Part 5Division 1 Matters for which orders may be made by Tribunal
182 Order to authorise certain acts during initial period
(1) The Tribunal may make an order:(a) waiving, varying or extinguishing a restriction relating to the initial period (whether or not imposed by this Act, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986), and(b) authorising any matter to be done in relation to the waiving, varying or extinguishing of such a restriction.(2) Notice of an application must be served on:(a) the owners corporation and each owner of a lot, unless the owners corporation or the owner is the applicant, and(b) each registered mortgagee and enrolled mortgagee (if any) of a lot and any covenant chargee having the benefit of a covenant charge affecting a lot, and(c) such other persons as the Tribunal may direct.(3) The Tribunal may order that service of notice of an application be dispensed with if the Tribunal considers it appropriate in the circumstances of the case.(4) The applicant and any person referred to in subsection (2) (whether or not the person has been served with a notice of the application) are entitled to appear and be heard on the hearing of the application.(5) An application for an order under subsection (1) may be made only by:(a) in any case—the owners corporation, or(b) in a case where the application relates to a proposed subdivision of a lot—by the original owner, or(c) in a case where the application relates to the making, amendment or repeal of a by-law—an owner.
183 Order for reallocation of unit entitlements
(1) Tribunal may make order allocating unit entitlements
The Tribunal may make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order.(2) Circumstances in which order may be made
An order may be made only if the Tribunal considers that the allocation of unit entitlements among the lots:(a) was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or(a1) was unreasonable when a revised schedule of unit entitlements was lodged at the conclusion of a development scheme, or(b) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without development consent.(3) Matters to be taken into consideration
In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and (if a strata development contract is in force in relation to the strata scheme) to such other matters as the Tribunal considers relevant.(4) Application to be accompanied by valuation
An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after the change in the permitted land use, of each of the lots to which the application relates.(5) Qualifications of person making valuation
The certificate must have been given by a registered valuer under the Valuers Act 2003 authorised under that Act to make such a valuation (a qualified valuer).(6) Ancillary orders that may be made if original valuation unsatisfactory
The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by a developer, also order:(a) the payment by the developer to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and(b) the payment by the developer to any or all of the following people of such amounts as may be assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order:the lessor of a leasehold strata scheme
the owners corporation
the owners of lots.
(7) Recovery of amounts awarded
An amount ordered to be paid under this section may be recovered as a debt.(8) Who may make application?
An application for an order under this section may be made only by:(a) an owner of a lot (whether or not a development lot) within the parcel, or(b) the owners corporation, or(c) the lessor of a leasehold strata scheme, or(d) the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land.(9) Lodgment of order
The owners corporation must ensure that a copy of an order made by the Tribunal under this section is lodged in the Registrar-General’s office no more than 2 years after the order is made.Note. Section 209 contains provisions with respect to the lodgment of an order made under this section.(10) Nothing in this section prevents a person referred to in subsection (8) from lodging a copy of an order made under this section.
183A Orders relating to caretaker agreements
(1) The Tribunal may make an order with respect to a caretaker agreement:(a) terminating the agreement, or(b) requiring the payment of compensation by a party to the agreement, or(c) varying the term or varying or declaring void any of the conditions of the agreement, or(d) confirming the term or any of the conditions of the agreement, or(e) dismissing the application.(2) An order under this section may be made only on an application made by the owners corporation for the strata scheme concerned on one or more of the following grounds:(a) that the caretaker has refused or failed to perform the agreement or has performed it unsatisfactorily,(b) that charges payable by the owners corporation under the agreement for the services of the caretaker are unfair,(c) that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.(3) Any amount ordered to be paid under this section may be recovered as a debt.
183B Orders for appointment of strata managing agent
(1) Order appointing strata managing agent to exercise functions of owners corporation
The Tribunal may, on its own motion, make an order appointing a person as a strata managing agent:(a) to exercise all the functions of an owners corporation, or(b) to exercise specified functions of an owners corporation, or(c) to exercise all the functions other than specified functions of an owners corporation.(2) Order may confer other functions on strata managing agent
The Tribunal may also order, when appointing a strata managing agent under this section, that the strata managing agent is to have and may exercise:(a) all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or(b) specified functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or(c) all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation other than specified functions.(3) Circumstances in which order may be made
The Tribunal may make an order under this section only if satisfied that the management structure of a strata scheme the subject of an application under this Chapter or an appeal to the Tribunal is not functioning or is not functioning satisfactorily.(4) Qualifications of person appointed
A person appointed as a strata managing agent under this section must:(a) hold a strata managing agent’s licence issued under the Property, Stock and Business Agents Act 2002, and(b) have consented in writing to the appointment, which consent, in the case of a strata managing agent that is a corporation, may be given by the chief executive officer of the corporation.(5) Terms and conditions of appointment
A strata managing agent may be appointed under this section on such terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) as may be specified in the order making the appointment.(6) Revocation of certain appointments
An order under this section may be revoked or varied on the application of any of the following persons and, unless sooner revoked, ceases to have effect at the expiration of such period after its making (not exceeding 12 months) as is specified in the order:(a) a person who obtained an order under this Act that imposed a duty on the owners corporation or on its executive committee, chairperson, secretary or treasurer and that has not been complied with,(b) a person having an estate or interest in a lot in the strata scheme concerned or, in the case of a leasehold strata scheme, in a lease of a lot in the scheme,(c) the authority having the benefit of a positive covenant that imposes a duty on the owners corporation,(d) a judgment creditor to whom the owners corporation owes a judgment debt.
184 Tribunal’s jurisdiction to deal with applications referred by Adjudicator
(1) If an Adjudicator refers to the Tribunal an application for an order that, but for the referral, could have been made by the Adjudicator, the Tribunal has the same powers as the Adjudicator to make an order (other than an interim order) or to dismiss the application.(2) Except in relation to a right of appeal to the Tribunal, this Act has effect in relation to an order made under subsection (1) as if the order were an order of an Adjudicator.(3) Subsection (2) does not exclude an appeal from an order of the Tribunal made under subsection (1).
Division 2 Provisions relating to orders of Tribunal
185 Dismissal of application on certain grounds
(1) (Repealed)(2) If the ground for an application for an order under this Part is:(a) the absence of a quorum at a meeting, or(b) a defect, irregularity or deficiency of notice or time,the Tribunal may, by order, dismiss the application if the Tribunal believes that no substantial injustice has resulted.(3) The Tribunal may, by order, dismiss an application for an order under this Part on any other ground that the Tribunal considers appropriate.(4) Without limiting the generality of subsection (3), the Tribunal may, by order, dismiss an application for an order under this Part if:(a) the application is frivolous, vexatious, misconceived or lacking in substance, or(b) a decision in favour of the applicant is not within the jurisdiction of the Tribunal, or(c) the applicant has unreasonably delayed the provision of information required by an Adjudicator, or(d) the application is made by an owner of a lot in the strata scheme concerned and the applicant has not paid all contributions levied and payable in relation to the lot under this Act.(5) The Tribunal may, by order, dismiss an appeal.
186 Investigations and proceedings before the Tribunal
(1) Before making an order (except an order for a stay of proceedings), the Tribunal must investigate the application for the order or, in the case of an appeal, the grounds for the appeal.(2) In any such investigation or in any proceedings before it for an order, the Tribunal:(a) is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit, and(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.(3) The Tribunal need not hold a hearing in order to decide an application or appeal unless there is an appearance by a person entitled or required to appear before it.(4) A hearing need not be formal.
187 Power of Tribunal to decide type of order to be made
If an application is made for an order of the Tribunal under a specific provision of this Act and the Tribunal considers that an order under that provision is inappropriate, the Tribunal may determine to deal with the application under another provision of this Act.
(1) An order made by the Tribunal may include such ancillary or consequential provisions as the Tribunal thinks fit.(2) For the purpose of securing compliance with an order of the Tribunal, the Tribunal may order any person who was the subject of the application for the order to do or refrain from doing a specified act with respect to a strata scheme.
189 Variation or revocation of orders by Tribunal
Unless specifically provided by this Act, an order made by the Tribunal is not capable of being varied or revoked by the Tribunal but this subsection does not prevent a subsequent order being made by the Tribunal under this Part on a fresh application.
190 Tribunal may vary order to correct error, for clarification or to extend time limit
(1) The Tribunal may vary an order, whether or not on application, for the purpose of correcting or clarifying it or extending a time limit and the order as so varied is taken to be the order instead of the original order.(2) An application under this section may be made by any of the following persons:(a) the owners corporation,(b) the lessor of a leasehold strata scheme,(c) the applicant for the original order,(d) any person who made a written submission on the application for the original order,(e) any other person who is required by the original order to do or refrain from doing a specified act.
191 Tribunal may vary or revoke order in certain circumstances
(1) The Tribunal may, on application, make an order varying or revoking an order made by the Tribunal under this Part.(2) An application may only be made with the approval of the Registrar and within the prescribed time.(3) The Registrar must not give approval unless:(a) the Registrar is satisfied that there is sufficient reason to do so, or(b) the order was made in the absence of the applicant and the Registrar is satisfied that there were reasonable grounds for that absence.(4) An application under this section may be made by any of the following persons:(a) the owners corporation,(b) the lessor of a leasehold strata scheme,(c) the applicant for the original order,(d) any person who made a written submission on the application for the original order,(e) any other person who is required by the original order to do or refrain from doing a specified act.(5) An application under this section must be dealt with in all respects as if it were an application for an order under this Part required to be referred to the Tribunal.(6) An order made under this section has effect, and the provisions of this Act apply to it, in all respects as if it were an order made under the provision of this Act under which the original order was made.(7) However, an order made under this section may not be varied or revoked by another order made under this section.
The Tribunal may not make any order for the payment of costs except as specifically authorised by this Act or in relation to an order dismissing an application or appeal because:(a) the application or appeal is frivolous, vexatious, misconceived or lacking in substance, or(b) a decision in favour of the applicant or appellant is not within the jurisdiction of the Tribunal.
193 Representation before the Tribunal
(1) The following persons may appear or be represented before the Tribunal if the Tribunal is dealing with an application:(a) the applicant for the order,(b) a person who received a copy of the notice of the application from the Registrar and who made a written submission on the application and any person who was entitled to receive a copy of such a notice,(c) in the case of an appeal, a person who received a copy of the notice of appeal from the Registrar and any person who was entitled to receive a copy of such a notice,(d) any other person who is, or whose conduct is, the subject of an application or appeal.(2) Representation before the Tribunal may be by an Australian legal practitioner, or by an agent authorised in writing.(3) A representative may examine witnesses and address the Tribunal.
194 Intervention by Director-General
(1) The Director-General may intervene in proceedings before the Tribunal if the Director-General is of the opinion that it would be in the public interest to do so.(2) The Director-General must intervene in proceedings before the Tribunal if directed to do so by the Minister.(3) The Director-General has a right to be heard personally or by an Australian legal practitioner or an agent in proceedings before the Tribunal.(4) The Director-General, on intervening in any proceedings, becomes a party to the proceedings and has all the rights of such a party.(5) The Director-General is to bear the Director-General’s costs of intervening in proceedings before the Tribunal.
195 Copy of order to be served
(1) An order made by the Tribunal must be made in writing.(2) The Registrar must serve a copy of any such order on:(a) the owners corporation for the strata scheme to which the order relates and, in the case of a leasehold strata scheme, the lessor of the strata scheme, and(b) the applicant for the order and the appellant (if any), and(c) any person who made a written submission on the application for the order or who, in the case of an order on appeal, was given notice by the Registrar of the time and place for the determination of the appeal, and(d) any person required by the order to do or to refrain from doing a specified act, and(e) in the case of an order under Part 6 (Enforcement of orders of Adjudicators and Tribunal and certain notices), any person against whom the order has been made.(3) On receipt of a copy of the order, the owners corporation must, unless the order otherwise provides:(a) cause it to be prominently displayed, within 72 hours of its receipt and for 14 days after that, on any notice board required to be maintained under the by-laws, or(b) if no notice board is required to be maintained under the by-laws, cause a further copy of the order to be given to each person whose name appears on the strata roll.(4) Subsections (2) (c) and (d) and (3) do not apply to an application for an order under Part 6 (Enforcement of orders of Adjudicators and Tribunal and certain notices).
196 Witness may be summoned before Tribunal
(1) The Tribunal, or the Registrar if authorised by the Tribunal either generally or in a particular case, may summon any person to attend the Tribunal at the time and place specified in the summons and then and there to give evidence and to produce any books, documents or writings specified in the summons that are in the person’s custody or control.(2) A summons may be issued under this section only on the request of one of the following persons:(a) a person whose application is being or is to be dealt with under this Part,(b) a person who received a copy of the notice of the application from the Registrar,(c) in the case of an appeal, a person who received a copy of the notice of appeal from the Registrar,(d) the agent of any such person.(3) The fee payable for the issue of a summons is such amount as may be prescribed.(4) A person is not bound to produce any books, documents or writings that are not specified or otherwise sufficiently described in the summons or that the person would not be bound to produce on a subpoena for production in the Supreme Court.(5) A summons under this section need not be complied with by a person unless the person is tendered his or her reasonable expenses for attending the Tribunal in accordance with the summons.(6) A person served with a summons under this section must not, without reasonable excuse, fail to comply with the summons.Maximum penalty (subsection (6)): In the case of a corporation, 10 penalty units and, in any other case, 5 penalty units or imprisonment for 6 months, or both.
197 Tribunal may administer oath
(1) The Tribunal may administer an oath or affirmation to a person appearing as a witness before the Tribunal, whether or not the person has appeared in answer to a summons, and may examine the witness on oath or affirmation.(2) A person appearing as a witness before the Tribunal:(a) must not refuse to be sworn or to make an affirmation, and(b) must not refuse to answer any question relevant to any proceedings before the Tribunal put to the person by the Tribunal or by any person entitled to appear before the Tribunal in those proceedings, and(c) must not knowingly give false testimony in any evidence given by the person to the Tribunal.Maximum penalty: 5 penalty units or imprisonment for 6 months, or both.
(3) A witness before the Tribunal has the same protection and, in addition to the penalties provided by this Act, the same liabilities as the person would have had if the person had been a witness before the Supreme Court.
(1) A person must not:(a) wilfully insult the Tribunal, or(b) wilfully misbehave in proceedings before the Tribunal, or(c) wilfully and without lawful excuse interrupt proceedings before the Tribunal, or without lawful excuse disobey a direction of the Tribunal during proceedings before the Tribunal.Maximum penalty: 5 penalty units or imprisonment for 6 months, or both.
(2) The Tribunal may, in proceedings before it, direct a person who does anything referred to in subsection (1) to leave and a person to whom such a direction is given must not fail to comply with the direction.Maximum penalty: 5 penalty units.
(3) The Registrar or an officer prescribed by the regulations for the purposes of this section may act as informant in proceedings for an offence under this section.
199 Tribunal may not make order where title to land in question
(1) The Tribunal may determine a question of title to land only for the purpose of deciding a matter under this Part.(2) Any determination under this section does not have any force or effect except as provided by this Act.
Division 3 Appeals against orders of Tribunal
(1) An appeal lies to the District Court against an order made by the Tribunal under this Chapter.(2) An appeal lies in the same cases and in the same way as it would lie under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 if the order were a determination that the Local Court made, at the time the order took effect, in the exercise of summary jurisdiction on a court attendance notice.(3) The persons who may appeal against an order of the Tribunal (other than an order varying or revoking an order of the Tribunal or an order made on an appeal to the Tribunal) are:(a) the applicant for the order appealed against, or(b) a person who duly made written submissions on the application for the order, or(c) any person required by the order to do, or refrain from doing, any act.(4) The persons who may appeal against an order of the Tribunal varying or revoking an order made by it are:(a) the applicant for the variation or revocation, or(b) any person who under subsection (3) was entitled to appeal against the making of the order that has been varied or revoked, or(c) the relevant owners corporation or lessor of a leasehold strata scheme.(5) The persons who may appeal against an order of the Tribunal made on the determination of an appeal are:(a) the appellant to the Tribunal, or(b) the applicant for the original order made by an Adjudicator (if the applicant was not the appellant to the Tribunal), or(c) any person who duly made written submissions to an Adjudicator in connection with the application for the original order, or(d) a person required to do or refrain from doing any act by the order.
201 No appeal available from Tribunal except as provided by this Division
Except as provided by this Part, an appeal does not lie from an order made by the Tribunal.