Disputes – follow the rules
The commissioner for Body Corporate and Community Management, Robert Walker, has recently undertaken a temporary secondment to another part of the Department of Justice and attorney-general. During his absence, I am acting in the role – as I have done on several previous occasions.
I would like to take this opportunity to note some issues for the dispute resolution service provided by the Commissioner’s Office. The dispute resolution service endeavours to progress all dispute resolution applications as quickly as is possible within the statutory requirements of the legislation and the fair and proper consideration of the application. However delays often occur in progressing applications occurs because they are not within the jurisdiction provided under the legislation or do not provide adequate information about the dispute.
The Body Corporate and Community Management Act 1997 provides that the commissioner may require an applicant to provide further information or material about an application. Therefore, rather than simply reject an application that does not comply with the legislative requirements, our dedicated case managers spend considerable time seeking clarification from applicants to ascertain whether an application can be amended to meet the jurisdictional and other requirements of the legislation.
The following are the most frequent defects that arise with adjudication and conciliation applications:
• Applications that do not name a combination of parties provided for under the act. For example, a lot owner lodges an application naming their body corporate or another owner or occupier as the respondent, but there is no jurisdiction for an application by a lot owner against a body corporate manager, the committee, a committee member or a caretaker.
• Applications that do not identify a dispute for the purposes of the act – such as a breach of a legislative obligation by the respondent.
• Applications lodged by a body corporate that are not accompanied by a copy of the committee resolution authorising the lodgement of the application.
• Applications that do not provide a clear statement of the outcome sought by the application. Normally a statement of the outcome sought should concisely state the action that the applicant wants the named respondent to take or cease taking to resolve the issue in dispute.
• Applications that do not demonstrate that the applicant has attempted to resolve the dispute directly with the respondent before lodging the application. Attempted self-resolution is mandatory for all conciliation and adjudication applications. An applicant should provide evidence of self-resolution, such as copies of correspondence, by-law contravention notices and meeting minutes.
• Adjudication applications where the applicant has not first applied for conciliation and there is insufficient basis to waive the statutory requirement to conciliation. It is noted that an applicant’s view that conciliation will not resolve the dispute is not of itself a basis to waive the requirement for conciliation.
• Applications that do not provide a clear statement of grounds on which the outcome is sought. For a conciliation application, the applicant must provide a summary of the background of the dispute and not just rely on attachments. For an adjudication application, the applicant must provide the detailed grounds, including the nature and history of the dispute, the legal basis for the orders sought, and referencing relevant documentation.
Applicants are encouraged to read the guide to completing the application form and our fact sheets regarding the dispute resolution process. Applicants should also have regard to the 32 practice directions about particular aspects of the dispute resolution process. All these publications are available online.
