The dispute resolution provisions in the OC A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. are complex. Disputes may be resolved in the following ways.
1 Under Part 10 – dispute resolution
Under section 152, any lot owner, occupier, or manager may make a complaint in writing in the approved form about an Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. breach of the OC Act, OC Laws made by a body other than parliament but under its authority. These are made by the Governor of Victoria on the advice of the Victorian government, known as the Governor in Council. The rules are prepared and administered by government departments and statutory bodies under authority granted by a relevant Act of parliament. See also delegated legislation; local laws. by a lot owner, occupier or manager. This section precludes a complaint against the A body corporate created by registration of a plan of subdivision or a plan of strata or cluster subdivision. See also prescribed owners corporation. or the committee unless the complaint relates to something done by the manager on behalf of the owners corporation or committee. A complaint cannot be made about a personal injury.
Under section 153, the owners corporation must respond to a complaint under section 152 in three ways:
i it may provide a notice to rectify a breach (s 155) followed by a final notice (s 156) and ultimately, an application to VCAT;
ii it may decide to take no action; or
iii it may apply to VCAT for an order requiring the person to rectify the breach.
A person may formally request the Director of Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use. Affairs Victoria (CAV) (see ‘Contacts’ at the end of this chapter) to refer a matter to A form of alternative dispute resolution. The parties negotiate with the help of an independent person called a conciliator. The aim is to sort out the dispute by mutual agreement, rather than having a decision made by a court or tribunal. See also arbitration; mediation; negotiation. (s 160). This is available to a current or former lot owner, A person or body, such as a bank, that lends money secured by a mortgage over the property of the borrower. of a lot, an insurer, an occupier, purchaser and manager (s 161).
2 Under Part 11 – applications to VCAT
VCAT may determine any dispute under the OC Act, OC Regulations, rules or the Subdivision Act.
Therefore, a purchaser or insurer can complain to CAV but not to VCAT, whereas the reverse applies to a former occupier or manager. Unless the Director of CAV is approached, there is no formal means of dispute resolution by conciliation or A form of alternative dispute resolution where an independent person (a mediator) is appointed to help the parties come to agreement. Mediators do not decide the outcome of the dispute. They help the parties consider the issues and best possible outcome. Parties may choose to use mediation instead of going to court, or the court may order the parties to go to mediation as a way of avoiding a court hearing. See also arbitration; conciliation; negotiation..
An owners corporation is prevented from taking action under Part 10 or applying to VCAT for an order in relation to an alleged breach unless the dispute resolution process required by the rules has first been followed and the owners corporation is satisfied that the matter has not been resolved through that process (s 153).
However, in 2016 the Supreme An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. ruled that an owners corporation can apply directly to VCAT (i.e. without first going through the dispute resolution process) if the (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant. fails to make a complaint. This decision appears to have been made incorrectly; it is difficult to imagine a circumstance where a lot owner would make a complaint about themself.
VCAT may make an order dismissing or striking out an application by an owners corporation for an order requiring the rectification of a breach referred to in section 153 if it is satisfied that the owners corporation has not complied with that section (s 164).
Disputes under the Subdivision Act do not require internal dispute resolution procedures (s 34).
The internal dispute resolution process is set out in model rule 6 of the OC Regulations (sch 2). An owners corporation may make its own rules regarding this process.
Internal dispute resolution process
Within 14 working days of receiving a complaint in the approved form, a meeting must be held between the parties in dispute and either the grievance committee or the owners corporation. At the meeting, each A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. can be represented by a lawyer or another representative.
If the owners corporation decides to not take action, nor to apply to VCAT for an order relating to an alleged breach, it must notify the A person who begins a criminal prosecution against another in the Magistrates’ Court, or formally starts an action in a court or tribunal or makes a complaint to a complaint-handling body. In a civil action they could also be referred to as a plaintiff or an applicant. and set out reasons for its decision (s 154).
Alternatively, prior to taking legal action, the owners corporation may ask the person to rectify the breach; if this is not done, the owners corporation can issue a final notice (ss 155–157).
If the owners corporation does not respond, or if the complainant is unsatisfied with the outcome, conciliation through CAV is available. There is nothing to prevent the complainant (not the owners corporation) applying directly to CAV and avoiding the internal dispute resolution process.
Section 159 requires that the owners corporation reports at an AGM any complaints received and where action is taken at VCAT. The report must not identify the parties in dispute.
Application to VCAT
The Owners Corporations List of VCAT hears owners corporations disputes and is a no-cost The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area.. You may need VCAT’s To agree to something being done, to approve an action or arrangement. See also informed consent. to be legally represented.
Under the OC Act (s 168), VCAT can (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. monetary orders, including expenses and The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. on application. There is a presumption that a successful party A document that sets out what a person wants to happen to their money and other property after they die. be awarded relevant filing and The time and place at which a court or tribunal hears the parties argue their case and makes a decision. fees. An owners corporation must follow up a notice with a final notice before applying to VCAT (s 157).
An owners corporation can apply to VCAT for an exemption from compliance with certain requirements under the OC Act (s 170). An application for an exemption from the requirement to have a unanimous resolution requires that the vote in favour of the resolution be at least 75 per cent, with no votes in the negative (s 171(4)).
Under clause 51ADA of schedule 1 of the VCAT Act, VCAT may make an order for costs incurred by an owners corporation other than costs incurred by a professional advocate such as those of a manager.
Complaints about short-stay arrangements
Since 1 February 2019, the OC Act has included specific provisions under Parts 10 and 11 for the handling of complaints about alleged breaches of conduct prescriptions applying to short-stay accommodation arrangements. VCAT may make orders including granting compensation, ordering civil penalties and prohibiting the use of a lot for short-stay accommodation. In certain circumstances, a short-stay provider and the occupant and the owner may be jointly liable for satisfying VCAT orders for compensation, rectifying losses or paying a civil penalty.