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Queensland
Resorts and Other Acts
Amendment Bill 2009
Queensland
Resorts and Other Acts Amendment Bill
2009
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Part 2 Amendment of Iconic Queensland Places Act 2008
3 Act amended in pt 2 and schedule . . . . . . . . . . . . . . . . . . . . . . . . 18
4 Amendment of s 42 (Application of div 3). . . . . . . . . . . . . . . . . . . 18
Part 3 Amendment of Integrated Resort Development Act 1987
5 Act amended in pt 3 and schedule . . . . . . . . . . . . . . . . . . . . . . . . 19
6 Amendment of s 2 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7 Insertion of new s 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3A References to standard module . . . . . . . . . . . . . . . . . 19
8 Amendment of s 4 (Application for approval of scheme) . . . . . . . 19
9 Amendment of s 9 (Application for amendment of approved
scheme) ........................................ 20
10 Replacement of ss 10 and 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10 Members to be notified of proposed amendment. . . . 20
11 Requirements for application . . . . . . . . . . . . . . . . . . . 21
11 Amendment of s 12 (Minister to consider application) . . . . . . . . . 21
12 Insertion of new section 13A . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13A Minor variation of site boundaries . . . . . . . . . . . . . . . 22
13 Amendment of s 27 (The site) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14 Amendment of s 44 (Subdivision by building units or group titles
plan) ............................................ 23
15 Amendment of s 45 (Approval of building units or group titles
plan) ......................................... 24
Resorts and Other Acts Amendment Bill 2009
Contents
16 Amendment of s 59 (Subdivision of secondary lots within
residential precincts) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
17 Amendment of s 61 (Approval by local government) . . . . . . . . . . 24
18 Amendment of s 101 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . 24
19 Amendment of s 103 (Member's nominee) . . . . . . . . . . . . . . . . . 25
20 Amendment of s 106 (Meetings of primary thoroughfare body
corporate) .................................... 25
21 Amendment of s 113 (Miscellaneous powers of primary
thoroughfare body corporate). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
22 Amendment of s 116 (Duties of primary thoroughfare body
corporate) ........................................ 26
23 Amendment of s 123 (Constitution of executive committee) . . . . 26
24 Insertion of new s 123A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
123A Code of conduct for voting members of executive
committee ............................. 27
25 Amendment of s 124 (Vacation of office of member of executive
committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
26 Insertion of new s 126A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
126A Conflict of interest of executive committee member
[SM, s 53] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
27 Insertion of new ss 129A and 129B . . . . . . . . . . . . . . . . . . . . . . . 29
129A Protection of executive committee members from
liability ............................. 29
129B Protection of body corporate and executive
committee from liability for defamation . . . . . . . . . . . . 29
28 Amendment of s 130 (Primary thoroughfare body corporate
manager) ........................................ 31
29 Insertion of new pt 8, div 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Division 1A Proxies for principal bodies corporate at
general meetings of primary thoroughfare
bodies corporate
133A Application of div 1A. . . . . . . . . . . . . . . . . . . . . . . . . . 32
133B Appointment [SM, s 107] . . . . . . . . . . . . . . . . . . . . . . 32
133C Form of proxy [SM, s 108] . . . . . . . . . . . . . . . . . . . . . 32
133D Use of proxy [SM, s 109] . . . . . . . . . . . . . . . . . . . . . . 33
133E Special provisions about proxy use [SM, s 110]. . . . . 34
133F Offence [SM, s 111] . . . . . . . . . . . . . . . . . . . . . . . . . . 35
30 Amendment of s 138 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . 35
31 Replacement of s 140 (Member's nominee). . . . . . . . . . . . . . . . . 35
140 Member's nominee . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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Resorts and Other Acts Amendment Bill 2009
Contents
140A When original owner can not be nominee for
subsidiary body corporate . . . . . . . . . . . . . . . . . . . . . 36
32 Amendment of s 143 (Meetings of principal body corporate). . . . 37
33 Amendment of s 148 (Miscellaneous powers of principal body
corporate) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
34 Amendment of s 151 (Duties of principal body corporate) . . . . . . 38
35 Amendment of s 158 (Constitution of executive committee) . . . . 38
36 Insertion of new s 158A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
158A Code of conduct for voting members of executive
committee ........................... 39
37 Amendment of s 159 (Vacation of office of member of executive
committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
38 Insertion of new s 161A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
161A Conflict of interest of executive committee member
[SM, s 53] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
39 Insertion of new ss 164A and 164B . . . . . . . . . . . . . . . . . . . . . . . 41
164A Protection of executive committee members from
liability ................................ 41
164B Protection of body corporate and executive
committee from liability for defamation . . . . . . . . . . . . 41
40 Amendment of s 165 (Principal body corporate manager). . . . . . 42
41 Insertion of new pt 8, divs 3A and 3B. . . . . . . . . . . . . . . . . . . . . . 43
Division 3A Proxies for general meetings of principal
bodies corporate
168A Application of div 3A. . . . . . . . . . . . . . . . . . . . . . . . . . 43
168B Appointment [SM, s 107] . . . . . . . . . . . . . . . . . . . . . . 44
168C Form of proxy [SM, s 108] . . . . . . . . . . . . . . . . . . . . . 44
168D Use of proxy [SM, s 109] . . . . . . . . . . . . . . . . . . . . . . 45
168E Special provisions about proxy use [SM, s 110]. . . . . 46
168F Offence [SM, s 111] . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Division 3B Accounts and audit
168G Application of div 3B. . . . . . . . . . . . . . . . . . . . . . . . . . 47
168H Accounts [SM, s 154] . . . . . . . . . . . . . . . . . . . . . . . . . 47
168I Audit [SM, s 155] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
42 Amendment of s 173 (Application of div 3 to expanded
principal body corporate) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
43 Insertion of new pt 8, div 5 and new pt 8A . . . . . . . . . . . . . . . . . . 50
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Resorts and Other Acts Amendment Bill 2009
Contents
Division 5 Removal from office of voting members of
executive committees for breach of code of
conduct
175A Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
175B Notice for breach of code of conduct [SM, s 34]. . . . . 50
175C Removal of voting member at general meeting
[SM, s 35] .............................. 51
Part 8A Conduct of body corporate managers, service
contractors and letting agents
Division 1 Preliminary
175D Definitions for pt 8A . . . . . . . . . . . . . . . . . . . . . . . . . . 52
175E Meaning of financier for a letting agent's contract . . . 53
175F Meaning of letting agent and letting agent business . 54
175G Meaning of service contractor for approved scheme
or part .............................. 55
Division 2 Codes of conduct
175H Code of conduct for body corporate manager and
caretaking service contractor . . . . . . . . . . . . . . . . . . . 55
175I Code of conduct for letting agent . . . . . . . . . . . . . . . . 56
Division 3 Required transfer of management rights for
contravention of code of conduct
Subdivision 1 Preliminary
175J Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
175K Effect of div 3 on other provisions . . . . . . . . . . . . . . . 57
Subdivision 2 Transfer of management rights
175L Code contravention notice . . . . . . . . . . . . . . . . . . . . . 57
175M Grounds for requiring transfer . . . . . . . . . . . . . . . . . . 58
175N Requirement for transfer. . . . . . . . . . . . . . . . . . . . . . . 58
175O Transfer--letting agent's choice of transferee. . . . . . . 58
175P Giving financier copy of transfer notice . . . . . . . . . . . 59
175Q Transfer--body corporate's choice of transferee . . . . 60
175R Terms of service contract on transfer . . . . . . . . . . . . . 61
Subdivision 3 Replacement of letting agent authorisation and
service contract
175S Replacement of letting agent authorisation and
service contract in particular circumstances . . . . . . . 61
Subdivision 4 Reviewing terms of letting agent's service
contract
175T Reviewing terms of service contract. . . . . . . . . . . . . . 63
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Resorts and Other Acts Amendment Bill 2009
Contents
175U Review criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
175V Giving copy of review advice to letting agent and
prospective buyer of management rights . . . . . . . . . . 64
Subdivision 5 Disputes about transfer of management rights
175W CCT jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Division 4 Disputes about contractual matters
175X CCT jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Division 5 Termination of appointment, engagement or
authorisation
175Y Termination for failure to comply with remedial
action notice [SM, s 131] . . . . . . . . . . . . . . . . . . . . . . 65
44 Amendment of s 177 (Minor non-compliance with
development control by-laws) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
45 Replacement of s 179A (Dealing with disputes). . . . . . . . . . . . . . 68
Division 1 Resolution of particular disputes
179A Dealing with particular disputes under Building
Units and Group Titles Act 1980 . . . . . . . . . . . . . . . . 68
179B Dealing with matter relating to development control
by-law .................................. 69
179C Internal dispute resolution processes to be used
before application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Division 2 Other matters
179D Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
46 Insertion of new pt 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Part 12 Transitional provisions for Resorts and Other
Acts Amendment Act 2009
Division 1 Preliminary
184 Definitions for pt 12. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Division 2 Bodies corporate
185 Existing number of committee members may
continue until effective day . . . . . . . . . . . . . . . . . . . . . 72
186 Deferred application of particular provisions . . . . . . . 72
187 Application of code of conduct for existing voting
members of executive committees . . . . . . . . . . . . . . . 73
188 Auditing accounts for first annual general meeting
after effective day . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
189 End of appointment of original owner of secondary
lot as nominee for subsidiary body corporate. . . . . . . 74
Division 3 Body corporate managers, service contractors
and letting agents
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190 Deferred application of particular provisions . . . . . . . 75
191 Application of code of conduct for existing
managers and contractors .............. 75
192 Application of code of conduct for existing letting
agents .............................. 76
193 Existing term of appointment for body corporate
manager ................................ 76
47 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 76
48 Insertion of new schs 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Schedule 2 Requirements for notices of proposed scheme
amendments
1 Requirements for placing notice on subject land . . . . 80
Schedule 3 Election of executive committee members of
body corporate
1 Definitions for sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 82
2 Election of members of executive committee
[SM, s 15] ............................ 82
3 Nomination procedures for election of executive
committee other than at first annual general meeting
[SM, s 16] ............................ 83
4 Requirements for nominations [SM, s 18] . . . . . . . . . 84
5 Conduct of elections for executive committee by
secret ballot [SM, s 21]. . . . . . . . . . . . . . . . . . . . . . . . 85
6 Conduct of elections for executive committee by
open ballot [SM, s 22]. . . . . . . . . . . . . . . . . . . . . . . . . 88
7 Election of ordinary members of executive
committee [SM, s 23] . . . . . . . . . . . . . . . . . . . . . . . . . 90
8 Conduct of ballot--general requirements [SM, s 24] . 90
9 Conduct of ballot--scrutiny of votes [SM, s 25] . . . . . 91
10 Conduct of ballot--deciding executive member
positions [SM, s 26] . . . . . . . . . . . . . . . . . . . . . . . . . . 92
11 Conduct of ballot--deciding ordinary member
positions [SM, s 27] . . . . . . . . . . . . . . . . . . . . . . . . . . 93
12 Conduct of ballot--declaration of voting results
[SM, s 28] ............................. 95
Schedule 4 Code of conduct for voting members of
executive committees
1 Commitment to acquiring understanding of Act,
including this code ...................... 96
2 Honesty, fairness and confidentiality . . . . . . . . . . . . . 96
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3 Acting in best interests of body corporate and
persons with estate or interest in lots . . . . . . . . . . . . . 96
4 Complying with Act and this code . . . . . . . . . . . . . . . 97
5 Conflict of interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Schedule 5 Code of conduct for body corporate managers
and caretaking service contractors
1 Knowledge of Act, including code . . . . . . . . . . . . . . . 98
2 Honesty, fairness and professionalism . . . . . . . . . . . . 98
3 Skill, care and diligence . . . . . . . . . . . . . . . . . . . . . . . 98
4 Acting in body corporate's best interests . . . . . . . . . . 99
5 Keeping body corporate informed of developments . . 99
6 Ensuring employees comply with Act and code . . . . . 99
7 Fraudulent or misleading conduct . . . . . . . . . . . . . . . 99
8 Unconscionable conduct . . . . . . . . . . . . . . . . . . . . . . 99
9 Conflict of duty or interest. . . . . . . . . . . . . . . . . . . . . . 100
10 Goods and services to be supplied at competitive
prices ............................... 100
11 Body corporate manager to demonstrate keeping of
particular records ..................... 100
Schedule 6 Code of conduct for letting agents
1 Honesty, fairness and professionalism . . . . . . . . . . . . 101
2 Skill, care and diligence . . . . . . . . . . . . . . . . . . . . . . . 101
3 Acting in body corporate's and individual lot owner's
best interests ......................... 101
4 Ensuring employees comply with Act and code . . . . . 101
5 Fraudulent or misleading conduct . . . . . . . . . . . . . . . 102
6 Unconscionable conduct . . . . . . . . . . . . . . . . . . . . . . 102
7 Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
8 Goods and services to be supplied at competitive
prices .............................. 102
Part 4 Amendment of Liquor Act 1992
49 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
50 Amendment of s 9 (Ordinary trading hours) . . . . . . . . . . . . . . . . . 103
51 Amendment of s 12 (Exemptions) . . . . . . . . . . . . . . . . . . . . . . . . 103
52 Amendment of s 71B (Authority of industrial canteen licence). . . 105
53 Insertion of new pt 12, div 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Division 9 Transitional provision for Resorts and Other
Acts Amendment Act 2009
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296 Approved hours for commercial special facility licence 105
Part 5 Amendment of Mixed Use Development Act 1993
54 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
55 Amendment of s 79 (Lodgement of building units or group titles
plan) ........................................... 106
56 Amendment of s 80 (Approval of building units or group titles
plan) ......................................... 106
57 Amendment of s 101 (Subdivision by building units or group
titles plan) ........................................ 107
58 Amendment of s 102 (Approval of building units or group titles
plan) .......................................... 107
Part 6 Amendment of Sanctuary Cove Resort Act 1985
59 Act amended in pt 6 and schedule . . . . . . . . . . . . . . . . . . . . . . . . 107
60 Amendment of s 4 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . . 107
61 Insertion of new ss 4A4C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
4A Meaning of approved use for a zone . . . . . . . . . . . . . 112
4B Meaning of proposed use plan of the site or
adjacent site ......................... 113
4C References to standard module . . . . . . . . . . . . . . . . . 113
62 Amendment of s 5 (The site) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
63 Replacement of ss 7 and 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
7 Proposed use plan of the site. . . . . . . . . . . . . . . . . . . 114
64 Amendment of s 9 (Town planning provisions). . . . . . . . . . . . . . . 116
65 Amendment of s 10 (Initial subdivision within the site). . . . . . . . . 117
66 Amendment of s 12A (The adjacent site) . . . . . . . . . . . . . . . . . . . 118
67 Replacement of ss 12C and 12D . . . . . . . . . . . . . . . . . . . . . . . . . 119
12C Proposed use plan of the adjacent site . . . . . . . . . . . 119
68 Amendment of s 12E (Town planning provisions) . . . . . . . . . . . . 121
69 Amendment of s 12F (Initial subdivision within the adjacent site) 122
70 Insertion of new pt 2AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Part 2AA Amendments by application to Minister
12I Amendment applications . . . . . . . . . . . . . . . . . . . . . . 123
12J Members to be notified of proposed amendment. . . . 124
12K Requirements for application . . . . . . . . . . . . . . . . . . . 125
12L Minister to consider application . . . . . . . . . . . . . . . . . 126
12M Decision on application . . . . . . . . . . . . . . . . . . . . . . . 126
12N Minor variation of site boundaries . . . . . . . . . . . . . . . 126
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12O Approval of change of use for zone . . . . . . . . . . . . . . 127
12P Approval of amendment of relevant plan . . . . . . . . . . 128
71 Amendment of s 15 (Subdivision of secondary lots) . . . . . . . . . . 128
72 Amendment of s 15A (Plan of survey where variation of
boundary approved) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
73 Amendment of s 20 (Subdivision of land where wholly or partly
submerged) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
74 Amendment of s 21A (Subdivision of land outside residential
zones) .......................................... 130
75 Amendment of s 22 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . 131
76 Replacement of s 24 (Member's nominee). . . . . . . . . . . . . . . . . . 132
24 Member's nominee . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
24A When original owner can not be nominee for
subsidiary body corporate . . . . . . . . . . . . . . . . . . . . . 133
77 Amendment of s 27 (Meetings of principal body corporate). . . . . 134
78 Amendment of s 32 (Miscellaneous powers of principal body
corporate) ...................................... 134
79 Amendment of s 33 (Duties of principal body corporate) . . . . . . . 134
80 Amendment of s 41 (Constitution of executive committee) . . . . . 135
81 Insertion of new s 41A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
41A Code of conduct for voting members of executive
committee ........................... 136
82 Amendment of s 42 (Vacation of office of member of executive
committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
83 Insertion of new s 44A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
44A Conflict of interest of executive committee member
[SM, s 53] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
84 Amendment of s 47A (Principal body corporate manager) . . . . . 137
85 Insertion of new ss 47A and 47AA . . . . . . . . . . . . . . . . . . . . . . . . 138
47A Protection of executive committee members from
liability .............................. 138
47AA Protection of body corporate and executive
committee from liability for defamation . . . . . . . . . . . . 139
86 Insertion of new pt 3, divs 2B2D. . . . . . . . . . . . . . . . . . . . . . . . . 140
Division 2B Proxies for general meetings of principal body
corporate
47B Application of div 2B. . . . . . . . . . . . . . . . . . . . . . . . . . 140
47C Appointment [SM, s 107] . . . . . . . . . . . . . . . . . . . . . . 140
47D Form of proxy [SM, s 108] . . . . . . . . . . . . . . . . . . . . . 141
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47E Use of proxy [SM, s 109] . . . . . . . . . . . . . . . . . . . . . . 142
47F Special provisions about proxy use [SM, s 110]. . . . . 143
47G Offence [SM, s 111] . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Division 2C Accounts and audit
47H Application of div 2C. . . . . . . . . . . . . . . . . . . . . . . . . . 144
47I Accounts [SM, s 154] . . . . . . . . . . . . . . . . . . . . . . . . . 144
47J Audit [SM, s 155] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Division 2D Removal from office of voting members of
executive committee for breach of code of
conduct
47K Notice for breach of code of conduct [SM, s 34]. . . . . 146
47L Removal of voting member at general meeting
[SM, s 35] ............................ 147
87 Amendment of s 60 (Establishment of pedestrian mall) . . . . . . . . 148
88 Replacement of s 64A (Maintenance etc. of canals) . . . . . . . . . . 148
64A Maintenance etc. of canals. . . . . . . . . . . . . . . . . . . . . 148
89 Amendment of s 64B (Surrender of secondary thoroughfare as
canal) ........................................... 148
90 Amendment of s 65 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . 149
91 Amendment of s 67 (Member's nominee) . . . . . . . . . . . . . . . . . . 149
92 Amendment of s 70 (Meetings of primary thoroughfare body
corporate) ...................................... 150
93 Amendment of s 76 (Miscellaneous powers of primary
thoroughfare body corporate). . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
94 Amendment of s 77 (Duties of primary thoroughfare body
corporate) ....................................... 150
95 Amendment of s 85 (Constitution of executive committee) . . . . . 151
96 Insertion of new s 85A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
85A Code of conduct for voting members of executive
committee ........................... 152
97 Amendment of s 86 (Vacation of office of member of executive
committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
98 Insertion of new s 88A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
88A Conflict of interest of executive committee member
[SM, s 53] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
99 Amendment of s 91A (Primary thoroughfare body corporate
manager) ...................................... 154
100 Insertion of new ss 91A and 91AA . . . . . . . . . . . . . . . . . . . . . . . . 154
91A Protection of executive committee members from
liability .............................. 155
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Resorts and Other Acts Amendment Bill 2009
Contents
91AA Protection of body corporate and executive
committee from liability for defamation . . . . . . . . . . . . 155
101 Insertion of new pt 5, divs 2B and 2C. . . . . . . . . . . . . . . . . . . . . . 156
Division 2B Proxies for principal body corporate at general
meetings of primary thoroughfare body
corporate
91B Application of div 2B. . . . . . . . . . . . . . . . . . . . . . . . . . 156
91C Appointment [SM, s 107] . . . . . . . . . . . . . . . . . . . . . . 157
91D Form of proxy [SM, s 108] . . . . . . . . . . . . . . . . . . . . . 157
91E Use of proxy [SM, s 109] . . . . . . . . . . . . . . . . . . . . . . 158
91F Special provisions about proxy use [SM, s 110]. . . . . 159
91G Offence [SM, s 111] . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Division 2C Removal from office of voting members of
executive committee for breach of code of
conduct
91H Notice for breach of code of conduct [SM, s 34]. . . . . 160
91I Removal of voting member at general meeting
[SM, s 35] ............................ 161
102 Insertion of new pt 5A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Part 5A Conduct of body corporate managers, service
contractors and letting agents
Division 1 Preliminary
94A Definitions for pt 5A . . . . . . . . . . . . . . . . . . . . . . . . . . 162
94B Meaning of financier for a letting agent's contract . . . 163
94C Meaning of letting agent and letting agent business . 164
94D Meaning of service contractor for resort or part . . . . . 164
Division 2 Codes of conduct
94E Code of conduct for body corporate manager and
caretaking service contractor . . . . . . . . . . . . . . . . . . . 165
94F Code of conduct for letting agent . . . . . . . . . . . . . . . . 166
Division 3 Required transfer of management rights for
contravention of code of conduct
Subdivision 1 Preliminary
94G Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
94H Effect of div 3 on other provisions . . . . . . . . . . . . . . . 166
Subdivision 2 Transfer of management rights
94I Code contravention notice . . . . . . . . . . . . . . . . . . . . . 167
94J Grounds for requiring transfer . . . . . . . . . . . . . . . . . . 167
94K Requirement for transfer. . . . . . . . . . . . . . . . . . . . . . . 168
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Resorts and Other Acts Amendment Bill 2009
Contents
94L Transfer--letting agent's choice of transferee. . . . . . . 168
94M Giving financier copy of transfer notice . . . . . . . . . . . 169
94N Transfer--body corporate's choice of transferee . . . . 169
94O Terms of service contract on transfer . . . . . . . . . . . . . 170
Subdivision 3 Replacement of letting agent authorisation and
service contract
94P Replacement of letting agent authorisation and
service contract in particular circumstances . . . . . . . 171
Subdivision 4 Reviewing terms of letting agent's service
contract
94Q Reviewing terms of service contract. . . . . . . . . . . . . . 172
94R Review criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
94S Giving copy of review advice to letting agent and
prospective buyer of management rights . . . . . . . . . . 174
Subdivision 5 Disputes about transfer of management rights
94T CCT jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Division 4 Disputes about contractual matters
94U CCT jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Division 5 Termination of appointment, engagement or
authorisation
94V Termination for failure to comply with remedial
action notice [SM, s 131] . . . . . . . . . . . . . . . . . . . . . . 175
103 Amendment of s 96 (Minor noncompliance with development
control by-laws) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
104 Amendment of s 97 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . 178
105 Amendment of s 102 (Construction of floating dwelling houses
and special dwelling houses) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
106 Amendment of s 103 (Application of laws of the State) . . . . . . . . 179
107 Replacement of s 104A (Dealing with disputes). . . . . . . . . . . . . . 179
Division 1 Resolution of particular disputes
104A Dealing with particular disputes under Building
Units and Group Titles Act 1980 . . . . . . . . . . . . . . . . 179
104B Dealing with matter relating to development control
by-law .................................. 180
104C Internal dispute resolution processes to be used
before application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Division 2 Other matters
104D Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
108 Insertion of new pt 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Page 12
Resorts and Other Acts Amendment Bill 2009
Contents
Part 10 Transitional provisions for Resorts and Other
Acts Amendment Act 2009
Division 1 Preliminary
113 Definitions for pt 10. . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Division 2 Changes to zones
114 References to proposed use plan of site . . . . . . . . . . 183
115 References to proposed use plan of adjacent site . . . 183
116 Former floating dwelling house zone . . . . . . . . . . . . . 183
117 Transitional amendment of initial plan of survey of
site to reflect new zone boundaries . . . . . . . . . . . . . . 184
118 Transitional amendment of initial plan of survey of
adjacent site to reflect new zone boundaries . . . . . . . 185
119 Transitional amendment of other plans of survey or
group title plans to reflect new zone boundaries . . . . 185
Division 3 Bodies corporate
120 Existing number of committee members may
continue until effective day . . . . . . . . . . . . . . . . . . . . . 186
121 Deferred application of particular provisions . . . . . . . 186
122 Application of code of conduct for existing voting
members of executive committees . . . . . . . . . . . . . . . 187
123 Auditing accounts for first annual general meeting
after evaluation day . . . . . . . . . . . . . . . . . . . . . . . . . . 187
124 End of appointment of original owner of secondary
lot as nominee for subsidiary body corporate. . . . . . . 187
Division 4 Body corporate managers, service contractors
and letting agents
125 Deferred application of particular provisions . . . . . . . 188
126 Application of code of conduct for existing
managers and contractors . . . . . . . . . . . . . . . . . . . . . 189
127 Application of code of conduct for existing letting
agents .............................. 189
128 Existing term of appointment for body corporate
manager ............................... 189
109 Amendment of sch A (Uses permitted within zones) . . . . . . . . . . 190
110 Replacement of schs BE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Schedule 1 Names of and uses for zones
Part 1 Names of zones
Part 2 Uses for zones
Part 3 Definitions of uses for zones
Page 13
Resorts and Other Acts Amendment Bill 2009
Contents
Schedule 2 Requirements for notices of proposed
amendments
1 Requirements for placing notice on subject land . . . . 194
Schedule 3 Election of executive committee members of
body corporate
1 Definitions for sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 195
2 Election of members of executive committee
[SM, s 15] ........................... 196
3 Nomination procedures for election of executive
committee other than at first annual general meeting
[SM, s 16] ............................. 196
4 Requirements for nominations [SM, s 18] . . . . . . . . . 197
5 Conduct of elections for executive committee by
secret ballot [SM, s 21]. . . . . . . . . . . . . . . . . . . . . . . . 198
6 Conduct of elections for executive committee by
open ballot [SM, s 22]. . . . . . . . . . . . . . . . . . . . . . . . . 201
7 Election of ordinary members of executive
committee [SM, s 23] . . . . . . . . . . . . . . . . . . . . . . . . . 203
8 Conduct of ballot--general requirements [SM, s 24] . 203
9 Conduct of ballot--scrutiny of votes [SM, s 25] . . . . . 204
10 Conduct of ballot--deciding executive member
positions [SM, s 26] . . . . . . . . . . . . . . . . . . . . . . . . . . 205
11 Conduct of ballot--deciding ordinary member
positions [SM, s 27] . . . . . . . . . . . . . . . . . . . . . . . . . . 206
12 Conduct of ballot--declaration of voting results
[SM, s 28] ............................. 208
Schedule 4 Code of conduct for voting members of
executive committees
1 Commitment to acquiring understanding of Act,
including this code . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
2 Honesty, fairness and confidentiality . . . . . . . . . . . . . 209
3 Acting in best interests of body corporate and
persons with estate or interest in lots . . . . . . . . . . . . . 209
4 Complying with Act and this code . . . . . . . . . . . . . . . 210
5 Conflict of interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Schedule 5 Code of conduct for body corporate managers
and caretaking service contractors
1 Knowledge of Act, including code . . . . . . . . . . . . . . . 211
2 Honesty, fairness and professionalism . . . . . . . . . . . . 211
3 Skill, care and diligence . . . . . . . . . . . . . . . . . . . . . . . 211
4 Acting in body corporate's best interests . . . . . . . . . . 212
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Resorts and Other Acts Amendment Bill 2009
Contents
5 Keeping body corporate informed of developments . . 212
6 Ensuring employees comply with Act and code . . . . . 212
7 Fraudulent or misleading conduct . . . . . . . . . . . . . . . 212
8 Unconscionable conduct . . . . . . . . . . . . . . . . . . . . . . 212
9 Conflict of duty or interest. . . . . . . . . . . . . . . . . . . . . . 213
10 Goods and services to be supplied at competitive
prices ............................. 213
11 Body corporate manager to demonstrate keeping of
particular records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Schedule 6 Code of conduct for letting agents
1 Honesty, fairness and professionalism . . . . . . . . . . . . 214
2 Skill, care and diligence . . . . . . . . . . . . . . . . . . . . . . . 214
3 Acting in body corporate's and individual lot owner's
best interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
4 Ensuring employees comply with Act and code . . . . . 214
5 Fraudulent or misleading conduct . . . . . . . . . . . . . . . 215
6 Unconscionable conduct . . . . . . . . . . . . . . . . . . . . . . 215
7 Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
8 Goods and services to be supplied at competitive
prices ............................. 215
Schedule 7 Zones of the site
Schedule 8 Zones of the adjacent site
Schedule 9 Dictionary
Schedule Minor and consequential amendments . . . . . . . . . . . . . . . . . . 219
Iconic Queensland Places Act 2008. . . . . . . . . . . . . . . . . . . . . . . 219
Integrated Resort Development Act 1987 . . . . . . . . . . . . . . . . . . 219
Sanctuary Cove Resort Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . 220
Page 15
2009
A Bill
for
An Act to amend the Iconic Queensland Places Act 2008, the
Integrated Resort Development Act 1987, the Liquor Act 1992,
the Mixed Use Development Act 1993 and the Sanctuary Cove
Resort Act 1985 for particular purposes
Resorts and Other Acts Amendment Bill 2009
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
Clause 1 Short title 3
This Act may be cited as the Resorts and Other Acts 4
Amendment Act 2009. 5
Clause 2 Commencement 6
The following provisions of this Act commence on a day to be 7
fixed by proclamation-- 8
(a) part 6; 9
(b) the schedule, to the extent it amends the Sanctuary Cove 10
Resort Act 1985. 11
Part 2 Amendment of Iconic 12
Queensland Places Act 2008 13
Clause 3 Act amended in pt 2 and schedule 14
This part and the schedule amend the Iconic Queensland 15
Places Act 2008. 16
Clause 4 Amendment of s 42 (Application of div 3) 17
Section 42, `development application for'-- 18
omit, insert-- 19
`development application, other than a building development 20
application, for'. 21
Page 18
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 5]
Part 3 Amendment of Integrated 1
Resort Development Act 1987 2
Clause 5 Act amended in pt 3 and schedule 3
This part and the schedule amend the Integrated Resort 4
Development Act 1987. 5
Clause 6 Amendment of s 2 (Definitions) 6
Section 2, `schedule 2'-- 7
omit, insert-- 8
`schedule 7'. 9
Clause 7 Insertion of new s 3A 10
Part 1-- 11
insert-- 12
`3A References to standard module 13
`(1) In this Act, the information included in square brackets after a 14
section heading is a reference to a similar section of the Body 15
Corporate and Community Management (Standard Module) 16
Regulation 2008. 17
`(2) The brackets and information do not form part of this Act.'. 18
Clause 8 Amendment of s 4 (Application for approval of scheme) 19
Section 4-- 20
insert-- 21
`(1B) For subsection (1A), to remove any doubt, it is declared that 22
an application under division 2 to amend an approved scheme 23
by varying the boundaries of the site of the approved scheme 24
is not an application for scheme approval.'. 25
Page 19
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 9]
Clause 9 Amendment of s 9 (Application for amendment of 1
approved scheme) 2
Section 9-- 3
insert-- 4
`(2) To remove any doubt, it is declared that an application may be 5
made under this division to amend an approved scheme by 6
varying the boundaries of the site of the approved scheme.'. 7
Clause 10 Replacement of ss 10 and 11 8
Sections 10 and 11-- 9
omit, insert-- 10
`10 Members to be notified of proposed amendment 11
`(1) Before making the application, the primary thoroughfare body 12
corporate must-- 13
(a) give a written notice to each of the members of the 14
primary thoroughfare body corporate and each of the 15
members of the principal body corporate stating-- 16
(i) the nature of the proposed amendment; and 17
(ii) a description of each lot to which the proposed 18
amendment relates; and 19
(iii) that a member may give the primary thoroughfare 20
body corporate written submissions about the 21
proposed amendment within a stated period (the 22
notification period) of at least 30 business days 23
after the notice is given; and 24
(b) place, on the subject land, a notice stating-- 25
(i) a brief summary of the nature of the proposed 26
amendment and each lot to which the amendment 27
relates; and 28
(ii) the notification period for giving written 29
submissions about the proposed amendment; and 30
Page 20
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 11]
(iii) the name and contact details of a person authorised 1
by the primary thoroughfare body corporate to give 2
information about the proposed amendment. 3
`(2) The notice under subsection (1)(b) must-- 4
(a) be of a type, and placed on the subject land in the way 5
required, under schedule 2; and 6
(b) remain on the subject land during the notification 7
period. 8
`11 Requirements for application 9
`The application must include-- 10
(a) a written statement confirming that-- 11
(i) a written notice was given to the members under 12
section 10(1)(a), including the days the notice was 13
given; and 14
(ii) a notice was placed on the subject land under 15
section 10(1)(b) and (2), including the period 16
during which the notice was on the land; and 17
(b) a copy of the notice given under section 10(1)(a); and 18
(c) all written submissions given to the primary 19
thoroughfare body corporate under section 10(1)(a)(iii); 20
and 21
(d) other matters, if any, the Minister considers necessary 22
for deciding the application.'. 23
Clause 11 Amendment of s 12 (Minister to consider application) 24
Section 12-- 25
insert-- 26
`(2) The Minister must give the Governor in Council-- 27
(a) the application; and 28
Page 21
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 12]
(b) a written notice stating details of the consultation, if any, 1
under subsection (1), including-- 2
(i) who the Minister consulted; and 3
(ii) the results of the consultation.'. 4
Clause 12 Insertion of new section 13A 5
After section 13-- 6
insert-- 7
`13A Minor variation of site boundaries 8
`(1) This section applies to an application to amend an approved 9
scheme by varying the boundaries of the site of the approved 10
scheme. 11
`(2) The Governor in Council may approve the amendment only 12
if-- 13
(a) the Governor in Council considers-- 14
(i) the proposed variation of the site boundaries is of a 15
minor nature; and 16
Example of a variation that may be of a minor nature-- 17
a variation of part of a site boundary to realign it with a 18
thoroughfare within the site 19
(ii) the total area of the site will not be materially 20
changed because of the variation; and 21
(b) neither the aggregate number of the lots nor the 22
aggregate voting entitlements under the approved 23
scheme will be changed because of the variation; and 24
(c) each affected land owner has given the owner's written 25
consent to the variation. 26
`(3) If the Governor in Council approves the amendment, section 8 27
applies to the local government and chief executive for 28
making an appropriate notation of the approved scheme as 29
amended as if the reference in that section to the approved 30
scheme were a reference to the approved scheme as amended. 31
Page 22
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 13]
`(4) In this section-- 1
affected land owner means the owner of land that-- 2
(a) is outside the site and is proposed under the amendment 3
application to be within the site; or 4
(b) is within the site and is proposed under the amendment 5
application to be outside the site.'. 6
Clause 13 Amendment of s 27 (The site) 7
(1) Section 27(1), `The site'-- 8
omit, insert-- 9
`Subject to subsection (2), the site'. 10
(2) Section 27(3), `subsection (2)'-- 11
omit, insert-- 12
`subsection (3)'. 13
(3) Section 27(2) to (4)-- 14
renumber as section 27(3) to (5). 15
(4) Section 27-- 16
insert-- 17
`(2) If the approved scheme is amended under part 2, division 2 by 18
varying the boundaries of the site, the site of the approved 19
scheme consists of all land within the boundaries of the site 20
set out in the approved scheme as amended.'. 21
Clause 14 Amendment of s 44 (Subdivision by building units or 22
group titles plan) 23
Section 44-- 24
insert-- 25
`(6) A group titles plan must also be accompanied by a diagram 26
showing the name and numbering, or proposed name and 27
numbering, of each road that is, or is to be, on the primary 28
Page 23
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 15]
thoroughfare, or the part of the primary thoroughfare, shown 1
on the plan.'. 2
Clause 15 Amendment of s 45 (Approval of building units or group 3
titles plan) 4
Section 45(1)(a)-- 5
insert-- 6
`(iii) the diagram mentioned in section 44(6); and'. 7
Clause 16 Amendment of s 59 (Subdivision of secondary lots within 8
residential precincts) 9
Section 59-- 10
insert-- 11
`(8) A group titles plan lodged under subsection (4) must also be 12
accompanied by a diagram showing the name and numbering, 13
or proposed name and numbering, of each road that is, or is to 14
be, on-- 15
(a) the primary thoroughfare, or part of the primary 16
thoroughfare, shown on the plan; and 17
(b) each secondary thoroughfare, or part of a secondary 18
thoroughfare, shown on the plan.'. 19
Clause 17 Amendment of s 61 (Approval by local government) 20
Section 61(1)(a), after `59(5)'-- 21
insert-- 22
`and the diagram mentioned in section 59(8)'. 23
Clause 18 Amendment of s 101 (Interpretation) 24
Section 101, definition special resolution, `special resolution 25
means'-- 26
omit, insert-- 27
Page 24
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 19]
`special resolution, for a general meeting of a primary 1
thoroughfare body corporate, means'. 2
Clause 19 Amendment of s 103 (Member's nominee) 3
(1) Section 103(1)(a), from `a body corporate' to `group titles 4
plan'-- 5
omit, insert-- 6
`a subsidiary body corporate'. 7
(2) Section 103-- 8
insert-- 9
`(4) A person appointed under this section by a subsidiary body 10
corporate must represent the subsidiary body corporate-- 11
(a) in the way the subsidiary body corporate directs; and 12
(b) subject to paragraph (a), in a way that is in the best 13
interests of the subsidiary body corporate.'. 14
Clause 20 Amendment of s 106 (Meetings of primary thoroughfare 15
body corporate) 16
Section 106(7), after `apply'-- 17
insert-- 18
`and the application of the Building Units and Group Titles 19
Act 1980, schedule 2, part 2 is subject to schedule 3 and 20
schedule 7, definition ordinary resolution'. 21
Clause 21 Amendment of s 113 (Miscellaneous powers of primary 22
thoroughfare body corporate) 23
Section 113-- 24
insert-- 25
`(f) employ staff to perform its functions.'. 26
Page 25
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 22]
Clause 22 Amendment of s 116 (Duties of primary thoroughfare 1
body corporate) 2
Section 116(1)(e)-- 3
omit, insert-- 4
`(e) keep-- 5
(i) for at least 10 years after their creation or receipt 6
by or for the primary thoroughfare body 7
corporate-- 8
(A) minutes of its meetings, including particulars 9
of motions passed at the meetings; and 10
(B) proper books of account for amounts 11
received or paid by the primary thoroughfare 12
body corporate showing the items for which 13
the amounts were received or paid; and 14
(ii) for at least 2 years after their creation or receipt by 15
or for the primary thoroughfare body corporate-- 16
voting tally sheets or other records showing votes 17
for motions and election ballots related to its 18
meetings; and'. 19
Clause 23 Amendment of s 123 (Constitution of executive 20
committee) 21
(1) Section 123(4), `3 members'-- 22
omit, insert-- 23
`5 members'. 24
(2) Section 123(5)-- 25
omit, insert-- 26
`(5) If there are more than 5 members of the primary thoroughfare 27
body corporate, the executive committee must consist of at 28
least 5 persons and not more than the number of members of 29
the primary thoroughfare body corporate, as decided by the 30
primary thoroughfare body corporate.'. 31
(3) Section 123(6), `(if any)'-- 32
Page 26
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 24]
omit. 1
(4) Section 123(6), `more than 3'-- 2
omit, insert-- 3
`more than 5'. 4
(5) Section 123(7)-- 5
omit, insert-- 6
`(6A) The election of the chairperson, secretary, treasurer and any 7
other members of the executive committee at a general 8
meeting of the primary thoroughfare body corporate must be 9
conducted under schedule 3. 10
`(7) A person is eligible for election as chairperson, secretary or 11
treasurer, or as another member of the executive committee, 12
only if the person-- 13
(a) is an individual who-- 14
(i) is a member of the primary thoroughfare body 15
corporate; or 16
(ii) has been nominated for election by a member of 17
the primary thoroughfare body corporate; and 18
(b) does not owe a relevant body corporate debt in relation 19
to a lot or lots owned by the person.'. 20
Clause 24 Insertion of new s 123A 21
After section 123-- 22
insert-- 23
`123A Code of conduct for voting members of executive 24
committee 25
`(1) The code of conduct in schedule 4 applies to each person (a 26
voting member) who is-- 27
(a) a member of the executive committee; and 28
(b) entitled to vote at general meetings of the primary 29
thoroughfare body corporate. 30
Page 27
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 25]
`(2) On becoming a voting member of the committee, the person is 1
taken to have agreed to comply with the code of conduct.'. 2
Clause 25 Amendment of s 124 (Vacation of office of member of 3
executive committee) 4
(1) Section 124(1)(i)-- 5
renumber as section 124(1)(j). 6
(2) Section 124(1)-- 7
insert-- 8
`(i) if the person is removed from office by ordinary 9
resolution of the primary thoroughfare body corporate 10
under division 5; or'. 11
Clause 26 Insertion of new s 126A 12
After section 126-- 13
insert-- 14
`126A Conflict of interest of executive committee member 15
[SM, s 53] 16
`(1) A member of the executive committee must disclose to a 17
meeting of the committee the member's direct or indirect 18
interest in an issue being considered, or about to be 19
considered, by the committee if the interest could conflict 20
with the appropriate performance of the member's duties 21
about the consideration of the issue. 22
`(2) If a member required under subsection (1) to disclose an 23
interest in an issue is a voting member of the executive 24
committee, the member is not entitled to vote on a motion 25
involving the issue. 26
`(3) A person who holds the proxy of a member of the executive 27
committee must disclose to a meeting of the executive 28
committee the proxy holder's direct or indirect interest in an 29
issue being considered, or about to be considered, by the 30
executive committee if the interest could conflict with the 31
Page 28
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 27]
appropriate performance of the proxy holder's duties about 1
the consideration of the issue. 2
`(4) A proxy holder required under subsection (3) to disclose an 3
interest in an issue must not vote as the proxy on a motion 4
involving the issue. 5
`(5) A person who holds the proxy of a member of the executive 6
committee must disclose to a meeting of the executive 7
committee the member's direct or indirect interest in an issue 8
being considered, or about to be considered, by the executive 9
committee if the proxy holder is aware that the member, if 10
present, would be required under subsection (1) to disclose 11
the interest. 12
`(6) A proxy holder required under subsection (5) to disclose an 13
interest in an issue must not vote as the proxy on a motion 14
involving the issue.'. 15
Clause 27 Insertion of new ss 129A and 129B 16
After section 129-- 17
insert-- 18
`129A Protection of executive committee members from 19
liability 20
`(1) A member of the executive committee is not civilly liable for 21
an act done or omission made in good faith and without 22
negligence in performing the person's role as a member of the 23
committee. 24
`(2) In this section-- 25
act done or omission made does not include the publication 26
of defamatory matter as mentioned in section 129B(1). 27
`129B Protection of body corporate and executive 28
committee from liability for defamation 29
`(1) This section applies if-- 30
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[s 27]
(a) the executive committee publishes required material for 1
a general meeting of the primary thoroughfare body 2
corporate; and 3
(b) the required material contains defamatory matter. 4
`(2) Each of the following is not liable for defamation because of 5
the publication-- 6
(a) the primary thoroughfare body corporate; 7
(b) the committee, or a member of the committee, other 8
than a member of the committee who submitted the 9
document containing the defamatory matter. 10
`(3) In this section-- 11
member of the committee includes the body corporate 12
manager acting under a delegation under section 130(2). 13
prescribed motion means any of the following-- 14
(a) a motion to give a member of the executive committee a 15
notice under section 175B(1); 16
(b) a motion mentioned in section 175C(2)(a) to remove a 17
member of the executive committee from office; 18
(c) a motion to give a letting agent a code contravention 19
notice; 20
(d) a motion to require a letting agent to transfer the letting 21
agent's management rights for an approved scheme or 22
part of an approved scheme under section 175N; 23
(e) a motion to terminate a person's appointment as a body 24
corporate manager, engagement as a service contractor 25
or authorisation as a letting agent under section 175Y. 26
required material, for a general meeting of the primary 27
thoroughfare body corporate, means any of the following 28
required under this Act to be published for the meeting-- 29
(a) a prescribed motion submitted other than by or for the 30
committee for the general meeting; 31
(b) the substance of a prescribed motion mentioned in 32
paragraph (a); 33
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(c) notice of a prescribed motion mentioned in paragraph 1
(a) or another document required to accompany the 2
motion, prepared by the submitter of the motion.'. 3
Clause 28 Amendment of s 130 (Primary thoroughfare body 4
corporate manager) 5
(1) Section 130(1), `subsection (3)'-- 6
omit, insert-- 7
`subsections (3), (5), (6) and (7)'. 8
(2) Section 130(6)-- 9
renumber as section 130(8). 10
(3) Section 130(5)-- 11
omit, insert-- 12
`(5) The term of appointment of the body corporate manager (after 13
allowing for any rights or options of extension or renewal, 14
whether provided for in the instrument of appointment or 15
subsequently agreed to) must not be longer than 3 years. 16
Example-- 17
The appointment of a body corporate manager begins on 1 January 2009 18
and is for a term of 3 years. The appointment can not end later than 31 19
December 2011. 20
`(6) If the term of appointment purports to be longer than 3 years, 21
it is taken to be 3 years. 22
`(7) To remove any doubt, it is declared that at the end of the term 23
of appointment of a person as the body corporate manager-- 24
(a) the appointment expires; and 25
(b) the person can not act again as the body corporate 26
manager without a new appointment.'. 27
Clause 29 Insertion of new pt 8, div 1A 28
Part 8-- 29
insert-- 30
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[s 29]
`Division 1A Proxies for principal bodies 1
corporate at general meetings of 2
primary thoroughfare bodies 3
corporate 4
`133A Application of div 1A 5
`This division applies to the appointment and use of a proxy to 6
represent a principal body corporate that is a member of a 7
primary thoroughfare body corporate at a general meeting of 8
the primary thoroughfare body corporate. 9
`133B Appointment [SM, s 107] 10
`(1) Subject to subsection (2), the principal body corporate may 11
appoint a proxy to act for the body corporate at the general 12
meeting. 13
`(2) The appointment of a proxy is effective only if the principal 14
body corporate or the holder of the proxy gives, by hand, post 15
or facsimile, a properly completed proxy form to the secretary 16
of the primary thoroughfare body corporate before-- 17
(a) the start of the meeting where the proxy is to be 18
exercised; or 19
(b) if the primary thoroughfare body corporate has fixed an 20
earlier time by which proxies must be given (that can 21
not, however, be earlier than 24 hours before the time 22
fixed for the meeting)--the earlier time. 23
`133C Form of proxy [SM, s 108] 24
`A proxy under this division-- 25
(a) must be in the approved form; and 26
(b) must be in the English language; and 27
(c) can not be irrevocable; and 28
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(d) can not be transferred by the holder of the proxy to a 1
third person; and 2
(e) lapses at the end of the primary thoroughfare body 3
corporate's financial year or at the end of a shorter 4
period stated in the proxy; and 5
(f) may be given by any person who has the right to vote at 6
a general meeting; and 7
(g) subject to the limitations contained in this division, may 8
be given to any individual; and 9
(h) must appoint a named individual. 10
`133D Use of proxy [SM, s 109] 11
`(1) A member of the primary thoroughfare body corporate who is 12
the proxy for the principal body corporate may vote both in 13
the member's own right and also as proxy of the principal 14
body corporate. 15
`(2) A vote by proxy must not be exercised on behalf of the 16
principal body corporate at the general meeting-- 17
(a) if the person appointed to represent the principal body 18
corporate under section 103(1) is personally present at 19
the meeting, unless the person consents at the meeting; 20
or 21
(b) on a particular motion, if a written or electronic vote has 22
been exercised on the motion on behalf of the principal 23
body corporate; or 24
(c) on a ballot for the election of a member of the executive 25
committee, or for otherwise choosing a member of the 26
executive committee; or 27
(d) for voting for a special resolution prohibiting, wholly or 28
partly, the use of proxies at executive committee 29
meetings or general meetings; or 30
(e) for voting for a majority resolution; or 31
(f) on a motion approving-- 32
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[s 29]
(i) the appointment, engagement or authorisation of a 1
person as the body corporate manager, a service 2
contractor or a letting agent; or 3
(ii) the amendment or termination of an appointment, 4
engagement or authorisation mentioned in 5
subparagraph (i); or 6
(g) on a motion decided by secret ballot. 7
`(3) A proxy may be exercised by-- 8
(a) the proxy holder voting in a show of hands at a general 9
meeting; or 10
(b) the proxy holder completing a written or electronic vote 11
on a motion before the start of, or at, the general 12
meeting. 13
`133E Special provisions about proxy use [SM, s 110] 14
`(1) The principal body corporate can not be prevented by contract 15
from exercising a vote at the general meeting, and can not be 16
required by contract to make someone else the body 17
corporate's proxy for voting at the general meeting. 18
`(2) A proxy can not be exercised for the principal body corporate 19
by-- 20
(a) the original owner of an initial lot or secondary lot; or 21
(b) a body corporate manager for-- 22
(i) the primary thoroughfare body corporate; or 23
(ii) the principal body corporate; or 24
(iii) a subsidiary body corporate of the primary 25
thoroughfare body corporate or principal body 26
corporate; or 27
(c) an associate of a person mentioned in paragraph (a) or 28
(b), unless the associate is 1 of the proprietors 29
constituting a subsidiary body corporate of the principal 30
body corporate. 31
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`133F Offence [SM, s 111] 1
`A person must not exercise a proxy, or otherwise purport to 2
vote on behalf of the principal body corporate, at the general 3
meeting of the primary thoroughfare body corporate knowing 4
that the person does not have the right to exercise the proxy or 5
otherwise vote on behalf of the principal body corporate. 6
Maximum penalty--100 penalty units.'. 7
Clause 30 Amendment of s 138 (Interpretation) 8
(1) Section 138-- 9
insert-- 10
`nominee, of a member of a principal body corporate, see 11
section 140(1).'. 12
(2) Section 138, definition special resolution, `special resolution 13
means'-- 14
omit, insert-- 15
`special resolution, for a general meeting of a principal body 16
corporate, means'. 17
Clause 31 Replacement of s 140 (Member's nominee) 18
Section 140-- 19
omit, insert-- 20
`140 Member's nominee 21
`(1) This section applies to a member of a principal body corporate 22
for appointing a person (a nominee) to represent and vote on 23
behalf of the member at meetings of the principal body 24
corporate. 25
`(2) A subsidiary body corporate of the principal body corporate-- 26
(a) must appoint a nominee at its annual general meeting; 27
and 28
(b) otherwise, may appoint a nominee from time to time. 29
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`(3) A member of the principal body corporate, other than a 1
subsidiary body corporate, may appoint a nominee from time 2
to time. 3
`(4) Subject to section 140A, a nominee appointed by a subsidiary 4
body corporate must be a member of the subsidiary body 5
corporate. 6
`(5) The appointment of a nominee has no effect until written 7
notice of the appointment is received by the secretary of the 8
principal body corporate. 9
`(6) A nominee appointed by a subsidiary body corporate must 10
represent the subsidiary body corporate-- 11
(a) in the way the subsidiary body corporate directs; and 12
(b) subject to subparagraph (a), in a way that is in the best 13
interests of the subsidiary body corporate. 14
`(7) The appointment of a nominee for a member ends when the 15
first of the following happens-- 16
(a) the end of 1 year after the appointment; 17
(b) the secretary of the principal body corporate receives 18
written notice of-- 19
(i) the cancellation of the nominee's appointment; or 20
(ii) the appointment of another nominee for the 21
member. 22
`(8) A written notice under subsection (5) or (7)(b) must be 23
signed-- 24
(a) for an appointment or cancellation made by a subsidiary 25
body corporate--by the chairperson and secretary of the 26
subsidiary body corporate; or 27
(b) otherwise--by the member. 28
`140A When original owner can not be nominee for 29
subsidiary body corporate 30
`(1) This section applies if more than 50% of the lots created by 31
the registration of a group titles plan or building units plan 32
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[s 32]
subdividing a secondary lot are no longer owned by the 1
original owner of the secondary lot. 2
`(2) The subsidiary body corporate created by the registration of 3
the plan can not appoint as its nominee-- 4
(a) the original owner; or 5
(b) an associate (an ineligible associate) of the original 6
owner who is not 1 of the proprietors constituting the 7
subsidiary body corporate. 8
`(3) If the original owner or an ineligible associate of the original 9
owner is already a nominee for the subsidiary body 10
corporate-- 11
(a) a general meeting of the subsidiary body corporate must 12
be held within 2 months; and 13
(b) if it is not sooner ended, the owner's or associate's 14
appointment as the nominee ends at the next general 15
meeting of the subsidiary body corporate.'. 16
Clause 32 Amendment of s 143 (Meetings of principal body 17
corporate) 18
Section 143(7), after `apply'-- 19
insert-- 20
`and the application of the Building Units and Group Titles 21
Act 1980, schedule 2, part 2 is subject to schedule 3 and 22
schedule 7, definition ordinary resolution'. 23
Clause 33 Amendment of s 148 (Miscellaneous powers of principal 24
body corporate) 25
Section 148-- 26
insert-- 27
`(e) employ staff to perform its functions.'. 28
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[s 34]
Clause 34 Amendment of s 151 (Duties of principal body corporate) 1
Section 151(1)(e)-- 2
omit, insert-- 3
`(e) keep-- 4
(i) for at least 10 years after their creation or receipt 5
by or for the principal body corporate-- 6
(A) minutes of its meetings, including particulars 7
of motions passed at the meetings; and 8
(B) proper books of account for amounts 9
received or paid by the principal body 10
corporate showing the items for which the 11
amounts were received or paid; and 12
(ii) for at least 2 years after their creation or receipt by 13
or for the principal body corporate--voting tally 14
sheets or other records showing votes for motions 15
and election ballots related to its meetings; and'. 16
Clause 35 Amendment of s 158 (Constitution of executive 17
committee) 18
(1) Section 158(4), `3 members'-- 19
omit, insert-- 20
`5 members'. 21
(2) Section 158(6)-- 22
omit, insert-- 23
`(6) If there are more than 5 members of the principal body 24
corporate, the executive committee must consist of at least 5 25
persons and not more than the number of members of the 26
principal body corporate, as decided by the principal body 27
corporate.'. 28
(3) Section 158(7), `(if any)'-- 29
omit. 30
(4) Section 158(7), `more than 3'-- 31
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[s 36]
omit, insert-- 1
`more than 5'. 2
(5) Section 158(8)-- 3
omit, insert-- 4
`(7A) The election of the chairperson, secretary, treasurer and any 5
other members of the executive committee at a general 6
meeting of the principal body corporate must be conducted 7
under schedule 3. 8
`(8) A person is eligible for election as chairperson, secretary or 9
treasurer, or as another member of the executive committee, 10
only if the person-- 11
(a) is an individual who is-- 12
(i) a member of the principal body corporate; or 13
(ii) a nominee of a member of the principal body 14
corporate; and 15
(b) does not owe a relevant body corporate debt in relation 16
to a lot or lots owned by the person.'. 17
Clause 36 Insertion of new s 158A 18
After section 158-- 19
insert-- 20
`158A Code of conduct for voting members of executive 21
committee 22
`(1) The code of conduct in schedule 4 applies to each person (a 23
voting member) who is-- 24
(a) a member of the executive committee; and 25
(b) entitled to vote at general meetings of the principal body 26
corporate. 27
`(2) On becoming a voting member of the executive committee, 28
the person is taken to have agreed to comply with the code of 29
conduct.'. 30
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[s 37]
Clause 37 Amendment of s 159 (Vacation of office of member of 1
executive committee) 2
(1) Section 159(1)(i)-- 3
renumber as section 159(1)(j). 4
(2) Section 159(1)-- 5
insert-- 6
`(i) if the person is removed from office by ordinary 7
resolution of the principal body corporate under division 8
5; or'. 9
Clause 38 Insertion of new s 161A 10
After section 161-- 11
insert-- 12
`161A Conflict of interest of executive committee member 13
[SM, s 53] 14
`(1) A member of the executive committee must disclose to a 15
meeting of the committee the member's direct or indirect 16
interest in an issue being considered, or about to be 17
considered, by the committee if the interest could conflict 18
with the appropriate performance of the member's duties 19
about the consideration of the issue. 20
`(2) If a member required under subsection (1) to disclose an 21
interest in an issue is a voting member of the committee, the 22
member is not entitled to vote on a motion involving the issue. 23
`(3) A person who holds the proxy of a member of the committee 24
must disclose to a meeting of the committee the proxy 25
holder's direct or indirect interest in an issue being 26
considered, or about to be considered, by the committee if the 27
interest could conflict with the appropriate performance of the 28
proxy holder's duties about the consideration of the issue. 29
`(4) A proxy holder required under subsection (3) to disclose an 30
interest in an issue must not vote as the proxy on a motion 31
involving the issue. 32
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[s 39]
`(5) A person who holds the proxy of a member of the committee 1
must disclose to a meeting of the committee the member's 2
direct or indirect interest in an issue being considered, or 3
about to be considered, by the committee if the proxy holder 4
is aware that the member, if present, would be required under 5
subsection (1) to disclose the interest. 6
`(6) A proxy holder required under subsection (5) to disclose an 7
interest in an issue must not vote as the proxy on a motion 8
involving the issue.'. 9
Clause 39 Insertion of new ss 164A and 164B 10
After section 164-- 11
insert-- 12
`164A Protection of executive committee members from 13
liability 14
`(1) A member of the executive committee is not civilly liable for 15
an act done or omission made in good faith and without 16
negligence in performing the person's role as a member of the 17
committee. 18
`(2) In this section-- 19
act done or omission made does not include the publication 20
of defamatory matter as mentioned in section 164B(1). 21
`164B Protection of body corporate and executive 22
committee from liability for defamation 23
`(1) This section applies if-- 24
(a) the executive committee publishes required material for 25
a general meeting of the principal body corporate; and 26
(b) the required material contains defamatory matter. 27
`(2) Each of the following is not liable for defamation because of 28
the publication-- 29
(a) the principal body corporate; 30
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[s 40]
(b) the committee, or a member of the committee, other 1
than a member of the committee who submitted the 2
document containing the defamatory matter. 3
`(3) In this section-- 4
member of the committee includes the body corporate 5
manager acting under a delegation under section 165(2). 6
prescribed motion means any of the following-- 7
(a) a motion to give a member of the executive committee a 8
notice under section 175B(1); 9
(b) a motion mentioned in section 175C(2)(a) to remove a 10
member of the executive committee from office; 11
(c) a motion to give a letting agent a code contravention 12
notice; 13
(d) a motion to require a letting agent to transfer the letting 14
agent's management rights for an approved scheme or 15
part of an approved scheme under section 175N; 16
(e) a motion to terminate a person's appointment as a body 17
corporate manager, engagement as a service contractor 18
or authorisation as a letting agent under section 175Y. 19
required material, for a general meeting of the principal body 20
corporate, means any of the following required under this Act 21
to be published for the meeting-- 22
(a) a prescribed motion submitted other than by or for the 23
executive committee for the general meeting; 24
(b) the substance of a prescribed motion mentioned in 25
paragraph (a); 26
(c) notice of a prescribed motion mentioned in paragraph 27
(a) or another document required to accompany the 28
motion, prepared by the submitter of the motion.'. 29
Clause 40 Amendment of s 165 (Principal body corporate manager) 30
(1) Section 165(1), `subsection (3)'-- 31
omit, insert-- 32
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[s 41]
`subsections (3), (5), (6) and (7)'. 1
(2) Section 165(6)-- 2
renumber as section 165(8). 3
(3) Section 165(5)-- 4
omit, insert-- 5
`(5) The term of appointment of the body corporate manager (after 6
allowing for any rights or options of extension or renewal, 7
whether provided for in the instrument of appointment or 8
subsequently agreed to) must not be longer than 3 years. 9
Example-- 10
The appointment of a body corporate manager begins on 1 January 2009 11
and is for a term of 3 years. The appointment can not end later than 31 12
December 2011. 13
`(6) If the term of appointment purports to be longer than 3 years, 14
it is taken to be 3 years. 15
`(7) To remove any doubt, it is declared that at the end of the term 16
of appointment of a person as the body corporate manager-- 17
(a) the appointment expires; and 18
(b) the person can not act again as the body corporate 19
manager without a new appointment.'. 20
Clause 41 Insertion of new pt 8, divs 3A and 3B 21
Part 8-- 22
insert-- 23
`Division 3A Proxies for general meetings of 24
principal bodies corporate 25
`168A Application of div 3A 26
`This division applies to the appointment and use of a proxy to 27
represent a member of a principal body corporate at a general 28
meeting of the principal body corporate. 29
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`168B Appointment [SM, s 107] 1
`(1) Subject to subsections (2) to (5), a person entitled to vote at 2
the general meeting may appoint a proxy to act for the person 3
at the general meeting. 4
`(2) The principal body corporate may by special resolution 5
prohibit the use of proxies-- 6
(a) for particular things described in the special resolution; 7
or 8
(b) altogether. 9
`(3) An appointment under subsection (1) has effect subject to the 10
operation of a special resolution under subsection (2). 11
`(4) A person must not hold-- 12
(a) if there are 20 or more lots for which there are voting 13
entitlements for the meeting--proxies greater in number 14
than 5% of the lots; or 15
(b) if there are fewer than 20 lots for which there are voting 16
entitlements for the meeting--more than 1 proxy. 17
`(5) The appointment of a proxy is effective only if the person or 18
the holder of the proxy gives, by hand, post or facsimile, a 19
properly completed proxy form to the secretary of the 20
principal body corporate before-- 21
(a) the start of the meeting where the proxy is to be 22
exercised; or 23
(b) if the principal body corporate has fixed an earlier time 24
by which proxies must be given (that can not, however, 25
be earlier than 24 hours before the time fixed for the 26
meeting)--the earlier time. 27
`168C Form of proxy [SM, s 108] 28
`A proxy under this division-- 29
(a) must be in the approved form; and 30
(b) must be in the English language; and 31
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(c) can not be irrevocable; and 1
(d) can not be transferred by the holder of the proxy to a 2
third person; and 3
(e) lapses at the end of the principal body corporate's 4
financial year or at the end of a shorter period stated in 5
the proxy; and 6
(f) may be given by any person who has the right to vote at 7
a general meeting; and 8
(g) subject to the limitations contained in this division, may 9
be given to any individual; and 10
(h) must appoint a named individual. 11
`168D Use of proxy [SM, s 109] 12
`(1) A member of the principal body corporate (member A) who is 13
the proxy for another member of the principal body corporate 14
(member B) may vote both in member A's own right and also 15
as proxy of member B. 16
`(2) If at least 1 co-owner of a lot is present at the meeting, a proxy 17
given by another co-owner of the lot is of no effect. 18
`(3) A vote by proxy must not be exercised at the general 19
meeting-- 20
(a) if the member who gave the proxy is personally present 21
at the meeting, unless the member consents at the 22
meeting; or 23
(b) on a particular motion, if the person who gave the proxy 24
has exercised a written or electronic vote on the motion; 25
or 26
(c) on a ballot for the election of a member of the executive 27
committee, or for otherwise choosing a member of the 28
executive committee; or 29
(d) for voting for a special resolution prohibiting, wholly or 30
partly, the use of proxies at executive committee 31
meetings or general meetings; or 32
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(e) for voting for a majority resolution; or 1
(f) on a motion approving-- 2
(i) the appointment, engagement or authorisation of a 3
person as the body corporate manager, a service 4
contractor or a letting agent; or 5
(ii) the amendment or termination of an appointment, 6
engagement or authorisation mentioned in 7
subparagraph (i); or 8
(g) on a motion decided by secret ballot. 9
`(4) A proxy may be exercised by-- 10
(a) the proxy holder voting in a show of hands at a general 11
meeting; or 12
(b) the proxy holder completing a written or electronic vote 13
on a motion before the start of, or at, the general 14
meeting. 15
`168E Special provisions about proxy use [SM, s 110] 16
`(1) A member of the principal body corporate can not be 17
prevented by contract from exercising a vote at the general 18
meeting, and can not be required by contract to make 19
someone else the member's proxy for voting at the general 20
meeting. 21
`(2) A proxy can not be exercised for someone else by-- 22
(a) the original owner of a secondary lot; or 23
(b) a body corporate manager for-- 24
(i) the primary thoroughfare body corporate; or 25
(ii) the principal body corporate; or 26
(iii) a subsidiary body corporate of the primary 27
thoroughfare body corporate or principal body 28
corporate; or 29
(c) an associate of a person mentioned in paragraph (a) or 30
(b), unless the associate is 1 of the proprietors 31
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[s 41]
constituting a subsidiary body corporate of the principal 1
body corporate. 2
`168F Offence [SM, s 111] 3
`A person must not exercise a proxy, or otherwise purport to 4
vote on behalf of another person, at the general meeting of the 5
principal body corporate knowing that the person does not 6
have the right to exercise the proxy or otherwise vote on 7
behalf of the other person. 8
Maximum penalty--100 penalty units. 9
`Division 3B Accounts and audit 10
`168G Application of div 3B 11
`This division applies to a principal body corporate for 12
preparing a statement of accounts under section 151(1)(f). 13
`168H Accounts [SM, s 154] 14
`(1) The statement of accounts may be prepared on a cash or 15
accrual basis. 16
`(2) If the accounts are prepared on a cash basis, they must include 17
disclosure of the following-- 18
(a) the total amounts paid to the fund established under 19
section 151(1)(i) and the account established under 20
section 151(1)(k); 21
(b) total contributions in arrears; 22
(c) balances for all financial institution accounts and 23
investments; 24
(d) all outstanding receipts and payments. 25
`(3) If the accounts are prepared on an accrual basis, they must 26
show the assets and liabilities of the principal body corporate 27
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at the end of the financial year for which the accounts are 1
prepared. 2
`(4) The statement of accounts must include-- 3
(a) the corresponding figures for the previous financial 4
year; and 5
(b) disclosure of all remuneration, allowances or expenses 6
paid to members of the executive committee, identifying 7
the total amounts paid to each member during the 8
financial year under the following categories-- 9
(i) remuneration or allowances; 10
(ii) expenses, split up into travelling, accommodation, 11
meal and other expenses. 12
`(5) A copy of the statement of accounts must accompany the 13
notice of the annual general meeting first happening after the 14
end of the financial year for which the accounts are prepared. 15
`168I Audit [SM, s 155] 16
`(1) The principal body corporate must have its statement of 17
accounts for each financial year of the body corporate audited 18
by an auditor. 19
`(2) The auditor to be appointed must be agreed to by ordinary 20
resolution of the principal body corporate. 21
`(3) The motion for agreeing to the auditor to be appointed-- 22
(a) must be included in the agenda for the general meeting 23
at which the motion is to be considered; and 24
(b) must include the name of the auditor proposed to be 25
appointed. 26
`(4) Also, the body corporate may, by ordinary resolution-- 27
(a) resolve to have its accounting records audited for a 28
particular period or a particular project; and 29
(b) appoint an auditor for the audit. 30
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`(5) A member of the executive committee, the body corporate 1
manager, or an associate of a member of the executive 2
committee or body corporate manager, can not be appointed 3
to audit the accounting records or the statement of accounts of 4
the principal body corporate. 5
`(6) On finishing an audit of the principal body corporate's 6
statement of accounts for a financial year, the auditor must 7
give a certificate-- 8
(a) stating whether the statement of accounts gives a true 9
and fair view of the principal body corporate's financial 10
affairs; and 11
(b) if the statement of accounts does not give a true and fair 12
view of the principal body corporate's financial 13
affairs--identifying the deficiencies in the statement. 14
`(7) A copy of the auditor's certificate must accompany the notice 15
of the next annual general meeting held after the certificate is 16
given. 17
`(8) In this section-- 18
auditor means-- 19
(a) a person who is a registered company auditor; or 20
(b) a person who-- 21
(i) is a member of-- 22
(A) CPA Australia and entitled to use the letters 23
`CPA' or `FCPA'; or 24
(B) the Institute of Chartered Accountants in 25
Australia and entitled to use the letters `CA' 26
or `FCA'; or 27
(C) the National Institute of Accountants and 28
entitled to use the letters `MNIA', `FNIA', 29
`PNA' or `FPNA'; and 30
(ii) has a total of 2 years auditing experience, whether 31
or not continuous.'. 32
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Clause 42 Amendment of s 173 (Application of div 3 to expanded 1
principal body corporate) 2
(1) Section 173, heading, `div 3'-- 3
omit, insert-- 4
`particular provisions'. 5
(2) Section 173, `Division 3 applies'-- 6
omit, insert-- 7
`Divisions 3, 3A, 3B and 5 apply'. 8
Clause 43 Insertion of new pt 8, div 5 and new pt 8A 9
Part 8-- 10
insert-- 11
`Division 5 Removal from office of voting 12
members of executive committees 13
for breach of code of conduct 14
`175A Application of div 5 15
`This division applies to a primary thoroughfare body 16
corporate or principal body corporate for removing a voting 17
member of its executive committee for a breach of the code of 18
conduct. 19
`175B Notice for breach of code of conduct [SM, s 34] 20
`(1) If the body corporate believes a voting member of its 21
executive committee has breached the code of conduct for the 22
member, the body corporate may decide, by ordinary 23
resolution, to give the member a written notice stating each of 24
the following-- 25
(a) that the body corporate believes the member has 26
breached a stated provision of the code of conduct; 27
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(b) details sufficient to identify the breach in not more than 1
600 words; 2
(c) that the member may give any other member of the body 3
corporate, within the stated period of at least 21 days 4
after the member is given the notice, a written response 5
to the notice in not more than 600 words; 6
(d) that, if asked by the member, the body corporate will 7
pay the member all postage charges and copying 8
expenses reasonably incurred by the member in giving a 9
written response under paragraph (c) to any other 10
member of the body corporate; 11
(e) that the body corporate is to consider a motion to 12
remove the member from office for the breach at the 13
next general meeting of the body corporate called after 14
the period mentioned in paragraph (c) ends. 15
`(2) If asked by the member, the body corporate must pay the 16
member all postage charges and copying expenses reasonably 17
incurred by the member in giving a written response under 18
subsection (1)(c) to any other member of the body corporate. 19
`175C Removal of voting member at general meeting 20
[SM, s 35] 21
`(1) This section applies if-- 22
(a) the body corporate gives a voting member of its 23
executive committee a notice under section 175B(1); 24
and 25
(b) the period mentioned in section 175B(1)(c) for the 26
notice has ended. 27
`(2) The body corporate must-- 28
(a) include on the agenda of the next general meeting of the 29
body corporate, called after the period mentioned in 30
section 175B(1)(c) ends, a motion to remove the 31
member from office for breaching the code of conduct; 32
and 33
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(b) attach to the agenda a copy of-- 1
(i) the notice; and 2
(ii) if the body corporate has received a response from 3
the member under section 175B(1)(c)--the 4
response. 5
`(3) The member may be removed from office, by ordinary 6
resolution of the body corporate, at the next general meeting. 7
`Part 8A Conduct of body corporate 8
managers, service contractors 9
and letting agents 10
`Division 1 Preliminary 11
`175D Definitions for pt 8A 12
`In this part-- 13
caretaking service contractor, for an approved scheme or part 14
of an approved scheme, means a service contractor for the 15
approved scheme or part who is also-- 16
(a) a letting agent for the approved scheme or part; or 17
(b) an associate of the letting agent. 18
letting agent authorisation, for a letting agent, means an 19
authorisation given by a primary thoroughfare body corporate 20
or principal body corporate to the letting agent to conduct a 21
letting agent business for an approved scheme or part of an 22
approved scheme. 23
management rights, of a letting agent for an approved scheme 24
or part of an approved scheme, means-- 25
(a) the letting agent business for the approved scheme or 26
part, including the letting agent's authorisation; and 27
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(b) the business conducted by the letting agent under a 1
service contract for the approved scheme or part, 2
including the service contract; and 3
(c) the letting agent's interest in a lot used for conducting a 4
business mentioned in paragraph (a) or (b); and 5
(d) any right of the letting agent to use and occupy a part of 6
the common property for a business mentioned in 7
paragraph (a) or (b). 8
reviewable terms, for a service contract, means the terms of 9
the contract that provide for-- 10
(a) the functions and powers of the relevant letting agent as 11
a service contractor; or 12
(b) the remuneration payable to the relevant letting agent as 13
a service contractor. 14
review advice, about a service contract, means written advice 15
about whether the contract's reviewable terms-- 16
(a) are currently fair and reasonable; and 17
(b) if the reviewable terms are not currently fair and 18
reasonable--how the reviewable terms should be 19
changed to ensure they are fair and reasonable. 20
service contract means a contract entered into with a person 21
for the engagement of the person as a service contractor for an 22
approved scheme or part of an approved scheme. 23
`175E Meaning of financier for a letting agent's contract 24
`(1) A person is a financier for a contract under which a letting 25
agent is authorised by a body corporate if the letting agent and 26
the person give written notice signed by each of them to the 27
body corporate that the person is a financier for the contract. 28
`(2) A person stops being a financier for the contract if the person 29
gives the body corporate a written notice withdrawing the 30
notice given under subsection (1). 31
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`(3) A notice under subsection (2) may be given without the letting 1
agent's agreement. 2
`(4) However, a person is a financier for the contract only if-- 3
(a) the person is a financial institution; or 4
(b) the person, in the ordinary course of the person's 5
business, supplies, or might reasonably be expected to 6
supply, finance for business acquisitions, using charges 7
over contracts as the whole or part of the person's 8
security for supplying the finance; or 9
(c) at the time the person supplied finance for a business 10
acquisition using a charge over the contract as the whole 11
or part of the person's security, the person was a person 12
to whom paragraph (b) would have applied. 13
`175F Meaning of letting agent and letting agent business 14
`(1) A person is a letting agent for an approved scheme or part of 15
an approved scheme if the person is authorised by the primary 16
thoroughfare body corporate or principal body corporate to 17
conduct a letting agent business for the approved scheme or 18
part. 19
`(2) A person conducts a letting agent business for an approved 20
scheme or part of an approved scheme if-- 21
(a) the person conducts, subject to the Property Agents and 22
Motor Dealers Act 2000, the business of acting as the 23
agent of the owners of 1 or more lots included in the 24
approved scheme or part; and 25
(b) the owners choose to use the person's services for 26
securing, negotiating or enforcing (including collecting 27
rents or tariffs for) leases or other occupancies of lots 28
included in the approved scheme or part. 29
`(3) It is not relevant to the identification of a person as a letting 30
agent under this section that the person also conducts an 31
ancillary business or other activity. 32
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Examples of ancillary businesses or activities-- 1
video hire, linen hire, agency for tour operator 2
`175G Meaning of service contractor for approved scheme 3
or part 4
`A person is a service contractor for an approved scheme or 5
part of an approved scheme if-- 6
(a) the person is engaged by the primary thoroughfare body 7
corporate or principal body corporate to supply services 8
to the body corporate for the benefit of the common 9
property or lots included in the approved scheme or part; 10
and 11
(b) the person is not an employee of the primary 12
thoroughfare body corporate or principal body 13
corporate; and 14
(c) the services do not include administrative services; and 15
(d) the term of the engagement is at least 1 year. 16
Examples of services that might be provided by a service contractor-- 17
caretaking services, pool cleaning services 18
`Division 2 Codes of conduct 19
`175H Code of conduct for body corporate manager and 20
caretaking service contractor 21
`(1) The code of conduct in schedule 5 applies to-- 22
(a) a body corporate manager appointed by a primary 23
thoroughfare body corporate or principal body corporate 24
in performing obligations under the person's 25
appointment; and 26
(b) a caretaking service contractor engaged by the primary 27
thoroughfare body corporate or principal body corporate 28
for an approved scheme or part of an approved scheme 29
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in performing obligations under the person's 1
engagement. 2
`(2) Compliance with the provisions of the code is taken to be a 3
condition of the instrument of appointment or the contract 4
providing for the person's engagement. 5
`(3) If there is an inconsistency between a provision of the code 6
and a provision in the instrument of appointment or contract, 7
the provision of the code prevails. 8
`(4) In this section-- 9
instrument of appointment, in relation to a person's 10
appointment as a body corporate manager, includes a contract 11
or other document relating to the appointment. 12
`175I Code of conduct for letting agent 13
`The code of conduct in schedule 6 applies to a letting agent 14
authorised by a primary thoroughfare body corporate or 15
principal body corporate to conduct a letting agent business 16
for an approved scheme or part of an approved scheme. 17
`Division 3 Required transfer of management 18
rights for contravention of code of 19
conduct 20
`Subdivision 1 Preliminary 21
`175J Application of div 3 22
`(1) This division applies for transferring the management rights 23
of a letting agent authorised by a primary thoroughfare body 24
corporate or principal body corporate to conduct a letting 25
agent business for an approved scheme or a part of an 26
approved scheme. 27
`(2) However, this division does not apply to a letting agent for 28
conducting a letting agent business or a part of a letting agent 29
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business for an approved scheme or part of an approved 1
scheme for which a serviced strata arrangement or scheme 2
under the Corporations Act is in operation. 3
`175K Effect of div 3 on other provisions 4
`The provisions of a letting agent authorisation or service 5
contract providing for its transfer or termination are void to 6
the extent the provisions are inconsistent with this division. 7
`Subdivision 2 Transfer of management rights 8
`175L Code contravention notice 9
`(1) The body corporate must, if required by an ordinary resolution 10
decided by secret ballot, give the letting agent a signed notice 11
under this section (a code contravention notice). 12
`(2) The code contravention notice must state-- 13
(a) that the body corporate believes the letting agent has 14
contravened, or is contravening, a provision of the code 15
of conduct for-- 16
(i) letting agents; or 17
(ii) body corporate managers and caretaking service 18
contractors; and 19
(b) the provision the body corporate believes has been, or is 20
being, contravened; and 21
(c) details sufficient to identify the contravention; and 22
(d) a reasonable period within which the letting agent must 23
remedy the contravention; and 24
(e) that the body corporate may, without further notice, give 25
the letting agent a transfer notice if-- 26
(i) the letting agent does not comply with the code 27
contravention notice; or 28
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(ii) the body corporate reasonably believes the letting 1
agent, after being given the notice, has contravened 2
a provision of a code mentioned in paragraph (a). 3
`175M Grounds for requiring transfer 4
`The body corporate may require the transfer of the letting 5
agent's management rights under this division only if the 6
requirement is based on either of the following grounds-- 7
(a) the letting agent failed to comply with a code 8
contravention notice; 9
(b) the body corporate reasonably believes the letting agent, 10
after being given the notice, contravened a provision of 11
the code of conduct for-- 12
(i) letting agents; or 13
(ii) body corporate managers and caretaking service 14
contractors. 15
`175N Requirement for transfer 16
`The letting agent must transfer the letting agent's 17
management rights for the approved scheme or part if-- 18
(a) a ground under section 175M exists for the body 19
corporate to require the transfer; and 20
(b) the body corporate-- 21
(i) by majority resolution decided by secret ballot 22
requires the transfer; and 23
(ii) gives written notice of the requirement (the 24
transfer notice) to the letting agent. 25
`175O Transfer--letting agent's choice of transferee 26
`(1) The letting agent must transfer the management rights-- 27
(a) within the following period after the transfer notice is 28
given to the letting agent-- 29
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(i) if section 175T does not apply--9 months; 1
(ii) if section 175T applies--11 months; and 2
(b) to a person, other than an associate of the letting agent, 3
chosen by the letting agent and approved by the body 4
corporate. 5
`(2) For deciding whether to approve a person under subsection 6
(1)(b), the body corporate-- 7
(a) must act reasonably and as quickly as practicable; and 8
(b) may have regard only to the person's-- 9
(i) character; and 10
(ii) financial standing; and 11
(iii) competence, qualifications and experience. 12
`(3) However, the body corporate must not-- 13
(a) unreasonably withhold approval of the person; or 14
(b) require or receive a fee or other consideration for 15
approving the person, other than reimbursement for 16
legal expenses reasonably incurred by the body 17
corporate in relation to a request for the approval. 18
Maximum penalty for subsection (3)--50 penalty units. 19
`(4) If the letting agent transfers the management rights to a person 20
who is not approved by the body corporate, the transfer is of 21
no effect. 22
`175P Giving financier copy of transfer notice 23
`When the body corporate gives the transfer notice to the 24
letting agent, the body corporate must give a copy of it to each 25
person who is a financier for the contract under which the 26
letting agent is authorised as the letting agent. 27
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`175Q Transfer--body corporate's choice of transferee 1
`(1) If the letting agent does not transfer the management rights as 2
required under section 175O, the letting agent must transfer 3
the management rights-- 4
(a) to a replacement letting agent chosen by the executive 5
committee of the body corporate and named in a written 6
notice given by the committee to the letting agent; and 7
(b) at the price stated in the notice; and 8
(c) within the period, of at least 2 months after the notice is 9
given, stated in the notice. 10
`(2) The price stated must be 1 of the following-- 11
(a) the average of 2 valuations, obtained by the body 12
corporate from 2 independent registered valuers, stating 13
the value of the management rights; 14
(b) the highest bid for the management rights, excluding a 15
bid by the letting agent or an associate of the letting 16
agent, made at an auction-- 17
(i) conducted at the request of the body corporate; and 18
(ii) of which at least 60 days notice was given; 19
(c) the highest amount tendered, excluding by tender by the 20
letting agent or an associate of the letting agent, for the 21
management rights after reasonable efforts made by the 22
body corporate to market the management rights for at 23
least 60 days. 24
`(3) The letting agent must pay the body corporate, from the 25
proceeds of the sale, the reasonable costs incurred by the body 26
corporate under subsection (2). 27
Note-- 28
If the letting agent does not transfer the management rights as required 29
under this section, it is a ground for giving the letting agent a remedial 30
action notice under section 175Y. 31
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`175R Terms of service contract on transfer 1
`(1) This section applies to a service contract (the transferred 2
service contract) transferred to a person (the transferee) 3
under section 175O or 175Q. 4
`(2) Unless the body corporate and transferee agree otherwise, the 5
terms of the transferred service contract are-- 6
(a) the terms applying to the service contract under 7
subsection (3); or 8
(b) if subsection (3) does not apply--the terms applying to 9
the service contract immediately before the transfer (the 10
existing terms). 11
`(3) The terms of the transferred service contract are the existing 12
terms as changed under a review advice about the contract 13
if-- 14
(a) the review advice states how the contract's reviewable 15
terms should be changed to ensure they are fair and 16
reasonable; and 17
(b) the body corporate gave the letting agent a copy of the 18
review advice as required under section 175V(1). 19
`Subdivision 3 Replacement of letting agent 20
authorisation and service contract 21
`175S Replacement of letting agent authorisation and 22
service contract in particular circumstances 23
`(1) This section applies if the remainder of the term of the letting 24
agent's authorisation (the transferred authorisation), 25
including any rights or options of extension or renewal, is less 26
than 7 years when transferred to a person (the transferee) 27
under this division. 28
Example-- 29
A letting agent's authorisation is given for a term of 5 years with 4 rights 30
of renewal of 5 years each and 5 years have expired. The remainder of 31
the term is therefore 20 years and this section does not apply. 32
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`(2) On the transfer-- 1
(a) the transferred authorisation and any service contract 2
(the transferred service contract) forming part of the 3
transferred management rights terminate; and 4
(b) the body corporate must-- 5
(i) authorise the transferee to conduct a letting agent 6
business for the approved scheme or part; and 7
(ii) if a service contract formed part of the transferred 8
management rights--engage the transferee as a 9
service contractor. 10
`(3) The authorisation and engagement must be given for a term of 11
9 years starting immediately after the transfer. 12
`(4) Subject to subsection (3)-- 13
(a) the authorisation must be given on the terms applying to 14
the transferred authorisation immediately before the 15
transfer; and 16
(b) unless the body corporate and transferee agree 17
otherwise, the engagement must be given on-- 18
(i) the terms applying to the transferred service 19
contract under subsection (5); or 20
(ii) if subsection (5) does not apply--the terms 21
applying to the transferred service contract 22
immediately before the transfer (the existing 23
terms). 24
`(5) The engagement must be given on the existing terms of the 25
transferred service contract as changed under a review advice 26
about the contract if-- 27
(a) the review advice states how the contract's reviewable 28
terms should be changed to ensure they are fair and 29
reasonable; and 30
(b) the body corporate gave the letting agent a copy of the 31
review advice as required under section 175V(1). 32
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`Subdivision 4 Reviewing terms of letting agent's 1
service contract 2
`175T Reviewing terms of service contract 3
`(1) This section applies if-- 4
(a) the letting agent's management rights include a service 5
contract; and 6
(b) when the body corporate passes the majority resolution 7
mentioned in section 175N, the body corporate also 8
passes, by ordinary resolution, a motion (a review 9
motion) that a review advice about the service contract 10
be obtained. 11
`(2) Within 1 month after the review motion is passed, the body 12
corporate must obtain the review advice from an independent 13
appropriate person. 14
Example of an independent appropriate person-- 15
a person who, in the ordinary course of the person's business, has 16
knowledge of the functions and powers of service contractors and the 17
remuneration for performing the functions and powers 18
`(3) The review advice must be based on the review criteria stated 19
in section 175U. 20
`(4) This section applies to the contract even if the contract also 21
provides for either or both of the following-- 22
(a) the letting agent's engagement as a body corporate 23
manager; 24
(b) the letting agent's authorisation as a letting agent. 25
`175U Review criteria 26
`(1) The review criteria are each of the following-- 27
(a) the appropriateness of the reviewable terms for 28
achieving a fair and reasonable balance between the 29
interests of the body corporate and the service 30
contractor; 31
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(b) whether the reviewable terms impose conditions that-- 1
(i) are unreasonably difficult to comply with; or 2
(ii) are not necessary and reasonable for the protection 3
of the legitimate interests of the body corporate or 4
the service contractor; 5
(c) the consequences of complying with, or contravening, 6
the reviewable terms and whether the consequences are 7
unfairly harsh or beneficial to the body corporate or the 8
service contractor; 9
(d) whether the reviewable terms are appropriate for the 10
approved scheme; 11
(e) the term of the engagement as service contractor and the 12
period of the term remaining. 13
`(2) The review criterion mentioned in subsection (1)(d) is to be 14
applied having regard, in particular, to the nature, features and 15
characteristics of the approved scheme. 16
`175V Giving copy of review advice to letting agent and 17
prospective buyer of management rights 18
`(1) Within 14 days after obtaining the review advice, the body 19
corporate must give a copy of it to the letting agent. 20
`(2) If requested by a prospective buyer of the letting agent's 21
management rights, the body corporate must give a copy of 22
the review advice to the prospective buyer. 23
`Subdivision 5 Disputes about transfer of 24
management rights 25
`175W CCT jurisdiction 26
`A dispute about the transfer, under this division, of a letting 27
agent's management rights may be dealt with by the 28
Commercial and Consumer Tribunal under the Commercial 29
and Consumer Tribunal Act 2003. 30
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`Division 4 Disputes about contractual matters 1
`175X CCT jurisdiction 2
`(1) This section applies to a dispute about a claimed or 3
anticipated contractual matter about-- 4
(a) the appointment or engagement of a person as a body 5
corporate manager or caretaking service contractor for 6
an approved scheme or part of an approved scheme; or 7
(b) the authorisation of a person as a letting agent for an 8
approved scheme or part of an approved scheme. 9
`(2) A party to the dispute may apply under the Commercial and 10
Consumer Tribunal Act 2003 for an order of the Commercial 11
and Consumer Tribunal to resolve the dispute. 12
`Division 5 Termination of appointment, 13
engagement or authorisation 14
`175Y Termination for failure to comply with remedial 15
action notice [SM, s 131] 16
`(1) A primary thoroughfare body corporate or principal body 17
corporate may terminate a person's appointment as a body 18
corporate manager or engagement as a service contractor if 19
the person or, if the person is a corporation, a director of the 20
corporation-- 21
(a) engages in misconduct, or is grossly negligent, in 22
carrying out functions required under the appointment 23
or engagement; or 24
(b) fails to carry out duties under the appointment or 25
engagement; or 26
(c) contravenes-- 27
(i) for a body corporate manager--the code of 28
conduct for body corporate managers and 29
caretaking service contractors; or 30
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(ii) for a service contractor who is a caretaking service 1
contractor--the code of conduct for body 2
corporate managers and caretaking service 3
contractors or the code of conduct for letting 4
agents. 5
`(2) Also, the body corporate may terminate a person's 6
authorisation as a letting agent if-- 7
(a) the person or, if the person is a corporation, a director of 8
the corporation-- 9
(i) engages in misconduct, or is grossly negligent, in 10
carrying out obligations, if any, under the 11
authorisation; or 12
(ii) fails to carry out duties under the authorisation; or 13
(iii) contravenes the code of conduct for letting agents 14
or, for a caretaking service contractor, the code of 15
conduct for body corporate managers and 16
caretaking service contractors; or 17
(b) the person-- 18
(i) has been given a transfer notice requiring transfer 19
of the person's management rights; and 20
(ii) has not transferred the management rights as 21
required under section 175Q. 22
`(3) The body corporate may act under subsection (1) or (2) only 23
if-- 24
(a) the body corporate has given the manager, contractor or 25
agent a remedial action notice; and 26
(b) the manager, contractor or agent fails to comply with the 27
remedial action notice within the period stated in the 28
notice; and 29
(c) the termination is approved by ordinary resolution of the 30
body corporate; and 31
(d) for the termination of a person's engagement as a 32
caretaking service contractor or authorisation as a 33
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letting agent--the motion to approve the termination is 1
decided by secret ballot. 2
`(4) In this section-- 3
remedial action notice means a written notice stating each of 4
the following-- 5
(a) that the body corporate believes the person to whom the 6
notice is given has acted-- 7
(i) for a body corporate manager or service 8
contractor--in a way mentioned in subsection (1); 9
or 10
(ii) for a letting agent--in a way mentioned in 11
subsection (2); 12
(b) details of the action sufficient to identify-- 13
(i) the misconduct or gross negligence the body 14
corporate believes has happened; or 15
(ii) the duties the body corporate believes have not 16
been carried out; or 17
(iii) the provision of the code of conduct the body 18
corporate believes has been contravened; or 19
(iv) if subsection (2)(b) applies, the contravention of 20
the code contravention notice or the relevant 21
provision of the code of conduct that was the 22
ground for requiring the transfer of the person's 23
management rights under section 175M; 24
(c) that the person must, within the reasonable period of at 25
least 14 days stated in the notice-- 26
(i) remedy the misconduct or gross negligence; or 27
(ii) carry out the duties; or 28
(iii) remedy the contravention; 29
(d) that if the person does not comply with the notice in the 30
stated period, the body corporate may terminate the 31
person's appointment, engagement or authorisation as a 32
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body corporate manager, service contractor or letting 1
agent.'. 2
Clause 44 Amendment of s 177 (Minor non-compliance with 3
development control by-laws) 4
(1) Section 177(1), `that member of'-- 5
omit, insert-- 6
`an affected person with'. 7
(2) Section 177(2), `is'-- 8
omit, insert-- 9
`must be'. 10
(3) Section 177-- 11
insert-- 12
`(4) In this section-- 13
affected person means any of the following-- 14
(a) the member of the principal body corporate making the 15
request under subsection (1); 16
(b) the proprietor, mortgagee in possession, lessee or 17
occupier of the land or lot to which the request relates.'. 18
Clause 45 Replacement of s 179A (Dealing with disputes) 19
Section 179A-- 20
omit, insert-- 21
`Division 1 Resolution of particular disputes 22
`179A Dealing with particular disputes under Building 23
Units and Group Titles Act 1980 24
`(1) Subject to subsection (2), a dispute about the operation of this 25
Act or the rights and obligations of persons under this Act 26
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may be dealt with under the Building Units and Group Titles 1
Act 1980, part 5. 2
`(2) However, this section-- 3
(a) does not apply to a dispute or matter mentioned in 4
section 175W, 175X or 179B; and 5
(b) is subject to section 179C. 6
`179B Dealing with matter relating to development control 7
by-law 8
`(1) The Commercial and Consumer Tribunal may deal with a 9
matter relating to-- 10
(a) the application of a development control by-law for an 11
approved scheme to a person mentioned in subsection 12
(2)(b) or (c); or 13
(b) a contravention or alleged contravention of a 14
development control by-law for an approved scheme. 15
`(2) Each of the following persons may apply to the tribunal to 16
deal with a matter under subsection (1) if the person has 17
standing to make the application-- 18
(a) the principal body corporate for the approved scheme; 19
(b) a subsidiary body corporate of the principal body 20
corporate; 21
(c) a proprietor or occupier of, or a person having an estate 22
or interest in, a lot in a residential precinct in the 23
approved scheme. 24
`(3) For subsection (2), a person has standing to make the 25
application if the person is directly and materially affected by 26
the matter to which the application relates. 27
Example-- 28
A proprietor of a lot in a residential precinct in an approved scheme 29
alleges the amenity of the lot has been, or will be, adversely affected by 30
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development authorised under a development control by-law in an 1
adjoining residential precinct in the scheme. 2
`(4) This section is subject to section 179C. 3
`179C Internal dispute resolution processes to be used 4
before application 5
`(1) This section applies to-- 6
(a) a referee for deciding an application for an order under 7
the Building Units and Group Titles Act 1980, part 5 8
relating to a dispute about a matter mentioned in section 9
179A; and 10
(b) the Commercial and Consumer Tribunal for deciding an 11
application about a matter mentioned in section 179B. 12
`(2) The referee or tribunal must not decide the application unless 13
the referee or tribunal is satisfied the applicant has made 14
reasonable attempts to resolve the dispute or matter by using 15
internal dispute resolution processes. 16
Examples of internal dispute resolution processes-- 17
· the parties to a dispute communicating with each other 18
· the applicant writing to the executive committee for the relevant 19
principal body corporate 20
· the applicant causing a motion to be presented for consideration at a 21
general meeting of the relevant principal body corporate 22
`Division 2 Other matters 23
`179D Associates 24
`(1) For this Act, a person is associated with someone else if-- 25
(a) a relationship of a type to which this section applies 26
exists between them; or 27
(b) a series of relationships of a type to which this section 28
applies can be traced between them through another 29
person or other persons. 30
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`(2) This section applies to relationships of the following types-- 1
(a) marriage or de facto partnership; 2
(b) the relationship of ascendant and descendant (including 3
the relationship of parent and child) or the relationship 4
of persons who have a parent or grandparent in 5
common; 6
(c) business partnership; 7
(d) the relationship of employer and employee; 8
(e) a fiduciary relationship; 9
(f) the relationship of persons, 1 of whom is accustomed, or 10
under an obligation (whether formal or informal), to act 11
in accordance with the directions, instructions or wishes 12
of the other; 13
(g) the relationship of a corporation and executive officer of 14
the corporation; 15
(h) the relationship of a corporation and a person who is in a 16
position to control or substantially influence the 17
corporation's conduct. 18
`(3) Despite subsection (2)(e) and (f), the owner of an initial lot, 19
secondary lot or a lot on a group titles plan or building units 20
plan and a letting agent for an approved scheme or part of an 21
approved scheme are not associated merely because of their 22
relationship as owner and letting agent. 23
`(4) In this section-- 24
executive officer, of a corporation, means a person who is 25
concerned with, or takes part in, the corporation's 26
management, whether or not the person is a director or the 27
person's position is given the name of executive officer.'. 28
Clause 46 Insertion of new pt 12 29
After section 183-- 30
insert-- 31
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`Part 12 Transitional provisions for 1
Resorts and Other Acts 2
Amendment Act 2009 3
`Division 1 Preliminary 4
`184 Definitions for pt 12 5
`In this part-- 6
commencement means the commencement of this section. 7
effective day means the day that is 6 months after the 8
commencement. 9
`Division 2 Bodies corporate 10
`185 Existing number of committee members may 11
continue until effective day 12
`(1) This section applies if-- 13
(a) a primary thoroughfare body corporate or principal body 14
corporate has more than 5 members; and 15
(b) the number (the existing number) of members of the 16
executive committee of the body corporate is less than 5. 17
`(2) Despite section 123(5) or 158(6), the executive committee 18
may continue to consist of the existing number of members. 19
`(3) This section stops applying at the beginning of the effective 20
day. 21
`186 Deferred application of particular provisions 22
`The following provisions do not apply until the effective 23
day-- 24
(a) sections 123A and 158A and schedule 4; 25
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(b) part 8, divisions 1A, 3A, 3B and 5. 1
Editor's note-- 2
· sections 123A (Code of conduct for voting members of executive 3
committee) and 158A (Code of conduct for voting members of 4
executive committee) and schedule 4 (Code of conduct for voting 5
members of executive committees) 6
· part 8, divisions 1A (Proxies for principal bodies corporate at 7
general meetings of primary thoroughfare bodies corporate), 3A 8
(Proxies for general meetings of principal bodies corporate), 3B 9
(Accounts and audit) and 5 (Removal from office of voting 10
members of executive committees for breach of code of conduct) 11
`187 Application of code of conduct for existing voting 12
members of executive committees 13
`(1) This section applies to a person who, before the effective day, 14
was a voting member of the executive committee of a primary 15
thoroughfare body corporate or principal body corporate. 16
`(2) The code of conduct for voting members of the executive 17
committee applies to the person only in relation to acts done 18
or omissions made on or after the effective day. 19
`188 Auditing accounts for first annual general meeting 20
after effective day 21
`(1) This section applies if-- 22
(a) before the effective day-- 23
(i) a principal body corporate authorised a person to 24
prepare a statement of accounts under section 25
151(1)(f) for adoption at the body corporate's 26
annual general meeting; and 27
(ii) the person started to prepare the statement of 28
accounts; and 29
(b) the annual general meeting has not happened. 30
`(2) Section 168I does not apply for auditing the statement of 31
accounts for the period to which the authorisation relates. 32
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`189 End of appointment of original owner of secondary 1
lot as nominee for subsidiary body corporate 2
`(1) This section applies if-- 3
(a) before the commencement-- 4
(i) a subsidiary body corporate under a building units 5
or group titles plan appointed as its nominee, under 6
section 140, the original owner of the secondary lot 7
subdivided by the plan or an ineligible associate of 8
the original owner; and 9
(ii) the original owner ceased to own more than 50% 10
of the lots; and 11
(b) immediately before the commencement, the original 12
owner or associate was still the nominee for the 13
subsidiary body corporate. 14
`(2) Despite section 140A, the original owner's or associate's 15
appointment as the nominee for the subsidiary body corporate 16
ends when the first of the following happens-- 17
(a) the beginning of the effective day; 18
(b) the secretary of the principal body corporate receives a 19
written notice under section 140(7)(b) of-- 20
(i) the cancellation of the appointment; or 21
(ii) the appointment of another nominee for the 22
subsidiary body corporate. 23
`(3) In this section-- 24
ineligible associate see section 140A(2)(b). 25
subsidiary body corporate, under a building units or group 26
titles plan subdividing a secondary lot within a residential 27
precinct, means the body corporate created by the registration 28
of the plan. 29
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`Division 3 Body corporate managers, service 1
contractors and letting agents 2
`190 Deferred application of particular provisions 3
`The following provisions do not apply until the effective 4
day-- 5
(a) part 8A, divisions 2, 3, 4 and 5; 6
(b) schedules 5 and 6. 7
Editor's note-- 8
· Part 8A (Conduct of body corporate managers, service contractors 9
and letting agents), divisions 2 (Codes of conduct), 3 (Required 10
transfer of management rights for contravention of code of 11
conduct), 4 (Disputes about contractual matters) and 5 (Termination 12
of appointment, engagement or authorisation) 13
· schedules 5 (Code of conduct for body corporate managers and 14
caretaking service contractors) and 6 (Code of conduct for letting 15
agents) 16
`191 Application of code of conduct for existing 17
managers and contractors 18
`(1) This section applies to a person who, before the effective 19
day-- 20
(a) was appointed as the body corporate manager of a 21
primary thoroughfare body corporate or principal body 22
corporate; or 23
(b) was engaged as a caretaking service contractor for an 24
approved scheme or part of an approved scheme. 25
`(2) The code of conduct for body corporate managers and 26
caretaking service contractors applies to the person only in 27
relation to acts done or omissions made on or after the 28
effective day. 29
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`192 Application of code of conduct for existing letting 1
agents 2
`(1) This section applies to a person who, before the effective day, 3
was a letting agent for an approved scheme or part of an 4
approved scheme. 5
`(2) The code of conduct for letting agents applies to the person 6
only in relation to acts done or omissions made on or after the 7
effective day. 8
`193 Existing term of appointment for body corporate 9
manager 10
`(1) This section applies if-- 11
(a) before the commencement, a body corporate manager 12
was appointed for-- 13
(i) a primary thoroughfare body corporate under 14
section 130; or 15
(ii) a principal body corporate under section 165; and 16
(b) the term of the appointment has not ended. 17
`(2) The term of the appointment ends on the day provided for in 18
the instrument of appointment. 19
`(3) For subsection (2), the term of the appointment provided for 20
in the instrument of appointment includes rights or options of 21
extension or renewal provided for in the instrument of 22
appointment. 23
`(4) This section applies despite sections 130(5) and (6) and 24
165(5) and (6).'. 25
Clause 47 Amendment of sch 2 (Dictionary) 26
(1) Schedule 2-- 27
insert-- 28
`associate, of a person, means someone else with whom the 29
person is associated under section 179D. 30
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body corporate, for schedule 3, see schedule 3, section 1. 1
body corporate manager-- 2
(a) of a primary thoroughfare body corporate--means a 3
person appointed by the body corporate under section 4
130; or 5
(b) of a principal body corporate--means a person 6
appointed by the body corporate under section 165. 7
candidate, for schedule 3, see schedule 3, section 1. 8
caretaking service contractor see section 175D. 9
code contravention notice see section 175L(1). 10
code of conduct means-- 11
(a) for a voting member of the executive committee of a 12
primary thoroughfare body corporate or principal body 13
corporate--the code in schedule 4; or 14
(b) for a body corporate manager or caretaking service 15
contractor--the code in schedule 5; or 16
(c) for a letting agent--the code in schedule 6. 17
Commercial and Consumer Tribunal means the tribunal of 18
that name established under the Commercial and Consumer 19
Tribunal Act 2003. 20
eligibility category, for schedule 3, see schedule 3, section 1. 21
executive committee, for schedule 3, see schedule 3, section 22
1. 23
executive member, for schedule 3, see schedule 3, section 1. 24
financial year-- 25
(a) for a primary thoroughfare body corporate, means a 26
period in relation to which the body corporate is 27
required under section 116(1)(f) to prepare a statement 28
of accounts; or 29
(b) for a principal body corporate, means a period in 30
relation to which the body corporate is required under 31
section 151(1)(f) to prepare a statement of accounts. 32
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financier, for a letting agent's contract, see section 175E. 1
Integrated Planning Act means the Integrated Planning Act 2
1997. 3
letting agent see section 175F(1). 4
letting agent authorisation see section 175D. 5
letting agent business see section 175F(2). 6
majority resolution, for a duly convened general meeting of a 7
primary thoroughfare body corporate or principal body 8
corporate, means a resolution on a motion-- 9
(a) for which only 1 written vote may be exercised, other 10
than by proxy, for each lot mentioned in the relevant 11
body corporate roll; and 12
(b) that is passed only if the votes counted for the motion 13
are more than 50% of the lots for which persons are 14
entitled to vote on the motion. 15
management rights, of a letting agent for an approved scheme 16
or part of an approved scheme, see section 175D. 17
nominee, for a member of a principal body corporate, see 18
section 140(1). 19
ordinary member, for schedule 3, see schedule 3, section 1. 20
ordinary resolution, for a duly convened general meeting of a 21
primary thoroughfare body corporate or principal body 22
corporate, means a resolution that is passed by the members 23
of the body corporate whose voting entitlements total more 24
than 50% of the total of all voting entitlements recorded in the 25
relevant body corporate roll. 26
original owner, of an initial or secondary lot that has been 27
subdivided by a building unit or group titles plan, means the 28
person who was the registered owner of the lot immediately 29
before it was subdivided by the plan. 30
relevant body corporate debt means a following amount owed 31
by a person to a subsidiary body corporate-- 32
(a) a contribution or instalment of a contribution; 33
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(b) a penalty for not paying a contribution or instalment of a 1
contribution by the date for payment; 2
(c) another amount associated with the ownership of a lot. 3
Examples of another amount-- 4
· an annual payment for parking under an exclusive use 5
by-law made by the subsidiary body corporate 6
· an amount owing to the subsidiary body corporate for lawn 7
mowing services arranged by the subsidiary body corporate 8
on behalf of the person 9
reviewable terms, for a service contract, see section 175D. 10
review advice, about a service contract, see section 175D. 11
service contract see section 175D. 12
service contractor, for an approved scheme or part of an 13
approved scheme, see section 175G. 14
special resolution-- 15
(a) for a general meeting of a primary thoroughfare body 16
corporate, see section 101; or 17
(b) for a general meeting of a principal body corporate, see 18
section 138. 19
subject land, in relation to an application for amendment of 20
an approved scheme under part 2, division 2, means each 21
precinct, or other land within the site, to which the application 22
relates. 23
subsidiary body corporate-- 24
(a) of, or in relation to, a primary thoroughfare body 25
corporate, means any of the following bodies corporate 26
that are members of the primary thoroughfare body 27
corporate-- 28
(i) the principal body corporate; 29
(ii) a body corporate created by the registration of a 30
building units plan or group titles plan; or 31
(b) of, or in relation to, a principal body corporate, means a 32
body corporate created by the registration of a building 33
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units plan or group titles plan that is a member of the 1
principal body corporate. 2
transfer notice, for part 8A, see section 175N(b)(ii). 3
voting member-- 4
(a) of the executive committee of a primary thoroughfare 5
body corporate--see section 123A(1); or 6
(b) of the executive committee of a principal body 7
corporate--see section 158A(1).'. 8
(2) Schedule 2-- 9
renumber as schedule 7. 10
Clause 48 Insertion of new schs 26 11
After schedule 1-- 12
insert-- 13
`Schedule 2 Requirements for notices of 14
proposed scheme amendments 15
section 10(2) 16
`1 Requirements for placing notice on subject land 17
`(1) This section applies for placing a notice under section 18
10(1)(b) on subject land. 19
`(2) The notice must be-- 20
(a) placed on, or within 1.5m of, the road frontage for the 21
land; and 22
(b) mounted at least 300mm above ground level; and 23
(c) positioned so that it is visible from the road; and 24
(d) made of weatherproof material; and 25
(e) not less than 1200mm x 900mm. 26
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`(3) The lettering on the notice must be-- 1
(a) for lettering in a heading--at least 50mm in height and 2
in a bold style; or 3
(b) for lettering in a subheading--at least 25mm in height 4
and in a bold style; or 5
(c) for lettering not mentioned in paragraphs (a) and (b)--at 6
least 25mm in height, of regular weight and in sentence 7
case. 8
`(4) Each sentence in the notice must start on a new line. 9
`(5) If the land has more than 1 road frontage, a notice must be 10
placed on each road frontage for the land. 11
`(6) The primary thoroughfare body corporate must maintain the 12
notice from the day it is placed on the land until the end of the 13
notification period stated in the notice. 14
`(7) In this section-- 15
road frontage, for subject land, means-- 16
(a) the boundary between the land and any road adjoining 17
the land; or 18
(b) if the only access to the land is across other land--the 19
boundary between the other land and any road adjoining 20
the other land at the point of access. 21
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`Schedule 3 Election of executive 1
committee members of 2
body corporate 3
sections 123(6A) and 158(7A) 4
`1 Definitions for sch 3 5
`In this schedule-- 6
body corporate means a primary thoroughfare body corporate 7
or principal body corporate. 8
candidate see section 4(3)(a). 9
eligibility category, for a candidate, means the category of 10
person mentioned in section 123(7) or 158(8) to which the 11
candidate belongs. 12
executive committee means the executive committee of a 13
primary thoroughfare body corporate or principal body 14
corporate. 15
executive member, of an executive committee, means the 16
chairperson, secretary or treasurer of the committee. 17
ordinary member, of an executive committee, means a 18
member, other than an executive member, of the committee. 19
`2 Election of members of executive committee 20
[SM, s 15] 21
`(1) Unless otherwise provided under this schedule, the election of 22
a member of the executive committee of a body corporate 23
must be by ballot. 24
Note-- 25
See, for example, section 7 (Election of ordinary members of executive 26
committee). 27
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`(2) A ballot for membership of the executive committee must be a 1
secret ballot unless the body corporate decides by ordinary 2
resolution that the election be held by open ballot. 3
`(3) The value of any vote able to be cast for a lot included in an 4
approved scheme or a part of an approved scheme for 5
choosing a member of the executive committee is the same as 6
the value of the vote able to be cast for each other lot included 7
in the approved scheme or part. 8
`3 Nomination procedures for election of executive 9
committee other than at first annual general meeting 10
[SM, s 16] 11
`(1) This section states how individuals are nominated for election 12
at the body corporate's annual general meeting, other than the 13
first annual general meeting, as a voting member of the 14
executive committee. 15
`(2) The secretary must serve a notice on each member of the body 16
corporate-- 17
(a) inviting nomination for the members of the executive 18
committee; and 19
(b) stating that a nominated person is not eligible to be a 20
voting member of the executive committee if, when the 21
members of the executive committee are chosen, the 22
person owes a relevant body corporate debt in relation to 23
a lot or lots owned by the person. 24
`(3) The notice must be given at least 3 weeks before, but not 25
earlier than 6 weeks before, the end of the body corporate's 26
financial year. 27
`(4) Nominations must comply with section 4 and must be given to 28
the secretary by the end of the body corporate's financial year. 29
`(5) As soon as practicable after receiving a nomination under this 30
section from a candidate for election, the secretary must 31
forward written notice to the candidate acknowledging the 32
nomination has been received. 33
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`4 Requirements for nominations [SM, s 18] 1
`(1) Each member of the body corporate may nominate 1 person 2
for election as a voting member of the executive committee. 3
`(2) A nomination must be made by written notice and-- 4
(a) if the nomination is from a member of the body 5
corporate who is an individual nominating himself or 6
herself--must be signed and dated by the member; or 7
(b) if the nomination is from a member of the body 8
corporate other than a member to whom paragraph (a) 9
applies-- 10
(i) must be signed and dated by the nominated person; 11
and 12
(ii) must be countersigned by the appropriate 13
authorising person. 14
`(3) A nomination must contain each of the following details-- 15
(a) the family name and either the first given name or other 16
name or abbreviation by which the nominated person 17
(the candidate) is generally known; 18
(b) the position or positions the candidate is nominated for; 19
(c) the eligibility category for the candidate; 20
(d) if the candidate is not a member of the body corporate or 21
a person appointed by a subsidiary body corporate under 22
section 103 or 140-- 23
(i) the candidate's residential or business address; and 24
(ii) the name of the member who nominated the 25
candidate; 26
(e) details of any payment to be made to, or to be sought by, 27
the candidate from the body corporate for the candidate 28
carrying out the duties of a member of the executive 29
committee. 30
Example of a payment-- 31
payment of the candidate's expenses for travelling to executive 32
committee meetings 33
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`(4) In this section-- 1
appropriate authorising person, for a nomination from a 2
member of the body corporate, means-- 3
(a) if the member is an individual--the member; or 4
(b) if the member is a subsidiary body corporate--the 5
person appointed by the member under section 103 or 6
140; or 7
(c) if the member is a corporation other than a subsidiary 8
body corporate--a director, secretary or other nominee 9
of the corporation. 10
`5 Conduct of elections for executive committee by 11
secret ballot [SM, s 21] 12
`(1) This section states how a secret ballot under this schedule 13
must be held. 14
`(2) After nominations close, the secretary must prepare ballot 15
papers for each of the following for which a ballot is 16
required-- 17
(a) chairperson; 18
(b) secretary; 19
(c) treasurer; 20
(d) the ordinary members of the executive committee. 21
`(3) Each ballot must be conducted separately. 22
`(4) However, the separate ballots mentioned in subsection (3) 23
may, but need not, appear on the one document. 24
`(5) For each ballot, the secretary must, if satisfied the 25
nominations comply with this schedule, state the names of the 26
properly nominated candidates in alphabetical order of family 27
name, showing-- 28
(a) after each name, a blank space for voting purposes; and 29
(b) the eligibility category for each candidate; and 30
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(c) if a candidate is not a member of the body corporate or a 1
person appointed by a subsidiary body corporate under 2
section 103 or 140-- 3
(i) the candidate's residential or business address; and 4
(ii) the name of the member who nominated the 5
candidate; and 6
(d) details of any payment to be made to, or to be sought by, 7
a candidate from the body corporate for the candidate 8
carrying out the duties of an executive committee 9
member. 10
`(6) The secretary must forward, with the notices for the annual 11
general meeting-- 12
(a) the ballot papers; and 13
(b) an envelope marked `ballot paper'; and 14
(c) either of the following-- 15
(i) a separate particulars envelope; 16
(ii) a particulars tab that forms part of the ballot paper 17
envelope but that a person may detach without 18
unsealing or otherwise opening the ballot paper 19
envelope. 20
`(7) To vote, a person must-- 21
(a) for a ballot for the position of chairperson, secretary or 22
treasurer--place a mark in the space opposite the name 23
of the candidate the person wishes to vote for; and 24
(b) for a ballot for the ordinary members' positions--place 25
a mark in each of the spaces opposite the names of 26
however many candidates the person wishes to vote for; 27
and 28
(c) place the ballot paper in the ballot paper envelope 29
supplied by the secretary and seal it; and 30
(d) if a separate particulars envelope is supplied--place the 31
sealed ballot paper envelope in the separate envelope 32
and seal it; and 33
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(e) complete the separate particulars envelope or particulars 1
tab by signing and dating the envelope or tab, and 2
inserting the following information on the envelope or 3
tab-- 4
(i) the name of the member for whom the vote is 5
exercised; 6
(ii) the name of the person having the right to vote for 7
the member; 8
(iii) the basis for the person's right to vote; and 9
(f) give the completed particulars envelope with the ballot 10
paper envelope enclosed, or the ballot paper envelope 11
with the completed particulars tab attached, to the 12
secretary, or forward the envelope to the secretary so 13
that the secretary receives it, before or at the annual 14
general meeting. 15
`(8) When a ballot is held-- 16
(a) a voter who has not submitted a vote for the ballot may 17
ask the secretary for a ballot paper, ballot paper 18
envelope and particulars envelope or tab, and vote in the 19
way this section provides; and 20
(b) a voter who wishes to withdraw a vote already made for 21
the ballot and submit a replacement vote, may, if the 22
particulars envelope, or the ballot paper envelope with 23
particulars tab attached, for the vote already made can 24
be readily identified and withdrawn, ask the secretary 25
for a ballot paper, ballot paper envelope and particulars 26
envelope or tab, and vote in the way this section 27
provides. 28
`(9) All completed ballot papers received before the annual 29
general meeting ends are to be held in the custody of the 30
secretary. 31
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`6 Conduct of elections for executive committee by 1
open ballot [SM, s 22] 2
`(1) This section states how an open ballot under this schedule 3
must be held. 4
`(2) After nominations close, the secretary must prepare ballot 5
papers for each of the following for which a ballot is 6
required-- 7
(a) chairperson; 8
(b) secretary; 9
(c) treasurer; 10
(d) the ordinary members of the executive committee. 11
`(3) Each ballot must be conducted separately. 12
`(4) However, the separate ballots may, but need not, appear on 13
the one document. 14
`(5) For each ballot, the secretary must, if satisfied the 15
nominations comply with section 4, list the names of the 16
properly nominated candidates in alphabetical order of family 17
name, showing-- 18
(a) after each name, a blank space for voting purposes; and 19
(b) the eligibility category for each candidate; and 20
(c) if the candidate is not a member of the body corporate or 21
a person appointed by a subsidiary body corporate under 22
section 103 or 140-- 23
(i) the candidate's residential or business address; and 24
(ii) the name of the member who nominated the 25
candidate; and 26
(d) details of any payment to be made to, or to be sought by, 27
the candidate from the body corporate for the candidate 28
carrying out the duties of an executive committee 29
member. 30
`(6) The secretary must forward the ballot papers, and an envelope 31
marked `ballot paper' self-addressed to the secretary, with the 32
notices for the annual general meeting. 33
Page 88
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`(7) To vote, a person must-- 1
(a) for a ballot for the position of chairperson, secretary or 2
treasurer--place a mark in the space opposite the name 3
of the candidate the person wishes to vote for; and 4
(b) for a ballot for the ordinary members' positions--place 5
a mark in each of the spaces opposite the names of 6
however many candidates the person wishes to vote for; 7
and 8
(c) sign each ballot paper the voter completes; and 9
(d) on each completed ballot paper, write the name of the 10
member for whom the vote is exercised; and 11
(e) if the ballot paper is not completed at the annual general 12
meeting-- 13
(i) place the ballot paper in the ballot paper envelope 14
supplied by the secretary; and 15
(ii) seal the envelope, and write on the back of the 16
envelope the name mentioned in paragraph (d); and 17
(iii) give the ballot paper envelope to the secretary, or 18
forward it to the secretary so that the secretary 19
receives it, before or at the annual general meeting; 20
and 21
(f) if the ballot paper is completed at the annual general 22
meeting--give the ballot paper to the secretary before or 23
at the meeting. 24
`(8) When a ballot is held-- 25
(a) a voter who has not submitted a vote for the ballot may 26
ask the secretary for a ballot paper, and vote in the way 27
this section provides; and 28
(b) a voter who wishes to withdraw a vote already made for 29
the ballot and submit a replacement vote, may, if the 30
vote already made can be readily identified and 31
withdrawn, ask the secretary for a ballot paper and vote 32
in the way this section provides. 33
Page 89
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`(9) All completed ballot papers received before the annual 1
general meeting ends are to be held in the custody of the 2
secretary. 3
`7 Election of ordinary members of executive 4
committee [SM, s 23] 5
`(1) A person nominated as an ordinary member of the executive 6
committee becomes an ordinary member of the committee 7
under section 11 on the basis of the nomination unless it is 8
necessary to have a ballot. 9
`(2) It is necessary to have a ballot for ordinary members of the 10
executive committee if the number of persons nominated for 11
ordinary member positions (other than a person who becomes 12
an executive member of the executive committee), plus the 13
number of executive members of the executive committee, is 14
more than the required number of members for the executive 15
committee. 16
`8 Conduct of ballot--general requirements [SM, s 24] 17
`(1) Any items of business about the election of members of the 18
executive committee that are on the agenda for an annual 19
general meeting must be conducted as the last items of 20
business for the meeting. 21
`(2) The election of members takes effect immediately after the 22
close of the meeting at which they are elected. 23
`(3) The ballots for the positions on the executive committee for 24
which ballots are required must be conducted in the following 25
order-- 26
· chairperson 27
· secretary 28
· treasurer 29
· ordinary members. 30
Page 90
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`(4) Each ballot may proceed to the count only after the person 1
chairing the meeting has allowed enough time for votes to be 2
cast and announced the close of the ballot. 3
`(5) Each candidate for a ballot, and any scrutineer appointed by 4
the candidate, may watch the count. 5
`(6) The secretary must pass any ballot papers, particulars 6
envelopes and ballot paper envelopes for the ballot to the 7
person chairing the meeting for counting. 8
`9 Conduct of ballot--scrutiny of votes [SM, s 25] 9
`(1) If a ballot for positions on the executive committee is an open 10
ballot, the person chairing the meeting must-- 11
(a) confirm, by a scrutiny of the details on the back of each 12
ballot paper envelope or each ballot paper itself, that the 13
ballot paper is the vote of a person who has the right to 14
vote in the election; and 15
(b) if a ballot paper is in a ballot paper envelope--take the 16
ballot paper out of the envelope. 17
`(2) If a ballot for positions on the executive committee is a secret 18
ballot, the person chairing the meeting must-- 19
(a) confirm, by a scrutiny of the details on each particulars 20
envelope or particulars tab, that the ballot paper is the 21
vote of a person who has the right to vote in the election; 22
and 23
(b) take the ballot paper envelope out of the particulars 24
envelope, or detach the particulars tab from the ballot 25
paper envelope; and 26
(c) place the ballot paper envelope in a receptacle in open 27
view of the meeting; and 28
(d) after paragraph (c) has been complied with for all ballot 29
paper envelopes, randomly mix the envelopes; and 30
(e) take each ballot paper out of its envelope. 31
Page 91
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`(3) The person chairing the meeting must record the count of 1
votes in each ballot in the minutes of the meeting. 2
`(4) The person chairing the meeting may delegate a function 3
under subsection (1) or (2) in relation to a ballot for a position 4
on the executive committee to a person attending the meeting 5
who is not a candidate for the position and who the person 6
chairing the meeting considers has sufficient independence. 7
`10 Conduct of ballot--deciding executive member 8
positions [SM, s 26] 9
`(1) If only 1 person is nominated for the position of chairperson, 10
secretary or treasurer, the person chairing the meeting, if 11
satisfied the nomination complies with this schedule, must 12
declare the person to have been elected unopposed. 13
`(2) If, for the position of chairperson, secretary or treasurer, there 14
has been no nomination, the person chairing the meeting-- 15
(a) must invite nominations for the position at the meeting; 16
and 17
(b) must accept nominations that are made in either of the 18
following ways-- 19
(i) by members of the body corporate who are 20
personally present or represented at the meeting; 21
(ii) in writing, by members of the body corporate not 22
personally present or represented at the meeting. 23
`(3) A member of the body corporate may nominate, under 24
subsection (2), not more than 1 person for the position. 25
`(4) To remove any doubt, it is declared that the member may 26
make the nomination whether or not the member made a 27
nomination under section 3 for an ordinary member's position 28
on the executive committee. 29
`(5) If more than 1 person has nominated for a position, a ballot is 30
conducted, and the person who receives the highest number of 31
votes is declared elected. 32
Page 92
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`(6) If, on a counting of votes, 2 or more persons each receive an 1
identical number of votes, and no other candidate receives a 2
higher number of votes, the result must be decided between 3
the 2 or more persons by chance in the way the meeting 4
decides. 5
`11 Conduct of ballot--deciding ordinary member 6
positions [SM, s 27] 7
`(1) The positions of the ordinary members of the executive 8
committee are decided only after the executive member 9
positions on the executive committee are filled. 10
`(2) A person's nomination for a position as an ordinary member 11
has no effect if the person is elected as an executive member 12
of the executive committee, even if the person's name appears 13
on a ballot for ordinary members forwarded before the 14
meeting. 15
`(3) If the number of candidates nominated for ordinary member 16
positions, plus the number of executive members of the 17
executive committee, is not more than the required number of 18
members for the executive committee, the person chairing the 19
meeting, if satisfied the nominations for the ordinary member 20
positions comply with this schedule, must declare the 21
candidates to have been elected as ordinary members. 22
`(4) However, if the number of candidates nominated for ordinary 23
member positions, plus the number of executive members of 24
the executive committee, is less than the required number of 25
members for the executive committee, the person chairing the 26
meeting must invite nominations at the meeting for the 27
number of ordinary member positions necessary to bring the 28
total number of all executive committee members to not more 29
than the required number of members for the executive 30
committee. 31
`(5) The person chairing the meeting-- 32
(a) must invite nominations for the position or positions at 33
the meeting; and 34
Page 93
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
(b) must accept nominations that are made in either of the 1
following ways-- 2
(i) by members of the body corporate who are 3
personally present or represented at the meeting; 4
(ii) in writing, by members of the body corporate not 5
personally present or represented at the meeting. 6
`(6) A member of the body corporate may nominate, under 7
subsection (5), not more than 1 person for all ordinary 8
member positions for which nominations are invited. 9
`(7) To remove any doubt, it is declared that the member may 10
make the nomination whether or not the member made a 11
nomination under section 3 for a position on the executive 12
committee. 13
`(8) If the number of candidates nominated for ordinary member 14
positions, plus the number of executive members of the 15
executive committee, is more than the required number of 16
members for the executive committee, the person chairing the 17
meeting must proceed with the scrutiny of the ballot papers 18
relating to the ordinary member positions. 19
`(9) The persons who receive the highest numbers of votes, in 20
descending order until the executive committee numbers the 21
required number of members for the executive committee, 22
must be declared elected as the ordinary members. 23
`(10) If, on a counting of votes, 2 or more persons each receive an 24
identical number of votes and the number of persons to be 25
elected would be exceeded if the 2 or more persons were 26
declared elected, the result of the ballot must be decided 27
between the 2 or more persons by chance in the way the 28
meeting decides. 29
`(11) For the counting of votes for positions of ordinary members of 30
the executive committee on ballot papers completed before 31
the annual general meeting, a mark against the name of each 32
person who has already been elected to an executive member 33
position is void. 34
Page 94
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`12 Conduct of ballot--declaration of voting results 1
[SM, s 28] 2
`(1) The person chairing an annual general meeting must declare 3
the result of an election. 4
`(2) When declaring the result of an election, the person chairing 5
the meeting must state the number of votes cast for each 6
candidate. 7
`(3) The number of votes cast for each candidate must be recorded 8
in the minutes of the meeting. 9
`(4) The voting tally sheet kept for the meeting must include, for 10
each ballot that is an open ballot under section 6-- 11
(a) a list of the votes, identified by the name of the member 12
on whose behalf the votes were cast, rejected as 13
informal; and 14
(b) for each vote rejected--the reason for the rejection; and 15
(c) the total number of votes counted for each candidate. 16
`(5) The voting tally sheet kept for the meeting must include, for 17
each ballot that is a secret ballot under section 5-- 18
(a) a list of the votes, identified by the name of the member 19
on whose behalf the votes were cast, rejected from the 20
count before the enclosing ballot paper envelopes were 21
opened; and 22
(b) a list of the votes taken out of ballot paper envelopes for 23
counting, but rejected as informal; and 24
(c) for each vote rejected--the reason for the rejection; and 25
(d) the total number of votes counted for each candidate. 26
`(6) The voting tally sheet may be inspected at the meeting by any 27
of the following persons-- 28
(a) a person who is a voter for the meeting; 29
(b) a candidate; 30
(c) the returning officer, if any, appointed by the body 31
corporate for the meeting; 32
Page 95
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
(d) the person chairing the meeting; 1
(e) a scrutineer appointed by a candidate under section 8. 2
`Schedule 4 Code of conduct for voting 3
members of 4
executive committees 5
sections 123A and 158A and schedule 7, definition code of conduct 6
`1 Commitment to acquiring understanding of Act, 7
including this code 8
`A voting member of the executive committee of a primary 9
thoroughfare body corporate or principal body corporate must 10
have a commitment to acquiring an understanding of this Act, 11
including this code of conduct, relevant to the member's role 12
on the executive committee. 13
`2 Honesty, fairness and confidentiality 14
`(1) The voting member must act honestly and fairly in performing 15
the member's functions as a voting member. 16
`(2) The voting member must not unfairly or unreasonably 17
disclose information held by the body corporate, including 18
information about an owner of a lot, unless authorised or 19
required by law to do so. 20
`3 Acting in best interests of body corporate and 21
persons with estate or interest in lots 22
`Unless it is unlawful to do so, the voting member must, in 23
performing the member's functions as a voting member, act in 24
the best interests of-- 25
Page 96
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
(a) the body corporate; and 1
(b) either-- 2
(i) for a voting member of the executive committee of 3
the primary thoroughfare body corporate--the 4
proprietors and occupiers of, and other persons 5
having an estate or interest in, the lots in the 6
approved scheme; or 7
(ii) for a voting member of the executive committee of 8
the principal body corporate--the proprietors and 9
occupiers of, and other persons having an estate or 10
interest in, the lots in the residential precincts in 11
the approved scheme. 12
`4 Complying with Act and this code 13
`The voting member must take reasonable steps to ensure the 14
member complies with this Act, including this code, in 15
performing the member's functions as a voting member. 16
`5 Conflict of interest 17
`The voting member must disclose to the executive committee 18
any conflict of interest the member may have in a matter 19
before the executive committee. 20
Page 97
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`Schedule 5 Code of conduct for body 1
corporate managers 2
and caretaking service 3
contractors 4
section 175H and schedule 7, definition code of conduct 5
`1 Knowledge of Act, including code 6
`A body corporate manager or caretaking service contractor 7
appointed or engaged by the primary thoroughfare body 8
corporate or principal body corporate must have a good 9
working knowledge and understanding of this Act, including 10
this code of conduct, relevant to the person's functions. 11
`2 Honesty, fairness and professionalism 12
`(1) The body corporate manager or caretaking service contractor 13
must act honestly, fairly and professionally in performing the 14
person's functions under the person's appointment or 15
engagement. 16
`(2) The body corporate manager must not attempt to unfairly 17
influence the outcome of an election for the executive 18
committee of the body corporate. 19
`3 Skill, care and diligence 20
`The body corporate manager or caretaking service contractor 21
must exercise reasonable skill, care and diligence in 22
performing the person's functions under the person's 23
appointment or engagement. 24
Page 98
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`4 Acting in body corporate's best interests 1
`The body corporate manager or caretaking service contractor 2
must act in the best interests of the body corporate unless it is 3
unlawful to do so. 4
`5 Keeping body corporate informed of developments 5
`The body corporate manager or caretaking service contractor 6
must keep the body corporate informed of any significant 7
development or issue about an activity carried out for the body 8
corporate. 9
`6 Ensuring employees comply with Act and code 10
`The body corporate manager or caretaking service contractor 11
must take reasonable steps to ensure an employee of the 12
person complies with this Act, including this code, in 13
performing the person's functions under the person's 14
appointment or engagement. 15
`7 Fraudulent or misleading conduct 16
`The body corporate manager or caretaking service contractor 17
must not engage in fraudulent or misleading conduct in 18
performing the person's functions under the person's 19
appointment or engagement. 20
`8 Unconscionable conduct 21
`The body corporate manager or caretaking service contractor 22
must not engage in unconscionable conduct in performing the 23
person's functions under the person's appointment or 24
engagement. 25
Examples of unconscionable conduct-- 26
· taking unfair advantage of the person's superior knowledge relative 27
to the body corporate 28
· requiring the body corporate to comply with conditions that are 29
unlawful or not reasonably necessary 30
Page 99
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
· exerting undue influence on, or using unfair tactics against, the 1
body corporate or the owner of a lot in the approved scheme 2
`9 Conflict of duty or interest 3
`The body corporate manager or caretaking service contractor 4
for an approved scheme or part of an approved scheme must 5
not accept an appointment or engagement (the second 6
appointment or engagement) if doing so will place the 7
person's functions or interests for the approved scheme or part 8
in conflict with the person's functions or interests for 9
obligations under the second appointment or engagement. 10
Example of a second appointment or engagement-- 11
an appointment as the body corporate manager or an engagement as a 12
caretaking service contractor for another approved scheme 13
`10 Goods and services to be supplied at competitive 14
prices 15
`The body corporate manager or caretaking service contractor 16
must take reasonable steps to ensure goods and services the 17
person obtains for or supplies to the body corporate are 18
obtained or supplied at competitive prices. 19
`11 Body corporate manager to demonstrate keeping of 20
particular records 21
`If the body corporate or its executive committee gives the 22
body corporate manager a written request to show that the 23
manager has kept the body corporate records as required 24
under this Act, the manager must comply with the request 25
within the reasonable period stated in the request. 26
Page 100
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`Schedule 6 Code of conduct for letting 1
agents 2
section 175I and schedule 7, definition code of conduct 3
`1 Honesty, fairness and professionalism 4
`A letting agent for an approved scheme or part of an 5
approved scheme must act honestly, fairly and professionally 6
in conducting the letting agent's business under the letting 7
agent's authorisation. 8
`2 Skill, care and diligence 9
`The letting agent must exercise reasonable skill, care and 10
diligence in conducting the letting agent business under the 11
letting agent's authorisation. 12
`3 Acting in body corporate's and individual lot owner's 13
best interests 14
`Unless it is unlawful to do so, the letting agent must, as far as 15
practicable, act in the best interests of-- 16
(a) the body corporate that has given the letting agent's 17
authorisation; and 18
(b) individual owners of lots in the approved scheme or 19
part. 20
`4 Ensuring employees comply with Act and code 21
`The letting agent must take reasonable steps to ensure an 22
employee of the letting agent complies with this Act, 23
including this code, in conducting the letting agent business 24
under the letting agent's authorisation. 25
Page 101
Resorts and Other Acts Amendment Bill 2009
Part 3 Amendment of Integrated Resort Development Act 1987
[s 48]
`5 Fraudulent or misleading conduct 1
`The letting agent must not engage in fraudulent or misleading 2
conduct in conducting the letting agent business under the 3
letting agent's authorisation. 4
`6 Unconscionable conduct 5
`The letting agent must not engage in unconscionable conduct 6
in conducting the letting agent business under the letting 7
agent's authorisation. 8
Examples of unconscionable conduct-- 9
· taking unfair advantage of the person's position as letting agent 10
relative to the body corporate or the owner of a lot in the approved 11
scheme 12
· exerting undue influence on, or using unfair tactics against, the 13
body corporate or the owner of a lot in the approved scheme 14
`7 Nuisance 15
`The letting agent must not-- 16
(a) cause a nuisance or hazard on the site; or 17
(b) interfere unreasonably with the use or enjoyment of a lot 18
in the approved scheme; or 19
(c) interfere unreasonably with the use or enjoyment of the 20
common property by a person who is lawfully on the 21
common property; or 22
(d) otherwise behave in a way that unreasonably affects a 23
person's lawful use or enjoyment of a lot or common 24
property. 25
`8 Goods and services to be supplied at competitive 26
prices 27
`The letting agent must take reasonable steps to ensure goods 28
and services the letting agent obtains for or supplies to the 29
body corporate are obtained or supplied at competitive 30
prices.'. 31
Page 102
Resorts and Other Acts Amendment Bill 2009
Part 4 Amendment of Liquor Act 1992
[s 49]
Part 4 Amendment of Liquor Act 1992 1
Clause 49 Act amended 2
This part amends the Liquor Act 1992. 3
Clause 50 Amendment of s 9 (Ordinary trading hours) 4
Section 9(1A)-- 5
omit, insert-- 6
`(1A) Subject to subsections (2) and (3), on any day other than Good 7
Friday or Christmas Day, the ordinary trading hours of 8
licensed premises are between 10a.m. and 12 midnight, unless 9
the premises are any of the following-- 10
(a) premises to which a producer/wholesaler licence relates; 11
(b) premises to which an industrial canteen licence relates; 12
(c) an airport or casino to which a commercial special 13
facility licence relates.'. 14
Clause 51 Amendment of s 12 (Exemptions) 15
(1) Section 12(2)(j)(iv)-- 16
omit, insert-- 17
`(iv) the quantity of the liquor is not more than 2L and, 18
if the liquor includes spirits, the quantity of spirits 19
is not more than 1L; and'. 20
(2) Section 12(2)(j)(v), from `more'-- 21
omit, insert-- 22
`more than 75% of the gift's sale price or a lesser amount 23
prescribed under a regulation; and'. 24
(3) Section 12(2)-- 25
insert-- 26
Page 103
Resorts and Other Acts Amendment Bill 2009
Part 4 Amendment of Liquor Act 1992
[s 51]
`(k) a sale of liquor in a retirement village to a person who is 1
a resident of the retirement village or an adult guest of a 2
resident if the quantity of liquor sold to the person is not 3
more than 2 standard drinks in a day; 4
(l) a sale of liquor by a hairdresser or a barber to an adult 5
client if-- 6
(i) the sale takes place at the premises where the 7
hairdresser or barber conducts his or her business 8
as part of the hairdressing or barber services 9
provided to the client; and 10
(ii) the liquor is consumed on the premises; and 11
(iii) the quantity of the liquor sold to the client is not 12
more than 2 standard drinks in a day; and 13
(iv) the liquor is not sold or consumed on Christmas 14
Day, Good Friday or before 1p.m. on Anzac Day; 15
(m) a sale of liquor by a limousine licensee to an adult 16
passenger of a limousine if-- 17
(i) the sale takes part during the journey for which the 18
limousine was hired; and 19
(ii) the liquor is consumed inside the limousine; and 20
(iii) the quantity of the liquor sold to the passenger is 21
not more than 2 standard drinks in a day; and 22
(iv) the liquor is not sold or consumed on Christmas 23
Day, Good Friday, before 1p.m. on Anzac Day, or 24
on any other day between 5a.m. and 10a.m.'. 25
(4) Section 12(4)-- 26
insert-- 27
`limousine see the Transport Operations (Passenger 28
Transport) Act 1994, schedule 3. 29
limousine licensee means the holder of a limousine service 30
licence under the Transport Operations (Passenger Transport) 31
Act 1994. 32
Page 104
Resorts and Other Acts Amendment Bill 2009
Part 4 Amendment of Liquor Act 1992
[s 52]
resident, of a retirement village, see the Retirement Villages 1
Act 1999, section 9. 2
retirement village see the Retirement Villages Act 1999, 3
section 5. 4
standard drink means a drink containing not more than 5
12.5mL of ethyl alcohol (ethanol).'. 6
Clause 52 Amendment of s 71B (Authority of industrial canteen 7
licence) 8
Section 71B(1), after `off the premises'-- 9
insert-- 10
`, during the times stated in the licence'. 11
Clause 53 Insertion of new pt 12, div 9 12
Part 12-- 13
insert-- 14
`Division 9 Transitional provision for Resorts 15
and Other Acts Amendment Act 16
2009 17
`296 Approved hours for commercial special facility licence 18
`(1) This section applies to a commercial special facility licence 19
if-- 20
(a) the licence does not relate to an airport or a casino; and 21
(b) immediately before the commencement of this section, 22
the licensee was authorised under the licence to sell 23
liquor on the licensed premises between 5a.m. and 24
10a.m. 25
`(2) Despite section 64(1), the licence does not authorise the sale 26
of liquor between 5a.m. and 10a.m. 27
Page 105
Resorts and Other Acts Amendment Bill 2009
Part 5 Amendment of Mixed Use Development Act 1993
[s 54]
`(3) However, subsection (2) does not apply to the licence to the 1
extent that the licensee is authorised to sell liquor between 2
7a.m. and 10a.m. under an extended trading hours approval or 3
an extended hours permit. 4
`(4) Despite any other Act or law, no compensation is payable by 5
the State to any person because of the operation of subsection 6
(2).'. 7
Part 5 Amendment of Mixed Use 8
Development Act 1993 9
Clause 54 Act amended 10
This part amends the Mixed Use Development Act 1993. 11
Clause 55 Amendment of s 79 (Lodgement of building units or 12
group titles plan) 13
Section 79-- 14
insert-- 15
`(5) A group titles plan must also be accompanied by a diagram 16
showing the name and numbering, or proposed name and 17
numbering, of each road that is, or is to be, on the primary 18
thoroughfare, or the part of the primary thoroughfare, shown 19
on the plan.'. 20
Clause 56 Amendment of s 80 (Approval of building units or group 21
titles plan) 22
Section 80(1)(b)-- 23
insert-- 24
`(iii) the diagram mentioned in section 79(5).'. 25
Page 106
Resorts and Other Acts Amendment Bill 2009
Part 6 Amendment of Sanctuary Cove Resort Act 1985
[s 57]
Clause 57 Amendment of s 101 (Subdivision by building units or 1
group titles plan) 2
Section 101-- 3
insert-- 4
`(7) A group titles plan must also be accompanied by a diagram 5
showing the name and numbering, or proposed name and 6
numbering, of each road that is, or is to be, on-- 7
(a) the community thoroughfare, or the part of the 8
community thoroughfare, shown on the plan; and 9
(b) each precinct thoroughfare, or part of a precinct 10
thoroughfare, shown on the plan.'. 11
Clause 58 Amendment of s 102 (Approval of building units or group 12
titles plan) 13
Section 102(1)(b)-- 14
insert-- 15
`(iii) the diagram mentioned in section 101(7).'. 16
Part 6 Amendment of Sanctuary Cove 17
Resort Act 1985 18
Clause 59 Act amended in pt 6 and schedule 19
This part and the schedule amend the Sanctuary Cove Resort 20
Act 1985. 21
Clause 60 Amendment of s 4 (Interpretation) 22
(1) Section 4, heading-- 23
omit, insert-- 24
Page 107
Resorts and Other Acts Amendment Bill 2009
Part 6 Amendment of Sanctuary Cove Resort Act 1985
[s 60]
`4 Definitions'. 1
(2) Section 4, definitions Albert Shire Council, proposed use 2
plan, proposed use plan of the adjacent site, residential zone 3
and zone-- 4
omit. 5
(3) Section 4-- 6
insert-- 7
`adjacent site see section 12A. 8
approved use, for a zone, see section 4A. 9
associate, of a person, means someone else with whom the 10
person is associated under section 104D. 11
body corporate, for schedule 3, see schedule 3, section 1. 12
body corporate manager-- 13
(b) of the principal body corporate--means a person 14
appointed by the body corporate under section 47AB; or 15
(b) of the primary thoroughfare body corporate--means a 16
person appointed by the body corporate under section 17
91AB. 18
canal see the Coastal Protection and Management Act 1995, 19
schedule. 20
candidate, for schedule 3, see schedule 3, section 1. 21
caretaking service contractor see section 94A. 22
code contravention notice see section 94I(1). 23
code of conduct means-- 24
(a) for a voting member of the executive committee of the 25
primary thoroughfare body corporate or principal body 26
corporate--the code in schedule 4; or 27
(b) for a body corporate manager or caretaking service 28
contractor--the code in schedule 5; or 29
(c) for a letting agent--the code in schedule 6. 30
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[s 60]
Commercial and Consumer Tribunal means the tribunal of 1
that name established under the Commercial and Consumer 2
Tribunal Act 2003. 3
eligibility category, for schedule 3, see schedule 3, section 1. 4
executive committee, for schedule 3, see schedule 3, section 5
1. 6
executive member, for schedule 3, see schedule 3, section 1. 7
financial year-- 8
(a) for the principal body corporate, see section 22; or 9
(b) for the primary thoroughfare body corporate, see section 10
65. 11
financier, for a letting agent's contract, see section 94B. 12
former Albert Shire Council means the local government of 13
that name that was constituted under the Local Government 14
Act 1993 or its successors in law. 15
Integrated Planning Act means the Integrated Planning Act 16
1997. 17
letting agent see section 94C(1). 18
letting agent authorisation see section 94A. 19
letting agent business see section 94C(2). 20
local government means the local government for the local 21
government area in which the site and adjacent site are 22
situated. 23
majority resolution, for a duly convened general meeting of 24
the primary thoroughfare body corporate or principal body 25
corporate, means a resolution on a motion-- 26
(a) for which only 1 written vote may be exercised, other 27
than by proxy, for each lot mentioned in the relevant 28
body corporate roll; and 29
(b) that is passed only if the votes counted for the motion 30
are more than 50% of the lots for which persons are 31
entitled to vote on the motion. 32
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[s 60]
management rights, of a letting agent for the resort or part of 1
the resort, see section 94A. 2
nominee, of a member of the principal body corporate, see 3
section 24(1). 4
ordinary member, for schedule 3, see schedule 3, section 1. 5
ordinary resolution, for a duly convened general meeting of 6
the primary thoroughfare body corporate or principal body 7
corporate, means a resolution that is passed by the members 8
of the body corporate whose voting entitlements total more 9
than 50% of the total of all voting entitlements recorded in the 10
relevant body corporate roll. 11
original owner, of a secondary lot that has been subdivided by 12
a building unit or group titles plan, see section 22. 13
proposed use plan-- 14
(a) for the site--see section 4B(1); or 15
(b) for the adjacent site--see section 4B(2). 16
relevant body corporate debt means a following amount owed 17
by a person to a subsidiary body corporate-- 18
(a) a contribution or instalment of a contribution; 19
(b) a penalty for not paying a contribution or instalment of a 20
contribution by the date for payment; 21
(c) another amount associated with the ownership of a lot. 22
Examples of another amount-- 23
· an annual payment for parking under an exclusive use 24
by-law made by the subsidiary body corporate 25
· an amount owing to the subsidiary body corporate for lawn 26
mowing services arranged by the subsidiary body corporate 27
on behalf of the person 28
relevant plan see section 12I(2). 29
residential zone means any of the following zones-- 30
(a) General Residential Zone; 31
(b) Harbour 1 Residential Zone; 32
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[s 60]
(c) Harbour, River and Waterfront Residential Zone. 1
resort means Sanctuary Cove Resort. 2
reviewable terms, for a service contract, see section 94A. 3
review advice, about a service contract, see section 94A. 4
service contract see section 94A. 5
service contractor, for the resort or part of the resort, see 6
section 94D. 7
site see section 5. 8
subject land, in relation to an amendment application under 9
part 2AA, means each zone, or other land within the resort, to 10
which the application relates. 11
subsidiary body corporate-- 12
(a) of, or in relation to, the primary thoroughfare body 13
corporate, means-- 14
(i) the principal body corporate; or 15
(ii) a body corporate created by the registration of a 16
building units plan or group titles plan that is a 17
member of the primary thoroughfare body 18
corporate; or 19
(b) of, or in relation to, the principal body corporate, means 20
a body corporate created by the registration of a building 21
units plan or group titles plan that is a member of the 22
principal body corporate. 23
transfer notice, for part 5A, see section 94K(b)(ii). 24
use, for a zone, means a use mentioned in schedule 1, part 2. 25
voting member-- 26
(a) of the executive committee of the principal body 27
corporate--see section 41A(1); or 28
(b) of the executive committee of the primary thoroughfare 29
body corporate--see section 85A(1). 30
zone means a part of the site or adjacent site that-- 31
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[s 61]
(a) has a name mentioned in schedule 1, part 1; and 1
(b) is shown as a zone on the proposed use plan of the site 2
or the proposed use plan of the adjacent site.'. 3
(4) Section 4, definition initial plan of survey, `in accordance with 4
section 10'-- 5
omit, insert-- 6
`under section 10 or 12P(4).'. 7
(5) Section 4, definition initial plan of survey of the adjacent site, 8
`in accordance with section 12F'-- 9
omit, insert-- 10
`under section 12F or 12P(4).'. 11
(6) Section 4, as amended by this Act, definitions-- 12
relocate to schedule 9 as inserted by this Act. 13
(7) Section 4, as amended by this Act, `In this Act--'-- 14
omit, insert-- 15
`The dictionary in schedule 9 defines particular words used in 16
this Act.'. 17
Clause 61 Insertion of new ss 4A4C 18
Part 1-- 19
insert-- 20
`4A Meaning of approved use for a zone 21
`An approved use for a zone is-- 22
(a) a use for the zone that is approved under a regulation as 23
a use for the zone; or 24
(b) if a change of a use for the zone is approved under part 25
2AA, the use for the zone as changed and approved 26
under a regulation. 27
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[s 61]
`4B Meaning of proposed use plan of the site or 1
adjacent site 2
`(1) The proposed use plan of the site is-- 3
(a) the plan of survey of the site approved by the local 4
government under section 7(4); or 5
(b) if an amendment of the plan is approved by the local 6
government under section 7(8)--the amended plan for 7
the time being approved by the local government; or 8
(c) if an amendment of the plan is approved by the 9
Governor in Council under section 12P--the amended 10
plan for the time being approved by the Governor in 11
Council. 12
`(2) The proposed use plan of the adjacent site is-- 13
(a) the plan of survey of the adjacent site approved by the 14
local government under section 12C(4); or 15
(b) if an amendment of the plan is approved by the local 16
government under section 12C(8)--the amended plan 17
for the time being approved by the local government; or 18
(c) if an amendment of the plan is approved by the 19
Governor in Council under section 12P--the amended 20
plan for the time being approved by the Governor in 21
Council. 22
`(3) To remove any doubt, it is declared for this section that the 23
approval of an amendment of the proposed use plan of the site 24
or the proposed use plan of the adjacent site under section 12P 25
does not limit the later amendment and approval of the plan 26
under section 7(8) or 12C(8). 27
Note-- 28
See also sections 114 (References to proposed use plan of site) and 115 29
(References to proposed use plan of adjacent site). 30
`4C References to standard module 31
`(1) In this Act, the information included in square brackets after a 32
section heading is a reference to a similar section of the Body 33
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[s 62]
Corporate and Community Management (Standard Module) 1
Regulation 2008. 2
`(2) The brackets and information do not form part of this Act.'. 3
Clause 62 Amendment of s 5 (The site) 4
(1) Section 5(1)-- 5
omit, insert-- 6
`(1) Subject to subsection (2), the site is the area of land shown on 7
the initial plan of survey of the site. 8
`(1A) If the initial plan of survey is amended under part 2AA by 9
varying the boundary of the site, the site is the area of land 10
shown on the initial plan of survey as amended.'. 11
(2) Section 5(3)-- 12
omit, insert-- 13
`(3) Despite the Local Government Act 1993, the site forms part of 14
the Gold Coast city local government area constituted under 15
that Act.'. 16
(3) Section 5(1A) to (3)-- 17
renumber as section 5(2) to (4). 18
Clause 63 Replacement of ss 7 and 8 19
Sections 7 and 8-- 20
omit, insert-- 21
`7 Proposed use plan of the site 22
`(1) The primary thoroughfare body corporate may lodge with the 23
local government a plan of survey showing the zones of the 24
site substantially in the form set out in schedule 7. 25
`(2) If the local government considers it appropriate that a 26
boundary of a zone shown on the plan should differ from the 27
boundary of the zone as shown in schedule 7, it may require 28
the primary thoroughfare body corporate to lodge an amended 29
plan showing the different boundary. 30
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[s 63]
`(3) The plan of survey must include a schedule stating-- 1
(a) for each of the residential zones, the maximum number 2
of group title lots or building unit lots into which each 3
zone may be subdivided for residential purposes; and 4
(b) the total of the maximum number of, not more than 900, 5
group title lots and building unit lots into which all of 6
the residential zones within the site may be subdivided 7
for residential purposes. 8
`(4) The local government may approve the plan if it is satisfied-- 9
(a) the plan adequately defines the boundaries of all the 10
zones within the site; and 11
(b) the number of building unit lots and group title lots 12
under subsection (3)-- 13
(i) is appropriate to the nature of the proposed 14
development of the site; and 15
(ii) is not more than the maximum number under 16
subsection (3)(b). 17
`(5) The local government must-- 18
(a) keep the proposed use plan; and 19
(b) give a copy of the plan to-- 20
(i) the registrar of titles; and 21
(ii) the chief executive. 22
`(6) For deciding the number of group title lots or building unit 23
lots into which a particular zone may be subdivided for 24
residential purposes-- 25
(a) a group title lot that is subdivided into lots resulting in 26
no area, other than common property, of the lot 27
remaining must not be counted; and 28
(b) the group title lots or building unit lots created from the 29
subdivision must be counted. 30
`(7) The primary thoroughfare body corporate may lodge with the 31
local government a plan of survey (an amending plan) 32
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[s 64]
varying the boundaries of the zones as shown on the proposed 1
use plan. 2
`(8) The local government may approve an amending plan if it is 3
satisfied-- 4
(a) the plan complies with subsection (4); and 5
(b) the variation of the boundaries is of a minor nature and 6
does not substantially prejudice the rights of any person. 7
`(9) If the local government approves an amending plan-- 8
(a) the amending plan becomes the proposed use plan; and 9
(b) the local government must keep the amending plan and 10
give a copy of it to the registrar of titles and chief 11
executive.'. 12
Clause 64 Amendment of s 9 (Town planning provisions) 13
(1) Section 9(1) and (2)-- 14
omit, insert-- 15
`(1) Despite the Integrated Planning Act, the local government's 16
planning scheme under that Act does not apply to the site.'. 17
(2) Section 9(2A), `the Albert'-- 18
omit, insert-- 19
`the former Albert'. 20
(3) Section 9(2A)-- 21
renumber as section 9(2). 22
(4) Section 9(3)-- 23
omit, insert-- 24
`(3) For the Integrated Planning Act, the use of land or a building 25
or other structure in a zone of the site for an approved use for 26
the zone is taken to be a lawful use under that Act. 27
`(3A) Despite the Integrated Planning Act, a development approval 28
under that Act is not required to erect a building or other 29
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[s 65]
structure in a zone of the site for an approved use for the 1
zone.'. 2
(5) Section 9(4), from `Within' to `that zone.'-- 3
omit, insert-- 4
`A person must not use land, or a building or other structure, 5
in a zone of the site for a use that is not an approved use for 6
the zone.'. 7
(6) Section 9(5)-- 8
omit, insert-- 9
`(5) In this section-- 10
erect, in relation to a building or other structure, includes the 11
following-- 12
(a) doing work for the purpose of erecting the building or 13
structure; 14
(b) carrying out structural work, alterations or additions or 15
rebuilding the building or structure; 16
(c) moving the building or structure or rebuilding it, with or 17
without alteration-- 18
(i) within a parcel of land; or 19
(ii) from one parcel of land to another parcel of land; 20
or 21
(iii) so that part of the building or structure is on a 22
parcel of land and another part of the building or 23
structure is on another parcel of land.'. 24
(7) Section 9(3A) to (5), as inserted or amended by this Act-- 25
renumber as section 9(4) to (6). 26
Clause 65 Amendment of s 10 (Initial subdivision within the site) 27
(1) Section 10, `Albert Shire Council'-- 28
omit, insert-- 29
`local government'. 30
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[s 66]
(2) Section 10, `Director of Local Government'-- 1
omit, insert-- 2
`chief executive'. 3
(3) Section 10(8)(b)-- 4
omit, insert-- 5
`(b) to amend the initial plan of survey in accordance with a 6
variation of the boundary of a zone approved by-- 7
(i) the local government under section 7(8); or 8
(ii) the Governor in Council under section 12P.'. 9
(4) Section 10(9), `pursuant to subsection (8)'-- 10
omit, insert-- 11
`under subsection (8)(a) or (b)(i)'. 12
(5) Section 10(9A), `the plan of survey'-- 13
omit, insert-- 14
`a plan of survey to be lodged under subsection (8)(a) or 15
(b)(i)'. 16
Clause 66 Amendment of s 12A (The adjacent site) 17
(1) Section 12A(1)-- 18
omit, insert-- 19
`(1) Subject to subsection (2), the adjacent site is the area of land 20
shown on the initial plan of survey of the adjacent site. 21
`(1A) If the initial plan of survey of the adjacent site is amended 22
under part 2AA by varying the boundary of the adjacent site, 23
the adjacent site is the area of land shown on the initial plan 24
of survey of the adjacent site as amended.'. 25
(2) Section 12A(3)-- 26
omit, insert-- 27
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[s 67]
`(3) Despite the Local Government Act 1993, the adjacent site 1
forms part of the Gold Coast city local government area 2
constituted under that Act.'. 3
(3) Section 12A(4), `subsection (5)'-- 4
omit, insert-- 5
`subsection (6)'. 6
(4) Section 12A(5), `subsection (4)'-- 7
omit, insert-- 8
`subsection (5)'. 9
(5) Section 12A(1A) to (5)-- 10
renumber as section 12A(2) to (6). 11
Clause 67 Replacement of ss 12C and 12D 12
Sections 12C and 12D-- 13
omit, insert-- 14
`12C Proposed use plan of the adjacent site 15
`(1) The primary thoroughfare body corporate may lodge with the 16
local government a plan of survey showing the zones of the 17
adjacent site substantially in the form set out in schedule 8. 18
`(2) If the local government considers it appropriate that a 19
boundary of a zone shown on the plan should differ from the 20
boundary of the zone as shown in schedule 8, it may require 21
the primary thoroughfare body corporate to lodge an amended 22
plan showing the different boundary. 23
`(3) The plan of survey must include a schedule stating-- 24
(a) for each of the residential zones, the maximum number 25
of group title lots or building unit lots into which each 26
zone may be subdivided for residential purposes; and 27
(b) the total of the maximum number of, not more than 28
1100, group title lots and building unit lots into which 29
all of the residential zones within the site may be 30
subdivided for residential purposes. 31
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[s 67]
`(4) The local government may approve the plan if it is satisfied-- 1
(a) the plan adequately defines the boundaries of all the 2
zones within the adjacent site; and 3
(b) the number of building unit lots and group title lots 4
under subsection (3)-- 5
(i) is appropriate to the nature of the proposed 6
development of the adjacent site; and 7
(ii) is not more than the maximum number under 8
subsection (3)(b). 9
`(5) The local government must-- 10
(a) keep the proposed use plan; and 11
(b) give a copy of the plan to-- 12
(i) the registrar of titles; and 13
(ii) the chief executive. 14
`(6) For deciding the number of group title lots or building unit 15
lots into which a particular zone may be subdivided for 16
residential purposes-- 17
(a) a group title lot that is subdivided into lots resulting in 18
no area, other than common property, of the lot 19
remaining must not be counted; and 20
(b) the group title lots or building unit lots created from the 21
subdivision must be counted. 22
`(7) The primary thoroughfare body corporate may lodge with the 23
local government a plan of survey (an amending plan) 24
varying the boundaries of the zones as shown on the proposed 25
use plan. 26
`(8) The local government may approve an amending plan if it is 27
satisfied-- 28
(a) the plan complies with subsection (4); and 29
(b) the variation of the boundaries is of a minor nature and 30
does not substantially prejudice the rights of any person. 31
`(9) If the local government approves an amending plan-- 32
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[s 68]
(a) the amending plan becomes the proposed use plan; and 1
(b) the local government must keep the amending plan and 2
give a copy of it to the registrar of titles and chief 3
executive.'. 4
Clause 68 Amendment of s 12E (Town planning provisions) 5
(1) Section 12E(1) and (2)-- 6
omit, insert-- 7
`(1) Despite the Integrated Planning Act, the local government's 8
planning scheme under that Act does not apply to the adjacent 9
site.'. 10
(2) Section 12E(2A), `the Albert'-- 11
omit, insert-- 12
`the former Albert'. 13
(3) Section 12E(2A)-- 14
renumber as section 12E(2). 15
(4) Section 12E(3)-- 16
omit, insert-- 17
`(3) For the Integrated Planning Act, the use of land or a building 18
or other structure in a zone of the adjacent site for an approved 19
use for the zone is taken to be a lawful use under that Act. 20
`(3A) Despite the Integrated Planning Act, a development approval 21
under that Act is not required to erect a building or other 22
structure in a zone of the adjacent site for an approved use for 23
the zone.'. 24
(5) Section 12E(4), from `Within' to `that zone.'-- 25
omit, insert-- 26
`A person must not use land, or a building or other structure, 27
in a zone of the adjacent site for a use that is not an approved 28
use for the zone.'. 29
(6) Section 12E(4A), `subsection (4)'-- 30
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[s 69]
omit, insert-- 1
`subsection (5)'. 2
(7) Section 12E(5)-- 3
omit, insert-- 4
`(5) In this section-- 5
erect, in relation to a building or other structure, includes the 6
following-- 7
(a) doing work for the purpose of erecting the building or 8
structure; 9
(b) carrying out structural work, alterations or additions or 10
rebuilding the building or structure; 11
(c) moving the building or structure or rebuilding it, with or 12
without alteration-- 13
(i) within a parcel of land; or 14
(ii) from one parcel of land to another parcel of land; 15
or 16
(iii) so that part of the building or structure is on a 17
parcel of land and another part of the building or 18
structure is on another parcel of land.'. 19
(8) Section 12E(3A) to (5), as inserted or amended by this Act-- 20
renumber as section 12E(4) to (7). 21
Clause 69 Amendment of s 12F (Initial subdivision within the 22
adjacent site) 23
(1) Section 12F, `Albert Shire Council'-- 24
omit, insert-- 25
`local government'. 26
(2) Section 12F, `Director of Local Government'-- 27
omit, insert-- 28
`chief executive'. 29
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[s 70]
(3) Section 12F(8)(b)-- 1
omit, insert-- 2
`(b) to amend the initial plan of survey in accordance with a 3
variation of the boundary of a zone approved by-- 4
(i) the local government under section 12C(8); or 5
(ii) the Governor in Council under section 12P.'. 6
(4) Section 12F(9), `pursuant to subsection (8)'-- 7
omit, insert-- 8
`under subsection (8)(a) or (b)(i)'. 9
(5) Section 12F(9A), `the plan of survey'-- 10
omit, insert-- 11
`a plan of survey to be lodged under subsection (8)(a) or 12
(b)(i)'. 13
Clause 70 Insertion of new pt 2AA 14
After part 2A-- 15
insert-- 16
`Part 2AA Amendments by application to 17
Minister 18
`12I Amendment applications 19
`(1) The primary thoroughfare body corporate may apply to the 20
Minister under this part for any of the following 21
amendments-- 22
(a) changing an approved use for a zone by-- 23
(i) replacing the use with a different approved use; or 24
(ii) including an additional approved use for the zone; 25
(b) amending the proposed use plan of the site or the 26
proposed use plan of the adjacent site by-- 27
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[s 70]
(i) replacing a zone name with a different zone name; 1
or 2
(ii) varying the boundary of a zone on the plan, other 3
than a variation to which section 7(8) or 12C(8) 4
applies; 5
(c) amending the initial plan of survey of the site by varying 6
the boundary of the site; 7
(d) amending the initial plan of survey of the adjacent site 8
by varying the boundary of the adjacent site. 9
`(2) Each of the plans mentioned in subsection (1)(b) to (d) is a 10
relevant plan. 11
`12J Members to be notified of proposed amendment 12
`(1) Before making the application, the primary thoroughfare body 13
corporate must-- 14
(a) give a written notice to each of the members of the 15
primary thoroughfare body corporate and each of the 16
members of the principal body corporate stating-- 17
(i) the nature of the proposed amendment; and 18
(ii) a description of each lot to which the proposed 19
amendment relates; and 20
(iii) that a member may give the primary thoroughfare 21
body corporate written submissions about the 22
proposed amendment within a period (the 23
notification period) of at least 30 business days 24
after the notice is given; and 25
(b) for a proposed amendment of a relevant plan, make the 26
proposed amended plan available for inspection by the 27
members of the primary thoroughfare body corporate 28
and the members of the principal body corporate during 29
the notification period; and 30
(c) place, on the subject land, a notice stating-- 31
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[s 70]
(i) a brief summary of the nature of the proposed 1
amendment and each lot to which the amendment 2
relates; and 3
(ii) the notification period for giving written 4
submissions about the proposed amendment; and 5
(iii) the name and contact details of a person authorised 6
by the primary thoroughfare body corporate to give 7
information about the amendment. 8
`(2) The notice under subsection (1)(c) must-- 9
(a) be of a type, and placed on the subject land in the way 10
required, under schedule 2; and 11
(b) remain on the subject land during the notification 12
period. 13
`12K Requirements for application 14
`The application must include-- 15
(a) a written statement confirming that-- 16
(i) a written notice was given to the members under 17
section 12J(1)(a), including the days the notice was 18
given; and 19
(ii) a notice was placed on the subject land under 20
section 12J(1)(c) and (2), including the period 21
during which the notice was on the land; and 22
(b) a copy of the notice given under section 12J(1)(a); and 23
(c) for an amendment of a relevant plan-- 24
(i) a written statement confirming the plan was made 25
available for inspection under section 12J(1)(b), 26
including the period during which the plan was 27
available for inspection; and 28
(ii) a copy of the proposed amended plan; and 29
(d) all written submissions given to the primary 30
thoroughfare body corporate under section 31
12J(1)(a)(iii); and 32
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[s 70]
(e) other matters, if any, the Minister considers necessary 1
for deciding the application. 2
`12L Minister to consider application 3
`(1) The Minister must-- 4
(a) consider the application including any written 5
submissions included in the application; and 6
(b) consult any local government, department of 7
government or statutory authority that, in the Minister's 8
opinion, is likely to be affected by the amendment. 9
`(2) The Minister may also consult another person, if, in the 10
Minister's opinion, the person is likely to be affected by the 11
amendment. 12
`(3) The Minister must give the Governor in Council-- 13
(a) the application; and 14
(b) a written notice stating details of the consultation, if any, 15
under subsection (1)(b) and (2), including-- 16
(i) who the Minister consulted; and 17
(ii) the results of the consultation. 18
`12M Decision on application 19
`The Governor in Council may, subject to section 12N-- 20
(a) approve the amendment; or 21
(b) approve the amendment with modifications or subject to 22
conditions; or 23
(c) refuse to approve the amendment. 24
`12N Minor variation of site boundaries 25
`(1) This section applies to an amendment of-- 26
(a) the initial plan of survey of the site by varying the 27
boundary of the site; or 28
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[s 70]
(b) the initial plan of survey of the adjacent site by varying 1
the boundary of the adjacent site. 2
`(2) The Governor in Council may approve the amendment only 3
if-- 4
(a) the Governor in Council considers-- 5
(i) the proposed variation of the boundary is of a 6
minor nature; and 7
(ii) the total area of the site or adjacent site will not be 8
materially changed because of the variation; and 9
(b) neither the aggregate number of the lots on the plan nor 10
the aggregate voting entitlements for the lots will be 11
changed because of the variation; and 12
(c) each affected land owner has given the owner's written 13
consent to the variation. 14
`(3) In this section-- 15
affected land owner means the owner of land that-- 16
(a) is outside the site and is proposed under the amendment 17
application to be within the site; or 18
(b) is within the site and is proposed under the amendment 19
application to be outside the site; or 20
(c) is outside the adjacent site and is proposed under the 21
amendment application to be within the adjacent site; or 22
(d) is within the adjacent site and is proposed under the 23
amendment application to be outside the adjacent site. 24
`12O Approval of change of use for zone 25
`If the Governor in Council approves an amendment to change 26
an approved use for a zone, the amendment does not take 27
effect until it has been approved under a regulation. 28
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[s 71]
`12P Approval of amendment of relevant plan 1
`(1) This section applies if the Governor in Council approves an 2
amendment of a relevant plan under this part. 3
`(2) The chief executive must-- 4
(a) notify the approval of the amendment by a gazette 5
notice stating-- 6
(i) the amendment that has been approved; and 7
(ii) the modifications, if any, made by the approval and 8
the conditions, if any, to which the approval is 9
subject; and 10
(iii) the places where a copy of the approval is available 11
for inspection; and 12
(b) keep a copy of the approval available for inspection at 13
the office of the chief executive at Brisbane during 14
business hours; and 15
(c) note the approval on the amended plan; and 16
(d) give to the registrar of titles and the local government a 17
copy of-- 18
(i) the approved amendment; and 19
(ii) the amended plan endorsed under paragraph (c). 20
`(3) The chief executive must, on payment by a person of the 21
reasonable fee decided by the chief executive, give a copy of 22
the amendment to the person. 23
`(4) If an amendment of the initial plan of survey of the site or the 24
initial plan of survey of the adjacent site is approved under 25
this section, the registrar of titles must register the amended 26
plan.'. 27
Clause 71 Amendment of s 15 (Subdivision of secondary lots) 28
(1) Section 15-- 29
insert-- 30
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[s 71]
`(2CA) A group titles plan mentioned in subsection (2) or (2A) that is 1
submitted to the local government must be accompanied by a 2
diagram showing the name and numbering, or proposed name 3
and numbering, of each road that is, or is to be, on-- 4
(a) the primary thoroughfare, or the part of the primary 5
thoroughfare, shown on the plan; and 6
(b) each secondary thoroughfare, or part of a secondary 7
thoroughfare, shown on the plan.'. 8
(2) Section 15(3), `Albert Shire Council'-- 9
omit, insert-- 10
`local government'. 11
(3) Section 15(1) and (2AA)-- 12
omit. 13
(4) Section 15(2) and (3), `Harbour, River and Waterfront 14
Residential Zone'-- 15
omit, insert-- 16
`Harbour 1 Residential Zone, Harbour, River and Waterfront 17
Residential Zone'. 18
(5) Section 15(2A), (2B), (2C), (2CA) and (5), `subsection (2)'-- 19
omit, insert-- 20
`subsection (1)'. 21
(6) Section 15(2B), (2C) and (2CA), `or (2A)'-- 22
omit, insert-- 23
`or (2)'. 24
(7) Section 15(4) and (5), `subsection (3)'-- 25
omit, insert-- 26
`subsection (7)'. 27
(8) Section 15(2) to (9)-- 28
renumber as section 15(1) to (13). 29
Page 129
Resorts and Other Acts Amendment Bill 2009
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[s 72]
Clause 72 Amendment of s 15A (Plan of survey where variation of 1
boundary approved) 2
(1) Section 15A(1), `under section 8(7) or 12D(7)'-- 3
omit, insert-- 4
`by the local government under section 7(8) or 12C(8) or by 5
the Governor in Council under section 12P'. 6
(2) Section 15A(2), `Albert Shire Council'-- 7
omit, insert-- 8
`local government'. 9
(3) Section 15A(3), `director of local government'-- 10
omit, insert-- 11
`chief executive'. 12
(4) Section 15A(3)-- 13
renumber as section 15A(4). 14
(5) Section 15A-- 15
insert-- 16
`(3) However, the endorsement of the approval of the local 17
government is not required on a plan of survey showing a 18
variation of a boundary of a zone that has been approved 19
under section 12P.'. 20
Clause 73 Amendment of s 20 (Subdivision of land where wholly or 21
partly submerged) 22
Section 20(1), `Floating Dwelling House Zone'-- 23
omit, insert-- 24
`Harbour 1 Residential Zone'. 25
Clause 74 Amendment of s 21A (Subdivision of land outside 26
residential zones) 27
(1) Section 21A, `Albert Shire Council'-- 28
Page 130
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[s 75]
omit, insert-- 1
`local government'. 2
(2) Section 21A(3), `director of local government'-- 3
omit, insert-- 4
`chief executive'. 5
(3) Section 21A(4), `the council'-- 6
omit, insert-- 7
`the local government'. 8
(4) Section 21A(3) and (4)-- 9
renumber as section 21A(4) and (5). 10
(5) Section 21A-- 11
insert-- 12
`(3) A plan of subdivision lodged with the local government under 13
this section must be accompanied by a diagram showing the 14
name and numbering, or proposed name and numbering, of 15
each road that is, or is to be, on the primary thoroughfare, or 16
the part of the primary thoroughfare, shown on the plan.'. 17
Clause 75 Amendment of s 22 (Interpretation) 18
(1) Section 22, heading-- 19
omit, insert-- 20
`22 Definitions for pt 3'. 21
(2) Section 22-- 22
insert-- 23
`financial year means a period in relation to which the 24
principal body corporate is required under section 33(1)(f) to 25
prepare a statement of accounts. 26
nominee, of a member of the principal body corporate, see 27
section 24(1). 28
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[s 76]
original owner, of a secondary lot that has been subdivided by 1
a building unit or group titles plan, means the person who was 2
the registered owner of the lot immediately before it was 3
subdivided by the plan.'. 4
Clause 76 Replacement of s 24 (Member's nominee) 5
Section 24-- 6
omit, insert-- 7
`24 Member's nominee 8
`(1) This section applies to a member of the principal body 9
corporate for appointing a person (a nominee) to represent 10
and vote on behalf of the member at meetings of the principal 11
body corporate. 12
`(2) A subsidiary body corporate of the principal body corporate-- 13
(a) must appoint a nominee at its annual general meeting; 14
and 15
(b) otherwise, may appoint a nominee from time to time. 16
`(3) A member of the principal body corporate, other than a 17
subsidiary body corporate, may appoint a nominee from time 18
to time. 19
`(4) Subject to section 24A, a nominee appointed by a subsidiary 20
body corporate must be a member of the subsidiary body 21
corporate. 22
`(5) The appointment of a nominee has no effect until written 23
notice of the appointment is received by the secretary of the 24
principal body corporate. 25
`(6) A nominee appointed by a subsidiary body corporate must 26
represent the subsidiary body corporate-- 27
(a) in the way the subsidiary body corporate directs; and 28
(b) subject to paragraph (a), in a way that is in the best 29
interests of the subsidiary body corporate. 30
`(7) The appointment of a nominee for a member ends when the 31
first of the following happens-- 32
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[s 76]
(a) the end of 1 year after the appointment; 1
(b) the secretary of the principal body corporate receives 2
written notice of-- 3
(i) the cancellation of the nominee's appointment; or 4
(ii) the appointment of another nominee for the 5
member. 6
`(8) A written notice under subsection (5) or (7)(b) must be 7
signed-- 8
(a) for an appointment or cancellation made by a subsidiary 9
body corporate--by the chairperson and secretary of the 10
subsidiary body corporate; or 11
(b) otherwise--by the member. 12
`24A When original owner can not be nominee for 13
subsidiary body corporate 14
`(1) This section applies if more than 50% of the lots created by 15
the registration of a group titles plan or building units plan 16
subdividing a secondary lot are no longer owned by the 17
original owner of the secondary lot. 18
`(2) The subsidiary body corporate created by the registration of 19
the plan can not appoint as its nominee-- 20
(a) the original owner; or 21
(b) an associate (an ineligible associate) of the original 22
owner who is not 1 of the proprietors constituting the 23
subsidiary body corporate. 24
`(3) If the original owner or an ineligible associate of the original 25
owner is already a nominee for the subsidiary body 26
corporate-- 27
(a) a general meeting of the subsidiary body corporate must 28
be held within 2 months; and 29
(b) if it is not sooner ended, the owner's or associate's 30
appointment as the nominee ends at the next general 31
meeting of the subsidiary body corporate.'. 32
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Resorts and Other Acts Amendment Bill 2009
Part 6 Amendment of Sanctuary Cove Resort Act 1985
[s 77]
Clause 77 Amendment of s 27 (Meetings of principal body 1
corporate) 2
Section 27(5A), after `apply'-- 3
insert-- 4
`and the application of the Building Units and Group Titles 5
Act 1980, schedule 2, part 2 is subject to schedule 3 and 6
schedule 9, definition ordinary resolution'. 7
Clause 78 Amendment of s 32 (Miscellaneous powers of principal 8
body corporate) 9
(1) Section 32, `body corporate may'-- 10
omit, insert-- 11
`body corporate may do any of the following'. 12
(2) Section 32-- 13
insert-- 14
`(e) employ staff to perform its functions.'. 15
Clause 79 Amendment of s 33 (Duties of principal body corporate) 16
Section 33(1)(e)-- 17
omit, insert-- 18
`(e) keep-- 19
(i) for at least 10 years after their creation or receipt 20
by or for the principal body corporate-- 21
(A) minutes of its meetings, including particulars 22
of motions passed at the meetings; and 23
(B) proper books of account for amounts 24
received or paid by the principal body 25
corporate showing the items for which the 26
amounts were received or paid; and 27
(ii) for at least 2 years after their creation or receipt by 28
or for the principal body corporate--voting tally 29
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Resorts and Other Acts Amendment Bill 2009
Part 6 Amendment of Sanctuary Cove Resort Act 1985
[s 80]
sheets or other records showing votes for motions 1
and election ballots related to its meetings; and'. 2
Clause 80 Amendment of s 41 (Constitution of executive committee) 3
(1) Section 41(3), `3 members'-- 4
omit, insert-- 5
`5 members'. 6
(2) Section 41(4)-- 7
omit, insert-- 8
`(4) If there are more than 5 members of the principal body 9
corporate, the executive committee must consist of at least 5 10
persons and not more than the number of members of the 11
principal body corporate, as decided by the principal body 12
corporate.'. 13
(3) Section 41(5), `(if any)'-- 14
omit. 15
(4) Section 41(5), `more than 3'-- 16
omit, insert-- 17
`more than 5'. 18
(5) Section 41(6)-- 19
omit, insert-- 20
`(5A) The election of the chairperson, secretary, treasurer and any 21
other members of the executive committee at a general 22
meeting of the principal body corporate must be conducted 23
under schedule 3. 24
`(6) A person is eligible for election as chairperson, secretary or 25
treasurer, or as another member of the executive committee, 26
only if the person-- 27
(a) is an individual who is-- 28
(i) a member of the principal body corporate; or 29
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Resorts and Other Acts Amendment Bill 2009
Part 6 Amendment of Sanctuary Cove Resort Act 1985
[s 81]
(ii) a nominee of a member of the principal body 1
corporate; and 2
(b) does not owe a relevant body corporate debt in relation 3
to a lot or lots owned by the person.'. 4
Clause 81 Insertion of new s 41A 5
After section 41-- 6
insert-- 7
`41A Code of conduct for voting members of executive 8
committee 9
`(1) The code of conduct in schedule 4 applies to each person (a 10
voting member) who is-- 11
(a) a member of the executive committee; and 12
(b) entitled to vote at general meetings of the principal body 13
corporate. 14
`(2) On becoming a voting member of the executive committee, 15
the person is taken to have agreed to comply with the code of 16
conduct.'. 17
Clause 82 Amendment of s 42 (Vacation of office of member of 18
executive committee) 19
(1) Section 42(1)(j)-- 20
renumber as section 42(1)(k). 21
(2) Section 42(1)-- 22
insert-- 23
`(j) if the person is removed from office by ordinary 24
resolution of the principal body corporate under division 25
2D; or'. 26
Clause 83 Insertion of new s 44A 27
After section 44-- 28
Page 136
Resorts and Other Acts Amendment Bill 2009
Part 6 Amendment of Sanctuary Cove Resort Act 1985
[s 84]
insert-- 1
`44A Conflict of interest of executive committee member 2
[SM, s 53] 3
`(1) A member of the executive committee must disclose to a 4
meeting of the committee the member's direct or indirect 5
interest in an issue being considered, or about to be 6
considered, by the committee if the interest could conflict 7
with the appropriate performance of the member's duties 8
about the consideration of the issue. 9
`(2) If a member required under subsection (1) to disclose an 10
interest in an issue is a voting member of the committee, the 11
member is not entitled to vote on a motion involving the issue. 12
`(3) A person who holds the proxy of a member of the committee 13
must disclose to a meeting of the committee the proxy 14
holder's direct or indirect interest in an issue being 15
considered, or about to be considered, by the committee if the 16
interest could conflict with the appropriate performance of the 17
proxy holder's duties about the consideration of the issue. 18
`(4) A proxy holder required under subsection (3) to disclose an 19
interest in an issue must not vote as the proxy on a motion 20
involving the issue. 21
`(5) A person who holds the proxy of a member of the committee 22
must disclose to a meeting of the committee the member's 23
direct or indirect interest in an issue being considered, or 24
about to be considered, by the committee if the proxy holder 25
is aware that the member, if present, would be required under 26
subsection (1) to disclose the interest. 27
`(6) A proxy holder required under subsection (5) to disclose an 28
interest in an issue must not vote as the proxy on a motion 29
involving the issue.'. 30
Clause 84 Amendment of s 47A (Principal body corporate manager) 31
(1) Section 47A(1), `subsection (2)'-- 32
omit, insert-- 33
`subsections (2), (8), (9) and (10)'. 34
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[s 85]
(2) Section 47A(9)-- 1
renumber as section 47A(11). 2
(3) Section 47A(8)-- 3
omit, insert-- 4
`(8) The term of appointment of the body corporate manager (after 5
allowing for any rights or options of extension or renewal, 6
whether provided for in the instrument of appointment or 7
subsequently agreed to) must not be longer than 3 years. 8
Example-- 9
The appointment of a body corporate manager begins on 1 January 2009 10
and is for a term of 3 years. The appointment can not end later than 31 11
December 2011. 12
`(9) If the term of appointment purports to be longer than 3 years, 13
it is taken to be 3 years. 14
`(10) To remove any doubt, it is declared that at the end of the term 15
of appointment of a person as the body corporate manager-- 16
(a) the appointment expires; and 17
(b) the person can not act again as the body corporate 18
manager without a new appointment.'. 19
(4) Section 47A-- 20
renumber as section 47AB. 21
Clause 85 Insertion of new ss 47A and 47AA 22
Part 3, division 2-- 23
insert-- 24
`47A Protection of executive committee members from 25
liability 26
`(1) A member of the executive committee is not civilly liable for 27
an act done or omission made in good faith and without 28
negligence in performing the person's role as a member of the 29
committee. 30
`(2) In this section-- 31
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[s 85]
act done or omission made does not include the publication 1
of defamatory matter as mentioned in section 47AA(1). 2
`47AA Protection of body corporate and executive 3
committee from liability for defamation 4
`(1) This section applies if-- 5
(a) the executive committee publishes required material for 6
a general meeting of the principal body corporate; and 7
(b) the required material contains defamatory matter. 8
`(2) Each of the following is not liable for defamation because of 9
the publication-- 10
(a) the principal body corporate; 11
(b) the committee, or a member of the committee, other 12
than a member of the committee who submitted the 13
document containing the defamatory matter. 14
`(3) In this section-- 15
member of the committee includes the body corporate 16
manager acting under a delegation under section 47AB(1). 17
prescribed motion means any of the following-- 18
(a) a motion to give a member of the executive committee a 19
notice under section 47K(1); 20
(b) a motion mentioned in section 47L(2)(a) to remove a 21
member of the executive committee from office; 22
(c) a motion to give a letting agent a code contravention 23
notice; 24
(d) a motion to require a letting agent to transfer the letting 25
agent's management rights for a part of the resort under 26
section 94K; 27
(e) a motion to terminate a person's appointment as a body 28
corporate manager, engagement as a service contractor 29
or authorisation as a letting agent under section 94V. 30
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[s 86]
required material, for a general meeting of the principal body 1
corporate, means any of the following required under this Act 2
to be published for the meeting-- 3
(a) a prescribed motion submitted other than by or for the 4
committee for the general meeting; 5
(b) the substance of a prescribed motion mentioned in 6
paragraph (a); 7
(c) notice of a prescribed motion mentioned in paragraph 8
(a) or another document required to accompany the 9
motion, prepared by the submitter of the motion.'. 10
Clause 86 Insertion of new pt 3, divs 2B2D 11
Part 3-- 12
insert-- 13
`Division 2B Proxies for general meetings of 14
principal body corporate 15
`47B Application of div 2B 16
`This division applies to the appointment and use of a proxy to 17
represent a member of the principal body corporate at a 18
general meeting of the principal body corporate. 19
`47C Appointment [SM, s 107] 20
`(1) Subject to subsections (2) to (5), a person entitled to vote at 21
the general meeting may appoint a proxy to act for the person 22
at the general meeting. 23
`(2) The principal body corporate may by special resolution 24
prohibit the use of proxies-- 25
(a) for particular things described in the special resolution; 26
or 27
(b) altogether. 28
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Resorts and Other Acts Amendment Bill 2009
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[s 86]
`(3) An appointment under subsection (1) has effect subject to the 1
operation of a special resolution under subsection (2). 2
`(4) A person must not hold-- 3
(a) if there are 20 or more lots for which there are voting 4
entitlements for the meeting--proxies greater in number 5
than 5% of the lots; or 6
(b) if there are fewer than 20 lots for which there are voting 7
entitlements for the meeting--more than 1 proxy. 8
`(5) The appointment of a proxy is effective only if the person or 9
the holder of the proxy gives, by hand, post or facsimile, a 10
properly completed proxy form to the secretary of the 11
principal body corporate before-- 12
(a) the start of the meeting where the proxy is to be 13
exercised; or 14
(b) if the principal body corporate has fixed an earlier time 15
by which proxies must be given (that can not, however, 16
be earlier than 24 hours before the time fixed for the 17
meeting)--the earlier time. 18
`47D Form of proxy [SM, s 108] 19
`A proxy under this division-- 20
(a) must be in the approved form; and 21
(b) must be in the English language; and 22
(c) can not be irrevocable; and 23
(d) can not be transferred by the holder of the proxy to a 24
third person; and 25
(e) lapses at the end of the principal body corporate's 26
financial year or at the end of a shorter period stated in 27
the proxy; and 28
(f) may be given by any person who has the right to vote at 29
a general meeting; and 30
(g) subject to the limitations contained in this division, may 31
be given to any individual; and 32
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[s 86]
(h) must appoint a named individual. 1
`47E Use of proxy [SM, s 109] 2
`(1) A member of the principal body corporate (member A) who is 3
the proxy for another member of the principal body corporate 4
(member B) may vote both in member A's own right and also 5
as proxy of member B. 6
`(2) If at least 1 co-owner of a lot is present at the general meeting, 7
a proxy given by another co-owner of the lot is of no effect. 8
`(3) A vote by proxy must not be exercised at the general 9
meeting-- 10
(a) if the member who gave the proxy is personally present 11
at the meeting, unless the member consents at the 12
meeting; or 13
(b) on a particular motion, if the person who gave the proxy 14
has exercised a written or electronic vote on the motion; 15
or 16
(c) on a ballot for the election of a member of the executive 17
committee, or for otherwise choosing a member of the 18
executive committee; or 19
(d) for voting for a special resolution prohibiting, wholly or 20
partly, the use of proxies at executive committee 21
meetings or general meetings; or 22
(e) for voting for a majority resolution; or 23
(f) on a motion approving-- 24
(i) the appointment, engagement or authorisation of a 25
person as the body corporate manager, a service 26
contractor or a letting agent; or 27
(ii) the amendment or termination of an appointment, 28
engagement or authorisation mentioned in 29
subparagraph (i); or 30
(g) on a motion decided by secret ballot. 31
`(4) A proxy may be exercised by-- 32
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Resorts and Other Acts Amendment Bill 2009
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[s 86]
(a) the proxy holder voting in a show of hands at a general 1
meeting; or 2
(b) the proxy holder completing a written or electronic vote 3
on a motion before the start of, or at, the general 4
meeting. 5
`47F Special provisions about proxy use [SM, s 110] 6
`(1) A member of the principal body corporate can not be 7
prevented by contract from exercising a vote at the general 8
meeting, and can not be required by contract to make 9
someone else the member's proxy for voting at the general 10
meeting. 11
`(2) A proxy can not be exercised for someone else by-- 12
(a) the original owner of a secondary lot; or 13
(b) a body corporate manager for-- 14
(i) the primary thoroughfare body corporate; or 15
(ii) the principal body corporate; or 16
(iii) a subsidiary body corporate of the primary 17
thoroughfare body corporate or principal body 18
corporate; or 19
(c) an associate of a person mentioned in paragraph (a) or 20
(b), unless the associate is 1 of the proprietors 21
constituting a body corporate that is itself a member of 22
the principal body corporate. 23
`47G Offence [SM, s 111] 24
`A person must not exercise a proxy, or otherwise purport to 25
vote on behalf of another person, at the general meeting of the 26
principal body corporate knowing that the person does not 27
have the right to exercise the proxy or otherwise vote on 28
behalf of the other person. 29
Maximum penalty--100 penalty units. 30
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Resorts and Other Acts Amendment Bill 2009
Part 6 Amendment of Sanctuary Cove Resort Act 1985
[s 86]
`Division 2C Accounts and audit 1
`47H Application of div 2C 2
`This division applies to the principal body corporate for 3
preparing a statement of accounts under section 33(1)(f). 4
`47I Accounts [SM, s 154] 5
`(1) The statement of accounts may be prepared on a cash or 6
accrual basis. 7
`(2) If the accounts are prepared on a cash basis, they must include 8
disclosure of the following-- 9
(a) the total amounts paid to the fund established under 10
section 33(1)(i) and the account established under 11
section 33(1)(k); 12
(b) total contributions in arrears; 13
(c) balances for all financial institution accounts and 14
investments; 15
(d) all outstanding receipts and payments. 16
`(3) If the accounts are prepared on an accrual basis, they must 17
show the assets and liabilities of the principal body corporate 18
at the end of the financial year for which the accounts are 19
prepared. 20
`(4) The statement of accounts must include-- 21
(a) the corresponding figures for the previous financial 22
year; and 23
(b) disclosure of all remuneration, allowances or expenses 24
paid to members of the executive committee, identifying 25
the total amounts paid to each member during the 26
financial year under the following categories-- 27
(i) remuneration or allowances; 28
(ii) expenses, split up into travelling, accommodation, 29
meal and other expenses. 30
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[s 86]
`(5) A copy of the statement of accounts must accompany the 1
notice of the annual general meeting first happening after the 2
end of the financial year for which the accounts are prepared. 3
`47J Audit [SM, s 155] 4
`(1) The principal body corporate must have its statement of 5
accounts for each financial year of the body corporate audited 6
by an auditor. 7
`(2) The auditor to be appointed must be agreed to by ordinary 8
resolution of the principal body corporate. 9
`(3) The motion for agreeing to the auditor to be appointed-- 10
(a) must be included in the agenda for the general meeting 11
where the motion is to be considered; and 12
(b) must include the name of the auditor proposed to be 13
appointed. 14
`(4) Also, the body corporate may, by ordinary resolution-- 15
(a) resolve to have its accounting records audited for a 16
particular period or a particular project; and 17
(b) appoint an auditor for the audit. 18
`(5) A member of the executive committee, the body corporate 19
manager, or an associate of a member of the executive 20
committee or body corporate manager, can not be appointed 21
to audit the accounting records or the statement of accounts of 22
the principal body corporate. 23
`(6) On finishing an audit of the principal body corporate's 24
statement of accounts for a financial year, the auditor must 25
give a certificate-- 26
(a) stating whether the statement of accounts gives a true 27
and fair view of the principal body corporate's financial 28
affairs; and 29
(b) if the statement of accounts does not give a true and fair 30
view of the principal body corporate's financial 31
affairs--identifying the deficiencies in the statement. 32
Page 145
Resorts and Other Acts Amendment Bill 2009
Part 6 Amendment of Sanctuary Cove Resort Act 1985
[s 86]
`(7) A copy of the auditor's certificate must accompany the notice 1
of the next annual general meeting held after the certificate is 2
given. 3
`(8) In this section-- 4
auditor means-- 5
(a) a person who is a registered company auditor; or 6
(b) a person who-- 7
(i) is a member of-- 8
(A) CPA Australia and entitled to use the letters 9
`CPA' or `FCPA'; or 10
(B) the Institute of Chartered Accountants in 11
Australia and entitled to use the letters `CA' 12
or `FCA'; or 13
(C) the National Institute of Accountants and 14
entitled to use the letters `MNIA', `FNIA', 15
`PNA' or `FPNA'; and 16
(ii) has a total of 2 years auditing experience, whether 17
or not continuous. 18
`Division 2D Removal from office of voting 19
members of executive committee 20
for breach of code of conduct 21
`47K Notice for breach of code of conduct [SM, s 34] 22
`(1) If the principal body corporate believes a voting member of its 23
executive committee has breached the code of conduct for the 24
member, the principal body corporate may decide, by ordinary 25
resolution, to give the member a written notice stating each of 26
the following-- 27
(a) that the principal body corporate believes the member 28
has breached a stated provision of the code of conduct; 29
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[s 86]
(b) details sufficient to identify the breach in not more than 1
600 words; 2
(c) that the member may give any other member of the 3
principal body corporate, within the stated period of at 4
least 21 days after the member is given the notice, a 5
written response to the notice in not more than 600 6
words; 7
(d) that, if asked by the member, the principal body 8
corporate will pay the member all postage charges and 9
copying expenses reasonably incurred by the member in 10
giving a written response under paragraph (c) to any 11
other member of the principal body corporate; 12
(e) that the principal body corporate is to consider a motion 13
to remove the member from office for the breach at its 14
next general meeting called after the period mentioned 15
in paragraph (c) ends. 16
`(2) If asked by the member, the principal body corporate must 17
pay the member all postage charges and copying expenses 18
reasonably incurred by the member in giving a written 19
response under subsection (1)(c) to any other member of the 20
principal body corporate. 21
`47L Removal of voting member at general meeting 22
[SM, s 35] 23
`(1) This section applies if-- 24
(a) the principal body corporate gives a voting member of 25
its executive committee a notice under section 47K(1); 26
and 27
(b) the period mentioned in section 47K(1)(c) for the notice 28
has ended. 29
`(2) The principal body corporate must-- 30
(a) include on the agenda of its next general meeting, called 31
after the period mentioned in section 47K(1)(c) ends, a 32
motion to remove the member from office for breaching 33
the code of conduct; and 34
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[s 87]
(b) attach to the agenda a copy of-- 1
(i) the notice; and 2
(ii) if the body corporate has received a written 3
response from the member under section 4
47K(1)(c)--the response. 5
`(3) The member may be removed from office, by ordinary 6
resolution of the principal body corporate, at the next general 7
meeting.'. 8
Clause 87 Amendment of s 60 (Establishment of pedestrian mall) 9
Section 60, `Floating Dwelling House Zone'-- 10
omit, insert-- 11
`Harbour 1 Residential Zone'. 12
Clause 88 Replacement of s 64A (Maintenance etc. of canals) 13
Section 64A-- 14
omit, insert-- 15
`64A Maintenance etc. of canals 16
`The principal body corporate must preserve, maintain and 17
keep clean a canal, or the part of a canal, that is part of a 18
secondary thoroughfare.'. 19
Clause 89 Amendment of s 64B (Surrender of secondary 20
thoroughfare as canal) 21
(1) Section 64B(1)-- 22
omit, insert-- 23
`(1) This section applies to a canal, including the part of a canal, 24
that is part of a secondary thoroughfare.'. 25
(2) Section 64B, `Albert Shire Council'-- 26
omit, insert-- 27
`local government'. 28
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[s 90]
(3) Section 64B, `Canals Act 1958'-- 1
omit, insert-- 2
`Coastal Protection and Management Act 1995'. 3
(4) Section 64B(2), `a canal'-- 4
omit, insert-- 5
`the canal'. 6
Clause 90 Amendment of s 65 (Interpretation) 7
(1) Section 65, heading-- 8
omit, insert-- 9
`65 Definitions for pt 5'. 10
(2) Section 65-- 11
insert-- 12
`financial year, for the primary thoroughfare body corporate, 13
means a period in relation to which the primary thoroughfare 14
body corporate is required under section 77(1)(f) to prepare a 15
statement of accounts.'. 16
Clause 91 Amendment of s 67 (Member's nominee) 17
(1) Section 67(1)(a), from `a body corporate' to `group titles 18
plan'-- 19
omit, insert-- 20
`a subsidiary body corporate'. 21
(2) Section 67-- 22
insert-- 23
`(4) A person appointed under this section by a subsidiary body 24
corporate must represent the subsidiary body corporate-- 25
(a) in the way the subsidiary body corporate directs; and 26
(b) subject to paragraph (a), in a way that is in the best 27
interests of the subsidiary body corporate.'. 28
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[s 92]
Clause 92 Amendment of s 70 (Meetings of primary thoroughfare 1
body corporate) 2
Section 70(5A), after `apply'-- 3
insert-- 4
`and the application of the Building Units and Group Titles 5
Act 1980, schedule 2, part 2 is subject to schedule 3 and 6
schedule 9, definition ordinary resolution'. 7
Clause 93 Amendment of s 76 (Miscellaneous powers of primary 8
thoroughfare body corporate) 9
(1) Section 76, `body corporate may'-- 10
omit, insert-- 11
`body corporate may do any of the following'. 12
(2) Section 76-- 13
insert-- 14
`(g) employ staff to perform its functions.'. 15
Clause 94 Amendment of s 77 (Duties of primary thoroughfare body 16
corporate) 17
Section 77(1)(e)-- 18
omit, insert-- 19
`(e) keep-- 20
(i) for at least 10 years after their creation or receipt 21
by or for the primary thoroughfare body 22
corporate-- 23
(A) minutes of its meetings, including particulars 24
of motions passed at the meetings; and 25
(B) proper books of account for amounts 26
received or paid by the primary thoroughfare 27
body corporate showing the items for which 28
the amounts were received or paid; and 29
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[s 95]
(ii) for at least 2 years after their creation or receipt by 1
or for the primary thoroughfare body corporate-- 2
voting tally sheets or other records showing votes 3
for motions and election ballots related to its 4
meetings; and'. 5
Clause 95 Amendment of s 85 (Constitution of executive committee) 6
(1) Section 85(3), `3 members'-- 7
omit, insert-- 8
`5 members'. 9
(2) Section 85(4)-- 10
omit, insert-- 11
`(4) If there are more than 5 members of the primary thoroughfare 12
body corporate, the executive committee must consist of at 13
least 5 persons and not more than the number of members of 14
the primary thoroughfare body corporate, as decided by the 15
primary thoroughfare body corporate.'. 16
(3) Section 85(5), `(if any)'-- 17
omit. 18
(4) Section 85(5), `more than 3'-- 19
omit, insert-- 20
`more than 5'. 21
(5) Section 85(6)-- 22
omit, insert-- 23
`(5A) The election of the chairperson, secretary, treasurer and any 24
other members of the executive committee at a general 25
meeting of the primary thoroughfare body corporate must be 26
conducted under schedule 3. 27
`(6) A person is eligible for election as chairperson, secretary or 28
treasurer, or as another member of the executive committee, 29
only if the person-- 30
(a) is an individual who-- 31
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[s 96]
(i) is a member of the primary thoroughfare body 1
corporate; or 2
(ii) has been nominated for election by a member of 3
the primary thoroughfare body corporate; and 4
(b) does not owe a relevant body corporate debt in relation 5
to a lot or lots owned by the person.'. 6
Clause 96 Insertion of new s 85A 7
After section 85-- 8
insert-- 9
`85A Code of conduct for voting members of executive 10
committee 11
`(1) The code of conduct in schedule 4 applies to each person (a 12
voting member) who is-- 13
(a) a member of the executive committee; and 14
(b) entitled to vote at general meetings of the primary 15
thoroughfare body corporate. 16
`(2) On becoming a voting member of the executive committee, 17
the person is taken to have agreed to comply with the code of 18
conduct.'. 19
Clause 97 Amendment of s 86 (Vacation of office of member of 20
executive committee) 21
(1) Section 86(1)(j)-- 22
renumber as section 86(1)(k). 23
(2) Section 86(1)-- 24
insert-- 25
`(j) if the person is removed from office by ordinary 26
resolution of the primary thoroughfare body corporate 27
under division 2C; or'. 28
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[s 98]
Clause 98 Insertion of new s 88A 1
After section 88-- 2
insert-- 3
`88A Conflict of interest of executive committee member 4
[SM, s 53] 5
`(1) A member of the executive committee must disclose to a 6
meeting of the committee the member's direct or indirect 7
interest in an issue being considered, or about to be 8
considered, by the committee if the interest could conflict 9
with the appropriate performance of the member's duties 10
about the consideration of the issue. 11
`(2) If a member required under subsection (1) to disclose an 12
interest in an issue is a voting member of the committee, the 13
member is not entitled to vote on a motion involving the issue. 14
`(3) A person who holds the proxy of a member of the committee 15
must disclose to a meeting of the committee the proxy 16
holder's direct or indirect interest in an issue being 17
considered, or about to be considered, by the committee if the 18
interest could conflict with the appropriate performance of the 19
proxy holder's duties about the consideration of the issue. 20
`(4) A proxy holder required under subsection (3) to disclose an 21
interest in an issue must not vote as the proxy on a motion 22
involving the issue. 23
`(5) A person who holds the proxy of a member of the committee 24
must disclose to a meeting of the committee the member's 25
direct or indirect interest in an issue being considered, or 26
about to be considered, by the committee if the proxy holder 27
is aware that the member, if present, would be required under 28
subsection (1) to disclose the interest. 29
`(6) A proxy holder required under subsection (5) to disclose an 30
interest in an issue must not vote as the proxy on a motion 31
involving the issue.'. 32
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[s 99]
Clause 99 Amendment of s 91A (Primary thoroughfare body 1
corporate manager) 2
(1) Section 91A(1), `subsection (2)'-- 3
omit, insert-- 4
`subsections (2), (8), (9) and (10)'. 5
(2) Section 91A(9)-- 6
renumber as section 91A(11). 7
(3) Section 91A(8)-- 8
omit, insert-- 9
`(8) The term of appointment of the body corporate manager (after 10
allowing for any rights or options of extension or renewal, 11
whether provided for in the instrument of appointment or 12
subsequently agreed to) must not be longer than 3 years. 13
Example-- 14
The appointment of a body corporate manager begins on 1 January 2009 15
and is for a term of 3 years. The appointment can not end later than 31 16
December 2011. 17
`(9) If the term of appointment purports to be longer than 3 years, 18
it is taken to be 3 years. 19
`(10) To remove any doubt, it is declared that at the end of the term 20
of appointment of a person as the body corporate manager-- 21
(a) the appointment expires; and 22
(b) the person can not act again as the body corporate 23
manager without a new appointment.'. 24
(4) Section 91A-- 25
renumber as section 91AB. 26
Clause 100 Insertion of new ss 91A and 91AA 27
Part 5, division 2-- 28
insert-- 29
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[s 100]
`91A Protection of executive committee members from 1
liability 2
`(1) A member of the executive committee is not civilly liable for 3
an act done or omission made in good faith and without 4
negligence in performing the person's role as a member of the 5
committee. 6
`(2) In this section-- 7
act done or omission made does not include the publication 8
of defamatory matter as mentioned in section 91AA(1). 9
`91AA Protection of body corporate and executive 10
committee from liability for defamation 11
`(1) This section applies if-- 12
(a) the executive committee publishes required material for 13
a general meeting of the primary thoroughfare body 14
corporate; and 15
(b) the required material contains defamatory matter. 16
`(2) Each of the following is not liable for defamation because of 17
the publication-- 18
(a) the primary thoroughfare body corporate; 19
(b) the committee, or a member of the committee, other 20
than a member of the committee who submitted the 21
document containing the defamatory matter. 22
`(3) In this section-- 23
member of the committee includes the body corporate 24
manager acting under a delegation under section 91AB(1). 25
prescribed motion means any of the following-- 26
(a) a motion to give a member of the executive committee a 27
notice under section 91H(1); 28
(b) a motion mentioned in section 91I(2)(a) to remove a 29
member of the executive committee from office; 30
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[s 101]
(c) a motion to give a letting agent a code contravention 1
notice; 2
(d) a motion to require a letting agent to transfer the letting 3
agent's management rights for the resort or a part of the 4
resort under section 94K; 5
(e) a motion to terminate a person's appointment as a body 6
corporate manager, engagement as a service contractor 7
or authorisation as a letting agent under section 94V. 8
required material, for a general meeting of the primary 9
thoroughfare body corporate, means any of the following 10
required under this Act to be published for the meeting-- 11
(a) a prescribed motion submitted other than by or for the 12
committee for the general meeting; 13
(b) the substance of a prescribed motion mentioned in 14
paragraph (a); 15
(c) notice of a prescribed motion mentioned in paragraph 16
(a) or another document required to accompany the 17
motion, prepared by the submitter of the motion.'. 18
Clause 101 Insertion of new pt 5, divs 2B and 2C 19
Part 5-- 20
insert-- 21
`Division 2B Proxies for principal body corporate 22
at general meetings of primary 23
thoroughfare body corporate 24
`91B Application of div 2B 25
`This division applies to the appointment and use of a proxy to 26
represent the principal body corporate at a general meeting of 27
the primary thoroughfare body corporate. 28
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[s 101]
`91C Appointment [SM, s 107] 1
`(1) Subject to subsection (2), the principal body corporate may 2
appoint a proxy to act for the body corporate at the general 3
meeting. 4
`(2) The appointment of a proxy is effective only if the principal 5
body corporate or the holder of the proxy gives, by hand, post 6
or facsimile, a properly completed proxy form to the secretary 7
of the primary thoroughfare body corporate before-- 8
(a) the start of the meeting where the proxy is to be 9
exercised; or 10
(b) if the primary thoroughfare body corporate has fixed an 11
earlier time by which proxies must be given (that can 12
not, however, be earlier than 24 hours before the time 13
fixed for the meeting)--the earlier time. 14
`91D Form of proxy [SM, s 108] 15
`A proxy given under this division-- 16
(a) must be in the approved form; and 17
(b) must be in the English language; and 18
(c) can not be irrevocable; and 19
(d) can not be transferred by the holder of the proxy to a 20
third person; and 21
(e) lapses at the end of the primary thoroughfare body 22
corporate's financial year or at the end of a shorter 23
period stated in the proxy; and 24
(f) may be given by any person who has the right to vote at 25
a general meeting; and 26
(g) subject to the limitations contained in this division, may 27
be given to any individual; and 28
(h) must appoint a named individual. 29
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[s 101]
`91E Use of proxy [SM, s 109] 1
`(1) A member of the primary thoroughfare body corporate who is 2
the proxy for the principal body corporate may vote both in 3
the member's own right and also as proxy of the principal 4
body corporate. 5
`(2) A vote by proxy must not be exercised on behalf of the 6
principal body corporate at the general meeting-- 7
(a) if the person appointed to represent the principal body 8
corporate under section 67(1) is personally present at 9
the meeting, unless the person consents at the meeting; 10
or 11
(b) on a particular motion, if a written or electronic vote has 12
been exercised on the motion on behalf of the principal 13
body corporate; or 14
(c) on a ballot for the election of a member of the executive 15
committee, or for otherwise choosing a member of the 16
executive committee; or 17
(d) for voting for a special resolution prohibiting, wholly or 18
partly, the use of proxies at executive committee 19
meetings or general meetings; or 20
(e) for voting for a majority resolution; or 21
(f) on a motion approving-- 22
(i) the appointment, engagement or authorisation of a 23
person as the body corporate manager, a service 24
contractor or a letting agent; or 25
(ii) the amendment or termination of an appointment, 26
engagement or authorisation mentioned in 27
subparagraph (i); or 28
(g) on a motion decided by secret ballot. 29
`(3) A proxy may be exercised by-- 30
(a) the proxy holder voting in a show of hands at a general 31
meeting; or 32
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[s 101]
(b) the proxy holder completing a written or electronic vote 1
on a motion before the start of, or at, the general 2
meeting. 3
`91F Special provisions about proxy use [SM, s 110] 4
`(1) The principal body corporate can not be prevented by contract 5
from exercising a vote at the general meeting, and can not be 6
required by contract to make someone else the body 7
corporate's proxy for voting at the general meeting. 8
`(2) A proxy can not be exercised for the principal body corporate 9
by-- 10
(a) the original owner of a secondary lot; or 11
(b) a body corporate manager for-- 12
(i) the primary thoroughfare body corporate; or 13
(ii) the principal body corporate; or 14
(iii) a subsidiary body corporate of the primary 15
thoroughfare body corporate or principal body 16
corporate; or 17
(c) an associate of a person mentioned in paragraph (a) or 18
(b), unless the associate is 1 of the proprietors 19
constituting a subsidiary body corporate of the principal 20
body corporate. 21
`91G Offence [SM, s 111] 22
`A person must not exercise a proxy, or otherwise purport to 23
vote on behalf of the principal body corporate, at the general 24
meeting of the primary thoroughfare body corporate knowing 25
that the person does not have the right to exercise the proxy or 26
otherwise vote on behalf of the principal body corporate. 27
Maximum penalty--100 penalty units. 28
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[s 101]
`Division 2C Removal from office of voting 1
members of executive committee 2
for breach of code of conduct 3
`91H Notice for breach of code of conduct [SM, s 34] 4
`(1) If the primary thoroughfare body corporate believes a voting 5
member of its executive committee has breached the code of 6
conduct for the member, the primary thoroughfare body 7
corporate may decide, by ordinary resolution, to give the 8
member a written notice stating each of the following-- 9
(a) that the primary thoroughfare body corporate believes 10
the member has breached a stated provision of the code 11
of conduct; 12
(b) details sufficient to identify the breach in not more than 13
600 words; 14
(c) that the member may give any other member of the 15
primary thoroughfare body corporate, within the stated 16
period of at least 21 days after the member is given the 17
notice, a written response to the notice in not more than 18
600 words; 19
(d) that, if asked by the member, the primary thoroughfare 20
body corporate will pay the member all postage charges 21
and copying expenses reasonably incurred by the 22
member in giving a written response under paragraph 23
(c) to any other member of the primary thoroughfare 24
body corporate; 25
(e) that the primary thoroughfare body corporate is to 26
consider a motion to remove the member from office for 27
the breach at its next general meeting called after the 28
period mentioned in paragraph (c) ends. 29
`(2) If asked by the member, the primary thoroughfare body 30
corporate must pay the member all postage charges and 31
copying expenses reasonably incurred by the member in 32
giving a written response under subsection (1)(c) to any other 33
member of the primary thoroughfare body corporate. 34
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[s 102]
`91I Removal of voting member at general meeting 1
[SM, s 35] 2
`(1) This section applies if-- 3
(a) the primary thoroughfare body corporate gives a voting 4
member of its executive committee a notice under 5
section 91H(1); and 6
(b) the period mentioned in section 91H(1)(c) for the notice 7
has ended. 8
`(2) The primary thoroughfare body corporate must-- 9
(a) include on the agenda of its next general meeting, called 10
after the period mentioned in section 91H(1)(c) ends, a 11
motion to remove the member from office for breaching 12
the code of conduct; and 13
(b) attach to the agenda a copy of-- 14
(i) the notice; and 15
(ii) if the body corporate has received a written 16
response from the member under section 17
91H(1)(c)--the response. 18
`(3) The member may be removed from office, by ordinary 19
resolution of the primary thoroughfare body corporate, at the 20
next general meeting.'. 21
Clause 102 Insertion of new pt 5A 22
After part 5-- 23
insert-- 24
Page 161
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[s 102]
`Part 5A Conduct of body corporate 1
managers, service contractors 2
and letting agents 3
`Division 1 Preliminary 4
`94A Definitions for pt 5A 5
`In this part-- 6
caretaking service contractor, for the resort, or part of the 7
resort, means a service contractor for the resort or part who is 8
also-- 9
(a) a letting agent for the resort or part; or 10
(b) an associate of the letting agent. 11
letting agent authorisation, for a letting agent, means an 12
authorisation given by the primary thoroughfare body 13
corporate or principal body corporate to the letting agent to 14
conduct a letting agent business for the resort or part of the 15
resort. 16
management rights, of a letting agent for the resort or part of 17
the resort, means-- 18
(a) the letting agent business for the resort or part, including 19
the letting agent's authorisation; and 20
(b) the business conducted by the letting agent under a 21
service contract for the resort or part, including the 22
service contract; and 23
(c) the letting agent's interest in a lot used for conducting a 24
business mentioned in paragraph (a) or (b); and 25
(d) any right of the letting agent to use and occupy a part of 26
the common property for a business mentioned in 27
paragraph (a) or (b). 28
reviewable terms, for a service contract, means the terms of 29
the contract that provide for-- 30
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[s 102]
(a) the functions and powers of the relevant letting agent as 1
a service contractor; or 2
(b) the remuneration payable to the relevant letting agent as 3
a service contractor. 4
review advice, about a service contract, means written advice 5
about whether the contract's reviewable terms-- 6
(a) 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 9
changed to ensure they are fair and reasonable. 10
service contract means a contract entered into with a person 11
for the engagement of the person as a service contractor for 12
the resort or part of the resort. 13
`94B Meaning of financier for a letting agent's contract 14
`(1) A person is a financier for a contract under which a letting 15
agent is authorised by a body corporate if the letting agent and 16
the person give written notice signed by each of them to the 17
body corporate that the person is a financier for the contract. 18
`(2) A person stops being a financier for the contract if the person 19
gives the body corporate a written notice withdrawing the 20
notice given under subsection (1). 21
`(3) A notice under subsection (2) may be given without the letting 22
agent's agreement. 23
`(4) However, a person is a financier for the contract only if the 24
person is-- 25
(a) a financial institution; or 26
(b) a person who, in the ordinary course of the person's 27
business, supplies, or might reasonably be expected to 28
supply, finance for business acquisitions, using charges 29
over contracts as the whole or part of the person's 30
security for supplying the finance; or 31
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[s 102]
(c) at the time the person supplied finance for a business 1
acquisition using a charge over the contract as the whole 2
or part of the person's security, the person was a person 3
to whom paragraph (b) would have applied. 4
`94C Meaning of letting agent and letting agent business 5
`(1) A person is a letting agent for the resort or part of the resort if 6
the person is authorised by the primary thoroughfare body 7
corporate or principal body corporate to conduct a letting 8
agent business for the resort or part. 9
`(2) A person conducts a letting agent business for the resort or 10
part of the resort if-- 11
(a) the person conducts, subject to the Property Agents and 12
Motor Dealers Act 2000, the business of acting as the 13
agent of the owners of 1 or more lots included in the 14
resort or part; and 15
(b) the owners choose to use the person's services for 16
securing, negotiating or enforcing, including collecting 17
rents or tariffs for, leases or other occupancies of lots 18
included in the resort or part. 19
`(3) It is not relevant to the identification of a person as a letting 20
agent under this section that the person also conducts an 21
ancillary business or other activity. 22
Examples of ancillary businesses or activities-- 23
video hire, linen hire, agency for tour operator 24
`94D Meaning of service contractor for resort or part 25
`A person is a service contractor for the resort or part of the 26
resort if-- 27
(a) the person is engaged by the primary thoroughfare body 28
corporate or principal body corporate to supply services 29
to the body corporate for the benefit of the common 30
property or lots included in the resort or part; and 31
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[s 102]
(b) the person is not an employee of the primary 1
thoroughfare body corporate or principal body 2
corporate; and 3
(c) the services do not include administrative services; and 4
(d) the term of the engagement is at least 1 year. 5
Examples of services that might be provided by a service contractor-- 6
caretaking services, pool cleaning services 7
`Division 2 Codes of conduct 8
`94E Code of conduct for body corporate manager and 9
caretaking service contractor 10
`(1) The code of conduct in schedule 5 applies to-- 11
(a) a body corporate manager appointed by the primary 12
thoroughfare body corporate or principal body corporate 13
in performing obligations under the person's 14
appointment; and 15
(b) a caretaking service contractor engaged by the primary 16
thoroughfare body corporate or principal body corporate 17
for the resort or part of the resort in performing 18
obligations under the person's engagement. 19
`(2) Compliance with the provisions of the code is taken to be a 20
condition of the instrument of appointment or the contract 21
providing for the person's engagement. 22
`(3) If there is an inconsistency between a provision of the code 23
and a provision in the instrument of appointment or contract, 24
the provision of the code prevails. 25
`(4) In this section-- 26
instrument of appointment, in relation to a person's 27
appointment as a body corporate manager, includes a contract 28
or other document relating to the appointment. 29
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[s 102]
`94F Code of conduct for letting agent 1
`The code of conduct in schedule 6 applies to a letting agent 2
authorised by the primary thoroughfare body corporate or 3
principal body corporate to conduct a letting agent business 4
for the resort or part of the resort. 5
`Division 3 Required transfer of management 6
rights for contravention of code of 7
conduct 8
`Subdivision 1 Preliminary 9
`94G Application of div 3 10
`(1) This division applies for transferring the management rights 11
of a letting agent authorised by the primary thoroughfare body 12
corporate or principal body corporate to conduct a letting 13
agent business for the resort or a part of the resort. 14
`(2) However, this division does not apply to a letting agent for 15
conducting a letting agent business or a part of a letting agent 16
business for a part of the resort for which a serviced strata 17
arrangement or scheme under the Corporations Act is in 18
operation. 19
`94H Effect of div 3 on other provisions 20
`The provisions of a letting agent authorisation or service 21
contract providing for its transfer or termination are void to 22
the extent the provisions are inconsistent with this division. 23
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`Subdivision 2 Transfer of management rights 1
`94I Code contravention notice 2
`(1) The body corporate must, if required by ordinary resolution 3
decided by secret ballot, give the letting agent a signed notice 4
under this section (a code contravention notice). 5
`(2) The code contravention notice must state-- 6
(a) that the body corporate believes the letting agent has or 7
is contravening a provision of the code of conduct for-- 8
(i) letting agents; or 9
(ii) body corporate managers and caretaking service 10
contractors; and 11
(b) the provision the body corporate believes has been or is 12
being contravened; and 13
(c) details sufficient to identify the contravention; and 14
(d) a reasonable period within which the letting agent must 15
remedy the contravention; and 16
(e) that the body corporate may, without further notice, give 17
the letting agent a transfer notice if-- 18
(i) the letting agent does not comply with the code 19
contravention notice; or 20
(ii) the body corporate reasonably believes the letting 21
agent, after being given the notice, has contravened 22
a provision of a code mentioned in paragraph (a). 23
`94J Grounds for requiring transfer 24
`The body corporate may require the transfer of the letting 25
agent's management rights under this division only if the 26
requirement is based on either of the following grounds-- 27
(a) the letting agent failed to comply with a code 28
contravention notice; 29
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(b) the body corporate reasonably believes the letting agent, 1
after being given the notice, contravened a provision of 2
the code of conduct for-- 3
(i) letting agents; or 4
(ii) body corporate managers and caretaking service 5
contractors. 6
`94K Requirement for transfer 7
`The letting agent must transfer the letting agent's 8
management rights for the resort or the part of the resort if-- 9
(a) a ground under section 94J exists for the body corporate 10
to require the transfer; and 11
(b) the body corporate-- 12
(i) by majority resolution decided by secret ballot 13
requires the transfer; and 14
(ii) gives written notice of the requirement (the 15
transfer notice) to the letting agent. 16
`94L Transfer--letting agent's choice of transferee 17
`(1) The letting agent must transfer the management rights-- 18
(a) within the following period after the transfer notice is 19
given to the letting agent-- 20
(i) if section 94Q does not apply--9 months; 21
(ii) if section 94Q applies--11 months; and 22
(b) to a person, other than an associate of the letting agent, 23
chosen by the letting agent and approved by the body 24
corporate. 25
`(2) For deciding whether to approve a person under subsection 26
(1)(b), the body corporate-- 27
(a) must act reasonably and as quickly as practicable; and 28
(b) may have regard only to the person's-- 29
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(i) character; and 1
(ii) financial standing; and 2
(iii) competence, qualifications and experience. 3
`(3) However, the body corporate must not-- 4
(a) unreasonably withhold approval of the person; or 5
(b) require or receive a fee or other consideration for 6
approving the person, other than reimbursement for 7
legal expenses reasonably incurred by the body 8
corporate in relation to a request for its approval. 9
Maximum penalty for subsection (3)--50 penalty units. 10
`(4) If the letting agent transfers the management rights to a person 11
who is not approved by the body corporate, the transfer is of 12
no effect. 13
`94M Giving financier copy of transfer notice 14
`When the body corporate gives the transfer notice to the 15
letting agent, the body corporate must give a copy of it to each 16
person who is a financier for the contract under which the 17
letting agent is authorised as the letting agent. 18
`94N Transfer--body corporate's choice of transferee 19
`(1) If the letting agent does not transfer the management rights as 20
required under section 94L, the letting agent must transfer the 21
management rights-- 22
(a) to a replacement letting agent chosen by the executive 23
committee of the body corporate and named in a written 24
notice given by the committee to the letting agent; and 25
(b) at the price stated in the notice; and 26
(c) within the period, of at least 2 months after the notice is 27
given, stated in the notice. 28
`(2) The price stated must be 1 of the following-- 29
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(a) the average of 2 valuations, obtained by the body 1
corporate from 2 independent registered valuers, stating 2
the value of the management rights; 3
(b) the highest bid for the management rights, excluding a 4
bid by the letting agent or an associate of the letting 5
agent, made at an auction-- 6
(i) conducted at the request of the body corporate; and 7
(ii) of which at least 60 days notice was given; 8
(c) the highest amount tendered, excluding by tender by the 9
letting agent or an associate of the letting agent, for the 10
management rights after reasonable efforts made by the 11
body corporate to market the management rights for at 12
least 60 days. 13
`(3) The letting agent must pay the body corporate, from the 14
proceeds of the sale, the reasonable costs incurred by the body 15
corporate under subsection (2). 16
Note-- 17
If the letting agent does not transfer the management rights as required 18
under this section, it is a ground for giving the letting agent a remedial 19
action notice under section 94V. 20
`94O Terms of service contract on transfer 21
`(1) This section applies to a service contract (the transferred 22
service contract) transferred to a person (the transferee) 23
under section 94L or 94N. 24
`(2) Unless the body corporate and transferee agree otherwise, the 25
terms of the transferred service contract are-- 26
(a) the terms applying to the service contract under 27
subsection (3); or 28
(b) if subsection (3) does not apply--the terms applying to 29
the service contract immediately before the transfer (the 30
existing terms). 31
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`(3) The terms of the transferred service contract are the existing 1
terms as changed under a review advice about the contract 2
if-- 3
(a) the review advice states how the contract's reviewable 4
terms should be changed to ensure they are fair and 5
reasonable; and 6
(b) the body corporate gave the letting agent a copy of the 7
review advice as required under section 94S(1). 8
`Subdivision 3 Replacement of letting agent 9
authorisation and service contract 10
`94P Replacement of letting agent authorisation and 11
service contract in particular circumstances 12
`(1) This section applies if the remainder of the term of the letting 13
agent's authorisation (the transferred authorisation), 14
including any rights or options of extension or renewal, is less 15
than 7 years when transferred to a person (the transferee) 16
under this division. 17
Example-- 18
A letting agent's authorisation is given for a term of 5 years with 4 rights 19
of renewal of 5 years each and 5 years have expired. The remainder of 20
the term is therefore 20 years and this section does not apply. 21
`(2) On the transfer-- 22
(a) the transferred authorisation and any service contract 23
(the transferred service contract) forming part of the 24
transferred management rights terminate; and 25
(b) the body corporate must-- 26
(i) authorise the transferee to conduct a letting agent 27
business for the resort or part; and 28
(ii) if a service contract formed part of the transferred 29
management rights--engage the transferee as a 30
service contractor. 31
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`(3) The authorisation and engagement must be given for a term of 1
9 years starting immediately after the transfer. 2
`(4) Subject to subsection (3)-- 3
(a) the authorisation must be given on the terms applying to 4
the transferred authorisation immediately before the 5
transfer; and 6
(b) unless the body corporate and transferee agree 7
otherwise, the engagement must be given on-- 8
(i) the terms applying to the transferred service 9
contract under subsection (5); or 10
(ii) if subsection (5) does not apply--the terms 11
applying to the transferred service contract 12
immediately before the transfer (the existing 13
terms). 14
`(5) The engagement must be given on the existing terms of the 15
transferred service contract as changed under a review advice 16
about the contract if-- 17
(a) the review advice states how the contract's reviewable 18
terms should be changed to ensure they are fair and 19
reasonable; and 20
(b) the body corporate gave the letting agent a copy of the 21
review advice as required under section 94S(1). 22
`Subdivision 4 Reviewing terms of letting agent's 23
service contract 24
`94Q Reviewing terms of service contract 25
`(1) This section applies if-- 26
(a) the letting agent's management rights include a service 27
contract; and 28
(b) when the body corporate passes the majority resolution 29
mentioned in section 94K, the body corporate also 30
passes, by ordinary resolution, a motion (a review 31
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motion) that a review advice about the service contract 1
be obtained. 2
`(2) Within 1 month after the review motion is passed, the body 3
corporate must obtain the review advice from an independent 4
appropriate person. 5
Example of an independent appropriate person-- 6
a person who, in the ordinary course of the person's business, has 7
knowledge of the functions and powers of service contractors and the 8
remuneration for performing the functions and powers 9
`(3) The review advice must be based on the review criteria stated 10
in section 94R. 11
`(4) This section applies to the contract even if the contract also 12
provides for either or both of the following-- 13
(a) the letting agent's engagement as a body corporate 14
manager; 15
(b) the letting agent's authorisation as a letting agent. 16
`94R Review criteria 17
`(1) The review criteria are each of the following-- 18
(a) the appropriateness of the reviewable terms for 19
achieving a fair and reasonable balance between the 20
interests of the body corporate and the service 21
contractor; 22
(b) whether the reviewable terms impose conditions that-- 23
(i) are unreasonably difficult to comply with; or 24
(ii) are not necessary and reasonable for the protection 25
of the legitimate interests of the body corporate or 26
the service contractor; 27
(c) the consequences of complying with, or contravening, 28
the reviewable terms and whether the consequences are 29
unfairly harsh or beneficial to the body corporate or the 30
service contractor; 31
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(d) whether the reviewable terms are appropriate for the 1
resort; 2
(e) the term of the engagement as service contractor and the 3
period of the term remaining. 4
`(2) The review criterion mentioned in subsection (1)(d) is to be 5
applied having regard, in particular, to the nature, features and 6
characteristics of the resort. 7
`94S Giving copy of review advice to letting agent and 8
prospective buyer of management rights 9
`(1) Within 14 days after obtaining the review advice, the body 10
corporate must give a copy of it to the letting agent. 11
`(2) If requested by a prospective buyer of the letting agent's 12
management rights, the body corporate must give a copy of 13
the review advice to the prospective buyer. 14
`Subdivision 5 Disputes about transfer of 15
management rights 16
`94T CCT jurisdiction 17
`A dispute about the transfer, under this division, of a letting 18
agent's management rights may be dealt with by the 19
Commercial and Consumer Tribunal under the Commercial 20
and Consumer Tribunal Act 2003. 21
`Division 4 Disputes about contractual matters 22
`94U CCT jurisdiction 23
`(1) This section applies to a dispute about a claimed or 24
anticipated contractual matter about-- 25
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(a) the appointment or engagement of a person as a body 1
corporate manager or caretaking service contractor for 2
the resort or part of the resort; or 3
(b) the authorisation of a person as a letting agent for the 4
resort or part of the resort. 5
`(2) A party to the dispute may apply under the Commercial and 6
Consumer Tribunal Act 2003 for an order of the Commercial 7
and Consumer Tribunal to resolve the dispute. 8
`Division 5 Termination of appointment, 9
engagement or authorisation 10
`94V Termination for failure to comply with remedial 11
action notice [SM, s 131] 12
`(1) The primary thoroughfare body corporate or principal body 13
corporate may terminate a person's appointment as a body 14
corporate manager or engagement as a service contractor if 15
the person or, if the person is a corporation, a director of the 16
corporation-- 17
(a) engages in misconduct, or is grossly negligent, in 18
carrying out functions required under the appointment 19
or engagement; or 20
(b) fails to carry out duties under the appointment or 21
engagement; or 22
(c) contravenes-- 23
(i) for a body corporate manager--the code of 24
conduct for body corporate managers and 25
caretaking service contractors; or 26
(ii) for a service contractor who is a caretaking service 27
contractor--the code of conduct for body 28
corporate managers and caretaking service 29
contractors or the code of conduct for letting 30
agents. 31
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`(2) Also, the body corporate may terminate a person's 1
authorisation as a letting agent if-- 2
(a) the person or, if the person is a corporation, a director of 3
the corporation-- 4
(i) engages in misconduct, or is grossly negligent, in 5
carrying out obligations, if any, under the 6
authorisation; or 7
(ii) fails to carry out duties under the authorisation; or 8
(iii) contravenes the code of conduct for letting agents 9
or, for a caretaking service contractor, the code of 10
conduct for body corporate managers and 11
caretaking service contractors; or 12
(b) the person has been given a transfer notice requiring 13
transfer of the person's management rights and has not 14
transferred the management rights as required under 15
section 94N. 16
`(3) The body corporate may act under subsection (1) or (2) only 17
if-- 18
(a) the body corporate has given the manager, contractor or 19
agent a remedial action notice; and 20
(b) the manager, contractor or agent fails to comply with the 21
remedial action notice within the period stated in the 22
notice; and 23
(c) the termination is approved by ordinary resolution of the 24
body corporate; and 25
(d) for the termination of a person's engagement as a 26
caretaking service contractor or authorisation as a 27
letting agent--the motion to approve the termination is 28
decided by secret ballot. 29
`(4) In this section-- 30
remedial action notice means a written notice stating each of 31
the following-- 32
(a) that the body corporate believes the person to whom the 33
notice is given has acted-- 34
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(i) for a body corporate manager or service 1
contractor--in a way mentioned in subsection (1); 2
or 3
(ii) for a letting agent--in a way mentioned in 4
subsection (2); 5
(b) details of the action sufficient to identify-- 6