7 September 2023
September 2023 – Strata Regulatory Watch
In this edition we cover: NSW: Final version of the Fire Safety Schedule NSW : Update on strata management legislation Press release : Welcome to Gerard Doyle, our new NSW…
By Gary Bugden OAM*
A recent decision of the Victorian Civil and Administrative Tribunal is a timely reminder about the need for attention to detail when imposing owner corporation or body corporate levies.
In Owners Corporation No. SP034630W -v- Pekar  VCAT 136 the owners corporation (“OC”) was unsuccessful in its efforts to recover $14,418.46 in outstanding fees (the Victorian equivalent of levies or contributions) because of technical non-compliance with their legislation.
The facts of the case were:
Section 31(1) of the Owners Corporations Act 2006 (Vic) (“OC Act”) requires a fee notice to be given to a lot owner in the approved form, setting out fees and charges due and payable by the lot owner to the OC. The fee notice must also state certain information relating to the lot owners’ obligation to pay, the interest that will be payable if there is no payment and how the fees and charges can be disputed (sec.31(2)).
Section 32(1) of the OC Act requires the OC to serve on the lot owner a final notice in the approved form if the money owing is not paid within 28 days of the date of the fee notice. Again, this final notice must set out certain prescribed information (sec. 32(2)).
The Tribunal Member held that:
Where the legislation governing the imposition and recovery of levies sets up processes, those processes must be strictly followed if the levies are to be recoverable. If the levies are not recoverable:
Implications for NSW
The Strata Schemes Management Act 2015 sets the processes for contributions in NSW, including:
In the event that recovery action is contested by the lot owner, the owners corporation needs to be in a position to strictly prove that the various processes were duly undertaken. This may even extend to proving the content of the levy notice by producing an actual copy of the notice served (rather than a copy generated by a computerised management system using data drawn from the system’s data base).
Implications for Queensland
The Body Corporate and Community Management (Standard Module) Regulation 2008 (which, as regards levies, is indicative of the content of the other Modules), sets the processes for contributions in Queensland, including in the case of annual contributions:
Again, in the event of contested recovery action, the body corporate needs to be in a position to strictly prove that those processes were properly undertaken. The availability of an exact copy of the levy notice is particularly important in Queensland because of the amount of information that is required on the notice. Reliance on computer generated historical copies, using data in a computerised management system, is not recommended in Queensland.
It is time to check your determination and levying processes for maintenance contributions, as well as the wording and content of your levy notices. In particular, do you keep an actual copy of the levy notice that was served on each lot owner? If you do, does it contain all the information it is required to contain? Was it served within any required timeframe? The list of questions goes on, so, good luck with your next levy collection!
20 November 2019
* Gary Bugden OAM DUniv is a partner of Bugden Allen Lawyers in the Brisbane office. He is the author of various books and loose-leaf services and is Sessional Professor of Law, Strata and Community Titles, at Bond University.