17 Oct Dish from the Commish – Non-compliance with Adjudicator’s Orders
Dish from the Commish – Non-compliance with Adjudicator’s Orders
While my Office provides dispute resolution services to Queensland’s community titles sector, we are not a compliance agency and what this also means is that we don’t undertake enforcement activities.
In practical terms, this means that my Office is not the “body corporate police”. We don’t have inspectors going out and conducting audits, checking for compliance with the legislation, or issuing fines or other penalties.
I know from speaking at seminars and other public forums that there are some stakeholders who are surprised at this and who would prefer it to be otherwise.
Whether this is a good or bad thing is perhaps a topic for others to debate and certainly, I can’t comment on whether this approach should change. I can only speak for how enforcement currently occurs.
The Body Corporate and Community Management Act 1997 (the Act) is set up in such a way that it is left open to an individual to both pursue penalties and enforce orders made by adjudicators in my Office.
When an adjudicator makes an order, that is the end of the role of the adjudicator and my Office in that matter, unless otherwise ordered by a court or tribunal of competent jurisdiction (e.g. there is an appeal of an adjudicator’s order to the Queensland Civil and Administrative Tribunal).
It is my anecdotal experience that the majority of adjudicators’ orders are complied with by the parties to the order, and ideally that is how it should always be – in effect, it is, to use a sporting analogy, a case of “abiding by the umpire’s decision”.
If an order isn’t complied with, the Act provides that the party in whose favour the order was made can seek its enforcement through the Magistrates Court.
That process begins by obtaining a certified copy of the order from my Office, which can be done by asking for it in writing. To do so you need to provide:
- the file reference number;
- your name;
- contact phone number; and
- your postal address (to receive a copy of your order).
More detailed information about the enforcement process is available on our website here, while detailed information about the Magistrates Court is available here. Please note that my Office can’t advise parties on what information to include in their court proceeding, comment on any of the processes of the Magistrates Court or provide information such as how long it might take and what costs may be involved.
With this in mind, I’d recommend that anyone wanting to enforce an adjudicator’s order should consider seeking legal advice.
Separate to enforcing an adjudicator’s order, the Act provides for penalties for non-compliance with an adjudicator’s order and further provides for these penalties to be sought by:
- an applicant in the original application for the order;
- a respondent in the original application for the order;
- a person in whose favour the order was made;
- the body corporate; or
- an administrator appointed to act for the body corporate or the committee.
This process is again through the Magistrates Court and information is available at the same link as information about enforcement of an adjudicator’s order.
A fine of up to 400 penalty units – which is currently more than $53,000 – can be imposed by the Magistrates Court.
I’ve heard it said of my Office that because we don’t impose these fines ourselves, we are a “toothless tiger” and that therefore, non-compliance is a significant issue.
I can’t comment on the latter point. On the former point, while it might seem difficult or convoluted for someone to have to apply to the Magistrates Court for a penalty, it can and does happen.
In 2018, the Southport Magistrates Court fined a body corporate manager and a committee member a total of $10,000 for non-compliance with an adjudicator’s order that they hand over records to the applicant. The Court also ordered both parties to pay costs.
This outcome was the result of a proceeding brought about by the applicant in the original adjudication application, with the applicant being an owner in the scheme.
The fact that the Court imposed a penalty of $10,000 I think makes clear that there are definitely significant consequences for a party not complying with an adjudicator’s order.
I’d add that this outcome should also serve as a reminder that far from being just a piece of paper, an adjudicator’s order can have a tangible impact but, importantly, it remains up to the individual to make that happen.
For further information please contact the Information and Community Engagement Unit of my Office on 1800 060 119 or visit our website www.qld.gov.au/bodycorporate.
About Commissioner Chris Irons
Chris Irons is the Commissioner for the Body Corporate and Community Management department of the Queensland Government. This department provides a range of information and services for those who live, invest or work in a community titles scheme in Queensland.