The Law Handbook 2024

Chapter 6.5: Owners corporations 609 charges equally among lots. The owners corporation may pass an ordinary resolution that consumption be levied according to lot liability. The water authority must be notified in writing and given the lot liability schedule (s 263A Water Act 1989 (Vic) (‘ Water Act ’)). Any rainwater or other water that falls, occurs or flows on common property (otherwise than in a waterway or bore as defined in section 3(1) of the Water Act) is taken to be part of the common property. This grants the owners corporation permission to take/use the water. Planning permits It is not generally appropriate for an owners corporation to lodge an objection to a planning permit, as that is not a function or power conferred by the OC Act (ss 4, 6). Ordinarily, an owners corporation will not have any proprietary interest that is adversely affected by a planning application. However, if an owners corporation objects and the matter proceeds to VCAT, it is unlikely that the owners corporation would receive an adverse costs order. The VCAT Act (s 109(1)) makes it clear that there is a presumption that each party bears its own costs. VCAT may award costs if satisfied that it is fair to do so, considering the factors listed in section 109(3). Equal Opportunity Act Owners corporations have legal obligations under the Equal Opportunity Act 2010 (Vic) to address complaints of discrimination, sexual harassment or victimisation, and to take action to prevent their occurrence. An owners corporation must make reasonable adjustments to allow a person with disability to access and use common property. An owners corporation must also make reasonable alterations on request and at their cost to meet special needs (s 56). Reinstatement provisions apply. Legal professional privilege Consider a dispute between a lot owner and the owners corporation about the ingress of water into the property of the lot owner. In this scenario, the parties may rely on expensive expert reports. If the owners corporation commissioned a report in the course of a VCAT proceeding, could the affected lot owner request a copy? An owners corporation may oppose by claiming legal professional privilege, a principle that confidentiality between a lawyer and his client outweighs the public interest of the court’s access to all the relevant material for decision. The High Court has stated that legal professional privilege is an important common law immunity that will not be taken to have been abrogated by statute in the absence of clear words or necessary implication to that effect. As theOCAct does not abrogate legal professional privilege, it is clear that the report is privileged. This may seem a unique situation given that the lot owner is a member of the owners corporation. It is submitted that this situation is no different to the relationship between a company and a shareholder. The lot owner might seek an order under section 168(c) of the OC Act for exclusion from financial contribution. Defamation Communication (written or oral) about a person that lowers that person’s reputation in the eyes of the public, if untrue, may be defamatory. At any meeting of an owners corporation, lot owners may freely express legitimate concerns about the conduct of other lot owners or committee members, but they must not act in a malicious manner that is intended to ridicule and humiliate. Damages for improper conduct can be considerable. Contacts Consumer Affairs Victoria (CAV) 121 Exhibition Street, Melbourne Vic 3000 Tel: 1300 558 181 Web: www.consumer.vic.gov.au Victorian Civil and Administrative Tribunal (VCAT) Tel: 1300 018 228 Email: civil@vcat.vic.gov.au Web: www.vcat.vic.gov.au VCAT hears matters at venues in metropolitan and regional Victoria; see VCAT’s website for addresses.