Disputes and the Commissioner’s office

1.The three steps

1. Self resolution

   Any reasonable step taken inside the body corporate before a formal application: writing to the other person, preferably in writing because it may be needed as evidence, putting a motion to the committee, or putting one to a general meeting. Some disputes need all three. When writing to the committee or the manager, the Queensland Government describes it as good practice to describe each issue briefly and state the exact motion to be voted on.

2. Conciliation

   In most cases the compulsory first formal step. An impartial conciliator who knows the BCCM Act helps the parties reach their own agreement, usually face to face or by teleconference, and the office suggests setting aside up to three hours. The conciliator makes no ruling. An agreement is written up and signed, and everyone receives a conciliation certificate whether or not one was reached.

3. Adjudication

   For a dispute that self resolution and conciliation have not settled, or that is unsuitable for conciliation. The application is completed online and lodged by post, fax or email; coordinators review it and the other party is asked to respond. The Queensland Government currently puts the average time from referral to an adjudicator to an order at 22 weeks. An applicant has to abide by the adjudicator’s decision.

Inside a conciliation session

Only the people in the dispute attend, though the conciliator may agree to a support person, usually a friend, and in some cases to an agent. Where the body corporate is a party, the conciliator invites up to 2 voting committee members; a non-voting member such as the manager cannot represent it. What is said stays confidential, and the conciliator does not force anyone to carry out an agreement. A respondent who does not try reasonably to attend may be ordered to pay back the fees the applicant paid for conciliation and adjudication, if the applicant asks for that in an adjudication application.

A conciliation agreement is not, by itself, enforceable under the BCCM Act. If both parties want it to be, the Commissioner must refer it to an adjudicator, who may make it a consent order. An applicant who does not attend the conciliation session, or make a reasonable attempt to, may lose the chance to apply for adjudication on that dispute.

2.Disputes heard elsewhere

Complex disputes

Among them: adjusting the scheme’s lot entitlement schedule, the terms of a contract, transferring a letting agent’s management rights, and contracts engaging a manager or caretaking service contractor. Only a specialist adjudicator or QCAT can resolve them.

Debt disputes

One the body corporate brings against an owner to recover money owed under the Act, such as unpaid levies, late payment penalties or the costs of recovering them. They go to QCAT or a court with authority over the amount.

One complex outcome in an adjudication application takes the whole application out of the office’s hands, but the applicant can remove that outcome and pursue it separately. A dispute closely tied to a debt case already before QCAT or a court can also be turned away: if the Commissioner decides it is a related dispute, the application may be rejected, and an adjudicator can dismiss it. Conciliation over a debt is possible only until the body corporate starts recovery action; once it does, any conciliation already lodged ends.

3.Who may bring a dispute

To lodge for conciliation or adjudication, a person must be directly involved, and both sides must have standing: the right under the Act to be parties. Section 227 of the Act sets which parties can bring a dispute against which; a lot owner can, for instance, bring one against another owner but not against a body corporate manager. Checking that everyone has standing is the applicant’s job.

Standing is tested on the day of lodging, so an owner who has sold their lot cannot then start a dispute. An owner who sells part-way through may carry on if the outcome still affects them personally, and a new owner may be substituted for one who sells. A former body corporate manager is the exception on the other side: the body corporate can bring a dispute against one to get its property back.

4.Before lodging an application

• The application goes to the other party and may reach every owner in the scheme, so nothing private belongs in it.
• An application outside the office’s jurisdiction is rejected, and a fee once paid is not refunded.
• Giving false or misleading information or documents with a dispute application is an offence under the Act.
• The office is neutral: it does not give legal advice or investigate for either side.

Many disputes start with a by-law breach or a committee’s silence on a motion. The guide to by-laws sets out the notices that must come first, and the guide to the committee the six-week clock on an owner’s motion.