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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Community and Strata Titles)
Bill 2011
A BILL FOR
An Act to amend the Community
Titles Act 1996 and the Strata
Titles Act 1988.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment provisions
Part 2—Amendment of Community Titles
Act 1996
4Amendment of section
3—Interpretation
5Amendment of section
4—Associates
6Amendment of section 34—By-laws
7Amendment of
section 35—By-laws may exempt corporation from certain provisions of
Act
8Amendment of section 37—Restrictions on
making of by-laws
9Amendment of section 38—Certain by-laws
may be struck out by Court
10Amendment of section 47—Development
contracts
11Amendment of section 49—Enforcement of
development contract
12Amendment of section 59—Amendment by
order of ERD Court
13Amendment of section 64—Cancellation by
Registrar-General or ERD Court
14Amendment of section 67—Application to
ERD Court
15Amendment of section
69—Cancellation
16Amendment of section 75—Functions and
powers of corporations
17Insertion of Part 9
Division 1A
Division 1A—Delegations by
corporation
78ADelegation of corporation's
functions and powers
78BBody corporate
managers
78CGeneral
duties
78DOffences
18Amendment of section
79—First statutory general meeting
19Amendment of section 80—Business at
first statutory general meeting
20Amendment of section 81—Convening of
general meetings
21Amendment of section 82—Annual general
meeting
22Amendment of section 83—Procedure at
meetings
23Amendment of section 84—Voting at
general meetings
24Amendment of section 85—Duty to disclose
interest
25Amendment of section 87—Value of votes
cast at general meeting
26Amendment of section 88—Special
resolutions—3 lot schemes
27Amendment of section 101—Power to
enforce duties of maintenance and repair etc
28Amendment of section
102—Alterations and additions in relation to strata schemes
29Amendment of
section 104—Other insurance by community corporation
30Amendment of
section 106—Insurance to protect easements
31Amendment of section
108—Right to inspect policies of insurance
32Amendment of section
113—Statement of expenditure etc
33Amendment of section 126—Keeping of
records
34Amendment of section 127—Audit of trust
accounts
35Amendment of section 135—Register of
owners of lots
36Amendment of section
138—Audit
37Amendment of section 139—Information to
be provided by corporation
38Amendment of section 141—Persons who may
apply for relief
39Amendment of section
142—Resolution of disputes etc
40Insertion of sections 142A and
142B
142AHolding of deposit
and other contract moneys when lot is pre-sold
142BDeveloper stands in fiduciary relationship with
community corporation
41Amendment of section 149A—Applications
to Magistrates Court
42Substitution of section
152
152Commencement of
prosecutions
43Amendment of section
155—Service
44Insertion of section
155A
155AIndemnity fund
under Land Agents Act 1994
45Amendment of section
156—Regulations
Part 3—Amendment of Strata Titles
Act 1988
46Amendment of section
3—Interpretation
47Amendment of section 13—Amendment by
order of Court
48Amendment of section
17—Cancellation
49Amendment of section 19—Articles of
strata corporation
50Insertion of section
19A
19ACertain articles may
be struck out by Court
51Insertion of section
26A
26ADelegation of
functions or powers
52Amendment of section 27—Power to raise
money
53Insertion of Part 3
Division 2A
Division 2A—Delegations by strata
corporation
27ADelegation of corporation's
functions and powers
27BBody corporate
managers
27CGeneral
duties
27DOffences
54Amendment of section
28—Power to enforce duties of maintenance and repair
55Amendment of
section 29—Alterations and additions
56Amendment of section
31—Other insurance by strata corporation
57Amendment of section
32—Right of unit holders etc to satisfy themselves as to
insurance
58Amendment of section 33—Holding of
general meetings
59Insertion of section
33A
33AStatement of expenditure
etc
60Amendment of section 34—Voting at
general meetings
61Insertion of section
34A
34ADuty to disclose
interest
62Amendment of section 35—Management
committee
63Amendment of section 36G—Keeping of
records
64Amendment of section 36H—Audit of trust
accounts
65Insertion of section
39A
39ARegister of unit
holders
66Amendment of section 41—Information to
be furnished
67Insertion of section
41AA
41AAPersons who may
apply for relief
68Amendment of section
41A—Resolution of disputes etc
69Substitution of section
47
47General
defence
70Amendment of section
49—Service
71Amendment of section 50—Proceedings for
offences
72Insertion of section
50A
50AIndemnity fund under
Land Agents Act 1994
73Amendment of section
51—Regulations
Schedule 1—Transitional
provisions
1Delegations made prior to
commencement
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Community and Strata
Titles) Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Community Titles
Act 1996
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—delete the definitions of by-laws and
building and substitute:
body corporate manager—see section 78B;
building includes a fixed structure;
business day means any day except Saturday, Sunday or a
public holiday;
by-laws—see Part 5;
(2) Section 3(1)—after the definition of encumbrance
insert:
ERD Court means the Environment, Resources and Development
Court established under the
Environment,
Resources and Development Court Act 1993;
(3) Section 3(1)—after the definition of fence
insert:
first statutory general meeting means a meeting required to
be convened in accordance with section 79 (and if more than 1 meeting
is convened during the period of 3 months referred to in that section, the
first of those meetings);
(4) Section 3(1), definition of special resolution,
(b)(i)—after "resolution" insert:
and any other information of a kind prescribed by regulation
(5) Section 3(1), definition of unanimous resolution,
(a)—after "resolution" insert:
and any other information of a kind prescribed by regulation
5—Amendment
of section 4—Associates
Section 4(1)—delete "a developer" and substitute:
another person
6—Amendment
of section 34—By-laws
(1) Section 34(3)—after paragraph (c) insert:
(ca) authorise or require the community corporation to act as agent for
the owners of community lots in arranging policies of insurance; or
(2) Section 34(3)(e)—delete "$500" and substitute:
the prescribed amount
(3) Section 34(6)—delete subsection (6) and
substitute:
(6) The following provisions apply in relation to a penalty imposed on a
person for contravention of, or failure to comply with, a by-law:
(a) the penalty is (despite section 29 of the Acts
Interpretation Act 1915) payable to the community corporation in
accordance with this subsection;
(b) subject to the making of an application under
paragraph (e), the
penalty is payable by the person on the date specified for payment in a notice
served by the corporation on the person;
(c) the notice must—
(i) be in writing in the form prescribed by regulation; and
(ii) specify the amount of the penalty payable and a date for payment
(being not less than 60 days after the notice is served);
(d) the penalty payable under the notice is recoverable by the community
corporation as a debt and, in the case of a notice served on the owner of a
community lot, may be recovered by the community corporation as if it were a
contribution payable to the community corporation under section 114 (and
interest will be payable on the penalty amount in the same way as if it were
such a contribution);
(e) the person may,
within 60 days after service of the notice, apply to the Magistrates Court
for revocation of the notice and the Court must grant the application if
either—
(i) the Court is not satisfied that the person committed the contravention
or failure alleged in the notice; or
(ii) the Court is satisfied that the contravention or failure alleged in
the notice is trifling;
(f) the community corporation is a party to an application under
paragraph (e) and
bears the onus of proving, on the balance of probabilities, that the person
committed the contravention or failure alleged in the notice;
(g) if an application is made in accordance with
paragraph (e), the
penalty specified in the notice is not payable unless the application for
revocation is withdrawn or otherwise discontinued by the applicant or is
dismissed or refused by the Court (and, in such a case, the penalty will be
payable on the date on which the application is so withdrawn, discontinued,
dismissed or refused or on the date for payment specified in the notice,
whichever occurs later).
(7) A person's contravention of, or failure to comply with, by-laws will,
for the purposes of this section, be regarded as trifling if, and only if, the
person establishes that the circumstances surrounding the commission of the
contravention or failure were such that he or she ought to be excused from the
imposition of a penalty on the ground that—
(a) there were compelling humanitarian or safety reasons for the conduct
that allegedly constituted the contravention or failure; or
(b) the person could not, in all the circumstances, reasonably have
averted committing the contravention or failure; or
(c) the conduct allegedly constituting the contravention or failure was
merely a technical, trivial or petty instance of a contravention of or failure
to comply with the relevant by-laws.
(8) The regulations may make further provision in relation to the
enforcement of by-laws.
(9) In this section—
prescribed amount, in relation to a penalty imposed under
by-laws of a community scheme, means—
(a) if the community scheme only includes lots that are used, or are
intended to be used, solely or predominantly for business or commercial
purposes—$2 000; or
(b) in any other case—$500.
7—Amendment
of section 35—By-laws may exempt corporation from certain provisions of
Act
Section 35(1)(a)—delete "first general meeting" and
substitute:
first statutory general meeting
8—Amendment
of section 37—Restrictions on making of by-laws
Section 37(2)—delete subsection (2) and substitute:
(2) A by-law may—
(a) prohibit or restrict the owner of a lot from leasing or granting
rights of occupation in respect of the lot for valuable consideration for a
period of less than 2 months; or
(b) impose a monetary obligation on the owner of a lot in relation to the
payment of an insurance premium, where the by-laws authorise or require the
community corporation to act as agent for the owner in arranging the policy of
insurance.
9—Amendment
of section 38—Certain by-laws may be struck out by
Court
Section 38(2)—delete subsection (2) and substitute:
(2) An application referred to in subsection (1) can only be made by
a person who was an owner of the lot when the by-law came into force and must be
made within 3 months after the person (or either or any of the owners where
the lot is owned by 2 or more persons) first knew, or could reasonably be
expected to have known, that the by-law had been made.
(3) For the purposes of this section, a reference to an
owner of a lot includes a person who has contracted to purchase
the lot.
10—Amendment
of section 47—Development contracts
Section 47—after subsection (5) insert:
(6) The regulations may require a developer to provide security of a
specified kind to a community corporation in accordance with the regulations in
relation to the developer's obligations under the development
contract.
11—Amendment
of section 49—Enforcement of development contract
(1) Section 49(2)—delete "a court of competent jurisdiction" and
substitute:
the Magistrates Court
(2) Section 49—after subsection (2) insert:
(2a) The
Magistrates Court may, on the application of a party to proceedings under
subsection (2), transfer the proceedings to the District Court if satisfied
that it is appropriate to do so because of the complexity or significance of the
matter.
(2b) A court may, on its own initiative or on an application by a party to
the proceedings—
(a) transfer an application under this section to the Supreme Court on the
ground that the application raises a matter of general importance; or
(b) state a question of law for the opinion of the Supreme
Court.
12—Amendment
of section 59—Amendment by order of ERD Court
(1) Section 59(1)—delete "District Court" and substitute:
ERD Court
(2) Section 59—after subsection (3) insert:
(3a) If it appears to the Court that the proposed amendment of the
community plan could adversely affect a person who is not a party to the
proceedings, the Court should not order the amendment unless the Court is
satisfied that the person has been notified of the possibility that such an
order could be made and has been given a reasonable opportunity to make
submissions to the court in relation to the matter.
(3b) In determining an application under this section the Court must have
regard to the matters (if any) prescribed by regulation.
(3) Section 59(4)—delete "Court" and substitute:
ERD Court
13—Amendment
of section 64—Cancellation by Registrar-General or
ERD Court
Section 64(1)(b)—delete "District Court" and substitute:
ERD Court
14—Amendment
of section 67—Application to ERD Court
(1) Section 67—delete "Court" wherever occurring and substitute in
each case:
ERD Court
(2) Section 67—after subsection (1) insert:
(1a) If it appears to the Court that the proposed cancellation of the
community plan could adversely affect a person who is not a party to the
proceedings, the Court should not order the cancellation unless the Court is
satisfied that the person has been notified of the possibility that such an
order could be made and has been given a reasonable opportunity to make
submissions to the court in relation to the matter.
(1b) In determining an application under this section the Court must have
regard to the matters (if any) prescribed by regulation.
15—Amendment
of section 69—Cancellation
Section 69(1) and (2)—delete "Court" wherever occurring and
substitute in each case:
ERD Court
16—Amendment
of section 75—Functions and powers of corporations
(1) Section 75(5)—delete "regulation" and substitute:
Division 1A
(2) Section 75(6) to (9)—delete subsections (6) to (9)
(inclusive)
17—Insertion
of Part 9 Division 1A
After section 78 insert:
Division 1A—Delegations by
corporation
78A—Delegation of corporation's functions and
powers
(1) A community
corporation may delegate any of its functions and powers (except this power of
delegation) to a member or employee of the corporation or to a member of a
secondary or tertiary corporation within the same community scheme.
(2) A community
corporation may delegate the following functions and powers to any
person:
(a) the receipt and holding of money and other personal property on behalf
of the corporation;
(b) payment of money on behalf of the corporation;
(c) the preparation of statements of expenditure and proposed expenditure
and statements of accounts;
(d) the collection of money due to the corporation;
(e) entering into contracts of insurance with insurers on behalf of the
corporation;
(f) maintaining and keeping records on behalf of the
corporation;
(g) issuing and signing notices on behalf of the corporation;
(h) preparing minutes of meetings of the corporation;
(i) providing information as required by the Act on behalf of the
corporation;
(j) investing money on behalf of the corporation;
(k) arranging for the maintenance and repair of the common property on
behalf of the corporation.
(3) A delegation by a community corporation is to be made by ordinary
resolution of the community corporation.
(4) However, a community corporation cannot delegate a function or power
under
subsection (1)
or
(2) if the function or
power is of a kind that can only be performed or exercised by the corporation by
passing a special or unanimous resolution.
(5) A delegation by a
community corporation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the corporation to act in any
matter; and
(c) is—
(i) in a case where there is a contract relating to the delegation between
the corporation and a body corporate manager—revoked on termination or
expiry of the contract; or
(ii) in any other case—revocable by the corporation at any time by
notice given in writing (notwithstanding any agreement to the contrary by the
corporation).
78B—Body corporate managers
(1) This section
applies to a delegation of functions or powers by a community corporation
if—
(a) the delegation is made to a person (the body corporate
manager) who carries on a business, or is an employee in a business,
that consists of, or includes, acting as a delegate of community corporations or
of strata corporations under the Strata
Titles Act 1988; and
(b) the delegation is made after the commencement of this section or a
contract, between the body corporate manager and the corporation, relating to
the delegation is made, renewed or extended after the commencement of this
section; and
(c) it is proposed that the body corporate manager be remunerated in
respect of work performed in exercising the delegated functions or powers.
(2) A body corporate
manager is only entitled to receive remuneration in respect of work performed in
exercising functions or powers under a delegation to which this section applies
if—
(a) the body
corporate manager and the community corporation have entered into a contract in
compliance with
subsections (3)
and
(7); and
(b) the body
corporate manager, prior to entering into the contract referred to in
paragraph (a),
provided the community corporation with documents of a kind prescribed by
regulation verifying the body corporate manager's entitlement to act as a body
corporate manager and any other prescribed matter; and
(c) the body
corporate manager, whilst performing such work, maintained professional
indemnity insurance complying with the requirements prescribed by the
regulations,
(and if a body corporate manager has received, from a community
corporation, remuneration to which he or she is not entitled under this
subsection, the community corporation may recover the amount of the remuneration
as a debt).
(3) A contract
between a body corporate manager and a community corporation
must—
(a) be in writing; and
(b) specify the term of the contract; and
(c) set out the functions or powers to be delegated; and
(d) specify the rights of the community corporation under
subsection (4);
and
(e) set out the remuneration payable to the body corporate manager in
respect of the work performed in exercising the delegated functions or powers,
or set out the basis on which such remuneration is to be calculated;
and
(f) contain any other particulars required by the regulations;
and
(g) have annexed to it a copy of each document provided by the body
corporate manager in accordance with
subsection (2)(b).
(a) there is a contract in force between a community corporation and a
body corporate manager; and
(b) the community corporation has had relevant contractual arrangements
with the body corporate manager for a continuous period of at least
12 months,
the community corporation may terminate the contract by written notice
given to the body corporate manager at least 28 days (or a lesser period
specified in the contract) before the termination of the contract is to come
into effect.
(5) The right of a community corporation to terminate a contract under
subsection (4)
is in addition to, and does not derogate from, any other right of the community
corporation to terminate the contract.
(6) A decision to terminate a contract in accordance with
subsection (4)
is to be made by ordinary resolution of the community corporation.
(7) The body
corporate manager must ensure that a copy of the contract, and any other
prescribed information or document of a kind prescribed by regulation is
available for inspection by members of the corporation at least 5 clear
days before the date of the meeting at which the corporation is to consider
whether or not to enter into the contract.
(8) The body corporate manager must, at the request of any member of the
corporation, make a copy of the body corporate manager's policy of professional
indemnity insurance available for inspection and copying by the member within
3 business days of the request.
Maximum penalty: $500.
(9) The Minister may,
by notice in the Gazette, exempt body corporate managers from compliance with
subsection (2)(c)
for such period as the Minister thinks fit.
(10) An exemption granted by the Minister under
subsection (9)—
(a) may be subject to conditions specified in the notice of exemption;
and
(b) may be varied or revoked by the Minister at any time by subsequent
notice in the Gazette.
(11) In this section—
relevant contractual arrangements mean contractual
arrangements relating to a delegation of functions or powers by a community
corporation to a body corporate manager.
78C—General duties
(1) For the
avoidance of doubt—
(a) the body corporate manager stands in a fiduciary relationship with the
community corporation; and
(b) the duties owed by the body corporate manager under this Act are in
addition to, and do not derogate from, the duties arising out of that fiduciary
relationship.
(2) Without derogating from
subsection (1),
a body corporate manager—
(a) must act honestly and in good faith in the performance of the
manager's functions; and
(b) must exercise due care and diligence in the performance of the
manager's functions; and
(c) must not make improper use of the manager's position to gain, directly
or indirectly, an advantage personally or for any other person.
78D—Offences
(1) A delegate of a
community corporation who has a direct or indirect pecuniary interest in a
matter in relation to which he or she proposes to perform delegated functions or
powers must disclose the nature of the interest, in writing, to the corporation
before performing the functions or powers.
Maximum penalty: $15 000.
Example—
For example, if the delegate would receive a commission from a person for
placing business of the community corporation with that person, it would be an
offence to fail to disclose that fact before placing business with the person.
Similarly, if the delegate were to profit by placing business of the community
corporation with a related body corporate, it would be an offence to fail to
disclose that fact before placing business with the related body
corporate.
(2) If an employee or agent of a delegate has a direct or indirect
pecuniary interest in a matter, the delegate is, for the purposes of
subsection (1),
taken to have a direct or indirect pecuniary interest in the matter.
(3) A delegate who is the owner of a community lot is not obliged by
subsection (1) to
disclose an interest that he or she has in common with all of the owners of the
community lots.
(4) It is a defence to a charge of an offence against
subsection (1) for
the defendant to prove that he or she did not know and could not reasonably have
been expected to know of his or her interest in the matter.
(5) A delegate of a community corporation must, on application by an owner
of a community lot or a development lot, provide the applicant, on a quarterly
basis, with a statement setting out details of dealings by the delegate with the
corporation's money (and must continue to so provide the statements until the
applicant ceases to be an owner or revokes the application).
Maximum penalty: $500.
(6) If all delegations by a community corporation to a delegate are
revoked, the delegate must return to, or make available for collection by, the
corporation—
(a) all records of the corporation held by the delegate; and
(b) all trust money held pursuant to the delegations,
in accordance with any requirements prescribed by the
regulations.
Maximum penalty: $2 000.
(7) A delegate of a community corporation who holds records of the
corporation must, at the request of any member of the
corporation—
(a) make those records available for the member to inspect within
3 business days of the request; and
(b) provide the member with a copy of any of the records on payment of a
fee (not exceeding a fee calculated in accordance with the
regulations).
Maximum penalty: $500.
18—Amendment
of section 79—First statutory general meeting
(1) Section 79(1)—delete "two or more community lots are first owned
by different persons" and substitute:
there are at least 2 different members of the community corporation
(not including the developer or any person who the developer knows, or ought
reasonably to know, is an associate of the developer)
(2) Section 79(2)—delete "first meeting" and substitute:
meeting required under subsection (1)
19—Amendment
of section 80—Business at first statutory general
meeting
Section 80—delete "first general meeting" wherever occurring and
substitute in each case:
first statutory general meeting
20—Amendment
of section 81—Convening of general meetings
(1) Section 81—delete "first general meeting" wherever occurring and
substitute in each case:
first statutory general meeting
(2) Section 81(1)(d)—after "court" insert:
(made on the application of a person of a class specified in
section 141)
(3) Section 81—after subsection (2) insert:
(2a) A member may not nominate another person to be given notices referred
to in subsection (2) on his or her behalf (although nothing prevents the
community corporation from agreeing to provide notices to such a person in
addition to the member).
(4) Section 81(5)(d)—after subparagraph (iii) insert:
(iiia) presentation of statements required under section 113;
and
(iiib) presentation of copies of all insurance policies required under
Part 10 Division 2; and
21—Amendment
of section 82—Annual general meeting
Section 82(2)—delete "one month after the annual general meeting of
the primary or secondary corporation of which it is a member" and
substitute:
6 months after the commencement of each financial year
22—Amendment
of section 83—Procedure at meetings
(1) Section 83(1)—delete "The" and substitute:
Subject to subsection (3a), the
(2) Section 83(2)—delete "first meeting" and substitute:
first statutory general meeting
(3) Section 83—after subsection (3) insert:
(3a) A person who is
a body corporate manager in relation to a corporation, or is an employee of such
a body corporate manager, may preside at a meeting of the corporation if a
majority of the persons present and entitled to vote at the meeting agree to
that person presiding (and the body corporate manager or employee is taken not
to be entitled to vote for that purpose except in circumstances prescribed by
the regulations).
(3b) The regulations may make further provision in relation to the
procedures to be followed at a meeting at which a body corporate manager, or an
employee of a body corporate manager, is to preside.
(4) Section 83—after subsection (6) insert:
(6a) A member may, in accordance with any requirements prescribed by
regulation, attend, and vote, at a meeting by telephone, video-link, Internet
connection or any similar means of remote communication (provided that no
obligation lies on a community corporation to provide such facilities to members
who wish to attend or vote in such a manner).
23—Amendment
of section 84—Voting at general meetings
(1) Section 84(5)—delete subsection (5) and
substitute:
(5) A nomination
referred to in subsection (3)—
(i) in the case of a nomination relating to the first statutory general
meeting—by written notice given to the person initially presiding at the
meeting; or
(ii) in any other case—by written notice given to the secretary of
the corporation; and
(b) must specify whether the nominated person—
(i) is nominated to attend and vote at all meetings, and in relation to
all matters, on behalf of the owner; or
(ii) is nominated to attend and vote only at specified meetings, or in
relation to specified matters, on behalf of the owner; and
(c) may specify conditions in relation to the nomination; and
(d) if a specified condition requires the nominated person to vote in a
particular way in relation to a matter in which the owner has a direct or
indirect pecuniary interest (other than an interest that the owner has in common
with all the owners of the community lots)—must specify the nature of the
owner's pecuniary interest; and
(e) may be revoked by
the owner at any time by subsequent written notice to the secretary (and any
contract or agreement to the contrary is unenforceable); and
(f) is effective for a period of 12 months or such lesser period as
may be specified in the written notice of nomination unless the nomination is
revoked earlier under
paragraph (e);
and
(g) does not derogate from the power of the owner to attend and vote at
meetings on his or her own behalf.
(5a) Failure to comply with a requirement of
subsection (5)
will invalidate the nomination.
(2) Section 84(6)—after paragraph (b) insert:
(ba) may specify conditions in relation to the nomination; and
(bb) if a specified condition requires the nominated person to vote in a
particular way in relation to a matter in which an owner has a direct or
indirect pecuniary interest (other than an interest that the owner has in common
with all the owners of the community lots)—must specify the nature of the
owner's pecuniary interest; and
(3) Section 84—after subsection (6) insert:
(6a) Without limiting subsections (5) or (6), if a person who is
a body corporate manager in relation to the corporation, or an employee of such
a body corporate manager, is nominated under subsection (3) or (4),
the nomination ceases to have effect on the person ceasing to be a body
corporate manager in relation to the corporation or an employee of such a body
corporate manager (as the case may require).
(4) Section 84—after subsection (9) insert:
(9a) If an owner
appoints, by general power of attorney under section 5 of the Powers
of Attorney and Agency Act 1984, a person as his or her attorney
specifically for the purpose of attending and voting at meetings, or specified
meetings, of the community corporation, the appointment is, despite any
provision of that Act or the terms of the general power of Attorney, effective
for a period of 12 months or such lesser period as may be specified in the
power of attorney unless the power of attorney is revoked earlier.
(9b) If a general power of attorney referred to in
subsection (9a)
appoints a body corporate manager, a copy of the instrument of appointment must
be given to the secretary of the corporation before the meeting, or the first of
the meetings, to which it relates.
(5) Section 84—after subsection (10) insert:
(10a) A copy of each written notice of nomination and each instrument of
appointment referred to in subsection (9b) applying in relation to the
meeting must be made available by—
(a) in the case of a nomination relating to the first statutory general
meeting—the person initially presiding at the meeting; or
(b) in any other case—the secretary of the corporation,
for inspection by persons attending the meeting before any matter is voted
on at the meeting.
Maximum penalty: $500.
24—Amendment
of section 85—Duty to disclose interest
(1) Section 85(1)—delete subsection (1) and
substitute:
(1) If a person (whether a co-owner of a lot or not) has been nominated to
attend and vote at a meeting of a community corporation on behalf of another
person, the following provisions apply:
(a) if the nominated person has a direct or indirect pecuniary interest in
any matter to be voted on at a meeting, the nominated person
must—
(i) disclose the nature of the interest—
(A) if it is practicable to do so—to his or her principal before the
vote is taken; or
(B) in any other case—to his or her principal as soon as practicable
after the vote is taken; and
(ii) disclose the nature of the interest to the members present at the
meeting before the vote is taken;
(b) if the written notice of nomination declared a pecuniary interest in
accordance with section 84(5)(d) or 84(6)(bb) in relation to the
matter, the nominated person must disclose the nature of the pecuniary interest
to the members present at the meeting before the vote on the matter is
taken.
Maximum penalty: $15 000.
(2) Section 85—after subsection (2) insert:
(a) attends and is entitled to vote (other than as a nominee) at a meeting
of a community corporation; or
(b) presides at such a meeting,
and who has a direct or indirect pecuniary interest in any matter to be
voted on at the meeting must disclose the nature of the interest to the members
present at the meeting before the vote is taken.
Maximum penalty: $15 000.
(2b) An owner of a community lot is not obliged by
subsection (2a) to
disclose an interest that he or she has in common with all of the owners of the
community lots.
(3) Section 85(3)—delete "subsection (1)" and substitute:
this section
25—Amendment
of section 87—Value of votes cast at general meeting
Section 87(3)—delete subsection (3) and substitute:
(3) If the developer owns 1 or more of the community lots in a
community parcel and a person (other than the developer or a prescribed
associate of the developer) owns 1 or more of the community lots, the
following provisions apply:
(a) if none of the other lots is owned by a prescribed associate of the
developer, the developer is entitled to—
(i) the aggregate of the votes, determined in accordance with
subsection (1), in respect of the lots owned; or
(ii) a number of votes equivalent to the aggregate of the votes,
determined in accordance with that subsection, that may be exercised by all the
other members of the corporation,
whichever is the lesser;
(b) if 1 or more of the other lots is owned by a prescribed associate of
the developer, the developer and the prescribed associate are each entitled
to—
(i) the aggregate of the votes, determined in accordance with
subsection (1), in respect of the lots owned; or
(ii) the aggregate of the votes, determined in accordance with
subsection (1), in respect of the lots owned, proportionately adjusted so
that the aggregate of the votes that may be exercised by the developer and the
votes that may be exercised by all prescribed associates of the developer is
equivalent to the aggregate of the votes that may be exercised by all other
members of the corporation,
whichever is the lesser.1
Note—
1 The effect of this provision is that neither the voting power of the
developer, nor the combined voting power of the developer and prescribed
associates, can ever be greater than the combined voting power of the other
members of the corporation.
(4) In this section—
prescribed associate of a developer means—
(a) a person who is an associate of the developer where a relationship of
a kind referred to in section 4(2)(e), (f) or (g) exists between the
developer and the person; or
(b) a related body corporate;
related body corporate has the same meaning as in the
Corporations Act 2001 of the Commonwealth.
26—Amendment
of section 88—Special resolutions—3 lot
schemes
Section 88(2)(a)—after "resolution" insert:
and any other information of a kind prescribed by regulation
27—Amendment
of section 101—Power to enforce duties of maintenance and repair
etc
(1) Section 101(3)—delete "of the lot has been given reasonable
notice" and substitute:
and the occupier of the lot have been given at least 2 days notice in
writing
(2) Section 101—after subsection (4) insert:
(4a) Despite any
other provision of this section, an officer of a community corporation or a
person or persons authorised by a community corporation may, if satisfied that
urgent action is necessary to avert a risk of death or injury or significant
damage to property, enter a lot (using such force as may be reasonably necessary
in the circumstances) and carry out such work as is reasonably necessary to deal
with the risk.
(4b) A person proposing to enter a lot in accordance with
subsection (4a)
must give such notice (if any) to the owner and occupier of the lot as he or she
considers reasonable in the circumstances.
28—Amendment
of section 102—Alterations and additions in relation to strata
schemes
(1) Section 102(1)—delete "A person" and substitute:
Subject to subsection (1a), a person
(2) Section 102—after subsection (1) insert:
(1a) Subsection (1) does not apply to prescribed work carried out in
compliance with a direction under section 23 of the Housing
Improvement Act 1940.
29—Amendment
of section 104—Other insurance by community
corporation
Section 104—after subsection (2) insert:
(3) A community
corporation (other than a corporation of a kind prescribed by regulation) must
maintain fidelity guarantee insurance complying with the requirements prescribed
by the regulations.
Maximum penalty: $15 000.
(4) The Minister may, by notice in the Gazette, exempt community
corporations from compliance with
subsection (3) for
such period as the Minister thinks fit.
(5) An exemption granted by the Minister—
(a) may be subject to conditions specified in the notice of exemption;
and
(b) may be varied or revoked by the Minister at any time by subsequent
notice in the Gazette.
30—Amendment
of section 106—Insurance to protect easements
Section 106(2)—delete subsection (2) and
substitute:
(2) A person who is required by subsection (1) to insure a building
must provide such evidence as is required by the regulations of his or her
compliance with that requirement—
(a) to the community corporation as soon as practicable after complying
with that requirement and after any subsequent change to the terms and
conditions of the insurance policy; and
(b) if a request is made by an owner or prospective owner, or the
registered mortgagee or prospective mortgagee, of a community lot or a
development lot that benefits from the easement—to the person making the
request within 5 business days after the making of the request.
Maximum penalty: $500.
31—Amendment
of section 108—Right to inspect policies of insurance
(1) Section 108—after "owner" wherever occurring insert:
, and a prospective owner,
(2) Section 108—after "registered mortgagee" wherever occurring
insert:
, and a prospective mortgagee,
(3) Section 108—after subsection (3) insert:
(4) A request made under this section for the inspection of policies of
insurance must be complied with within 5 business days after the making of
the request.
Maximum penalty: $500.
32—Amendment
of section 113—Statement of expenditure etc
(1) Section 113(1)—before paragraph (a) insert:
(aa) proposed expenditure (other than recurrent expenditure) for the
period prescribed by the regulations for the purposes of this paragraph (which
must not exceed 5 years); and
(2) Section 113—after subsection (1) insert:
(1a) New information must be prepared for the purposes of
subsection (1)(aa) at the times prescribed by regulation.
(3) Section 113(2)—delete "first general meeting" and
substitute:
first statutory general meeting
(4) Section 113—after subsection (2) insert:
(3) A statement presented to a meeting in accordance with this section
forms part of the minutes of the meeting.
(4) The regulations may exclude a community corporation of a specified
class from the operation of subsections (1)(aa) and (1a).
33—Amendment
of section 126—Keeping of records
(1) Section 126(3)—after "corporation" second occurring
insert:
, within 5 business days after the making of the request,
(2) Section 126(3), penalty provision—delete "$8 000" and
substitute:
$500
34—Amendment
of section 127—Audit of trust accounts
(1) Section 127(1)(b)—delete "lodge with" and
substitute:
forward to the secretary of
(2) Section 127(2)(b)—delete "lodge the audit statement" and
substitute:
forward the audit statement to the secretary of the community
corporation
35—Amendment
of section 135—Register of owners of lots
Section 135(1)—delete subsection (1) and substitute:
(1) A community corporation must maintain a register of the names of the
owners of the community lots which shows—
(a) the owner's last contact address, telephone number and email address
known to the corporation; and
(b) the owner's lot entitlement.
36—Amendment
of section 138—Audit
Section 138(4)—delete subsection (4) and substitute:
(4) An annual
statement of accounts in respect of a financial year need not be audited in any
of the following circumstances:
(a) if—
(i) the aggregate of the contributions made or to be made by members of
the corporation in respect of that year does not exceed the amount prescribed by
regulation; and
(ii) the balance standing to the credit of the administrative fund and the
sinking fund at the commencement of that year does not exceed the amounts
prescribed by regulation;
(b) if all community lots are owned by the same person;
(c) if—
(i) the community scheme consists only of lots used for residential
purposes; and
(ii) there are not more than 6 community lots; and
(iii) the community corporation, by unanimous resolution, resolves not to
have the statement of accounts for that financial year audited.
37—Amendment
of section 139—Information to be provided by
corporation
(1) Section 139(1)—after "development lot" insert:
, within 5 business days after the making of the application
(2) Section 139(1)—after paragraph (c) insert:
and
(d) if the community corporation is a party to a contract with a body
corporate manager—make available for inspection a copy of the contract;
and
(e) make available for inspection the register maintained under
section 135.
(3) Section 139—after subsection (1) insert:
(1a) A community
corporation must, on application by an owner of a community lot or a development
lot provide the applicant, on a quarterly basis, with ADI statements for all
accounts maintained by the corporation (and must continue to so provide the
statements until the applicant ceases to be an owner or revokes the
application).
Maximum penalty: $500.
(1b)
Subsection (1a) does
not apply to a community corporation if a body corporate manager maintains the
accounts on behalf of the corporation.
38—Amendment
of section 141—Persons who may apply for relief
Section 141—after paragraph (b) insert:
(ba) a person who has contracted to purchase a development lot or
community lot; or
39—Amendment
of section 142—Resolution of disputes etc
(1) Section 142(1)(b)—after "corporation or of the"
insert:
developer or the
(2) Section 142(8)—after paragraph (b) insert:
(ba) order a party to have any accounts audited or to reimburse any person
for the costs of having any accounts audited; or
(3) Section 142(8)—after paragraph (d) insert:
(da) make a declaration as to the validity of—
(i) any by-law or purported by-law of the corporation; or
(ii) any decision or purported decision of the corporation; or
(4) Section 142(8)(e)(i)—after "scheme" insert:
(and make any necessary consequential changes to the scheme description and
development contracts)
(5) Section 142(8)—after paragraph (e) insert:
(ea) vary, avoid or terminate a contract entered into (whether before or
after the commencement of this paragraph) between a community corporation and
any of the following:
(i) the developer;
(ii) an associate of the developer;
(iii) the body corporate manager;
(iv) an associate of the body corporate manager; or
(6) Section 142—after subsection (9) insert:
(9a) A court should not make an order to vary, avoid or terminate a
contract entered into between a community corporation and another party unless
the court is satisfied that the contract involves a breach of fiduciary duties
or other duties under this Act.
(7) Section 142(13), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $15 000.
40—Insertion
of sections 142A and 142B
Before section 143 insert:
142A—Holding of deposit and other contract moneys
when lot is pre-sold
(1) A person must not
sell a lot in a proposed community scheme before the plan of community division
is deposited in the Lands Titles Registration Office unless the contract of sale
provides, in accordance with any requirements specified in the regulations, for
any consideration payable by the purchaser prior to the deposit of the plan to
be held on trust by a specified legal practitioner, registered agent or
registered conveyancer until the plan is deposited.
(2) All consideration
payable by the purchaser prior to the deposit of the plan of community division
in the Lands Titles Registration Office under a contract referred to in
subsection (1)
must be paid by the purchaser to the legal practitioner, registered agent or
registered conveyancer named or specified in the contract of sale.
(3) In the event of a contravention of
subsection (1),
the purchaser may, by notice in writing given at any time before the plan of
community division is deposited in the Lands Titles Registration Office, avoid
the contract of sale.
(4) If the plan of community division is not deposited in the Lands Titles
Registration Office—
(a) within such period
after the date of the contract as is specified in the contract in accordance
with any requirements specified in the regulations; or
(b) if the contract doesn't specify a period in accordance with
paragraph (a)—within
6 months after the date of the contract,
the purchaser may, by notice in writing to the vendor, avoid the contract
of sale at any time before the plan is deposited.
(5) Despite a provision of this section, a purchaser cannot avoid a
contract of sale under this section if the purchaser has entered into a
subsequent contract to sell the lot to another purchaser (unless that contract
has been avoided by that purchaser).
(6) If a purchaser avoids a contract of sale, all consideration paid by
the purchaser under the contract is recoverable by the purchaser from the legal
practitioner, registered agent, registered conveyancer or other person to whom
it was paid (but the purchaser may be liable to pay an occupation rent for any
period during which he or she was in occupation of the lot or entitled to
receive the rents and profits of the lot, if the payment of such rent has been
agreed by the purchaser).
(7) In this section—
date of the contract means the day on which the contract of
sale referred to in
subsection (1) was
signed or, if the parties signed it on different days, the last of those
days;
registered agent means a person registered as an agent under
the
Land
Agents Act 1994;
registered conveyancer means a person registered as a
conveyancer under the
Conveyancers
Act 1994.
142B—Developer stands in fiduciary relationship
with community corporation
(1) For the avoidance
of doubt—
(a) the developer stands in a fiduciary relationship with the community
corporation and, before the community corporation is established, with the
proposed community corporation; and
(b) the duties owed by the developer under this Act are in addition to,
and do not derogate from, the duties arising out of that fiduciary
relationship.
(2) Without derogating
from
subsection (1),
where the community corporation intends, during the developer control period, to
delegate functions or powers to a body corporate manager or to enter into a
contract for services, the developer must exercise reasonable skill, care and
diligence and act in the best interests of the community corporation (as it will
be constituted after the developer control period ends).
Note—
An application may be made under section 142 if the developer
contravenes this subsection.
(3) In this section—
developer control period means a period during
which—
(a) the community corporation is constituted solely by the developer;
or
(b) the developer owns, or has an interest in, the majority of lots in the
community scheme or in any other way controls the voting of the
corporation.
41—Amendment
of section 149A—Applications to Magistrates Court
Section 149A—after "any provision of this Act" insert:
(other than an application under section 49(2))
42—Substitution
of section 152
Section 152—delete the section and substitute:
152—Commencement of
prosecutions
(1) A prosecution for an offence against this Act cannot be commenced
except by—
(a) the Commissioner for Consumer Affairs; or
(b) an authorised officer under the Fair
Trading Act 1987; or
(c) a person who has the consent of the Minister to commence the
prosecution.
(2) In any proceedings, an apparently genuine document purporting to be a
certificate of the Minister certifying authorisation of, or consent to, a
prosecution for an offence against this Act will be accepted, in the absence of
proof to the contrary, as proof of the authorisation or consent.
43—Amendment
of section 155—Service
Section 155(1)—after paragraph (c) insert:
(ca) if the person consents to receiving the notice by email—by
transmitting the notice by email to the email address provided by the person for
that purpose; or
After section 155 insert:
155A—Indemnity fund under Land Agents
Act 1994
Money standing to the credit of the indemnity fund maintained under
section 29 of the Land
Agents Act 1994 may be applied by the Commissioner for Consumer
Affairs for any of the following purposes:
(a) the costs of investigating compliance with this Act;
(b) the costs of prosecutions for offences against this Act;
(c) the payment of amounts, approved by the Minister and the Minister
responsible for the administration of the Land
Agents Act 1994, towards the cost of prescribed advisory services
or educational programs relating to this Act conducted for the benefit of
members of the public.
45—Amendment
of section 156—Regulations
Section 156(2)—after paragraph (d) insert:
(da) assign specified functions to an officer of a community corporation
of a specified class;
Part 3—Amendment
of Strata Titles
Act 1988
46—Amendment
of section 3—Interpretation
(1) Section 3(1)—after the definition of allotment
insert:
body corporate manager—see section 27B;
(2) Section 3(1)—after the definition of building
insert:
business day means any day except Saturday, Sunday or a
public holiday;
(3) Section 3(1)—after the definition of encumbrance
insert:
ERD Court means the Environment, Resources and Development
Court established under the
Environment,
Resources and Development Court Act 1993;
(4) Section 3(1)—after the definition of occupier
insert:
ordinary resolution of a strata corporation means a
resolution passed at a properly convened meeting of the corporation by a simple
majority of the votes of unit holders present and voting on the
resolution;
(5) Section 3(1), definition of special resolution,
(a)—after "resolution" insert:
and any other information of a kind prescribed by regulation
(6) Section 3(1), definition of special resolution,
(b)—delete paragraph (b) and substitute:
(b) —
(i) in the case of a strata corporation in which there are only
3 units and the owner of each unit is entitled to 1 vote in respect of
his or her unit—the resolution is passed at a properly convened meeting of
the strata corporation at which either no vote, or only 1 vote, is cast
against the resolution; or
(ii) in any other case—the resolution is passed at a properly
convened meeting of the strata corporation at which the number of votes (if any)
cast against the resolution is 25% or less of the total number of votes that
could be cast at a meeting at which all unit holders are present and entitled to
vote;
47—Amendment
of section 13—Amendment by order of Court
(1) Section 13—delete "Court" wherever occurring and substitute in
each case:
ERD Court
(2) Section 13—after subsection (3) insert:
(3a) If it appears to the Court that the proposed amendment of the strata
plan could adversely affect a person who is not a party to the proceedings, the
Court should not order the amendment unless the Court is satisfied that the
person has been notified of the possibility that such an order could be made and
has been given a reasonable opportunity to make submissions to the court in
relation to the matter.
(3b) In determining an application under this section the Court must have
regard to the matters (if any) prescribed by regulation.
48—Amendment
of section 17—Cancellation
(1) Section 17—delete "Court" wherever occurring and substitute in
each case:
ERD Court
(2) Section 17—after subsection (4) insert:
(4a) If it appears to the Court that the proposed cancellation of the
strata plan could adversely affect a person who is not a party to the
proceedings, the Court should not order the cancellation unless the Court is
satisfied that the person has been notified of the possibility that such an
order could be made and has been given a reasonable opportunity to make
submissions to the court in relation to the matter.
(4b) In determining an application under this section the Court must have
regard to the matters (if any) prescribed by regulation.
49—Amendment
of section 19—Articles of strata corporation
(1) Section 19—after subsection (3) insert:
(3a) The articles of a strata corporation may impose a penalty, not
exceeding the prescribed amount, for contravention of, or failure to comply
with, any articles.
(3b) The following provisions apply in relation to a penalty imposed on a
person for contravention of, or failure to comply with, articles:
(a) the penalty is (despite section 29 of the Acts
Interpretation Act 1915) payable to the strata corporation in
accordance with this subsection;
(b) subject to the making of an application under
paragraph (e), the
penalty is payable by the person on the date specified for payment in a notice
served by the corporation on the person;
(c) the notice must—
(i) be in writing in the form prescribed by regulation; and
(ii) specify the amount of the penalty payable and a date for payment
(being not less than 60 days after the notice is served);
(d) the penalty payable under the notice is recoverable by the strata
corporation as a debt and, in the case of a notice served on a unit holder, may
be recovered by the strata corporation as if it were a contribution payable to
the strata corporation under section 27 (and interest will be payable on
the penalty amount in the same way as if it were such a contribution);
(e) the person may,
within 60 days after service of the notice, apply to the Magistrates Court
for revocation of the notice and the Court must grant the application if
either—
(i) the Court is not satisfied that the person committed the contravention
or failure alleged in the notice; or
(ii) the Court is satisfied that the contravention or failure alleged in
the notice is trifling;
(f) the strata corporation is a party to an application under
paragraph (e) and
bears the onus of proving, on the balance of probabilities, that the person
committed the contravention, or failure alleged in the notice;
(g) if an application is made in accordance with
paragraph (e), the
penalty specified in the notice is not payable unless the application for
revocation is withdrawn or otherwise discontinued by the applicant or is
dismissed or refused by the Court (and, in such a case, the penalty will be
payable on the date on which the application is so withdrawn, discontinued,
dismissed or refused or on the date for payment specified in the notice,
whichever occurs later).
(3c) A person's contravention of, or failure to comply with, articles
will, for the purposes of this section, be regarded as trifling if, and only if,
the person establishes that the circumstances surrounding the commission of the
contravention or failure were such that he or she ought to be excused from the
imposition of a penalty on the ground that—
(a) there were compelling humanitarian or safety reasons for the conduct
that allegedly constituted the contravention or failure; or
(b) the person could not, in all the circumstances, reasonably have
averted committing the contravention or failure; or
(c) the conduct allegedly constituting the contravention or failure was
merely a technical, trivial or petty instance of a contravention of or failure
to comply with the relevant articles.
(3d) The regulations may make further provision in relation to enforcement
of the articles of a strata corporation.
(2) Section 19—after subsection (4) insert:
(5) In this section—
prescribed amount, in relation to a penalty imposed under
articles of a strata corporation, means—
(a) if the strata scheme only includes units that are used, or are
intended to be used, solely or predominantly for business or commercial
purposes—$2 000; or
(b) in any other case—$500.
After section 19 insert:
19A—Certain articles may be struck out by
Court
(a) reduce the value of a unit; or
(b) unfairly discriminate against a unit holder,
may be struck out by order of the Magistrates Court or the District Court
on an application made under Part 3A.
(2) An application referred to in
subsection (1) can
only be made by a person who was a unit holder when the articles came into force
and must be made within 3 months after the person (or either or any of the
unit holders where the unit is held by 2 or more persons) first knew, or
could reasonably be expected to have known, that the articles had been
made.
(3) For the purposes of this section, a reference to a unit
holder includes a person who has contracted to purchase the
unit.
After section 26 insert:
26A—Delegation of functions or
powers
A strata corporation can only delegate its functions or powers to the
extent permitted by Division 2A.
52—Amendment
of section 27—Power to raise money
(1) Section 27(2)—delete "resolution" and substitute:
ordinary resolution
(2) Section 27(4)—delete subsection (4) and
substitute:
(4) A strata corporation may, by ordinary resolution—
(a) permit contributions to be paid in instalments specified in the
resolution; and
(b) fix (in accordance with the regulations) interest payable in respect
of a contribution, or an instalment of a contribution, that is in
arrears.
53—Insertion
of Part 3 Division 2A
After section 27 insert:
Division 2A—Delegations by strata
corporation
27A—Delegation of corporation's functions and
powers
(1) A strata
corporation may delegate any of its functions and powers (except this power of
delegation) to a member or employee of the corporation.
(2) A strata
corporation may delegate the following functions and powers to any
person:
(a) the receipt and holding of money and other personal property on behalf
of the corporation;
(b) payment of money on behalf of the corporation;
(c) the preparation of statements of expenditure and proposed expenditure
and statements of accounts;
(d) the collection of money due to the corporation;
(e) entering into contracts of insurance with insurers on behalf of the
corporation;
(f) maintaining and keeping records on behalf of the
corporation;
(g) issuing and signing notices on behalf of the corporation;
(h) preparing minutes of meetings of the corporation;
(i) providing information as required by the Act on behalf of the
corporation;
(j) investing money on behalf of the corporation;
(k) arranging for the maintenance and repair of the common property on
behalf of the corporation.
(3) A delegation by a strata corporation is to be made by ordinary
resolution of the strata corporation.
(4) However, a strata corporation cannot delegate a function or power
under
subsection (1)
or
(2) if the function or
power is of a kind that can only be performed or exercised by the corporation by
passing a special or unanimous resolution.
(5) A delegation by a
strata corporation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the corporation to act in any
matter; and
(c) is—
(i) in a case where there is a contract relating to the delegation between
the corporation and a body corporate manager—revoked on termination or
expiry of the contract; or
(ii) in any other case—revocable by the corporation at any time by
notice given in writing (notwithstanding any agreement to the contrary by the
corporation).
27B—Body corporate managers
(1) This section applies to a delegation of functions or powers by a
strata corporation if—
(a) the delegation is made to a person (the body corporate
manager) who carries on a business, or is an employee in a business,
that consists of, or includes, acting as a delegate of strata corporations or of
community corporations under the Community
Titles Act 1996; and
(b) the delegation is made after the commencement of this section or a
contract, between the body corporate manager and the corporation, relating to
the delegation is made, renewed or extended after the commencement of this
section; and
(c) it is proposed that the body corporate manager be remunerated in
respect of work performed in exercising the delegated functions or powers.
(2) A body corporate
manager is only entitled to receive remuneration in respect of work performed in
exercising functions or powers under a delegation to which this section applies
if—
(a) the body
corporate manager and the strata corporation enter into a contract in compliance
with
subsections (3)
and
(7); and
(b) the body
corporate manager, prior to entering into the contract referred to in
paragraph (a),
provided the strata corporation with documents of a kind prescribed by
regulation verifying the body corporate manager's entitlement to act as a body
corporate manager and any other prescribed matter; and
(c) the body
corporate manager, whilst performing such work, maintains professional indemnity
insurance complying with the requirements prescribed by the
regulations,
(and if a body corporate manager has received, from a strata corporation,
remuneration to which he or she is not entitled under this subsection, the
strata corporation may recover the amount of the remuneration as a
debt).
(a) be in writing; and
(b) specify the term of the contract; and
(c) set out the functions or powers to be delegated; and
(d) specify the rights of the strata corporation under
subsection (4);
and
(e) set out the remuneration payable to the body corporate manager in
respect of the work performed in exercising the delegated functions or powers,
or set out the basis on which such remuneration is to be calculated;
and
(f) contain any other particulars required by the regulations;
and
(g) have annexed to it a copy of each document provided by the body
corporate manager in accordance with
subsection (2)(b).
(a) there is a contract in force between a strata corporation and a body
corporate manager; and
(b) the strata corporation has had relevant contractual arrangements with
the body corporate manager for a continuous period of at least
12 months,
the strata corporation may terminate the contract by written notice given
to the body corporate manager at least 28 days (or a lesser period
specified in the contract) before the termination of the contract is to come
into effect.
(5) The right of a strata corporation to terminate a contract under
subsection (4)
is in addition to, and does not derogate from, any other right of the strata
corporation to terminate the contract.
(6) A decision to terminate a contract in accordance with
subsection (4)
is to be made by ordinary resolution of the strata corporation.
(7) The body
corporate manager must ensure that a copy of the contract, and any other
prescribed information or document of a kind prescribed by regulation is
available for inspection by unit holders at least 5 clear days before the
date of the meeting at which the corporation is to consider whether or not to
enter into the contract.
(8) The body corporate manager must, at the request of any member of the
corporation, make a copy of the body corporate manager's policy of professional
indemnity insurance available for inspection and copying by the member within
3 business days of the request.
Penalty: Division 9 fine.
(9) The Minister may,
by notice in the Gazette, exempt body corporate managers from compliance with
subsection (2)(c)
for such period as the Minister thinks fit.
(10) An exemption granted by the Minister under
subsection (9)—
(a) may be subject to conditions specified in the notice of exemption;
and
(b) may be varied or revoked by the Minister at any time by subsequent
notice in the Gazette.
(11) In this section—
relevant contractual arrangements mean contractual
arrangements relating to a delegation of functions or powers by a strata
corporation to a body corporate manager.
27C—General duties
(1) For the
avoidance of doubt—
(a) the body corporate manager stands in a fiduciary relationship with the
strata corporation; and
(b) the duties owed by the body corporate manager under this Act are in
addition to, and do not derogate from, the duties arising out of that fiduciary
relationship.
(2) Without derogating from
subsection (1),
a body corporate manager—
(a) must act honestly and in good faith in the performance of the
manager's functions; and
(b) must exercise due care and diligence in the performance of the
manager's functions; and
(c) must not make improper use of the manager's position to gain, directly
or indirectly, an advantage personally or for any other person.
27D—Offences
(1) A delegate of a
strata corporation who has a direct or indirect pecuniary interest in a matter
in relation to which he or she proposes to perform delegated functions or powers
must disclose the nature of the interest, in writing, to the corporation before
performing the functions or powers.
Penalty: Division 4 fine.
Example—
For example, if the delegate would receive a commission from a person for
placing business of the strata corporation with that person, it would be an
offence to fail to disclose that fact before placing business with the person.
Similarly, if the delegate were to profit by placing business of the strata
corporation with a related body corporate, it would be an offence to fail to
disclose that fact before placing business with the related body
corporate.
(2) If an employee or agent of a delegate has a direct or indirect
pecuniary interest in a matter, the delegate is, for the purposes of
subsection (1),
taken to have a direct or indirect pecuniary interest in the matter.
(3) A delegate who is a unit holder is not obliged by
subsection (1) to
disclose an interest that he or she has in common with all of the unit
holders.
(4) It is a defence to a charge of an offence against
subsection (1) for the
defendant to prove that he or she did not know and could not reasonably have
been expected to know of his or her interest in the matter.
(5) A delegate of a strata corporation must, on application by a unit
holder, provide the applicant, on a quarterly basis, with a statement setting
out details of dealings by the delegate with the corporation's money (and must
continue to so provide the statements until the applicant ceases to be a unit
holder or revokes the application).
Maximum penalty: $500.
(6) If all delegations by a strata corporation to a delegate are revoked,
the delegate must return to, or make available for collection by, the
corporation—
(a) all records of the corporation held by the delegate; and
(b) all trust money held pursuant to the delegations,
in accordance with any requirements prescribed by the
regulations.
Penalty: Division 7 fine.
(7) A delegate of a strata corporation who holds records of the
corporation must, at the request of any unit holder—
(a) make those records available for the unit holder to inspect within
3 business days of the request; and
(b) provide the unit holder with a copy of any of the records on payment
of a fee (not exceeding a fee calculated in accordance with the
regulations).
Penalty: Division 9 fine.
54—Amendment
of section 28—Power to enforce duties of maintenance and
repair
(1) Section 28(3)—delete "has been given reasonable notice" and
substitute:
and the occupier of the unit have been given at least 2 days
notice in writing
(2) Section 28—after subsection (3) insert:
(3a) Despite any
other provision of this section, an officer of a strata corporation or a person
or persons authorised by a strata corporation may, if satisfied that urgent
action is necessary to avert a risk of death or injury or significant damage to
property, enter a unit (using such force as may be reasonably necessary in the
circumstances) and carry out such work as is reasonably necessary to deal with
the risk.
(3b) A person proposing to enter a unit in accordance with
subsection (3a)
must give such notice (if any) to the unit holder and the occupier of the unit
as he or she considers reasonable in the circumstances.
55—Amendment
of section 29—Alterations and additions
(1) Section 29(1)—delete "A person" and substitute:
Subject to subsection (1a), a person
(2) Section 29—after subsection (1) insert:
(1a) Subsection (1) does not apply to prescribed work carried out in
compliance with a direction under section 23 of the Housing
Improvement Act 1940.
56—Amendment
of section 31—Other insurance by strata corporation
After subsection (2) insert:
(2a) A strata
corporation (other than a corporation of a kind prescribed by regulation) must
maintain fidelity guarantee insurance complying with the requirements prescribed
by the regulations.
Penalty: Division 4 fine.
(2b) The Minister may, by notice in the Gazette, exempt strata
corporations from compliance with
subsection (2a)
for such period as the Minister thinks fit.
(2c) An exemption granted by the Minister—
(a) may be subject to conditions specified in the notice of exemption;
and
(b) may be varied or revoked by the Minister at any time by subsequent
notice in the Gazette.
57—Amendment
of section 32—Right of unit holders etc to satisfy themselves as to
insurance
Section 32(1)—delete "at the request of a unit holder" and
substitute:
within 5 business days after the making of a request by a unit holder,
a mortgagee of a unit or a prospective purchaser or mortgagee of a
unit
58—Amendment
of section 33—Holding of general meetings
(1) Section 33(2)—after paragraph (d) insert:
or
(e) order of the Magistrates Court (made on the application of a person of
a class specified in section 41AA).
(2) Section 33—after subsection (3) insert:
(3aa) A unit holder may not nominate another person to be given notices
referred to in subsection (3) on his or her behalf (although nothing
prevents the strata corporation from agreeing to provide notices to such a
person in addition to the unit holder).
(3) Section 33—after subsection (4) insert:
(4a) The notice convening a general meeting must set out the agenda for
the meeting.
(4b) The agenda must include—
(a) the text of any unanimous or special resolutions to be moved at the
meeting; and
(b) a motion confirming the minutes of the previous general meeting;
and
(c) in the case of an annual general meeting—
(i) presentation of the accounts for the previous accounting period;
and
(ii) contributions to be paid by members for the current accounting
period; and
(iii) presentation of statements required under section 33A;
and
(iv) presentation of copies of all insurance policies required under this
Act; and
(v) such other matters as are required by regulation.
(4) Section 33(8)—delete subsection (8) and substitute:
(8) Subject to
subsection (9), in
the absence of the presiding officer, a person present may be appointed to
preside at the meeting by the persons present and entitled to vote at the
meeting.
(9) A person who is a
body corporate manager in relation to a corporation, or is an employee of such a
body corporate manager, may preside at a meeting of the corporation if a
majority of the persons present and entitled to vote at the meeting agree to
that person presiding (and the body corporate manager or employer is taken not
to be entitled to vote for that purpose except in circumstances prescribed by
the regulations).
(10) The regulations may make further provision in relation to the
procedures to be followed at a meeting at which a body corporate manager, or an
employee of a body corporate manager, is to preside.
(11) A unit holder may, in accordance with any requirements prescribed by
regulation, attend, and vote, at a meeting by telephone, video-link, Internet
connection or any similar means of remote communication (provided that no
obligation lies on a strata corporation to provide such facilities to unit
holders who wish to attend or vote in such a manner).
(12) In this section—
accounting period, for a strata corporation, means the
accounting period for the corporation under section 40(2).
After section 33 insert:
33A—Statement of expenditure
etc
(1) A statement
setting out the following information must be presented by a strata corporation
to each annual general meeting of the corporation:
(a) proposed
expenditure (other than recurrent expenditure) for the period prescribed by the
regulations for the purposes of this paragraph (which must not exceed
5 years);
(b) the estimated
expenditure of a recurrent nature and the estimated expenditure of a
non-recurrent nature to be made by the corporation in the current financial
year;
(c) the estimated
expenditure in future years for which funds should be raised now and held in
reserve;
(d) the amount to be raised by way of contributions from unit holders to
cover the expenditure referred to in
paragraphs (b)
and
(c).
(2) New information
must be prepared for the purposes of
subsection (1)(a)
at the times prescribed by regulation.
(3) A statement presented to a meeting in accordance with this section
forms part of the minutes of the meeting.
(4) The regulations may exclude a strata corporation of a specified class
from the operation of
subsections (1)(a)
and
(2).
(5) In this section—
recurrent, in relation to expenditure, means expenditure for
a particular purpose that is normally made every year or more
frequently.
60—Amendment
of section 34—Voting at general meetings
(1) Section 34—after subsection (2) insert:
(2a) A unit holder may nominate another person (a proxy) to
attend and vote at meetings on his or her behalf.
(2) Section 34—after subsection (3) insert:
(3a) The nomination
of a person as a proxy of a unit holder—
(i) be made by written notice to the secretary of the strata corporation;
and
(ii) specify whether the nominated person—
(A) is nominated to attend and vote at all meetings, and in relation to
all matters, on behalf of the unit holder; or
(B) is nominated to attend and vote only at specified meetings, or in
relation to specified matters, on behalf of the unit holder; and
(b) may specify conditions in relation to the nomination; and
(c) if a specified condition requires the nominated person to vote in a
particular way in relation to a matter in which the unit holder has a direct or
indirect pecuniary interest (other than an interest that the unit holder has in
common with all the holders of the strata units)—must specify the nature
of the unit holder's pecuniary interest; and
(d) may be revoked by
the unit holder at any time by subsequent written notice to the secretary (and
any contract or agreement to the contrary is unenforceable); and
(e) is effective for a period of 12 months or such lesser period as
may be specified in the written notice of nomination unless the nomination is
revoked earlier under
paragraph (d);
and
(f) does not derogate from the power of the unit holder to attend and vote
at meetings on his or her own behalf.
(3b) Failure to comply with a requirement of
subsection (3a)(a)
will invalidate the nomination.
(3c) Without limiting
subsection (3a),
if a person who is a body corporate manager or an employee of a body corporate
manager is nominated as a proxy of a unit holder of the corporation, the
nomination ceases to have effect on the person ceasing to be a body corporate
manager in relation to the corporation or an employee of such a body corporate
manager (as the case may require).
(3d) If a unit holder
appoints, by general power of attorney under section 5 of the Powers
of Attorney and Agency Act 1984, a person as his or her attorney
specifically for the purpose of attending and voting at meetings, or specified
meetings, of the strata corporation, the appointment is, despite any provision
of that Act or the terms of the general power of Attorney, effective for a
period of 12 months or such lesser period as may be specified in the power
of attorney unless the power of attorney is revoked earlier.
(3e) If a general power
of attorney referred to in
subsection (3d)
appoints a body corporate manager, a copy of the instrument of appointment must
be provided to the secretary of the corporation before the meeting, or the first
of the meetings, to which it relates.
(3f) The secretary of the corporation must ensure that a copy of each
written notice of nomination, and each instrument provided under
subsection (3e),
applying in relation to a meeting is available for inspection at the meeting
before any matter is voted on.
Penalty: Division 9 fine.
(3) Section 34(8)—delete subsection (8) and substitute:
(8) Except where otherwise provided by this Act or by the articles of a
strata corporation, the decisions of the corporation in general meeting will be
made by ordinary resolutions.
After section 34 insert:
34A—Duty to disclose interest
(1) If a person
(whether a co-owner of a unit or not) has been nominated to attend and vote at a
meeting of a strata corporation on behalf of another person, the nominated
person must—
(a) if the nominated person has a direct or indirect pecuniary interest in
any matter to be voted on at a meeting—
(i) if it is practicable to do so, disclose the nature of the interest to
his or her principal before the vote is taken; or
(ii) in any other case, disclose the nature of the interest to his or her
principal as soon as practicable after the vote is taken; and
(b) if the nominating person declared a pecuniary interest in accordance
with section 34(3a)(c) in relation to the matter, the nominated person must
disclose the nature of the interest to the members present at the meeting before
the vote on the matter is taken.
Penalty: Division 4 fine.
(2) A co-owner of a unit is not obliged by
subsection (1)
to disclose an interest that he or she has in common with his or her other
co-owners.
(a) attends and is entitled to vote at, a meeting of a strata corporation;
or
(b) presides at such a meeting,
and who has a direct or indirect pecuniary interest in any matter to be
voted on at the meeting must disclose the nature of the interest to the members
present at the meeting before the vote is taken.
Penalty: Division 4 fine.
(4) A unit holder is not obliged by
subsection (3) to
disclose an interest that he or she has in common with all of the unit
holders.
(5) It is a defence to a charge of an offence against this section to
prove that the defendant was not, at the time of the alleged offence, aware of
his or her interest in the matter.
62—Amendment
of section 35—Management committee
Section 35(1) and (5)—delete "resolution" wherever occurring and
substitute in each case:
ordinary resolution
63—Amendment
of section 36G—Keeping of records
(1) Section 36G(3)—after "corporation" second occurring
insert:
, within 5 business days after the making of the request,
(2) Section 36G(3), penalty provision—delete "Division 5" and
substitute:
Division 9
64—Amendment
of section 36H—Audit of trust accounts
(1) Section 36H(1)(b)—delete "lodge with" and substitute:
forward to the secretary of
(2) Section 36H(2)(b)—delete "lodge the audit statement" and
substitute:
forward the audit statement to the secretary of the strata
corporation
After section 39 insert:
39A—Register of unit holders
(1) A strata corporation must maintain a register of the names of the unit
holders which shows—
(a) the unit holder's last contact address, telephone number and email
address known to the corporation; and
(b) the unit holder's unit entitlement.
(2) A corporation must keep a record of the information used to compile
the register for the period required by the regulations.
66—Amendment
of section 41—Information to be furnished
(1) Section 41(1)—after "unit" second occurring insert:
, within 5 business days after the making of the application
(2) Section 41(1)—after paragraph (c) insert:
(d) if the strata corporation is a party to a contract with a body
corporate manager—make available for inspection a copy of the
contract;
(e) make available for inspection the register maintained under
section 39A.
(3) Section 41—after subsection (1) insert:
(1a) A strata
corporation must, on application by a unit holder, provide the applicant, on a
quarterly basis, with ADI statements for all accounts maintained by the
corporation (and must continue to so provide the statements until the applicant
ceases to be a unit holder or revokes the application).
Penalty: Division 9 fine.
(1b)
Subsection (1a) does
not apply to a strata corporation if a body corporate manager maintains the
accounts on behalf of the corporation.
Before section 41A insert:
41AA—Persons who may apply for
relief
The following persons may apply for relief under this Part:
(a) a strata corporation;
(b) the owner or occupier of a unit;
(c) a person who has contracted to purchase a unit;
(d) any other person bound by the articles of a strata corporation except
for persons invited to or visiting the site.
68—Amendment
of section 41A—Resolution of disputes etc
(1) Section 41A(1)(a)—delete "a strata corporation or a member of a
strata corporation" and substitute:
the applicant
(2) Section 41A(1)(b)—delete paragraph (b) and
substitute:
(b) if the applicant claims to have been prejudiced, as occupier of a
strata unit, by the wrongful act or default of the strata corporation or a
delegate or the management committee of the strata corporation, or of some other
member of the strata corporation; or
(3) Section 41A(1)(c)—delete "or of" and substitute:
or a delegate or
(4) Section 41A(9)—after paragraph (b) insert:
(ba) order a party to have any accounts audited or to reimburse any person
for the costs of having any accounts audited;
(5) Section 41A(9)—after paragraph (d) insert:
(da) make a declaration as to the validity of—
(i) any articles or purported articles of the corporation; or
(ii) any decision or purported decision of the corporation;
(6) Section 41A(9)—after paragraph (e) insert:
(ea) vary, avoid or terminate a contract entered into (whether before or
after the commencement of this paragraph) between a strata corporation and
either of the following:
(i) the body corporate manager;
(ii) an associate of the body corporate manager;
(7) Section 41A—after subsection (10) insert:
(10a) A court should not make an order to vary, avoid or terminate a
contract entered into between a community corporation and a body corporate
manager or an associate of the body corporate manager unless the court is
satisfied that the contract involves a breach of fiduciary duties or other
duties under this Act.
(8) Section 41A(19)—delete subsection (19)
Section 47—delete the section and substitute:
47—General defence
It is a defence to a charge of an offence against this Act if the defendant
proves that the alleged offence was not committed intentionally and did not
result from any failure on the part of the defendant to take reasonable care to
avoid the commission of the offence.
70—Amendment
of section 49—Service
Section 49—delete subsection (1) and substitute:
(1) A document to be served under this Act or the articles of a strata
corporation may be served—
(a) personally; or
(b) by post; or
(c) if the recipient consents to receiving the document by email—by
transmitting the document by email to the email address provided by the person
for that purpose.
71—Amendment
of section 50—Proceedings for offences
Section 50(2) and (3)—delete subsections (2) and (3) and
substitute:
(2) A prosecution for an offence against this Act cannot be commenced
except by—
(a) the Commissioner for Consumer Affairs; or
(b) an authorised officer under the Fair
Trading Act 1987; or
(c) a person who has the consent of the Minister to commence the
prosecution.
(3) In any proceedings, an apparently genuine document purporting to be a
certificate of the Minister certifying authorisation of, or consent to, a
prosecution for an offence against this Act will be accepted, in the absence of
proof to the contrary, as proof of the authorisation or consent.
After section 50 insert:
50A—Indemnity fund under Land Agents
Act 1994
Money standing to the credit of the indemnity fund maintained under
section 29 of the Land
Agents Act 1994 may be applied by the Commissioner for Consumer
Affairs for any of the following purposes:
(a) the costs of investigating compliance with this Act;
(b) the costs of prosecutions for offences against this Act;
(c) the payment of amounts, approved by the Minister and the Minister
responsible for the administration of the Land
Agents Act 1994, towards the cost of prescribed advisory services
or educational programs relating to this Act conducted for the benefit of
members of the public.
73—Amendment
of section 51—Regulations
Section 51(2)—after paragraph (b) insert:
(ba) may assign specified functions to an officer of a strata corporation
of a specified class;
Schedule 1—Transitional
provisions
1—Delegations
made prior to commencement
(1) A delegation of functions or powers made by a community corporation
before the commencement of
section 17 or made
by a strata corporation before the commencement of
section 53 is
revocable as follows:
(a) in a case where there is a contract relating to the delegation between
the corporation and a body corporate manager—the delegation is revoked on
termination or expiry of the contract;
(b) in any other case—the delegation is revocable by the corporation
at any time by notice given in writing (notwithstanding any agreement to the
contrary by the corporation).
(2) In this clause—
body corporate manager means a person who carries on a
business, or is an employee in a business, that consists of, or includes, acting
as a delegate of community corporations under the Community
Titles Act 1996 or of strata corporations under the Strata
Titles Act 1988.