Disputes and Adjudication
6th January 2020
You can only make an adjudication application if you (as the applicant) have tried self resolution and in most cases attempted conciliation with the Office of the Commissioner for Body Corporate and Community Management (the BCCM office).
If the dispute is about a matter that is not suitable for conciliation or the conciliation may not have resolved the dispute, the matter can be dealt with by adjudication. An adjudicator has wide powers under the BCCM Act to rule on disputes.
Outcomes of adjudication can include:
- Requiring the body corporate to record a new community management statement
- Requiring an extraordinary general meeting to be held for all owners to consider a motion to deal with the matter
- Changing the amount of levy contribution
- Declaring particular motions or meetings void
- Appointing an administrator
The adjudication process involves making a written submission, a Form 15 available from the Commissioners Office phone 1800 060 119 (ask also for the Adjudication handout and the ‘Guide to completing an Adjudication Application Form’)
When filling in an adjudication application form, it is important not to stray from the central points of the matters to do with the dispute. Applications that run off into tangents, or move from the main point, or which introduce new topics that are not central to the dispute, are more difficult to read and then rule upon. Many times, particularly if the matter is complicated and has occurred over many months, a summary or timeline can help the adjudicator read the material.
If the matter is serious or complicated, help with filling in the Form BCCM 15 from a competent solicitor may be warranted. The adjudicators (and the Commissioner) have had legal training and tend to appreciate the precise use of language and legal argument of colleagues.
At the very least it is important for you to read and rewrite the application several times, bearing in mind as you rewrite who your audience is and what you need that adjudicator to know so that the adjudication goes in your favour.
Once the application for a dispute has been lodged, the Commissioners Office invites the body corporate and other persons likely to be affected to make a written response to the application.
The applicant (or other interested parties) may make application to obtain copies of the written responses (paying the prescribed fee).
After inspecting or obtaining copies of submissions, the applicant may lodge a written reply to submissions within the time specified by the Commissioner. The reply should not raise new issues. Other parties do not have a right of reply.
Many disputes are determined cheaply by a formal written order made by a departmental adjudicator within the Commissioner’s Office.
A complex or technical matter may be referred by the Commissioner to the Commercial and Consumer Tribunal or by agreement a specialist adjudicator may be appointed with approval from the Commissioner. An adjudicator has the power to investigate the dispute before making a decision to resolve the matter.
But please note, many times an adjudication will be written solely on the information provided in writing by the application and the responses. This is a basic service and adjudicators usually do not have the luxury of considering all aspects of every matter in face-to-face meetings.
Once an adjudicator has made an order, the parties should implement that decision. An order made by an adjudicator may be enforced in the Magistrates Court. Parties who are dissatisfied with the decision of an adjudicator may appeal to the Commercial and Consumer Tribunal on a question of law, within 6 weeks of the date on which they receive the decision.