Disputes | Residential Managers Support

Disputes

If something goes wrong there are steps to take to improve the chance of a preferred outcome for all parties.

Resolving Disputes

The BCCM Act provides for an Office of the Commissioner who manages a dispute resolution process using Dispute Resolution Officers to help settle disputes. This is a formal process with the outcomes being legally enforceable.

Try talking FIRST

It is best to try to fix a problem in a civil manner rather than getting involved in a legalistic formal system. First of all, try talking to the other person at the beginning, explain your position, listen to their side of things and hopefully an agreement or compromise can be reached. If talking doesn’t work, put your concerns in writing to the other person and ask for comments. If there is still no progress towards a solution, ask a committee member to intercede and assist with resolving the problem. After these avenues have been exhausted, take a formal approach and make an application to the Commissioner’s Office for an Order.

What is an Order

The outcome of a dispute application is an enforceable Order which may be enforced in a Magistrates Court. An Order will bind those stated in the Order (an owner, occupier, body corporate, etc) to:

do or not do something
to pay or refund money,
to act or not act in some way now and or the future.

The Order must be both equitable and just in the circumstances and appropriate to the matter in dispute.

Contents

Resolving Disputes
- Try talking FIRST
- What is an Order
Applying for an Order

Action by the Commissioner
- Inspection of submissions
- Assessing an application
After an Order is made
- Interim orders
- Public access to orders
Action by an Adjudicator

Applying for an Order

Who can apply

You can only apply for an Order if you are a party to or be directly concerned with the dispute. Applicants can include the body corporate, the committee, a committee member or a lot owner.

Application Form

The application must be made in writing on the approved form and sent to the Commissioner with a fee. It must state the outcome sought and the grounds why, and the name and address of each person affected by the application. The Commissioner’s Office provides an information pack which has a guide to completing an application. The Commissioner’s Office cannot give advice on the wording of an application.

Change or cancel an application

The applicant may withdraw or change the application (subject to the Commissioner’s approval) at any time before the Commissioner decides how the application is to be considered.

Action by the Commissioner

If the application is accepted by the Commissioner, he/she must give a copy of the application to each affected person and to the body corporate inviting them to make written submissions about the matter so that the applicant can respond to any submissions made. The body corporate must also give a copy of the application to each person appearing on the Roll as a lot owner – who also may make a submission to the Commissioner.

Inspection of submissions

Those involved in the application or who have made a submission can, for a fee, inspect the application, any submissions or replies made and can get copies of these documents.

Assessing an application

After an application is received and the time has closed for written submissions, the Commissioner decides which dispute resolution process should be used to help resolve the matter. If suitable, the matter may be sent to a resolution officer to investigate and issue an order. These can be specialist mediators, specialist conciliators, specialist adjudicators or department adjudicators depending on the nature of the dispute and as required by BCCM Act or Regulations. The Commissioner has the power to get information from people, enter and inspect the property, the body corporate assets, records, and documents.

After an Order is made

The adjudicator must give a copy of the order to:

the applicant
the body corporate
any person against whom the order is made
anyone who has made a written submission.

The order takes effect as stated by the adjudicator, or if no time is fixed, it is effective when served on the person against whom it is made or when served on the body corporate.
Orders can be appealed in the District Court, but only on a question of law.

Interim orders

An adjudicator may make an interim order because of the nature of the urgent circumstances of the case or they consider “it is reasonable to do so”. An interim order cannot be for more than one year and until a final order is made it may be varied, extended, renewed or canceled. If an appeal is made against the interim order the order stays in some certain circumstances

Public access to orders

A member of the public can apply to the Office of the Commissioner for Body Corporate and Community Management to get the details of any order made within the last 6 years and details of any application for an order which has been received but not yet determined.

Action by an Adjudicator

If the Commissioner sends the application to an adjudicator, he/she can require persons to supply information and attend interviews. The adjudicator may enter and inspect the property, the body corporate assets, and records, and ask the committee to assist with any inquiries. The adjudicator may dismiss an application if the adjudicator considers the matter is:

outside their powers
should be dealt with by a court or tribunal
the application is frivolous, vexatious, misconceived or without substance,
the applicant fails to do the things the adjudicator asks.

If the adjudicator makes an order dismissing an application because the application is considered to be :

frivolous
vexatious
misconceived or without substance

The order may impose costs (up to $2,000) against the applicant to compensate the person against whom the application was made.
When investigating an application, an adjudicator must :

observe natural justice
act quickly, with as little formality as possible
and adopt a fair and proper approach to the application