Act, section 551 and the community 21
management statement notations required under that Act, 22
section 54;2 23
(c) new community management statements for schemes A and B if 24
the statements will no longer be accurate after the layered 25
arrangement is created; 26
(d) any other instrument required under this Act. 27
1 Section 55 (Body corporate to consent to recording of new statement)
2 BCCM Act, section 54 (Local government community management statement
notation)
s 153 158 s 154
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`115Z Recording creation of layered arrangement 1
`(1) If the request to record the creation of the layered arrangement 2
complies with the BCCM Act (including with an order of the District Court 3
made under that Act about the layered arrangement), the registrar must-- 4
(a) record the community management statement for the principal 5
scheme in the layered arrangement and any other community 6
management statement accompanying the request; and 7
(b) register any instrument required, under this Act, to be registered 8
for the layered arrangement. 9
`(2) The creation of the layered arrangement takes effect when the 10
registrar completes the action mentioned in subsection (1).'. 11
153 Amendment of s 154 (Lodging certificate of title)
Clause 12
(1) Section 154(2)-- 13
insert-- 14
`(da)a request to register a charge created under an Act;'. 15
(2) Section 154(2)(da) and (e)-- 16
renumber as section 154(e) and (f). 17
154 Insertion of new s 156A
Clause 18
After section 156-- 19
insert-- 20
`156A Electronic communication of statutory declaration or affidavit 21
`(1) A person is taken to have complied with a requirement under 22
section 156(2) to give the registrar a statutory declaration or affidavit 23
(the "verifying document") if the person gives a signed electronic form of 24
the verifying document by electronic communication and-- 25
(a) having regard to all the relevant circumstances when the 26
communication was sent, the method of generating the electronic 27
form of the verifying document provided a reliable way of 28
maintaining the integrity of the information it contained; and 29
(b) when the communication was sent, it was reasonable to expect 30
the information contained in the electronic form of the verifying 31
s 155 159 s 155
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
document would be readily accessible so as to be useable for 1
subsequent reference; and 2
(c) the registrar consents to the electronic form of the verifying 3
document being given by electronic communication. 4
`(2) The person is taken to have signed the electronic form of the 5
verifying document if-- 6
(a) a method is used to identify the person and to indicate the 7
person's approval of the information communicated; and 8
(b) having regard to all the relevant circumstances when the method 9
was used, the method was as reliable as was appropriate for the 10
purposes for which the information was communicated; and 11
(c) the registrar consents to the electronic form of the verifying 12
document being signed by using the method mentioned in 13
paragraph (a).'. 14
155 Amendment of s 166 (Destroying instrument in certain
Clause 15
circumstances) 16
(1) Section 166-- 17
insert-- 18
`(1A) The registrar may authorise a person to destroy an instrument held 19
in a place other than an office of the department if the instrument-- 20
(a) was lodged at the place for evidencing, in the land registry, an 21
interest; and 22
(b) is evidence of an existing interest for which there is accurate 23
evidence in the land registry.'. 24
(2) Section 166(3), after `registrar'-- 25
insert-- 26
`, or person acting under an authority given under subsection (2),'. 27
(3) Section 166(5), `power under subsection (1) is'-- 28
omit, insert-- 29
`powers under subsections (1) and (2) are'. 30
s 156 160 s 156
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(4) Subsections (1A) to (5)-- 1
renumber as subsections (2) to (6). 2
156 Amendment of sch 2 (Dictionary)
Clause 3
(1) Schedule 2, definitions "common property", "community titles 4
scheme", "scheme land" and "subsidiary scheme"-- 5
omit. 6
(2) Schedule 2-- 7
insert-- 8
` "basic scheme" see section 115B(5). 9
"building format lot" means a lot on a building format plan of survey. 10
"common property" see section 115B(2)(b). 11
"community titles scheme" see section 115B(1). 12
"community management statement" see the BCCM Act, section 13. 13
"contribution schedule lot entitlement" see the BCCM Act, section 44. 14
"electronic communication" means a communication of information in 15
the form of data, text or images by guided or unguided 16
electromagnetic energy. 17
"included in", in the context of the inclusion of a lot in a community titles 18
scheme, see section 115C(4). 19
"interest schedule lot entitlement" see the BCCM Act, section 44. 20
"layered arrangement of community titles schemes" see section 115C. 21
"principal scheme" see section 115C(1)(a). 22
"scheme land" see section 115B(1)(a). 23
"standard format lot" means a lot on a standard format plan of survey. 24
"subsidiary scheme" see section 115C(3) 25
"utility infrastructure" see the BCCM Act, schedule 4. 26
"utility service" see the BCCM Act, schedule 4. 27
"volumetric format lot" means a lot on a volumetric format plan of 28
survey.'. 29
s 157 161 s 159
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
(3) Schedule 2, definition "appropriate form"-- 1
insert-- 2
`(c) if the chief executive has given consent for an electronic form of 3
the instrument under section 156A(1) or the Electronic 4
Transactions (Queensland) Act 2001--the electronic form.'. 5
(4) Schedule 2, definition "instrument"-- 6
insert-- 7
`(g) another document that may be deposited.'. 8
PART 9--AMENDMENT OF MIXED USE 9
DEVELOPMENT ACT 1993 10
157 Act amended in pt 9
Clause 11
This part amends the Mixed Use Development Act 1993. 12
158 Insertion of new s 214A
Clause 13
After section 214-- 14
insert-- 15
`214A Dealing with disputes 16
`Unless otherwise provided in this Act, a dispute about the operation of 17
this Act or the rights and obligations of persons under this Act may be dealt 18
with under the Building Units and Group Titles Act 1980, part 5.1'. 19
159 Insertion of new pt 13
Clause 20
After part 12-- 21
insert-- 22
1 Building Units and Group Titles Act 1980, part 5 (Disputes)
s 160 162 s 162
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
`PART 13--VALIDATION 1
`223 Declaration about resolution of disputes under Building Units 2
and Group Titles Act 1980 3
`(1) This section applies to all acts, matters and things done before the 4
commencement of section 214A for the resolution, under the Building 5
Units and Group Titles Act 1980, part 5, of a dispute about the operation of 6
this Act or the rights and obligations of persons under this Act. 7
`(2) To remove any doubt, it is declared that the acts, matters and things 8
are taken to be, and always to have been, as validly done as if they were 9
done after the commencement.'. 10
PART 10--AMENDMENT OF SANCTUARY COVE 11
RESORT ACT 1985 12
160 Act amended in pt 10
Clause 13
This part amends the Sanctuary Cove Resort Act 1985. 14
161 Insertion of new s 104A
Clause 15
Part 8-- 16
insert-- 17
`104A Dealing with disputes 18
`Unless otherwise provided in this Act, a dispute about the operation of 19
this Act or the rights and obligations of persons under this Act may be dealt 20
with under the Building Units and Group Titles Act 1980, part 5.1'. 21
162 Insertion of new pt 9
Clause 22
After part 8-- 23
1 Building Units and Group Titles Act 1980, part 5 (Disputes)
s 162 163 s 162
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
insert-- 1
`PART 9--VALIDATION 2
`112 Declaration about resolution of disputes under Building Units 3
and Group Titles Act 1980 4
`(1) This section applies to all acts, matters and things done before the 5
commencement of section 104A for the resolution, under the Building 6
Units and Group Titles Act 1980, part 5, of a dispute about the operation of 7
this Act or the rights and obligations of persons under this Act. 8
`(2) To remove any doubt, it is declared that the acts, matters and things 9
are taken to be, and always to have been, as validly done as if they were 10
done after the commencement.'. 11
164
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE 1
MINOR AND CONSEQUENTIAL AMENDMENTS OF 2
BODY CORPORATE AND COMMUNITY 3
MANAGEMENT ACT 1997 4
section 3 5
1 Section 2-- 6
omit. 7
2 Section 6, `A'-- 8
omit, insert-- 9
`The'. 10
3 Sections 11(5), 26(1)(a), 29(3)(a), 37(2), 39(2)(a), 75(7), 277(2) 11
and (3)(a), 281(2) and (3) and schedule 4, definitions "building 12
format", "deposit", "indefeasible title", "lodge", "plan of 13
subdivision", "registered owner", "registered proprietor", 14
"registrable lease", "standard format", and "volumetric format", 15
`Land Title Act 1994'-- 16
omit, insert-- 17
`Land Title Act'. 18
4 Section 12(1), example-- 19
omit, insert-- 20
21
`Examples for subsection (1)--
22
1. An airconditioning unit might be bought by a body corporate as a body corporate
23
asset, but become common property when it is installed as a fixture.
24
2.A lot acquired by the body corporate under section 42.'.
165
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
5 Section 12(2), `Example'-- 1
omit, insert-- 2
`Examples for subsection (2)'. 3
6 Section 21(3), after `ceiling'-- 4
insert-- 5
`, other than a false ceiling,'. 6
7 Section 22(3A) to (5)-- 7
renumber as section 22(4) to (6). 8
8 Chapter 2, part 1, division headings-- 9
omit. 10
9 Section 27(2), `by the registrar'-- 11
omit. 12
10 Sections 29(3)(a) and 39(2)(a), `consistent with the operation of'-- 13
omit, insert-- 14
`carried out under'. 15
11 Section 30, after `lots', second mention-- 16
insert-- 17
`under the Land Title Act 1997, part 6A,'. 18
166
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
12 Chapter 2, part 4, before section 37, as heading-- 1
insert-- 2
`Division 1--General provisions'. 3
13 Section 47, heading, after `schedule'-- 4
insert-- 5
`--with agreement of owners of 2 or more lots'. 6
14 Section 47(2), `with the registrar'-- 7
omit. 8
15 Section 47(3), `registered'-- 9
omit, insert-- 10
`recorded'. 11
16 Section 53(1), from `only'-- 12
omit, insert-- 13
`under the Land Title Act, section 115L(3). '.
1
14
17 Section 66, heading, before `easement'-- 15
insert-- 16
`statutory'. 17
1 Land Title Act, section 115L (When registrar records community management
statement)
167
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
18 Section 66, `an easement under this part'-- 1
omit, insert-- 2
`a statutory easement1'. 3
19 Section 67, `easements under this part'-- 4
omit, insert-- 5
`statutory easements'. 6
20 Section 68, heading, `part'-- 7
omit, insert-- 8
`pt 9'. 9
21 Section 72, heading, `part'-- 10
omit, insert-- 11
`pt 10'. 12
22 Section 73, definition "termination issues"-- 13
relocate to schedule 4. 14
23 Section 73, as amended-- 15
omit. 16
24 Sections 74, 81 and 90, heading, `division'-- 17
omit, insert-- 18
`div 2'. 19
1 For other provisions about statutory easements, see the Land Title Act,
part 6A (Community titles schemes), division 5 (Statutory easements).
168
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
25 Section 86(1)(b)(i), `for an order'-- 1
omit. 2
26 Section 100(1), after `resolution'-- 3
insert-- 4
`, other than an ordinary resolution conducted by secret ballot'. 5
27 Chapter 3, part 2, division 1, heading-- 6
omit, insert-- 7
`Division 1--Body corporate manager and service contractor 8
engagements and letting agent authorisations'. 9
28 Section 108, definition "contract", before `means'-- 10
insert-- 11
`, for chapter 3, part 2, division 4,'. 12
29 Section 108 definition "contractor", before `means'-- 13
insert-- 14
`for chapter 3, part 2, division 4,'. 15
30 Section 108, definition "financier", before `see'-- 16
insert-- 17
`, for chapter 3, part 2, division 4,'. 18
31 Section 108, definitions "contract", "contractor", "financed 19
contract" and "financier", as amended-- 20
relocate to schedule 4. 21
169
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
32 Section 108, as amended-- 1
omit. 2
33 Section 132, definition "subsequent statement"-- 3
omit. 4
34 Section 132, definitions "agreed allocation", "authorised 5
allocation" and "reallocation agreement"-- 6
relocate to schedule 4. 7
35 Section 132, as amended-- 8
omit. 9
36 Section 183(1)-- 10
insert-- 11
`(ba)the adjustment of lot entitlement schedules; and'. 12
37 Section 183(1)(ba) and (c)-- 13
renumber as section 183(1)(c) and (d). 14
38 Section 185(2), `adjudicators'-- 15
insert-- 16
`dispute resolution officers'. 17
39 Section 185(3), first dot point, `for orders'-- 18
omit. 19
170
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
40 Section 185(3), second dot point, `case management by the 1
commissioner'-- 2
omit, insert-- 3
`dispute resolution recommendations'. 4
41 Section 185(3), third and fourth dot points-- 5
omit, insert-- 6
`· mediation, conciliation and adjudication'. 7
42 Section 188, from `for case' to `order'-- 8
omit. 9
43 Chapter 6, part 4, heading, `FOR ORDERS'-- 10
omit. 11
44 Section 193(3)(a), `case management'-- 12
omit, insert-- 13
`dispute resolution'. 14
45 Section 195(1), from `case'-- 15
omit, insert-- 16
`dispute resolution recommendation under part 5.'. 17
46 Section 195(2), example, `order'-- 18
omit, insert-- 19
`outcome'. 20
171
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
47 Section 197(4) to (7)-- 1
omit. 2
48 Chapter 6, part 5, heading-- 3
omit, insert-- 4
`PART 5--DISPUTE RESOLUTION 5
RECOMMENDATIONS'. 6
49 Section 204, heading, `part'-- 7
omit, insert-- 8
`pt 6'. 9
50 Section 204, from `an initial' to `adjudicator'-- 10
omit, insert-- 11
`a dispute resolution recommendation for an application'. 12
51 Section 206(3)-- 13
omit. 14
52 Chapter 6, part 9, heading-- 15
insert-- 16
`GENERALLY'. 17
53 Chapter 6, part 9, before section 217, as heading-- 18
insert-- 19
`Division 1--Preliminary'. 20
172
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
54 Chapter 6, part 9, before section 218, as heading-- 1
insert-- 2
`Division 2--Procedural matters about adjudication'. 3
55 Section 221A(1), from `section' to `to'-- 4
omit, insert-- 5
`section 220A, to'. 6
56 Section 221A(2)-- 7
omit. 8
57 Section 222, `for'-- 9
omit, insert-- 10
`to'. 11
58 Chapter 6, part 10, heading-- 12
omit, insert-- 13
`Division 3--Adjudicator's orders'. 14
59 Chapter 6, part 11, heading, after `OF'-- 15
insert-- 16
`ADJUDICATOR'S'. 17
60 Section 234(3), from `may' to `order', first mention-- 18
omit, insert-- 19
`may, by order, appoint an administrator, and authorise the administrator 20
to perform obligations, under the adjudicator's order,'. 21
173
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
61 Section 236-- 1
renumber as section 232A and relocate to chapter 6, part 9, division 3 2
(as renumbered). 3
62 Section 238(3), `an adjudicator's order'-- 4
omit, insert-- 5
`which the order was made'. 6
63 Section 238(4)(a), `an order of an adjudicator'-- 7
omit, insert-- 8
`which the adjudicator's order was made'. 9
64 Section 240, `an adjudicator's order'-- 10
omit, insert-- 11
`which the adjudicator's order was made'. 12
65 Section 243, `with the registrar'-- 13
omit. 14
66 Section 248(4)(a), `(and any delegate of the body corporate) or 15
from'-- 16
omit, insert-- 17
`, a body corporate manager to whom a power has been given under 18
section 106 or 106A, or'. 19
67 Section 248(4)(b), `or delegates of the body corporate'-- 20
omit, insert-- 21
`of the body corporate or a body corporate manager mentioned in 22
paragraph (a)'. 23
174
Body Corporate and Community Management and
Other Legislation Amendment Bill 2002
SCHEDULE (continued)
68 Section 248(6), `a judgment debt'-- 1
omit, insert-- 2
`an enforceable money order'. 3
69 Section 259(2)(c)-- 4
omit. 5
70 Section 259(2)-- 6
insert-- 7
`(e) start a proceeding, including a proceeding for the enforcement of 8
an adjudicator's order or an appeal against an adjudicator's order, 9
under chapter 6.'. 10
71 Section 259(2)(d) and (e)-- 11
renumber as section 259(2)(c) and (d). 12
72 Section 261, heading, `to judgment debts'-- 13
omit, insert-- 14
`for monetary obligations'. 15
73 Section 270, heading, `part'-- 16
omit, insert-- 17
`pt 1'. 18
19
© State of Queensland 2002
AMENDMENTS TO BILL
1
Body Corporate and Community Management and
Other Legislation Amendment Bill 2003
BODY CORPORATE AND COMMUNITY
MANAGEMENT AND OTHER
LEGISLATION AMENDMENT BILL 2003
AMENDMENTS AGREED TO IN COMMITTEE
1 Clause 42--
At page 45, lines 22 to 29--
omit, insert--
`104A Letting agent's obligations for letting agent lot
`(1) This section applies to a person who becomes a letting agent for a
community titles scheme after the commencement of this section.
`(2) If the letting agent business is conducted from a lot, other than
lessee common property, included in the scheme, at all times, either--
(a) the letting agent must be the registered owner or lessee of the lot;
or
(b) a deed must be in place between the body corporate and the
person (the "lot holder") who is the registered owner or lessee of
the lot, under which the lot holder agrees to transfer the lot
holder's interest in the lot, in accordance with the arrangements
provided for in the deed, if the letting agent is required to transfer
the letting agent's management rights under division 8.
`(3) The rights and obligations of the body corporate and the lot holder
under the deed must correspond as far as practicable with the rights and
obligations the body corporate and the letting agent would have under
division 8 were the letting agent the registered owner or lessee of the lot.
`(4) The arrangements provided for in the deed may include--
(a) arrangements for ensuring, to the greatest practicable extent, that
the transfer of the lot holder's interest in the lot happens at the
same time as the transfer of the letting agent's management
rights under division 8; and
2
Body Corporate and Community Management and
Other Legislation Amendment Bill 2003
(b) authority, whether or not supported by a power of attorney, for
the body corporate to act in the place of the lot holder if the lot
holder does not comply with the lot holder's obligations under
the deed for the transfer of the lot holder's interest in the lot.
`(5) If the lot holder does not enter into the deed mentioned in
subsection (2)(b), the letting agent's authorisation as letting agent has no
effect.'.'.
2 Clause 44--
At page 46, lines 17 and 18--
omit, insert--
`44 Replacement of ch 3, pt 2, div 2 (Delegations)
`Chapter 3, part 2, division 2--'.
3 Clause 44--
At page 47, line 9, `some or all of'--
omit.
4 Clause 47--
At page 50, lines 2 and 3, `or be a party to'--
omit.
5 Clause 47--
At page 50, lines 10 and 11, from `entered' to `party,'--
omit.
6 Clause 49--
At page 54, lines 19 to 22--
omit, insert--
`This division applies to a community titles scheme if--
3
Body Corporate and Community Management and
Other Legislation Amendment Bill 2003
(a) it is not a community titles scheme in relation to which a serviced
strata arrangement or scheme under the Corporations Act is in
operation; and
(b) it is a community titles scheme for which the original owner
control period has ended.'.
7 Clause 103--
At page 105, line 9--
omit, insert--
`omit, insert--'.
8 Clause 117--
At page 129, after line 33--
insert--
` "writing", for exercising or confirming a vote, includes an electronic
communication.'.
9 Schedule--
At page 169, line 16--
omit, insert--
`omit, insert--'.
10 Schedule--
At page 171, lines 16 and 17--
omit, insert--
`omit, insert--
`PART 9--ADJUDICATION GENERALLY'.'.
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