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BODY CORPORATE AND COMMUNITY MANAGEMENT AND OTHER LEGISLATION AMENDMENT BILL 2006

This is a Bill, not an Act. For current law, see the Acts databases.


BODY CORPORATE AND COMMUNITY MANAGEMENT AND OTHER LEGISLATION AMENDMENT BILL 2006

          Queensland



Body Corporate and
Community Management and
Other Legislation Amendment
Bill 2006

 


 

 

Queensland Body Corporate and Community Management and Other Legislation Amendment Bill 2006 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Part 2 Amendment of Body Corporate and Community Management Act 1997 3 Act amended in pt 2 and schedule . . . . . . . . . . . . . . . . . . . . . . . . 8 4 Amendment of s 4 (Secondary objects) . . . . . . . . . . . . . . . . . . . . 8 5 Amendment of s 48 (Adjustment of lot entitlement schedule) . . . 9 6 Amendment of s 49 (Criteria for deciding just and equitable circumstances) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7 Amendment of s 62 (Body corporate to consent to recording of new statement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 8 Amendment of s 94 (Body corporate's general functions) . . . . . . 11 9 Amendment of s 100 (Power of committee to act for body corporate) ...................................... 11 10 Insertion of new ss 101A and 101B . . . . . . . . . . . . . . . . . . . . . . . 11 101A Protection of committee members from liability . . . . . 11 101B Code of conduct for committee voting members . . . . 12 11 Amendment of s 129 (Review of remuneration under engagement of service contractor). . . . . . . . . . . . . . . . . . . . . . . . 12 12 Amendment of s 133 (Disputes arising out of review) . . . . . . . . . 13 13 Amendment of s 135 (Other provisions about review) . . . . . . . . . 13 14 Amendment of ch 3, pt 2, div 8. . . . . . . . . . . . . . . . . . . . . . . . . . . 13 15 Amendment of s 163 (Power to enter lot) . . . . . . . . . . . . . . . . . . . 14 16 Amendment of s 178 (Review of exclusive use by-law) . . . . . . . . 15

 


 

2 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 17 Amendment of s 205 (Information to be given to interested persons) ....................................... 16 18 Amendment of s 227 (Meaning of dispute) . . . . . . . . . . . . . . . . . 16 19 Replacement of s 229 (Exclusivity of dispute resolution provisions) ..................................... 16 229 Exclusivity of dispute resolution provisions . . . . . . . . 16 20 Amendment of s 230 (Structure of arrangements) . . . . . . . . . . . . 17 21 Amendment of s 232 (Responsibilities) . . . . . . . . . . . . . . . . . . . . 17 22 Amendment of s 233 (Practice directions) . . . . . . . . . . . . . . . . . . 17 23 Replacement of s 236 (Appointment of dispute resolution officers) ....................................... 18 236 Appointment of dispute resolution officers . . . . . . . . . 18 24 Replacement of ss 238 and 239. . . . . . . . . . . . . . . . . . . . . . . . . . 19 238 Who may make an application . . . . . . . . . . . . . . . . . . 19 239 How to make an application . . . . . . . . . . . . . . . . . . . . 20 239A Content of approved form for conciliation application. 20 239B Content of approved form for adjudication application .......................... 21 239C Continuation of application if standing of party changes .............................. 22 25 Amendment of s 240 (Further information or material for applications) ...................................... 22 26 Replacement of s 241 (Rejecting applications) . . . . . . . . . . . . . . 23 241 Rejecting application . . . . . . . . . . . . . . . . . . . . . . . . . 23 241A Applicant to be given notice of decision to reject application ............................... 24 27 Amendment of s 242 (Time limit on certain applications) . . . . . . 25 28 Amendment of ch 6, pt 4, div 2. . . . . . . . . . . . . . . . . . . . . . . . . . . 25 29 Amendment of s 243 (Notice to affected persons and body corporate) ........................................ 26 30 Insertion of new s 243A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 243A Referral to dispute resolution officer in emergency . . 26 31 Amendment of s 245 (Change or withdrawal of application) . . . . 27 32 Amendment of s 246 (Inspection of applications and submissions) .................................. 27 33 Replacement of s 247 (Referral to adjudicator for possible interim order) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 247 Referral of application for interim order . . . . . . . . . . . 27 34 Amendment of s 248 (Dispute resolution recommendation) . . . . 28

 


 

3 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 35 Amendment of s 250 (Dismissing application) . . . . . . . . . . . . . . . 28 36 Amendment of s 251 (Preparation for making a dispute resolution recommendation). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 37 Insertion of new ch 6, pt 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Part 5A Department conciliation 252A Purpose of pt 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 252B Functions of department conciliator . . . . . . . . . . . . . . 30 252C Referral to department conciliator . . . . . . . . . . . . . . . 31 252D Starting department conciliation session . . . . . . . . . . 31 252E Conduct of department conciliation session. . . . . . . . 31 252F Representation by agent . . . . . . . . . . . . . . . . . . . . . . 32 252G Further provision about representation by committee voting member as agent . . . . . . . . . . . . . . . . . . . . . . . 33 252H Referral back to commissioner . . . . . . . . . . . . . . . . . . 33 252I Agreement reached at department conciliation session .............................. 34 252J Particular agreements require committee ratification etc. before referral to commissioner . . . . . . . . . . . . . . 35 252K Ending department conciliation . . . . . . . . . . . . . . . . . 35 252L Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 38 Amendment of s 263 (Purpose of pt 8) . . . . . . . . . . . . . . . . . . . . 36 39 Amendment of s 264 (Specialist adjudication by agreement) . . . 36 40 Omission of s 265 (Specialist adjudication of particular disputes) 37 41 Amendment of s 266 (Purpose of pt 9) . . . . . . . . . . . . . . . . . . . . 37 42 Insertion of new s 266A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 266A Application of pt 9 to agreement referred for consent order ................................... 37 43 Amendment of s 267 (Referral to adjudicator for specialist or department adjudication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 44 Amendment of s 269 (Investigation by adjudicator) . . . . . . . . . . . 39 45 Amendment of s 270 (Dismissal of applications) . . . . . . . . . . . . . 39 46 Amendment of s 271 (Investigative powers of adjudicator) . . . . . 40 47 Amendment of s 273 (Representation by agent) . . . . . . . . . . . . . 40 48 Amendment of s 274 (Notice of order to be given). . . . . . . . . . . . 41 49 Amendment of s 276 (Orders of adjudicators) . . . . . . . . . . . . . . . 41 50 Amendment of s 277 (Order may be made if party fails to attend to be interviewed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 51 Replacement of s 280 (Costs of specialist adjudication) . . . . . . . 41

 


 

4 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 280 Order for payment of application fees. . . . . . . . . . . . . 42 52 Amendment of s 286 (Enforcement of orders for payment of amounts) ........................................ 42 53 Amendment of s 287 (Enforcement of other orders) . . . . . . . . . . 42 54 Amendment of s 288 (Failure to comply with adjudicator's order) 42 55 Insertion of new s 288A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 288A Definitions for pt 11. . . . . . . . . . . . . . . . . . . . . . . . . . . 43 56 Amendment of s 289 (Right to appeal to District Court). . . . . . . . 43 57 Replacement of ss 290 and 291. . . . . . . . . . . . . . . . . . . . . . . . . . 44 290 Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 291 Stay of operation of order . . . . . . . . . . . . . . . . . . . . . . 45 58 Amendment of s 292 (Referral back to commissioner) . . . . . . . . 46 59 Amendment of s 293 (Hearing procedures) . . . . . . . . . . . . . . . . . 46 60 Insertion of new s 293A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 293A Appeal procedure--CCT . . . . . . . . . . . . . . . . . . . . . . 46 61 Amendment of s 294 (Powers of District Court on appeal) . . . . . 46 62 Insertion of new ch 6, pt 12, div 1 and div 2 heading . . . . . . . . . . 47 Division 1 Stay of applications and proceedings 294A Power to stay application and proceeding . . . . . . . . . 47 63 Amendment of s 295 (Replacing statement to be lodged with registrar) ......................................... 47 64 Amendment of s 296 (Privilege) . . . . . . . . . . . . . . . . . . . . . . . . . . 48 65 Amendment of s 303 (Definitions for pt 1) . . . . . . . . . . . . . . . . . . 48 66 Insertion of new s 313A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 313A Application under ch 6 or CCT Act by group of lot owners or occupiers . . . . . . . . . . . . . . . . . . . . . . . . . . 49 67 Insertion of new ch 8, pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Part 6 Transitional provisions for Body Corporate and Community Management and Other Legislation Amendment Act 2006 357 Definition for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 358 Existing applications for adjustment of lot entitlement schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 359 Other existing applications . . . . . . . . . . . . . . . . . . . . . 50 360 Existing appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 361 Existing dispute resolution officers . . . . . . . . . . . . . . . 50 362 Application of code of conduct for existing committee voting members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

 


 

5 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 68 Insertion of new sch 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Schedule 1A Code of conduct for committee voting members 1 Commitment to acquiring understanding of Act, including this code . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 2 Honesty, fairness and confidentiality . . . . . . . . . . . . . 52 3 Acting in body corporate's best interests . . . . . . . . . . 52 4 Complying with Act and this code . . . . . . . . . . . . . . . 52 5 Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 6 Conflict of interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 69 Amendment of sch 2 (Code of conduct for body corporate managers and caretaking service contractors) . . . . . . . . . . . . . . 53 70 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 53 Part 3 Amendment of other Acts Division 1 Amendment of Commercial and Consumer Tribunal Act 2003 71 Act amended in div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 72 Amendment of s 33 (Defence and counterclaim) . . . . . . . . . . . . . 58 73 Amendment of s 40 (Transfer of proceedings between tribunal and the courts) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 74 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 58 Division 2 Amendment of Inala Shopping Centre Freeholding Act 2006 75 Act amended in div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 76 Amendment of s 30 (Payment of costs--adjustment of lot entitlement schedule for subsidiary scheme) . . . . . . . . . . . . . . . . 59 Division 3 Amendment of Liquor Act 1992 77 Act amended in div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 78 Insertion of new s 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 35 Tribunal may give leave for appeal to be based on new evidence in particular circumstances . . . . . . . . . 60 Schedule Minor amendments of Body Corporate and Community Management Act 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

 


 

 

2006 A Bill for An Act to amend the Body Corporate and Community Management Act 1997 and the Commercial and Consumer Tribunal Act 2003, and for other purposes

 


 

s1 8 s4 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Body Corporate and Community 4 Management and Other Legislation Amendment Act 2006. 5 Clause 2 Commencement 6 This Act, other than part 3, division 3, commences on a day to 7 be fixed by proclamation. 8 Part 2 Amendment of Body Corporate 9 and Community Management 10 Act 1997 11 Clause 3 Act amended in pt 2 and schedule 12 This part and the schedule amend the Body Corporate and 13 Community Management Act 1997. 14 Clause 4 Amendment of s 4 (Secondary objects) 15 (1) Section 4(c) to (h)-- 16 renumber as section 4(d) to (i). 17 (2) Section 4-- 18 insert-- 19 `(c) to encourage the tourism potential of community titles 20 schemes without diminishing the rights and 21

 


 

s5 9 s5 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 responsibilities of owners, and intending buyers, of lots 1 in community titles schemes;'. 2 Clause 5 Amendment of s 48 (Adjustment of lot entitlement 3 schedule) 4 (1) Section 48(1)(a) and (b)-- 5 omit, insert-- 6 `(a) under chapter 6, for an order of a specialist adjudicator 7 for the adjustment of a lot entitlement schedule; or 8 (b) under the CCT Act, for an order of the CCT for the 9 adjustment of a lot entitlement schedule.'. 10 (2) Section 48(2)-- 11 omit, insert-- 12 `(2) Despite any other law or statutory instrument, the respondent 13 to an application mentioned in subsection (1) is the body 14 corporate. 15 `(2A) If the owner applies under chapter 6 for an order of a 16 specialist adjudicator-- 17 (a) at the election of another owner of a lot in the scheme, 18 the other owner may be joined as a respondent to the 19 application; and 20 (b) each party to the application is responsible for the 21 party's own costs of the application.'. 22 (3) Section 48(3), from `(2)(b)' to `for'-- 23 omit, insert-- 24 `(3)(a), to become a respondent to'. 25 (4) Section 48(4), (6) and (9), `court or specialist adjudicator'-- 26 omit, insert-- 27 `specialist adjudicator or the CCT'. 28 (5) Section 48(4)(a), `(5)'-- 29 omit, insert-- 30 `(6)'. 31

 


 

s6 10 s7 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (6) Section 48(4)(b) and (7), `(6)'-- 1 omit, insert-- 2 `(7)'. 3 (7) Section 48(9), penalty, `(9)'-- 4 omit, insert-- 5 `(10)'. 6 (8) Section 48(2A) to (9)-- 7 renumber as section 48(3) to (10). 8 Clause 6 Amendment of s 49 (Criteria for deciding just and 9 equitable circumstances) 10 (1) Section 49(1), `the District Court or a specialist 11 adjudicator'-- 12 omit, insert-- 13 `a specialist adjudicator or the CCT'. 14 (2) Section 49(2) to (5), `court or specialist adjudicator'-- 15 omit, insert-- 16 `specialist adjudicator or the CCT'. 17 Clause 7 Amendment of s 62 (Body corporate to consent to 18 recording of new statement) 19 (1) Section 62(4)(b), `or the District Court'-- 20 omit, insert-- 21 `, the District Court or the CCT'. 22 (2) Section 62(4)(f), `subject;' and footnote-- 23 omit, insert-- 24 `subject;'. 25 (3) Section 62(7)-- 26 omit, insert-- 27

 


 

s8 11 s 10 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(7) A consent to which subsection (4) or (6) applies must be given 1 by ordinary resolution if, under the regulation module 2 applying to the scheme-- 3 (a) consenting to the recording of a new community 4 management statement is a restricted issue for the body 5 corporate's committee; or 6 (b) the body corporate has engaged a body corporate 7 manager to carry out the functions of a committee, and 8 the executive members of a committee, for the body 9 corporate.'. 10 Clause 8 Amendment of s 94 (Body corporate's general functions) 11 Section 94(2), after `subsection (1)'-- 12 insert-- 13 `including making, or not making, a decision for the 14 subsection'. 15 Clause 9 Amendment of s 100 (Power of committee to act for body 16 corporate) 17 Section 100-- 18 insert-- 19 `(5) The committee must act reasonably in making a decision.'. 20 Clause 10 Insertion of new ss 101A and 101B 21 Chapter 3, part 1, division 2-- 22 insert-- 23 `101A Protection of committee members from liability 24 `A committee member is not civilly liable for an act done or 25 omission made in good faith and without negligence in 26 performing the person's role as a committee member. 27

 


 

s 11 12 s 11 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `101B Code of conduct for committee voting members 1 `(1) The code of conduct in schedule 1A applies to each person (a 2 committee voting member) who is-- 3 (a) a committee member for a community titles scheme; 4 and 5 (b) a voting member of the committee under the regulation 6 module applying to the scheme. 7 `(2) On becoming a committee voting member, the person is taken 8 to have agreed to comply with the code of conduct. 9 `(3) If a committee voting member breaches the code of conduct, 10 the member may be removed from office in the way 11 prescribed under a regulation.'. 12 Clause 11 Amendment of s 129 (Review of remuneration under 13 engagement of service contractor) 14 Section 129(1) to (3)-- 15 omit, insert-- 16 `(1) This section applies to a dispute about the level of 17 remuneration payable under the terms of the engagement of a 18 service contractor for a community titles scheme if-- 19 (a) the term of the engagement starts within 3 years after 20 the establishment of the scheme; and 21 (b) the level of remuneration payable to the service 22 contractor under the engagement has not been reviewed 23 previously under division 7. 24 `(2) The body corporate may apply-- 25 (a) under chapter 6, for an order of a specialist adjudicator 26 to resolve the dispute; or 27 (b) under the CCT Act, for an order of the CCT to resolve 28 the dispute. 29 `(3) The application must be made not earlier than 3 years, and not 30 later than 4 years, after the term of the engagement starts, 31 unless the specialist adjudicator or the CCT reasonably 32

 


 

s 12 13 s 14 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 considers it appropriate for the order to be made at an earlier 1 or later time.'. 2 Clause 12 Amendment of s 133 (Disputes arising out of review) 3 (1) Section 133(2) to (4)-- 4 omit, insert-- 5 `(2) A reviewing party may apply-- 6 (a) under chapter 6, for an order of a specialist adjudicator 7 to resolve the dispute; or 8 (b) under the CCT Act, for an order of the CCT to resolve 9 the dispute. 10 `(3) The specialist adjudicator or the CCT must have regard to the 11 review criteria in deciding the application.'. 12 (2) Subsection (5), `(6)'-- 13 omit, insert-- 14 `(5)'. 15 (3) Subsections (5) and (6)-- 16 renumber as subsections (4) and (5). 17 Clause 13 Amendment of s 135 (Other provisions about review) 18 Section 135(2)(b), after `adjudicator'-- 19 insert-- 20 `or the CCT'. 21 Clause 14 Amendment of ch 3, pt 2, div 8 22 Chapter 3, part 2, division 8-- 23 insert-- 24

 


 

s 15 14 s 15 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `Subdivision 5 Disputes about transfer of 1 management rights 2 `149A Specialist adjudication or CCT jurisdiction 3 `A party to a dispute about the transfer, under this division, of 4 a letting agent's management rights may apply-- 5 (a) under chapter 6, for an order of a specialist adjudicator 6 to resolve the dispute; or 7 (b) under the CCT Act, for an order of the CCT to resolve 8 the dispute. 9 `Division 9 Disputes about contractual matters 10 `149B Specialist adjudication or CCT jurisdiction 11 `(1) This section applies to a dispute about a claimed or 12 anticipated contractual matter about-- 13 (a) the engagement of a person as a body corporate 14 manager or caretaking service contractor for a 15 community titles scheme; or 16 (b) the authorisation of a person as a letting agent for a 17 community titles scheme. 18 `(2) A party to the dispute may apply-- 19 (a) under chapter 6, for an order of a specialist adjudicator 20 to resolve the dispute; or 21 (b) under the CCT Act, for an order of the CCT to resolve 22 the dispute.'. 23 Clause 15 Amendment of s 163 (Power to enter lot) 24 (1) Section 163(2)(a), after `time'-- 25 insert-- 26 `, with or without notice of intended entry given to any 27 person'. 28

 


 

s 16 15 s 16 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (2) Section 163(2)(b), `cases'-- 1 omit, insert-- 2 `cases, subject to subsection (4)'. 3 (3) Section 163(2)(b)(i) and (ii), after `7 days'-- 4 insert-- 5 `written'. 6 (4) Section 163(4), `notice of intended entry must be'-- 7 omit, insert-- 8 `the power to enter the scheme land for the subsidiary scheme 9 may be exercised at a reasonable time after at least 7 days 10 written notice of intended entry has been'. 11 Clause 16 Amendment of s 178 (Review of exclusive use by-law) 12 (1) Section 178(1)-- 13 insert-- 14 `(d) there is a dispute about whether the exclusive use 15 by-law should continue in force.'. 16 (2) Section 178(2)-- 17 omit, insert-- 18 `(2) The body corporate for the scheme may apply-- 19 (a) under chapter 6, for an order of a specialist adjudicator 20 to resolve the dispute; or 21 (b) under the CCT Act, for an order of the CCT to resolve 22 the dispute. 23 `(2A) The order must have regard especially to the interests of all 24 owners of lots included in the scheme in the use and 25 enjoyment of their lots and of the common property for the 26 scheme.'. 27 (3) Section 178(4) and (5)-- 28 omit. 29

 


 

s 17 16 s 19 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (4) Subsections (2A) and (3)-- 1 renumber as subsections (3) and (4). 2 Clause 17 Amendment of s 205 (Information to be given to 3 interested persons) 4 (1) Section 205(2), after `must'-- 5 insert-- 6 `do either or both of the following as requested by the 7 interested person'. 8 (2) Section 205(2)(a), `; or'-- 9 omit, insert-- 10 `;'. 11 Clause 18 Amendment of s 227 (Meaning of dispute) 12 Section 227(2), after `no'-- 13 insert-- 14 `respondent or'. 15 Clause 19 Replacement of s 229 (Exclusivity of dispute resolution 16 provisions) 17 Section 229-- 18 omit, insert-- 19 `229 Exclusivity of dispute resolution provisions 20 `(1) Subsections (2) and (3) apply to a dispute if it may be resolved 21 under this chapter by a dispute resolution process. 22 `(2) The only remedy for a complex dispute is-- 23 (a) the resolution of the dispute by-- 24 (i) an order of a specialist adjudicator under chapter 6; 25 or 26 (ii) an order of the CCT under the CCT Act; or 27

 


 

s 20 17 s 22 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (b) an order of the District Court on appeal from a specialist 1 adjudicator or the CCT on a question of law. 2 `(3) The only remedy for a dispute that is not a complex dispute 3 is-- 4 (a) the resolution of the dispute by a dispute resolution 5 process; or 6 (b) an order of the CCT on appeal from an adjudicator on a 7 question of law. 8 `(4) However, subsections (2) and (3) do not apply to a dispute 9 if-- 10 (a) an application is made to the commissioner; and 11 (b) the commissioner dismisses the application under part 5. 12 `(5) Subsection (3) does not affect a right, under section 289, to 13 appeal to the District Court on a question of law.'. 14 Clause 20 Amendment of s 230 (Structure of arrangements) 15 (1) Section 230(3), fifth dot point, `the Magistrate'-- 16 omit, insert-- 17 `a Magistrates'. 18 (2) Section 230(3), sixth dot point, after `Court'-- 19 insert-- 20 `and the CCT'. 21 Clause 21 Amendment of s 232 (Responsibilities) 22 Section 232-- 23 insert-- 24 `(6) Subsection (5) does not affect the exercise of a power by the 25 commissioner under section 239C or 294A(2)(a).'. 26 Clause 22 Amendment of s 233 (Practice directions) 27 (1) Section 233(1), after `for'-- 28

 


 

s 23 18 s 23 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 insert-- 1 `internal dispute resolution and'. 2 (2) Section 233(2), `Practice'-- 3 omit, insert-- 4 `Without limiting subsection (1), practice'. 5 (3) Section 233(3), after `for'-- 6 insert-- 7 `internal dispute resolution or'. 8 Clause 23 Replacement of s 236 (Appointment of dispute resolution 9 officers) 10 Section 236-- 11 omit, insert-- 12 `236 Appointment of dispute resolution officers 13 `(1) The chief executive must appoint appropriately qualified 14 persons as department conciliators and department 15 adjudicators (department appointees) for conducting the 16 dispute resolution service. 17 `(2) A department appointee-- 18 (a) is appointed under the Public Service Act 1996; and 19 (b) may hold the office of department appointee as well as 20 an appointment to perform another role under that Act; 21 and 22 (c) is appointed for conducting the dispute resolution 23 processes stated in the appointment for applications 24 referred to the department appointee. 25 `(3) Also, the chief executive may enter into a contract with an 26 appropriately qualified person under which the person-- 27 (a) agrees to provide department adjudication or department 28 conciliation; and 29 (b) is appointed as a department adjudicator for conducting 30 department adjudication, or as a department conciliator 31

 


 

s 24 19 s 24 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 for conducting department conciliation, for applications 1 referred to the person while the contract is in force. 2 `(4) A person appointed under subsection (3) is appointed under 3 this Act and not the Public Service Act 1996. 4 `(5) A person may be appointed under this section for conducting 5 both department conciliation and department adjudication. 6 7 Note-- 8 See, however, section 267(2). `(6) A person is appointed for specialist mediation, specialist 9 conciliation or specialist adjudication, in the way provided in 10 this chapter, only on a case by case basis. 11 12 Note-- 13 Part 7 deals with specialist mediation and conciliation and part 8 deals 14 with specialist adjudication. `(7) In this section-- 15 appropriately qualified, for appointment to conduct a dispute 16 resolution process, means having the qualifications, 17 experience or standing appropriate for conducting the dispute 18 resolution process.'. 19 Clause 24 Replacement of ss 238 and 239 20 Sections 238 and 239-- 21 omit, insert-- 22 `238 Who may make an application 23 `(1) A person, including the body corporate for a community titles 24 scheme, may make an application if the person-- 25 (a) is a party to, and is directly concerned with, a dispute to 26 which this chapter applies; and 27 (b) has made reasonable attempts to resolve the dispute by 28 internal dispute resolution. 29 `(2) This section is subject to sections 184 to 187. 30

 


 

s 24 20 s 24 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `239 How to make an application 1 `(1) An application must be-- 2 (a) made in the approved form; and 3 (b) given to the commissioner; and 4 (c) accompanied by the fee prescribed under a regulation, to 5 the extent the fee is not waived under subsection (3) or 6 (4). 7 `(2) If the application is for an outcome affecting owners or 8 occupiers of lots included in the scheme generally, or a 9 particular class of the owners or occupiers, the application 10 may identify the affected persons as the owners or occupiers 11 generally, or by reference to the class, instead of stating the 12 persons' names and addresses. 13 `(3) The commissioner may waive payment of the fee mentioned 14 in subsection (1)(c) if the commissioner is satisfied payment 15 of the fee would cause the applicant financial hardship. 16 `(4) Also, the commissioner may waive the fee mentioned in 17 subsection (1)(c)-- 18 (a) for a conciliation application--if the commissioner 19 rejected the applicant's adjudication application for the 20 same dispute under section 241(1)(c)(ii); or 21 (b) for an adjudication application--if the commissioner 22 rejected the applicant's conciliation application for the 23 same dispute under section 241(1)(b). 24 `239A Content of approved form for conciliation application 25 `The approved form for a conciliation application must 26 provide for each of the following matters to be stated in the 27 form-- 28 (a) the outcome sought by the application; 29 (b) the name and address of-- 30 (i) the respondent to the application; and 31 (ii) if neither paragraph (c) nor (d) applies--each 32 affected person for the application; 33

 


 

s 24 21 s 24 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (c) if the application is for an outcome affecting owners or 1 occupiers of lots included in a community titles scheme 2 generally--a statement to that effect; 3 (d) if the application is for an outcome affecting a particular 4 class of the owners or occupiers--a sufficient 5 identification of the affected persons for the application 6 by reference to the class; 7 (e) a brief summary of the background to the dispute; 8 (f) how the applicant has attempted to resolve the dispute 9 by internal dispute resolution. 10 `239B Content of approved form for adjudication 11 application 12 `The approved form for an adjudication application must 13 provide for each of the following matters to be stated in the 14 form-- 15 (a) the outcome sought by the application; 16 (b) the name and address of-- 17 (i) the respondent to the application; and 18 (ii) if neither paragraph (c) nor (d) applies--each 19 affected person for the application; 20 (c) if the application is for an outcome affecting owners or 21 occupiers of lots included in a community titles scheme 22 generally--a statement to that effect; 23 (d) if the application is for an outcome affecting a particular 24 class of the owners or occupiers--a sufficient 25 identification of the affected persons for the application 26 by reference to the class; 27 (e) the grounds, in detail, on which the outcome is sought; 28 (f) whether the applicant has attempted to resolve the 29 dispute by either or both of the following-- 30 (i) internal dispute resolution; 31 (ii) department conciliation. 32

 


 

s 25 22 s 25 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `239C Continuation of application if standing of party 1 changes 2 `(1) This section applies if a party to an application stops being a 3 relevant person for the application before it is disposed of 4 under this chapter. 5 `(2) Unless someone else is substituted as the relevant person 6 under subsection (3), the application continues subject to this 7 chapter as if the party continued to be the relevant person for 8 the application. 9 `(3) If the commissioner reasonably considers it appropriate, the 10 commissioner may, by written notice given to each party to 11 the application, substitute another person as the relevant 12 person for the application. 13 `(4) It is sufficient for giving a notice to a person under subsection 14 (3) if the notice is sent to the person's address that is last 15 known to the commissioner. 16 `(5) If a party to a conciliation application stops being a relevant 17 person for the application after it is made, the commissioner 18 may allow an adjudication application for the same dispute to 19 be made as if the party were the relevant person for the 20 adjudication application. 21 `(6) To remove any doubt, it is declared that nothing in this section 22 prevents-- 23 (a) the commissioner from rejecting an application under 24 section 241; or 25 (b) an adjudicator from making an order dismissing an 26 adjudication application under section 270.'. 27 Clause 25 Amendment of s 240 (Further information or material for 28 applications) 29 Section 240(1), example-- 30 omit, insert-- 31 32 `Examples-- 33 1 The commissioner may require the application to be amended to 34 more accurately identify respondents to, or affected persons for, the 35 application.

 


 

s 26 23 s 26 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 1 2 The commissioner may require the applicant to give the 2 commissioner a copy of the applicant's correspondence to the 3 committee for the body corporate showing the applicant's attempts 4 to resolve the dispute by internal dispute resolution.'. Clause 26 Replacement of s 241 (Rejecting applications) 5 Section 241-- 6 omit, insert-- 7 `241 Rejecting application 8 `(1) The commissioner may reject an application if-- 9 (a) the outcome sought is not within the jurisdiction of a 10 dispute resolution officer; or 11 (b) for a conciliation application--the commissioner 12 considers the dispute is not appropriate for department 13 conciliation; or 14 (c) the commissioner reasonably believes the applicant has 15 not made a reasonable attempt to resolve the dispute 16 by-- 17 (i) for a conciliation application--internal dispute 18 resolution; or 19 (ii) for an adjudication application--internal dispute 20 resolution or department conciliation; or 21 (d) the applicant fails, without reasonable excuse, to comply 22 with a practice direction made under section 233 about 23 internal dispute resolution; or 24 (e) the applicant fails, without reasonable excuse, to comply 25 with a requirement of the commissioner under section 26 240(1) about the application; or 27 (f) the commissioner is satisfied-- 28 (i) a party to the application is no longer a person 29 mentioned in section 227(1) for the dispute the 30 subject of the application; and 31 (ii) the outcome sought by the application is no longer 32 relevant or required. 33

 


 

s 26 24 s 26 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(2) The commissioner may also reject an application if-- 1 (a) the commissioner-- 2 (i) reasonably considers the applicant does not wish to 3 proceed with the application; and 4 (ii) by written notice, informs the applicant that the 5 application may be rejected unless the applicant, 6 within 28 days after receiving the notice, advises 7 the commissioner that the applicant wishes to 8 proceed; and 9 (b) the applicant-- 10 (i) advises the commissioner that the applicant does 11 not wish to proceed; or 12 (ii) does not respond to the notice within the period 13 mentioned in subparagraph (a)(ii). 14 `(3) To remove any doubt, it is declared that the commissioner 15 may accept an application that the commissioner may reject 16 under subsection (1)(c) or (d) if the commissioner considers 17 the acceptance appropriate in the circumstances. 18 19 Examples of circumstances-- 20 · the application is for a declaratory order, or for authorisation for 21 emergency expenditure 22 · there is a threat of violence between the parties to the application `241A Applicant to be given notice of decision to reject 23 application 24 `If the commissioner decides to reject an application, the 25 commissioner must immediately give the applicant a written 26 notice stating-- 27 (a) the decision; and 28 (b) the reasons for the decision; and 29 (c) that the applicant may appeal against the decision to the 30 District Court within 6 weeks after the applicant 31 receives the notice.'. 32

 


 

s 27 25 s 28 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 Clause 27 Amendment of s 242 (Time limit on certain applications) 1 (1) Section 242, heading, after `certain'-- 2 insert-- 3 `adjudication'. 4 (2) Section 242(1) and (2), before `application'-- 5 insert-- 6 `adjudication'. 7 (3) Section 242-- 8 insert-- 9 `(2A) A person is taken to have complied with subsection (2) for a 10 dispute if the person made a conciliation application for the 11 same dispute within the time mentioned in the subsection for 12 the dispute.'. 13 (4) Section 242(3), before `application', first mention-- 14 insert-- 15 `adjudication'. 16 (5) Section 242(2A) and (3)-- 17 renumber as section 242(3) and (4). 18 Clause 28 Amendment of ch 6, pt 4, div 2 19 Chapter 6, part 4, division 2, before section 243-- 20 insert-- 21 `Subdivision 1 Conciliation application 22 `242A Referral to department conciliator 23 `If the commissioner accepts a conciliation application, the 24 commissioner must refer the application to a department 25 conciliator for department conciliation under the provisions of 26 this chapter applying to the conciliation. 27

 


 

s 29 26 s 30 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `Subdivision 2 Adjudication application 1 `242B Definition for sdiv 2 2 `In this subdivision-- 3 application means an adjudication application.'. 4 Clause 29 Amendment of s 243 (Notice to affected persons and 5 body corporate) 6 (1) Section 243, heading, from `affected'-- 7 omit, insert-- 8 `particular persons'. 9 (2) Section 243(1), `The'-- 10 omit, insert-- 11 `Subject to section 243A, the'. 12 (3) Section 243(1)(a) and (b)-- 13 renumber as section 243(1)(b) and (c). 14 (4) Section 243(1)-- 15 insert-- 16 `(a) the respondent to the application; and'. 17 Clause 30 Insertion of new s 243A 18 After section 243-- 19 insert-- 20 `243A Referral to dispute resolution officer in emergency 21 `(1) This section applies if the commissioner reasonably 22 considers-- 23 (a) an application should be immediately referred to a 24 dispute resolution officer because it relates to 25 emergency circumstances; and 26

 


 

s 31 27 s 33 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 1 Example of emergency circumstances-- 2 a burst water pipe the repair or replacement cost of which 3 exceeds the body corporate committee's expenditure limit under 4 the regulation module applying to the scheme (b) it is not appropriate to deal with the application under 5 section 247. 6 `(2) The commissioner may immediately refer the application to a 7 dispute resolution officer without giving written notice as 8 mentioned in section 243(1).'. 9 Clause 31 Amendment of s 245 (Change or withdrawal of 10 application) 11 Section 245(2), example, before `affected'-- 12 insert-- 13 `respondent, each'. 14 Clause 32 Amendment of s 246 (Inspection of applications and 15 submissions) 16 Section 246(3), definition interested person, paragraph (a), 17 after `applicant'-- 18 insert-- 19 `, the respondent'. 20 Clause 33 Replacement of s 247 (Referral to adjudicator for possible 21 interim order) 22 Section 247-- 23 omit, insert-- 24 `247 Referral of application for interim order 25 `(1) This section applies if the commissioner reasonably considers 26 that an application for an interim order should be referred to a 27 conciliator or an adjudicator because of the nature or urgency 28 of the circumstances to which the application relates. 29 `(2) The commissioner may refer the application to-- 30

 


 

s 34 28 s 35 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (a) a department conciliator for department conciliation; or 1 (b) an adjudicator for adjudication under this chapter. 2 `(3) The referral may be made even though-- 3 (a) notice of the application has not been given under 4 section 243; or 5 (b) all persons entitled, under that section, to make 6 submissions about the application have not had an 7 opportunity to make submissions.'. 8 Clause 34 Amendment of s 248 (Dispute resolution 9 recommendation) 10 (1) Section 248(3)(a) to (e)-- 11 renumber as section 248(b) to (f). 12 (2) Section 248(3)-- 13 insert-- 14 `(a) department conciliation;'. 15 (3) Section 248-- 16 insert-- 17 `(5) If an application for an interim order has been referred back to 18 the commissioner under section 279(4), the commissioner 19 may make a dispute resolution recommendation that the 20 application be the subject of department conciliation without 21 giving written notice as mentioned in section 243(1).'. 22 Clause 35 Amendment of s 250 (Dismissing application) 23 Section 250(3)-- 24 omit, insert-- 25 `(3) Also, for an adjudication application, the commissioner may 26 dismiss the application if-- 27 (a) the application is accompanied by an explanation why 28 the dispute the subject of the application should be dealt 29 with by a stated alternative process; and 30

 


 

s 36 29 s 36 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (b) the parties to the application agree that the dispute be 1 dealt with by the alternative process; and 2 (c) the commissioner is satisfied, having regard to the 3 nature of the dispute, that the dispute may be dealt with 4 by the alternative process. 5 `(4) If the commissioner dismisses the application, the 6 commissioner must give each party to the application a 7 certificate in the approved form evidencing the dismissal. 8 `(5) In this section-- 9 alternative process, for a dispute, means-- 10 (a) a process of a court or tribunal having jurisdiction to 11 deal with the dispute; or 12 (b) another process capable of dealing with the dispute and 13 binding the parties.'. 14 Clause 36 Amendment of s 251 (Preparation for making a dispute 15 resolution recommendation) 16 (1) Section 251(1)-- 17 omit, insert-- 18 `(1) Before deciding on a dispute resolution recommendation for 19 an application, or dismissing an application, the commissioner 20 may seek the views of each interested person, to the extent the 21 commissioner considers appropriate.'. 22 (2) Section 251(2), example-- 23 omit. 24 (3) Section 251(2)(a), `a party to the application'-- 25 omit, insert-- 26 `an interested person'. 27 (4) Section 251(2)(a)-- 28 insert-- 29 30 `Example-- 31 an engineering report'.

 


 

s 37 30 s 37 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (5) Section 251(6), after `fee'-- 1 insert-- 2 `, do either or both of the following'. 3 (6) Section 251(6)(a), `and'-- 4 omit. 5 (7) Section 251-- 6 insert-- 7 `(9) In this section-- 8 interested person means-- 9 (a) a party to the application; or 10 (b) an affected person; or 11 (c) the body corporate.'. 12 Clause 37 Insertion of new ch 6, pt 5A 13 Chapter 6-- 14 insert-- 15 `Part 5A Department conciliation 16 `252A Purpose of pt 5A 17 `The purpose of this part is to provide for department 18 conciliation to resolve disputes as quickly and with as little 19 formality and technicality as possible. 20 `252B Functions of department conciliator 21 `The functions of a department conciliator are-- 22 (a) to encourage the settlement of disputes by facilitating 23 and helping the conduct of negotiations between parties 24 to applications; and 25 (b) to promote the parties' open exchange of information 26 relevant to the dispute; and 27

 


 

s 37 31 s 37 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (c) to give the parties information about the operation of 1 this Act relevant to the dispute; and 2 (d) to help in the settlement of the dispute in any other way. 3 `252C Referral to department conciliator 4 `(1) This section applies if the commissioner-- 5 (a) decides under section 247 to refer an adjudication 6 application to a department conciliator for department 7 conciliation; or 8 (b) makes a recommendation under section 248 that an 9 adjudication application be the subject of department 10 conciliation. 11 `(2) The commissioner must refer the application to a department 12 conciliator as soon as practicable after making the decision or 13 recommendation. 14 `252D Starting department conciliation session 15 `(1) This section applies to a department conciliator to whom-- 16 (a) a conciliation application is referred under section 17 242A; or 18 (b) an adjudication application is referred under section 247 19 or 248. 20 `(2) Subject to subsection (3), the department conciliator must 21 start the department conciliation session as soon as practicable 22 after the referral. 23 `(3) If the application is a conciliation application that was not 24 accompanied by a fee required under section 239(1)(c), the 25 department conciliator may delay starting the conciliation 26 session until the fee is paid. 27 `252E Conduct of department conciliation session 28 `(1) The department conciliation session must be conducted-- 29

 


 

s 37 32 s 37 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (a) in the way the department conciliator considers 1 appropriate; and 2 (b) as quickly and with as little formality and technicality as 3 possible. 4 `(2) The department conciliator, as the department conciliator 5 considers appropriate, may accept written material from any 6 person and distribute written material to any person for the 7 purpose of the conciliation. 8 `(3) A person who is not a party to the application may attend and 9 take part in the department conciliation session if the 10 department conciliator is satisfied the person may help to 11 resolve the dispute. 12 `(4) A person may use an interpreter in a department conciliation 13 session. 14 `(5) Evidence of anything said or done about the dispute in a 15 department conciliation session is inadmissible in a 16 proceeding. 17 `(6) A department conciliation session may be terminated at any 18 time by the department conciliator. 19 `252F Representation by agent 20 `(1) A party to the application may be represented by an agent at 21 the department conciliation session if the department 22 conciliator approves and is satisfied an agent should be 23 permitted to help the conciliation process. 24 `(2) Subsection (1) does not stop the following from representing 25 the party mentioned-- 26 (a) if the party is a corporation under the Corporations 27 Act--an officer of the corporation; 28 (b) if the party is the body corporate for the community 29 titles scheme--not more than 2 individuals, each of 30 whom is an owner of a lot included in the community 31 titles scheme or a committee voting member; 32 (c) if the party is a corporate entity not mentioned in 33 paragraph (a) or (b)--an agent appointed by the entity. 34

 


 

s 37 33 s 37 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(3) The approval may be given without conditions or on the 1 conditions the department conciliator considers reasonable to 2 ensure no other party to the application is unfairly 3 disadvantaged by the agent appearing at the session. 4 `(4) If the approval is given on conditions, the party's entitlement 5 to be represented by an agent is subject to the agent 6 complying with the conditions. 7 `252G Further provision about representation by committee 8 voting member as agent 9 `(1) If the body corporate for the community titles scheme is a 10 party to the application, a committee voting member may be 11 appointed as an agent for the body corporate if authorised in 12 writing by a majority of the committee voting members. 13 `(2) The regulation module applying to the scheme, to the extent it 14 provides for a procedure for making the appointment, does not 15 apply to the appointment. 16 `(3) In acting as agent for the body corporate, the committee 17 voting member may do anything the committee may do under 18 the regulation module, unless the doing of the thing is limited 19 or prohibited by the committee voting member's 20 authorisation. 21 `(4) This section does not apply if representation of the body 22 corporate by an agent is a restricted issue for the committee 23 under the regulation module applying to the scheme. 24 `252H Referral back to commissioner 25 `(1) The department conciliator must refer the application back to 26 the commissioner if the conciliator considers there is no 27 further action he or she can take in the department conciliation 28 session because, for example-- 29 (a) a party to the application does not make reasonable 30 attempts to participate in the session; or 31 (b) a party to the application does not attend or withdraws 32 from the session; or 33 (c) no agreement is reached at the session; or 34

 


 

s 37 34 s 37 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (d) agreement is reached at the session; or 1 (e) the department conciliator reasonably believes the 2 matter is not appropriate for department conciliation. 3 `(2) In referring the application back to the commissioner under 4 subsection (1), the department conciliator must inform the 5 commissioner of the reason for the referral. 6 `(3) The department conciliator must give the applicant a 7 certificate signed by the conciliator stating-- 8 (a) that the application has been referred back to the 9 commissioner; and 10 (b) the reason for the referral. 11 `252I Agreement reached at department conciliation 12 session 13 `(1) An agreement reached at the department conciliation session 14 must be written and signed by each party to the application 15 and the department conciliator. 16 `(2) The department conciliator must give a copy of the signed 17 agreement to-- 18 (a) each party to the application; and 19 (b) the commissioner. 20 `(3) If there is an inconsistency between the agreement and this 21 Act, the agreement is ineffective to the extent of the 22 inconsistency. 23 `(4) Subject to section 252J(2), if each party to the application 24 consents, the department conciliator must refer the agreement 25 to the commissioner for referral to an adjudicator for a 26 consent order. 27 `(5) If the agreement is referred to the commissioner under 28 subsection (4), the commissioner must refer it to an 29 adjudicator for a consent order under section 276(5). 30

 


 

s 37 35 s 37 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `252J Particular agreements require committee ratification 1 etc. before referral to commissioner 2 `(1) This section applies if-- 3 (a) an agreement reached at the department conciliation 4 session is signed by a committee voting member 5 appointed as agent for the body corporate for the 6 community titles scheme under section 252G(1); and 7 (b) each party to the application consents to the agreement 8 being referred to an adjudicator for a consent order. 9 `(2) The agreement may be referred to the commissioner under 10 section 252I(4) only if, within 30 days after the agreement is 11 made, the body corporate gives the department conciliator 12 written notice stating that the committee-- 13 (a) has ratified the agreement; and 14 (b) has given a copy of the agreement to each lot owner; and 15 (c) has not received a notice of opposition to the agreement. 16 `(3) In this section-- 17 notice of opposition, to the agreement, means a notice 18 opposing the agreement signed by or for the owners of at least 19 one-half of the lots included in the scheme. 20 `252K Ending department conciliation 21 `(1) If an application is referred to the commissioner under section 22 252H(1), the commissioner must, by written notice given to 23 the applicant, end the department conciliation. 24 `(2) The notice must state that the department conciliation has 25 ended and the day on which it ended. 26 `252L Confidentiality 27 `(1) This section applies to a person who-- 28 (a) is, or has been, a department conciliator; and 29 (b) in that capacity acquired information under this part 30 about someone else. 31

 


 

s 38 36 s 39 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(2) The person must not disclose the information to anyone else. 1 Maximum penalty--20 penalty units. 2 `(3) Subsection (2) does not apply to the disclosure of information 3 about a person-- 4 (a) with the person's consent; or 5 (b) for statistical purposes, if the disclosure is made to a 6 public service employee in the department and does not 7 reveal the identity of the person; or 8 (c) for the purpose of the department conciliation session 9 during which the information was obtained; or 10 (d) if the disclosure is reasonably necessary because there is 11 a serious threat to personal property or safety; or 12 (e) for an investigation or proceeding for an offence against 13 this Act; or 14 (f) if the disclosure or giving of access is otherwise 15 required under an Act.'. 16 Clause 38 Amendment of s 263 (Purpose of pt 8) 17 Section 263(1)-- 18 omit, insert-- 19 `(1) The purpose of this part is to provide for the conditions under 20 which the commissioner may make a dispute resolution 21 recommendation that an application be the subject of 22 specialist adjudication.'. 23 Clause 39 Amendment of s 264 (Specialist adjudication by 24 agreement) 25 (1) Section 264, `Subject to section 265, the'-- 26 omit, insert-- 27 `The'. 28 (2) Section 264-- 29 insert-- 30

 


 

s 40 37 s 42 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(2) Subsection (1)(a) does not require the agreement of a party 1 who is a joined respondent. 2 `(3) In this section-- 3 joined respondent means a person who is joined as a 4 respondent to the application under section 48(3)(a).'. 5 Clause 40 Omission of s 265 (Specialist adjudication of particular 6 disputes) 7 Section 265-- 8 omit. 9 Clause 41 Amendment of s 266 (Purpose of pt 9) 10 (1) Section 266(a), `an order with the consent of all parties to the 11 application'-- 12 omit, insert-- 13 `a consent order'. 14 (2) Section 266(b)-- 15 omit. 16 (3) Section 266(c)-- 17 renumber as section 266(b). 18 Clause 42 Insertion of new s 266A 19 Chapter 6, part 9, division 1-- 20 insert-- 21 `266A Application of pt 9 to agreement referred for consent 22 order 23 `(1) The following provisions (the applied provisions) apply to an 24 agreement referred to an adjudicator under section 252I(5)-- 25 · section 270, other than section 270(1)(c), (3) and (4) 26 · sections 271, 273, 274 and 275 27

 


 

s 43 38 s 43 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 · section 276, other than section 276(4)(b) 1 · section 281. 2 `(2) Sections 269 and 285 also apply to the agreement. 3 `(3) The applied provisions apply to the agreement as if-- 4 (a) a reference in any of the applied provisions to the 5 application or an application were a reference to the 6 agreement; and 7 (b) a reference in sections 270, 274 and 281 to the applicant 8 were a reference to the applicant for the application that 9 resulted in the agreement; and 10 (c) a reference in sections 270, 271 and 273 to a party to an 11 application were a reference to a party to the application 12 that resulted in the agreement; and 13 (d) a reference in section 274 to the respondent were a 14 reference to the respondent for the application that 15 resulted in the agreement; and 16 (e) a reference in section 274(3) to an affected person were 17 a reference to an affected person for the application that 18 resulted in the agreement. 19 `(4) Also, section 270 applies to the agreement as if-- 20 (a) a reference in the section to dismissal of applications 21 were a reference to refusal of a consent order for the 22 agreement; and 23 (b) a reference in the section to an order dismissing the 24 application were a reference to an order refusing a 25 consent order for the agreement; and 26 (c) the reference in section 270(1)(e)(ii) to the outcome 27 sought by the application were a reference to the 28 agreement.'. 29 Clause 43 Amendment of s 267 (Referral to adjudicator for 30 specialist or department adjudication) 31 Section 267(2)-- 32 omit, insert-- 33

 


 

s 44 39 s 45 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(2) The adjudicator to whom an application is referred can not be 1 the person who conducted the department conciliation for the 2 dispute the subject of the application.'. 3 Clause 44 Amendment of s 269 (Investigation by adjudicator) 4 (1) Section 269(2)-- 5 renumber as section 269(3). 6 (2) Section 269-- 7 insert-- 8 `(2) Also, if an agreement is referred to an adjudicator under 9 section 252I(5), the adjudicator may investigate the agreement 10 to decide whether it would be appropriate to make a consent 11 order under section 276(5).'. 12 (3) Section 269(3), as renumbered, after `application'-- 13 insert-- 14 `or agreement'. 15 Clause 45 Amendment of s 270 (Dismissal of applications) 16 (1) Section 270(1)-- 17 insert-- 18 `(e) the adjudicator is satisfied-- 19 (i) a party to the application is no longer a person 20 mentioned in section 227(1) for the dispute the 21 subject of the application; and 22 (ii) the outcome sought by the application is no longer 23 relevant or required.'. 24 (2) Section 270(3)(a), from `the person' to `; and'-- 25 omit, insert-- 26 `all or any of the following for loss resulting from the 27 application-- 28 (i) the respondent to the application; 29

 


 

s 46 40 s 47 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (ii) the body corporate for the community titles 1 scheme; 2 (iii) an affected person; and'. 3 (3) Section 270(4), after `The'-- 4 insert-- 5 `total'. 6 Clause 46 Amendment of s 271 (Investigative powers of adjudicator) 7 (1) Section 271(1), example-- 8 omit. 9 (2) Section 271(1)(a), after `application,'-- 10 insert-- 11 `an affected person, the body corporate'. 12 (3) Section 271(1)(a)(i)-- 13 insert-- 14 15 `Example-- 16 an engineering report'. (4) Section 271(1)(b), after `application'-- 17 insert-- 18 `or an affected person'. 19 (5) Section 271(5), after `fee'-- 20 insert-- 21 `, do either or both of the following'. 22 (6) Section 271(5)(a), `and'-- 23 omit. 24 Clause 47 Amendment of s 273 (Representation by agent) 25 Section 273, after `application'-- 26

 


 

s 48 41 s 51 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 insert-- 1 `, an affected person or the body corporate'. 2 Clause 48 Amendment of s 274 (Notice of order to be given) 3 (1) Section 274(1)(b) and (c)-- 4 omit, insert-- 5 `(b) the respondent to the application; and 6 (c) the body corporate for the community titles scheme; 7 and'. 8 (2) Section 274(3), `affected person'-- 9 omit, insert-- 10 `owner or occupier'. 11 Clause 49 Amendment of s 276 (Orders of adjudicators) 12 Section 276(5), from `an order' to `conciliation'-- 13 omit, insert-- 14 `a consent order'. 15 Clause 50 Amendment of s 277 (Order may be made if party fails to 16 attend to be interviewed) 17 (1) Section 277, heading, `party'-- 18 omit, insert-- 19 `person'. 20 (2) Section 277, `party to the application'-- 21 omit, insert-- 22 `person'. 23 Clause 51 Replacement of s 280 (Costs of specialist adjudication) 24 Section 280-- 25 omit, insert-- 26

 


 

s 52 42 s 54 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `280 Order for payment of application fees 1 `(1) This section applies if-- 2 (a) the applicant for an adjudication application made a 3 conciliation application for the same dispute; and 4 (b) the respondent to the adjudication application was the 5 respondent to the conciliation application; and 6 (c) the commissioner ended the conciliation application 7 under section 252K because the respondent failed, 8 without reasonable excuse, to participate in the 9 department conciliation. 10 `(2) If asked by the applicant, the adjudicator may order the 11 respondent to pay to the applicant the amount paid by the 12 applicant under section 239(1)(c) as fees for the conciliation 13 application and adjudication application.'. 14 Clause 52 Amendment of s 286 (Enforcement of orders for payment 15 of amounts) 16 Section 286(1)(a)-- 17 omit, insert-- 18 `(a) a copy of an adjudicator's order for the payment of an 19 amount, certified by the commissioner as a copy of the 20 adjudicator's order;'. 21 Clause 53 Amendment of s 287 (Enforcement of other orders) 22 Section 287(1)(a)-- 23 omit, insert-- 24 `(a) a copy of an adjudicator's order, other than an order for 25 the payment of an amount, certified by the 26 commissioner as a copy of the adjudicator's order;'. 27 Clause 54 Amendment of s 288 (Failure to comply with adjudicator's 28 order) 29 (1) Section 288(2)(a), `the applicant'-- 30

 


 

s 55 43 s 56 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 omit, insert-- 1 `an applicant'. 2 (2) Section 288(2)(b) to (d)-- 3 renumber as section 288(2)(c) to (e). 4 (3) Section 288(2)-- 5 insert-- 6 `(b) a respondent to the application for the original order; 7 or'. 8 Clause 55 Insertion of new s 288A 9 Chapter 6, part 11-- 10 insert-- 11 `288A Definitions for pt 11 12 `In this part-- 13 appeal body means-- 14 (a) for an appeal about a complex dispute--the District 15 Court; or 16 (b) for an appeal about a dispute that is not a complex 17 dispute--the CCT. 18 order, for an application, includes a decision made under 19 section 242(4)(b) to refuse to waive noncompliance with the 20 time limits stated in section 242 for the application, whether 21 or not the decision is made by an order.'. 22 Clause 56 Amendment of s 289 (Right to appeal to District Court) 23 (1) Section 289, heading, after `Court'-- 24 insert-- 25 `or CCT'. 26 (2) Section 289(1)(b), `an order made with the consent of all 27 parties to the application'-- 28

 


 

s 57 44 s 57 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 omit, insert-- 1 `a consent order'. 2 (3) Section 289(1)(d) and (2)-- 3 omit, insert-- 4 `(d) the aggrieved person is-- 5 (i) for an order that is a decision mentioned in section 6 288A--an applicant; or 7 (ii) for another order-- 8 (A) an applicant; or 9 (B) a respondent to the application; or 10 (C) the body corporate for the community titles 11 scheme; or 12 (D) a person who, on an invitation under section 13 243 or 271(1)(c), made a submission about 14 the application; or 15 (E) an affected person for an application 16 mentioned in section 243A; or 17 (F) a person not otherwise mentioned in this 18 subparagraph against whom the order is 19 made. 20 `(2) The aggrieved person may appeal to the appeal body, but only 21 on a question of law.'. 22 Clause 57 Replacement of ss 290 and 291 23 Sections 290 and 291-- 24 omit, insert-- 25 `290 Appeal 26 `(1) An appeal to the appeal body must be started within 6 weeks 27 after the aggrieved person receives a copy of the order 28 appealed against. 29 `(2) However, the appeal body may allow the appeal to be started 30 at a later time on application by the aggrieved person. 31

 


 

s 57 45 s 57 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(3) If requested by the relevant official of the appeal body, the 1 commissioner must send to the relevant official copies of each 2 of the following-- 3 (a) the application for which the adjudicator's order was 4 made; 5 (b) the adjudicator's order; 6 (c) the adjudicator's reasons; 7 (d) other materials in the adjudicator's possession relevant 8 to the order. 9 `(4) When the appeal is finished, the relevant official must send to 10 the commissioner a copy of any decision or order of the 11 appeal body. 12 `(5) The commissioner must forward to the adjudicator all 13 material the adjudicator needs to take any further action for 14 the application, having regard to the decision or order of the 15 appeal body. 16 `(6) In this section-- 17 relevant official, of an appeal body, means-- 18 (a) for the District Court--the registrar of the District 19 Court; or 20 (b) for the CCT--the director of the registry under the CCT 21 Act. 22 `291 Stay of operation of order 23 `(1) The appeal body may stay the order appealed against to secure 24 the effectiveness of the appeal. 25 `(2) A stay-- 26 (a) may be given on conditions the appeal body considers 27 appropriate; and 28 (b) operates for the period stated by the appeal body; and 29 (c) may be revoked or amended by the appeal body. 30 `(3) The starting of an appeal affects the order appealed against, or 31 the carrying out of the order, only if it is stayed.'. 32

 


 

s 58 46 s 61 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 Clause 58 Amendment of s 292 (Referral back to commissioner) 1 Section 292, `court'-- 2 omit, insert-- 3 `appeal body'. 4 Clause 59 Amendment of s 293 (Hearing procedures) 5 (1) Section 293, heading-- 6 omit, insert-- 7 `293 Appeal procedure--District Court'. 8 (2) Section 293, `at the hearing for'-- 9 omit, insert-- 10 `for dealing with'. 11 (3) Section 293(a)-- 12 omit, insert-- 13 `the Uniform Civil Procedure Rules 1999; or'. 14 Clause 60 Insertion of new s 293A 15 After section 293-- 16 insert-- 17 `293A Appeal procedure--CCT 18 `(1) An appeal to the CCT is a proceeding for the CCT Act. 19 `(2) However, the CCT Act, sections 32, 33, 38, 45(3), 53 and 20 114(2)(a) and (b), do not apply to the appeal. 21 `(3) The procedure for dealing with the appeal is, to the extent it is 22 not dealt with in this part, to be in accordance with the CCT 23 Act.'. 24 Clause 61 Amendment of s 294 (Powers of District Court on appeal) 25 (1) Section 294, `District Court'-- 26

 


 

s 62 47 s 63 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 omit, insert-- 1 `appeal body'. 2 (2) Section 294(2), `court'-- 3 omit, insert-- 4 `appeal body'. 5 Clause 62 Insertion of new ch 6, pt 12, div 1 and div 2 heading 6 Chapter 6, part 12, before section 295-- 7 insert-- 8 `Division 1 Stay of applications and 9 proceedings 10 `294A Power to stay application and proceeding 11 `(1) This section applies if-- 12 (a) an application is made under this chapter; and 13 (b) a proceeding is started under the CCT Act for an order 14 of the CCT about a matter relating to the dispute the 15 subject of the application. 16 `(2) If agreed between the commissioner and the chairperson of 17 the CCT-- 18 (a) the commissioner may stay the application by written 19 notice given to the parties to the application, each 20 affected person and the body corporate; or 21 (b) the chairperson of the CCT may stay the proceeding by 22 written notice given to the parties to the proceeding. 23 `Division 2 Other matters'. 24 Clause 63 Amendment of s 295 (Replacing statement to be lodged 25 with registrar) 26 Section 295(1), `or the District Court'-- 27

 


 

s 64 48 s 66 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 omit, insert-- 1 `, the CCT or a court'. 2 Clause 64 Amendment of s 296 (Privilege) 3 Section 296(2)(a), (b)(i)(B) and (ii), (c)(ii) and (3)(a), before 4 `specialist', first mention in each case-- 5 insert-- 6 `department conciliation session,'. 7 Clause 65 Amendment of s 303 (Definitions for pt 1) 8 (1) Section 303, definitions aggrieved person, decision and 9 decision maker-- 10 omit. 11 (2) Section 303-- 12 insert-- 13 `aggrieved person, for a decision, means-- 14 (a) the applicant for the application for which the decision 15 was made; or 16 (b) for a decision substituting a person as a relevant person 17 for the application--the person who is the substitute. 18 decision means any of the following actions taken by the 19 commissioner on an application-- 20 (a) the rejection of the application; 21 (b) the withholding of permission to change the application; 22 (c) the imposition of conditions on permission to change 23 the application; 24 (d) the substitution of a person as a relevant person for the 25 application.'. 26 Clause 66 Insertion of new s 313A 27 After section 313-- 28

 


 

s 67 49 s 67 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 insert-- 1 `313A Application under ch 6 or CCT Act by group of lot 2 owners or occupiers 3 `(1) This section applies if a provision of this Act enables an 4 owner or occupier of a lot included in a community titles 5 scheme to apply-- 6 (a) under chapter 6 for the resolution of a dispute; or 7 (b) under the CCT Act for an order of the CCT for the 8 resolution of a dispute. 9 `(2) A group of owners or occupiers of lots included in the scheme 10 each of whom may make an application as mentioned in the 11 provision for resolution of a dispute arising out of the same or 12 similar facts or circumstances may make a joint application 13 for resolution of the dispute.'. 14 Clause 67 Insertion of new ch 8, pt 6 15 Chapter 8-- 16 insert-- 17 `Part 6 Transitional provisions for 18 Body Corporate and 19 Community Management and 20 Other Legislation Amendment 21 Act 2006 22 `357 Definition for pt 6 23 `In this part-- 24 amending Act means the Body Corporate and Community 25 Management and Other Legislation Amendment Act 2006. 26 `358 Existing applications for adjustment of lot entitlement 27 schedules 28 `(1) This section applies if an application for an order of the 29 District Court or a specialist adjudicator for the adjustment of 30

 


 

s 67 50 s 67 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 a lot entitlement schedule was made, but not disposed of, 1 before the commencement of this section (the 2 commencement). 3 `(2) The application is to be dealt with under this Act as if the 4 amending Act had not been enacted and previous section 5 48(9) applies in relation to an adjustment of a lot entitlement 6 schedule ordered by the court or specialist adjudicator. 7 `(3) In this section-- 8 previous section 48(9) means section 48(9) as in force 9 immediately before the commencement. 10 `359 Other existing applications 11 `(1) This section applies if an application for the resolution of a 12 dispute, other than an application for the adjustment of a lot 13 entitlement schedule, was made under chapter 6, but not 14 disposed of, before the commencement of this section. 15 `(2) The application is to be dealt with under this Act as if the 16 amending Act had not been enacted. 17 `360 Existing appeals 18 `(1) This section applies if-- 19 (a) immediately before the commencement of this section 20 (the commencement), a person was entitled to appeal 21 under section 289 or 304 to the District Court but had 22 not started the appeal; or 23 (b) an appeal was started under section 289 or 304, but not 24 finished, before the commencement. 25 `(2) The appeal may be started or continued under this Act as if the 26 amending Act had not been enacted. 27 `361 Existing dispute resolution officers 28 `(1) This section applies to a person who, before the 29 commencement of new section 236, held an appointment as a 30 dispute resolution officer under previous section 236. 31

 


 

s 68 51 s 68 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(2) The person's appointment continues in force after the 1 commencement according to its terms and is taken to be an 2 appointment under new section 236. 3 `(3) In this section-- 4 new section 236 means section 236 as inserted by the Body 5 Corporate and Community Management and Other 6 Legislation Amendment Act 2006. 7 previous section 236 means section 236 as in force before the 8 commencement of new section 236. 9 `362 Application of code of conduct for existing committee 10 voting members 11 `(1) This section applies to a person who, before the 12 commencement of this section (the commencement)-- 13 (a) was a committee member for a community titles 14 scheme; and 15 (b) a voting member of the committee under the regulation 16 module applying to the scheme. 17 `(2) The code of conduct for committee voting members applies to 18 the person only in relation to acts done or omissions made 19 after the commencement.'. 20 Clause 68 Insertion of new sch 1A 21 After schedule 1-- 22 insert-- 23

 


 

s 68 52 s 68 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `Schedule 1A Code of conduct for committee 1 voting members 2 section 101B and definition code of conduct 3 `1 Commitment to acquiring understanding of Act, 4 including this code 5 `A committee voting member must have a commitment to 6 acquiring an understanding of this Act, including this code of 7 conduct, relevant to the member's role on the committee. 8 `2 Honesty, fairness and confidentiality 9 `(1) A committee voting member must act honestly and fairly in 10 performing the member's duties as a committee voting 11 member. 12 `(2) A committee voting member must not unfairly or 13 unreasonably disclose information held by the body corporate, 14 including information about an owner of a lot, unless 15 authorised or required by law to do so. 16 `3 Acting in body corporate's best interests 17 `A committee voting member must act in the best interests of 18 the body corporate in performing the member's duties as a 19 committee voting member, unless it is unlawful to do so. 20 `4 Complying with Act and this code 21 `A committee voting member must take reasonable steps to 22 ensure the member complies with this Act, including this 23 code, in performing the member's duties as a committee 24 voting member. 25 `5 Nuisance 26 `A committee voting member must not-- 27

 


 

s 69 53 s 70 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (a) cause a nuisance on scheme land; or 1 (b) otherwise behave in a way that unreasonably affects a 2 person's lawful use or enjoyment of a lot or common 3 property. 4 `6 Conflict of interest 5 `A committee voting member must disclose to the committee 6 any conflict of interest the member may have in a matter 7 before the committee.'. 8 Clause 69 Amendment of sch 2 (Code of conduct for body corporate 9 managers and caretaking service contractors) 10 Schedule 2, section 2-- 11 insert-- 12 `(2) A body corporate manager must not attempt to unfairly 13 influence the outcome of an election for the body corporate 14 committee.'. 15 Clause 70 Amendment of sch 6 (Dictionary) 16 (1) Schedule 6, definitions affected person, aggrieved person, 17 application, code of conduct, decision maker, order and 18 parties-- 19 omit. 20 (2) Schedule 6-- 21 insert-- 22 `adjudication application means an application, other than a 23 conciliation application, made under chapter 6 for the 24 resolution of a dispute. 25 affected person, for an application, means a person, other than 26 a party to the application, who would be directly and 27 materially affected by the outcome sought by the application. 28 29 Examples-- 30 1 For an application by the owner of a lot in a community titles 31 scheme against the body corporate about a body corporate decision

 


 

s 70 54 s 70 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 1 relating to a service contract, the service contractor could be an 2 affected person. 3 2 For an application by the owner of a lot in a community titles 4 scheme against the body corporate about proposed body corporate 5 expenditure of a significant nature, other lot owners are likely to be 6 affected persons. 7 3 For an application by the owner of a lot in a community titles 8 scheme against the body corporate seeking waiver of a penalty for 9 late payment of a contribution, other lot owners are unlikely to be 10 affected persons. aggrieved person-- 11 (a) for chapter 6, part 11, see section 289(1)(c); or 12 (b) for chapter 7, part 1, see section 303. 13 appeal body, for chapter 6, part 11, see section 288A. 14 application-- 15 (a) for chapter 6, means-- 16 (i) generally, an adjudication application or a 17 conciliation application; and 18 (ii) for part 4, division 2, subdivision 2, see section 19 242B; or 20 (b) for chapter 7, part 1, see section 303. 21 CCT means the Commercial and Consumer Tribunal 22 established under the CCT Act. 23 CCT Act means the Commercial and Consumer Tribunal Act 24 2003. 25 code of conduct means-- 26 (a) for a committee voting member--the code in schedule 27 1A; or 28 (b) for a body corporate manager or caretaking service 29 contractor--the code in schedule 2; or 30 (c) for a letting agent--the code in schedule 3. 31 committee, for a body corporate, means a committee 32 established under this Act for the body corporate. 33 committee voting member see section 101B(1). 34

 


 

s 70 55 s 70 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 complex dispute means-- 1 (a) a matter for which an application mentioned in section 2 48 is, or may be, made; or 3 (b) a dispute mentioned in section 129, 133, 149A, 149B or 4 178. 5 conciliation application means an application made under 6 chapter 6, part 4 for the resolution of a dispute by department 7 conciliation. 8 consent order, for an application made under chapter 6, 9 means an order made with the consent of each party to the 10 application. 11 department adjudication means adjudication of a dispute 12 under chapter 6 by a department adjudicator. 13 department adjudicator means a person holding appointment 14 as a department adjudicator under section 236(1) or (3)(b). 15 department conciliation means conciliation of a dispute 16 under chapter 6 by a department conciliator. 17 department conciliation session includes action taken for 18 making arrangements for a department conciliation session or 19 in the follow-up of the session. 20 department conciliator means a person holding appointment 21 as a department conciliator under section 236(1) or (3)(b). 22 given, to the commissioner, in relation to an application or 23 submission mentioned in chapter 6, means the application or 24 submission is actually received by the commissioner. 25 internal dispute resolution means the resolution of a dispute 26 by the parties to the dispute using informal processes or the 27 community titles scheme's body corporate processes. 28 29 Examples-- 30 · by the parties communicating with each other 31 · by writing to the committee for the body corporate 32 · by presenting a motion for consideration at a general meeting of the 33 body corporate

 


 

s 70 56 s 70 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 made, to the commissioner, in relation to an application or 1 submission mentioned in chapter 6, means the application or 2 submission is actually received by the commissioner. 3 order, for an application under chapter 6 for the resolution of 4 a dispute, includes-- 5 (a) an order dismissing the application; and 6 (b) for chapter 6, part 11, see section 288A. 7 party, to an application, means the applicant or the respondent 8 to the application. 9 reasonably considers means considers on grounds that are 10 reasonable in all the circumstances. 11 relevant person, for an application, means a person 12 mentioned in section 227(1) as a party to the dispute the 13 subject of the application. 14 respondent, to an application, means-- 15 (a) for an application for an order mentioned in section 16 48-- 17 (i) the body corporate for the community titles 18 scheme to which the application relates; and 19 (ii) each owner of a lot who is joined as a respondent 20 to the application under section 48(3)(a); or 21 (b) for another application--the person against whom the 22 application is made. 23 specialist adjudication means adjudication of a dispute under 24 chapter 6 by a specialist adjudicator. 25 specialist adjudicator means a person to whom an application 26 is referred under section 267. 27 specialist conciliation means conciliation of a dispute under 28 chapter 6 by a specialist conciliator. 29 specialist conciliator means a person to whom an application 30 is referred under section 258 for specialist conciliation. 31 specialist mediation means mediation of a dispute under 32 chapter 6 by a specialist mediator. 33

 


 

s 70 57 s 70 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 specialist mediator means a person to whom an application is 1 referred under section 258 for specialist mediation.'. 2 (3) Schedule 6, definitions building format, deposit, dispute 3 resolution centre, guide dog, indefeasible title, lodge, plan of 4 subdivision, registered owner, registered proprietor, standard 5 format and volumetric format, after `see'-- 6 insert-- 7 `the'. 8 (4) Schedule 6, definition dispute resolution officer, before 9 `specialist mediator'-- 10 insert-- 11 `department conciliator,'. 12 (5) Schedule 6, definition dispute resolution process, paragraphs 13 (a) to (e)-- 14 renumber as paragraphs (b) to (f). 15 (6) Schedule 6, definition dispute resolution process-- 16 insert-- 17 `(a) department conciliation; or'. 18 (7) Schedule 6, definition termination issues, paragraph (b), 19 `scheme'-- 20 omit, insert-- 21 `scheme,'. 22

 


 

s 71 58 s 74 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 Part 3 Amendment of other Acts 1 Division 1 Amendment of Commercial and 2 Consumer Tribunal Act 2003 3 Clause 71 Act amended in div 1 4 This division amends the Commercial and Consumer Tribunal 5 Act 2003. 6 Clause 72 Amendment of s 33 (Defence and counterclaim) 7 Section 33(1)-- 8 insert-- 9 `(d) a matter under the Body Corporate and Community 10 Management Act 1997, section 48, 129, 133, 149A, 11 149B or 178.'. 12 Clause 73 Amendment of s 40 (Transfer of proceedings between 13 tribunal and the courts) 14 Section 40(1), `must'-- 15 omit, insert-- 16 `may'. 17 Clause 74 Amendment of sch 2 (Dictionary) 18 Schedule 2, definition empowering Act-- 19 omit, insert-- 20 `empowering Act means any of the following Acts-- 21 · the Architects Act 2002 22 · the Body Corporate and Community Management Act 23 1997 24 · the Building Act 1975 25

 


 

s 75 59 s 76 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 · the Building and Construction Industry Payments Act 1 2004 2 · the Domestic Building Contracts Act 2000 3 · the Gaming Machine Act 1991 4 · the Liquor Act 1992 5 · the Manufactured Homes (Residential Parks) Act 2003 6 · the Pest Management Act 2001 7 · the Plumbing and Drainage Act 2002 8 · the Professional Engineers Act 2002 9 · the Property Agents and Motor Dealers Act 2000 10 · the Queensland Building Services Authority Act 1991 11 · the Residential Services (Accreditation) Act 2002 12 · the Retirement Villages Act 1999 13 · the Tourism Services Act 2003 14 · the Wine Industry Act 1994.'. 15 Division 2 Amendment of Inala Shopping 16 Centre Freeholding Act 2006 17 Clause 75 Act amended in div 2 18 This division amends the Inala Shopping Centre Freeholding 19 Act 2006. 20 Clause 76 Amendment of s 30 (Payment of costs--adjustment of lot 21 entitlement schedule for subsidiary scheme) 22 (1) Section 30(4)-- 23 renumber as section 30(5). 24 (2) Section 30(3)-- 25 omit, insert-- 26

 


 

s 77 60 s 78 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 `(3) If the application is made before the commencement of the 1 Body Corporate and Community Management and Other 2 Legislation Amendment Act 2006, section 50 (the 3 commencement), subsection (2) applies despite the BCCM 4 Act, section 280 as in force immediately before the 5 commencement. 6 `(4) If the application is made after the commencement, 7 subsection (2) applies despite the BCCM Act, section 264 as 8 in force after the commencement.'. 9 Division 3 Amendment of Liquor Act 1992 10 Clause 77 Act amended in div 3 11 This division amends the Liquor Act 1992. 12 Clause 78 Insertion of new s 35 13 After section 34-- 14 insert-- 15 `35 Tribunal may give leave for appeal to be based on 16 new evidence in particular circumstances 17 `(1) This section applies despite section 34(1). 18 `(2) The tribunal may grant a party in a proceeding for an appeal 19 against a decision of the chief executive (the decision) leave to 20 present new evidence if the tribunal is satisfied-- 21 (a) the party did not know and could not reasonably be 22 expected to have known of the existence of the new 23 evidence before the decision; and 24 (b) the new evidence is relevant and likely to have affected 25 the decision if it had been before the chief executive 26 when the decision was made; and 27 (c) in the circumstances, it would be unfair not to allow the 28 party to present the new evidence. 29 `(3) If the tribunal gives leave under subsection (2), the tribunal 30 must-- 31

 


 

s 78 61 s 78 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 (a) adjourn the proceedings for a stated reasonable time to 1 allow the chief executive to reconsider the decision 2 together with the new evidence and to allow for further 3 submissions by affected persons; or 4 (b) if the tribunal considers it appropriate for the applicant 5 to make a new application, require the applicant to make 6 a new application to the chief executive. 7 `(4) In this section-- 8 new evidence means evidence that was not before the chief 9 executive when the decision was made.'. 10

 


 

62 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 Schedule Minor amendments of Body 1 Corporate and Community 2 Management Act 1997 3 section 3 4 1 Section 58(2), example, `prevail'-- 5 omit, insert-- 6 `prevails'. 7 2 Sections 122(3) and 271(1)(d)(iii), `title'-- 8 omit, insert-- 9 `titles'. 10 3 Section 228(1)(d), `engagements'-- 11 omit, insert-- 12 `engagement' 13 4 Section 228(1)(d), `authorisations'-- 14 omit, insert-- 15 `authorisation'. 16 5 Section 259(5), after `done'-- 17 insert-- 18 `about the dispute'. 19 6 Section 281(1), example, from `condition' to `owner,'-- 20 omit, insert-- 21 `condition. The adjudicator could'. 22

 


 

63 Body Corporate and Community Management and Other Legislation Amendment Bill 2006 Schedule (continued) 7 Section 305(2)(b), `decision maker for the decision'-- 1 omit, insert-- 2 `commissioner'. 3 8 Section 307(1)(a) and (3)(c) and 308, `decision maker'-- 4 omit, insert-- 5 `commissioner'. 6 9 Section 309(4), definition de facto relationship-- 7 omit. 8 10 Section 342, definition term limitation provision, 9 `exempted provision'-- 10 omit, insert-- 11 `exempted provisions'. 12 © State of Queensland 20067