LEGAL
RULING CLASS Compliance by a body corporate is not a black and white argument.
Within any strata community (including your own Body Corporate) you will find lot owners and occupiers who sit on each side of the fence – should there be more or less regulation, by-laws or committee interference within your Body Corporate? What creates the "best" community living environment? The unwieldy and often complex nature of the Queensland strata legislation provides plenty of stories (good and bad) about community living. As most are aware, members of bodies corporate (as well as the committee who serve the lot owners) are made up of ordinary members of the public. They are not solicitors, accountants, or experts in body corporate management. Consequently, I find it fascinating (specifically, when dealing with a piece of legislation that provides for self-management) that some individuals believe strict compliance with the Body Corporate and Community Management Act ("BCCMA") and associated modules is essential for the day to day operation of the strata scheme.
In fact, it is only in very specific circumstances where the Court or Adjudicator will invalidate a general meeting or resolutions passed at such a meeting based on a failure to strictly comply with the strata legislation.
Although, strict compliance with the BCCMA and associated modules may be best practice, there are several District Court and Adjudicator decisions that confirm substantial compliance with the extensive legislation is sufficient. "Commissioner's Office for Body Corporate and Community Management ("BCCM-Office") (being the exclusive, consumer based body corporate dispute jurisdiction) receives a staggering number of applications which argue that either a lot owner, committee member or the Body Corporate has failed to strictly comply with the strata legislation and, as a result, the applicant is seeking to invalidate a general meeting, or a resolution made at that meeting.
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Some examples include: •
a lack of quorum
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a completed voting paper being given to another person to hand to the secretary, if prejudice is sustained by voting lot owners
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irregularity with respect to a secret ballot
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In the case of The Body Corporate for ‘One The Esplanade’, this issue of substantial versus strict compliance was raised by a lot owner unhappy with a decision of the Body Corporate. The owner of a couple of lots within ‘One The Esplanade’ raised the following non-compliance points: The lot owner only received one notice and agenda of the meeting in the mail. The owner did not receive a second notice of agenda for the AGM addressed to the owner. The owner owned two (2) lots within the Body Corporate and wanted to received two (2) copies of the agenda for the AGM.
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The owner submitted that he was unable to vote regarding the recording of a new “set” of by-laws as a full copy of the by-laws were not posted in the mail with the notice and agenda of the AGM.
