Community Land Management Act 1989 No 202
Historical version for 31 March 2005 to 29 September 2005 (accessed 25 November 2014 at 09:26) Current version
Part 4

Part 4 Disputes

Division 1 Application for order to resolve issue relating to community scheme

62   Application for order on dispute

Application for an order under Division 3 or 4 for settlement of a dispute or complaint may be made by:
(a)  an association or a strata corporation, or
(b)  a managing agent, or
(c)  the proprietor of a development lot, neighbourhood lot or strata lot, or
(d)  a person who has an estate or interest in, or is the occupier of, such a lot.

63   Application for order to be made to Registrar

(1)  An application for an order under this Part must be made to the Registrar and must:
(a)  be in writing stating the grounds on which it is based, and
(b)  specify the order sought, and
(c)  be accompanied by the fee prescribed by the regulations.
(d)  (Repealed)
(2)  The grounds stated as the basis for the application must disclose a dispute or complaint about:
(a)  an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act in relation to a scheme, or
(b)  the operation, administration or management of a scheme under this Act.
(3)  For the purposes of subsection (2), an association, or a strata corporation, fails to exercise a function:
(a)  if it decides not to exercise the function, or
(b)  if application is made to it to exercise the function and it fails for 2 months to exercise the function or inform the applicant that it has decided not to do so.

64   Registrar to be satisfied mediation has been attempted before accepting application

(1)  The Registrar must not accept an application for an order under this Part (other than an order under Division 6A) unless satisfied that:
(a)  mediation was attempted but was unsuccessful, or
(b)  the matter the subject of the application is not appropriate for mediation.
(2)  A matter to which an application relates is not appropriate for mediation unless:
(a)  it involves a dispute or complaint, and
(b)  each person (other than the applicant) involved in the dispute or against whom the complaint is made agrees to have the matter mediated.
(3)  If a matter is appropriate for mediation and mediation has not been attempted, the Registrar must inform the applicant that the applicant should arrange for mediation of the matter.
(4)  The applicant may apply to the Director-General for mediation of the matter in accordance with Division 2 or may make other arrangements for the mediation of the matter.
(5)  If the Registrar accepts an application for an order, the Registrar must deal with the application under Division 2A.

Division 2 Mediation and resolution of disputes by Director-General

65   Definitions

In this Division:

mediation means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute.

mediation session means a meeting arranged for the mediation of a matter under this Division.

mediator means the Director-General or any person approved by the Director-General in writing to be a mediator for the purposes of this Division.

66   Mediation of disputes relating to community schemes

(1)  A person may apply to the Director-General for mediation of any matter that the person is entitled to apply for an order to resolve under this Part.
(2)  On receipt of an application for mediation, the Director-General must, if the Director-General thinks the circumstances of the case are appropriate, arrange for the mediation of the matter in accordance with the regulations.

67   Director-General may dismiss certain applications

The Director-General may dismiss an application for mediation under this Division if the Director-General believes that the application is frivolous, vexatious, misconceived or lacking in substance.

68   Agreements and arrangements arising from mediation sessions

(1)  An Adjudicator may make orders to give effect to any agreement or arrangement arising out of a mediation session.
(2)  An order referred to in subsection (1) may be made whether or not the mediation was carried out in accordance with this Division or by a mediator within the meaning of this Division.
(3)  This Division does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.

69   Privilege

(1)  In this section, mediation session includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session.
(2)  Subject to subsection (3), the same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:
(a)  a mediation session, or
(b)  a document or other material sent to, or produced at an office of, the Director-General for the purpose of enabling a mediation session to be arranged.
(3)  The privilege conferred by subsection (2) only extends to a publication made:
(a)  at a mediation session, or
(b)  as provided by subsection (2) (b), or
(c)  as provided by section 70.
(4)  Evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court, tribunal or body.
(5)  A document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.
(6)  Subsections (4) and (5) do not apply with respect to any evidence or document:
(a)  if the persons in attendance at, or identified during, the mediation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or
(b)  in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 70 (c).

70   Secrecy

A mediator may disclose information obtained in connection with the administration or execution of this Part only in one or more of the following circumstances:
(a)  with the consent of the person from whom the information was obtained,
(b)  in connection with the administration or execution of this Part,
(c)  if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property,
(d)  if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,
(e)  in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.

70A   Exoneration from liability for mediators

No matter or thing done or omitted to be done by a mediator subjects the mediator to any action, liability, claim or demand if the matter or thing was done in good faith for the purposes of a mediation session under this Division.

Division 2A Procedure after Registrar receives application

70B   Notice of application to be given

(1)  The Registrar must give a copy of an application for an order under this Part to each person (other than the applicant) who, in the Registrar’s opinion, would be affected if the order sought were made.
(2)  The copy of the application must be accompanied by a notice stating that the person to whom the notice is given may make a written submission to the Registrar within a time specified in the notice, or within a longer time specified in any further notice given by the Registrar.
(3)  The Registrar must give a notice to the applicant for the order stating that the applicant may make further written submissions to the Registrar within a time specified in the notice, or within a longer time specified in any further notice given by the Registrar.
(4)  The Registrar may extend the time for the making of submissions by a further notice given to each of the persons to whom the original notice was given.
(5)  Subsections (2)–(4) do not apply to an application for an order under Division 6A (Enforcement of orders of Adjudicators and Tribunal and certain notices).

70C   Procedure after time for making submissions has expired

(1)  This section operates after the time for making submissions on an application expires.
(2)  The Registrar must refer an application for an order referred to in Division 3 to an Adjudicator.
(3)  The Registrar must refer an application for an order referred to in Division 4 to the Tribunal.
(4)  If an application is referred to the Tribunal, whether by the Registrar under this Division or by an Adjudicator under Division 3, the Registrar must complete a notice containing the time and place at which, and the date on which, the Tribunal will determine the application.
(5)  The Registrar must send a copy of that notice to the following persons so that the copy would, in the ordinary course of post, be received by the addressee not less than 7 days before the day specified in the notice for the determination of the application:
(a)  the applicant,
(b)  the association or strata corporation to which the application relates (if the owners corporation is not the applicant),
(c)  any person against whom the order is sought,
(d)  any person who made a submission on the application.

70CA   Procedure for orders under Division 6A

(1)  The Registrar must refer to the Tribunal an application for an order under Division 6A (Enforcement of orders of Adjudicators and Tribunal and certain notices).
(2)  If such an application is referred to the Tribunal, the Registrar must complete a notice containing the time and place at which, and the date on which, the Tribunal will determine the application.
(3)  The Registrar must send a copy of that notice to the following persons or bodies so that the copy would, in the ordinary course of post, be received by the addressee not less than 7 days before the date specified in the notice for the determination of the application:
(a)  the applicant,
(b)  the association or strata corporation to which the application relates (if the association or strata corporation is not the applicant),
(c)  any person against whom the order is sought.

Division 3 Orders by Adjudicators

71   Order by Adjudicator

(1)  Except in relation to a dispute or complaint referred to the Tribunal or only within the jurisdiction of the Tribunal, an Adjudicator may make an order for the settlement of a dispute or complaint to which an application under Division 2 relates, whether or not the order made is the order sought.
(2)  (Repealed)
(3)  The order may require:
(a)  any person entitled to apply under Division 2 for an order in relation to the same scheme, or
(b)  the chairperson, secretary or treasurer of the same association or strata corporation within the same scheme,
to do, or to refrain from doing, a specified act affecting the scheme.
(4)  (Repealed)
(5)  If the order so states, it operates as a resolution of a specified association or strata corporation.

71A   Dismissal of application on certain grounds

(1)  An Adjudicator must, by order, dismiss an application for an order under this Division if satisfied that mediation was appropriate and was not attempted.
(2)  If the ground for an application is:
(a)  the absence of a quorum at a meeting, or
(b)  a defect, irregularity or deficiency of notice or time,
an Adjudicator may, by order, dismiss the application if the Adjudicator believes that no substantial injustice has resulted.
(3)  An Adjudicator may, by order, dismiss an application for an order under this Part on any other ground that the Adjudicator considers appropriate.
(4)  Without limiting the generality of subsection (3), an Adjudicator may, by order, dismiss an application for an order under this Part if:
(a)  the Adjudicator believes that the application is frivolous, vexatious, misconceived or lacking in substance, or
(b)  the Adjudicator believes that a decision in favour of the applicant is not within the jurisdiction of the Adjudicator, or
(c)  the Adjudicator believes that the applicant has unreasonably delayed the provision of information required by the Adjudicator, or
(d)  in the case of an application made by a proprietor of a development lot or neighbourhood lot or by an association, the applicant has not paid all contributions levied and payable in relation to the lot under this Act.
(5)  An Adjudicator may dismiss an application in accordance with this section even though the notice requirements of Division 2A have not been complied with and despite that a time, or extended time, specified for making written submissions on the application has not expired.

71B   Matters that may be referred to Tribunal

(1)  An Adjudicator may refer to the Tribunal an application for an order if the Adjudicator is of the opinion:
(a)  that the application raises complex legal issues, or
(b)  that it should be referred because of its importance or the possible frequency of like applications, or
(c)  that there are other good reasons to refer the application.
(2)  This section does not confer on any person a right to have referred to the Tribunal an application for an order that may be made by an Adjudicator.

71C   Investigations by Adjudicator

(1)  An Adjudicator may investigate an application for an order in any way the Adjudicator thinks fit and may refuse to proceed with an application until any further information required by the Adjudicator has been provided.
(2)  For the purposes of the investigation, an Adjudicator may:
(a)  enter association property or common property, or
(b)  enter a development lot, or
(c)  enter a neighbourhood lot or strata lot at a reasonable time on notice given to the occupier.
(3)  The power conferred by this section does not include power to enter a dwelling-house or other residential premises unless the occupier consents.
(4)  If an Adjudicator believes on reasonable grounds that there has been, or may be, a breach of a development contract, a management statement or the by-laws for a strata scheme, the Adjudicator may exercise the power conferred by this section to investigate the grounds for the belief.
(5)  A person must not obstruct or hinder an Adjudicator, or a delegate of an Adjudicator, in the exercise of powers conferred by this section.

Maximum penalty (subsection (5)): 5 penalty units.

72   Interim orders

(1)  If an applicant for an order under this Division or Division 4 requests the making of an interim order and an Adjudicator is satisfied that urgent considerations justify the making of such an order, the Adjudicator may:
(a)  make any order that could otherwise be made by the Adjudicator or the Tribunal on such an application, and
(b)  renew the order if a request for its renewal is made not later than 3 months after the order was made.
(2)  An Adjudicator may revoke an order, or a renewal of an order, made under subsection (1).
(3)  A person who in, or in connection with, a request for an interim order or its renewal makes a statement that the person knows is false or misleading in a material respect is guilty of an offence.

Maximum penalty: 5 penalty units.

(4)  An interim order may be made or renewed even if:
(a)  an Adjudicator proposes to refer the application to the Tribunal, or
(b)  since receipt of the application, a prescribed procedure has not been followed or a function of the Adjudicator has not been exercised, or
(c)  the time, or extended time, for making written submissions on the application has not expired, or
(d)  a right of appearance or representation has not been exercised.
(5)  An interim order continues in force until:
(a)  the expiration of the period of 3 months that commenced with the making of the order, or
(b)  if application is duly made for its renewal—until the renewal is granted or refused, or
(c)  if it is renewed—the expiration of the period of 6 months that commenced with the making of the order.
(6)  Subsection (5) does not apply if:
(a)  the order is revoked by an Adjudicator or, on appeal, by the Tribunal, or
(b)  the application is determined in accordance with this Division (this section excepted) or Division 4 or 5.

73   Restrictions on orders

(1)  An Adjudicator may not make an order (other than an interim order) until after the expiration of the time, or the extended time, allowed for making written submissions on the application for the order.
(2)  An Adjudicator may not make an order (other than an interim order) for the settlement of a dispute or complaint about a function that requires a special or unanimous resolution for its exercise.
(3)  An Adjudicator may not make an order of a kind that, under this Act, is within the original jurisdiction of the Supreme Court, the Land and Environment Court or, except for an interim order, the Tribunal.

74   Restriction on amendment or revocation of order

(1)  An Adjudicator may amend an order under this Division:
(a)  to correct or clarify it, or
(b)  to extend a time that does not relate to the duration of an interim order,
but not otherwise.
(2)  An Adjudicator may not revoke an order other than an interim order.
(3)  Subsections (1) and (2) do not prevent the making of a subsequent order.
(4)  An order made by an Adjudicator under this Division (other than an interim order or an order for damages) ceases to have effect:
(a)  2 years after it is made, or
(b)  at some other time specified in the order.

75   Service of copy of order

(1)  An order made by an Adjudicator under this Division must be in writing.
(2)  The Registrar must serve a copy of the order on:
(a)  the applicant for the order, and
(b)  all persons who made written submissions on the application for the order, and
(c)  the person against whom the order was sought, and
(d)  the person against whom the order was made, and
(e)  if not served under paragraphs (a)–(d)—the association or strata corporation for the scheme to which the order relates.
(3)  Subsection (2) applies to an order of the Tribunal sent to an Adjudicator under section 97 in the same way as it applies to an order of an Adjudicator.
(4)  Unless the order otherwise provides, the association or strata corporation must have the copy served on it under subsection (2) or (3) prominently displayed within the scheme:
(a)  not later than 72 hours after its service, and
(b)  continuously during the 14 days next succeeding its first such display.
(5)  In this section:

order includes an amendment of an order, an interim order, a renewal or revocation of an interim order and an order dismissing an application.

Division 4 Orders by Tribunal

75A   Dismissal of application on certain grounds

(1)  The Tribunal must, by order, dismiss an application for an order under this Division if satisfied that mediation was appropriate and was not attempted.
(2)  If the ground for an application 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 Division 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 Division 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 a proprietor of a development lot or neighbourhood lot or by an association 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.

75B   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.

76   Applications referred to Tribunal 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:
(a)  to make an order under Division 3 other than an interim order, or
(b)  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).

77   Order by Tribunal in relation to initial period

(1)  The Tribunal may, by order, declare:
(a)  that the initial period for a scheme has not expired, or
(b)  that the initial period for a scheme expires on the date of the order or on a later date specified in the order.
(2)  For the purposes of this section, the Tribunal is not bound by, but must have regard to, the intention of the definition of initial period in section 3.
(3)  If a declaration made by the Tribunal under this section in relation to a scheme is inconsistent with the definition of initial period in section 3:
(a)  the definition is to be disregarded to the extent of the inconsistency, and
(b)  the declaration by the Tribunal has effect for the purposes of this Act.
(4)  Application for an order under this section in relation to a scheme may be made by:
(a)  the association or strata corporation constituted under the scheme, or
(b)  the proprietor of a lot within the scheme.

78   Order by Tribunal substituting schedule of unit entitlements

(1)  The Tribunal may make orders under subsection (3) if it considers that an initial or revised schedule of unit entitlements for a community scheme, precinct scheme or neighbourhood scheme is based on unreasonable valuations or should be reviewed or replaced.
(2)  The Tribunal may, in the case of an initial schedule of unit entitlements:
(a)  order that revaluations be made by a different registered valuer and that the schedule be replaced by a schedule based on the revaluations, and
(b)  make such other orders as the Tribunal thinks fit.
(3)  The Tribunal may, in the case of a revised schedule of unit entitlements:
(a)  order that a further revised schedule be lodged with the Registrar-General under section 30 of the Community Land Development Act 1989, and
(b)  make such other orders as the Tribunal thinks fit.
(4)  If of the opinion that the developer’s or subdivider’s estimate of proportionate values for a neighbourhood scheme is inaccurate, the Tribunal may order that the schedule of unit entitlements be replaced by a schedule based on valuations by a registered valuer.
(5)  Application for an order under this section may be made by:
(a)  an association, or
(b)  a strata corporation, or
(c)  the proprietor of a development lot, a neighbourhood lot, or a strata lot,
within the scheme to which the application relates.
(6)  Application for an order under this section may be made by the Commissioner for Land Tax.

79   Order by Tribunal affecting restricted property

(1)  If an association, or a strata corporation, decides to create, or to refuse to create, restricted property, or if a necessary consent to the creation, or to a refusal to create, restricted property has not been given, the Tribunal may, by order, amend:
(a)  the management statement for the association, or
(b)  the by-laws for the strata scheme,
in relation to the property.
(2)  Without limiting the operation of subsection (1), an amendment made under that subsection may have the effect of revoking so much of a management statement or by-laws as creates restricted property.
(3)  The order must be made on the basis of what the Tribunal considers to be the best interests of all the members of the association or strata corporation.
(4)  Application for an order under this section may be made by:
(a)  the association or strata corporation, or
(b)  the proprietor of a lot within the scheme under which the association or strata corporation is constituted.

80   Order by Tribunal relating to variation of management statement

(1)  The Tribunal may, by order, revoke or vary a provision of the management statement for an association if the Tribunal considers the provision not to be in the best interests of:
(a)  the members of the association, or
(b)  the proprietors of neighbourhood lots or strata lots within the scheme to which the management statement relates.
(2)  Application for an order under this section may be made by:
(a)  a member of the association, or
(b)  the proprietor of a neighbourhood lot, or a strata lot, within the scheme,
to which the management statement relates.

81   Order by Tribunal revoking invalid part of management statement

(1)  The Tribunal may, by order, revoke so much of a management statement as the Tribunal considers to be invalid.
(2)  Application for an order under this section may be made by any person (including a mortgagor as well as a first mortgagee or covenant chargee) entitled to vote at a meeting of the association to which the management statement relates.

82   Order by Tribunal relating to invalid resolution or election

(1)  If this Act was not complied with in relation to a meeting of an association at which a resolution was passed or an election held, the Tribunal may:
(a)  by order invalidate the resolution or election, or
(b)  refuse an application for such an order.
(2)  The Tribunal may not refuse to make an order under this section unless it considers:
(a)  that the failure to comply with this Act did not adversely affect any person, and
(b)  that compliance with this Act would not have resulted in a failure to pass the resolution, or would not have affected the result of the election.
(3)  Application for an order under this section may be made by:
(a)  a person entitled to vote on the motion for the resolution or at the election, or
(b)  the first mortgagee or covenant chargee of a lot of which the proprietor is a person referred to in paragraph (a).

83   Order by Tribunal relating to contributions

(1)  The Tribunal may make an order under subsection (2) if it considers:
(a)  that a contribution levied, or proposed to be levied, by an association is too much or too little, or
(b)  that the manner of payment of such a contribution is unreasonable.
(2)  The Tribunal may, in relation to the contribution, or the proposed contribution:
(a)  order payment of a different amount, or
(b)  order a different manner of payment, or
(c)  make both orders.
(3)  Application for an order under subsection (2) may be made by:
(a)  a member of the association, or
(b)  a mortgagee or covenant chargee in possession of a development lot, neighbourhood lot or strata lot within the scheme under which the association was constituted.
(4)  If the contribution has been wholly or partly paid:
(a)  an order to pay more has effect as if the association had decided to make a levy equal to the difference, and
(b)  an order to pay less imposes a duty on the association to refund the difference.

84   Order by Tribunal to vary amount of insurance

(1)  If the Tribunal considers that the amount for which an association has effected insurance is unreasonable, the Tribunal may order the association to vary the amount to a specified amount.
(2)  Application for an order under this section may be made by:
(a)  a member of the association, or
(b)  an enrolled mortgagee of, or a person who has an interest in, a development lot, neighbourhood lot or strata lot within the scheme under which the association was constituted.

85   Order by Tribunal appointing managing agent

(1)  The Tribunal may, by order, appoint a managing agent:
(a)  to perform all the functions, or
(b)  to perform specified functions, or
(c)  to perform all the functions, other than specified functions,
of an association, or of a strata corporation.
(2)  Application for an order under subsection (1) may be made:
(a)  by a person who obtained an order under this Part that imposed a duty on the association or the strata corporation, or on its executive committee or council, or on its chairperson, secretary or treasurer, or
(b)  by a person who has an estate or interest in a development lot, neighbourhood lot or strata lot within the scheme under which the association or strata corporation was constituted, or
(c)  if the object of the application is payment of a judgment debt—by the judgment creditor.
(3)  An order under subsection (1) may be made by the Tribunal to which an Adjudicator has referred a matter if the Adjudicator, whether or not on application, is satisfied that the management structure of the scheme that would be affected by the order is not functioning, or is not functioning satisfactorily.
(4)  An appointee:
(a)  must hold any licence required by law to be held by a managing agent performing the functions to which the order relates, and
(b)  must have consented to the appointment.
(5)  Unless sooner revoked, an order made under subsection (1) ceases to have effect at the expiration of such period after its making (not exceeding 12 months) as is stated in the order.
(6)  A managing agent may be appointed under this section:
(a)  on such terms and conditions relating to remuneration of the managing agent by the association or the strata corporation, and
(b)  on such other terms and conditions,
as are stated in the order making the appointment.
(7)  In this section:

functions includes:

(a)  performance of a duty imposed by an order under this Part, and
(b)  payment of a judgment debt.

86   Functions of managing agent appointed by Tribunal

(1)  If the Tribunal appoints a managing agent to exercise a function:
(a)  the function may not, while the managing agent is in office, be exercised by any other person, and
(b)  anything done or suffered by the managing agent in the exercise of the function has the same effect as it would have if the function were exercised by the person who, but for paragraph (a), could have exercised it.
(2)  A managing agent appointed by the Tribunal must, immediately after exercising a function of an association or strata corporation in accordance with the appointment:
(a)  make a written record of the function and the manner in which it was exercised, and
(b)  serve a copy of the record on the association or strata corporation.

87   Amendment or revocation of order of Tribunal

(1)  The Tribunal may, by order:
(a)  amend an order made under this Part by it, or
(b)  revoke an order so made, whether or not another order under this Part is made instead of the revoked order,
or may refuse to order such an amendment or revocation.
(2)  Application for an order under subsection (1) may be made by:
(a)  the association or strata corporation constituted under the scheme involved in the original order, or
(b)  the applicant for the original order, or
(c)  a person who made a written submission on the application for the original order, or
(d)  a person bound by the original order.
(3)  The application must:
(a)  be made to the Registrar, and
(b)  be in a form approved by the Director-General, and
(c)  state the grounds on which it is based, and
(d)  be accompanied by the prescribed fee and any prescribed deposit.
(4)  The Registrar must deal with the application in the same way as the Registrar would deal with an application that must be referred by the Registrar to the Tribunal.
(5)  If an order is amended, the amended order has effect as if it had been made under the same provision of this Act as the original order.
(6)  On the final determination of the application, the applicant is entitled to a refund of the deposit paid under subsection (3) (d) unless, in making the determination, the Registrar, Tribunal or Supreme Court finds that the application was frivolous, vexatious, misconceived or lacking in substance.

Division 5 Appeal to Tribunal

88   Appeal against order of Adjudicator

(1)  An appeal lies to the Tribunal against an order made by an Adjudicator under Division 3.
(2)  The appellant may be:
(a)  the applicant for the order appealed against, or
(b)  a person who made a written submission on the application for the order, or
(c)  a person bound by the order.
(3)  The appellant must lodge with the Registrar a written notice of appeal that is accompanied by the prescribed fee and specifies:
(a)  the name and address of the appellant, and
(b)  the order appealed against, and
(c)  the grounds for the appeal, and
(d)  any other prescribed particulars.
(4)  The only ground of appeal against the granting of an interim order is that the Adjudicator acted unreasonably.
(5)  The notice of appeal against an order dismissing an application must be lodged not later than 21 days after the order takes effect.
(6)  The notice of appeal against any other order must be lodged:
(a)  not later than 21 days after the order takes effect, or
(b)  by leave of the Tribunal (given on sufficient cause being shown why the notice was not lodged within the time limited by paragraph (a))—not later than 90 days after the order takes effect.

89   Procedure after appeal is lodged

(1)  The Registrar must send to the Tribunal the notice of appeal and the Adjudicator’s records relating to the order appealed against.
(2)  The Registrar must complete a notice containing the time and place at which, and the date on which, the Tribunal will determine the appeal.
(3)  The Registrar must send a copy of that notice together with a copy of the notice of appeal to the following persons so that the notices would, in the ordinary course of post, be received by the addressee not less than 7 days before the day specified in them for the determination of the appeal:
(a)  the appellant,
(b)  the person against whom the order appealed against was sought and any other person entitled to appeal,
(c)  the association or strata corporation for the scheme to which the order appealed against relates.

90   Stay of proceedings

(1)  If a notice of appeal to the Tribunal is accompanied by an application for a stay of proceedings under this section:
(a)  an Adjudicator, before sending to the Tribunal the notice of appeal and other documents, or
(b)  the Tribunal to which the notice of appeal and other documents have been sent,
may, by order, stay proceedings on the order appealed against.
(2)  If an order is made under subsection (1), written notice of the order must be sent by the Registrar to the persons served, or the persons who but for the stay would be served, with notice of the time, date and place for determination of the appeal.

91   Determination of appeal to Tribunal

(1)  In determining an appeal, the Tribunal may admit new evidence.
(2)  Unless the order appealed against is an interim order, the Tribunal may determine an appeal by an order:
(a)  affirming, amending or revoking the order appealed against, or
(b)  substituting its own order for the order appealed against, or
(c)  dismissing the appeal.
(3)  If the order appealed against is an interim order, the Tribunal may determine the appeal by an order:
(a)  revoking the interim order, or
(b)  dismissing the appeal.
(4)  The Tribunal may not, in determining an appeal, make an order as to costs.
(5)  An order made under subsection (2) has effect, and the provisions of this Act (other than provisions conferring a right of appeal to the Tribunal) apply to it, as if it were an order made under the same provision as the order appealed against.
(6)  Subsection (5) does not exclude an appeal from an order of the Tribunal made under this section.

Division 6 General provisions relating to Tribunal

91A   Proceedings before Tribunal

(1)  The provisions of the Consumer, Trader and Tenancy Tribunal Act 2001, and of the regulations made under that Act, apply in relation to proceedings before the Tribunal under this Act, subject to any modifications prescribed by the regulations.
(2)  In this section, a reference to proceedings includes a reference to the whole of proceedings, from the time that an application is made to the Tribunal until the application has been finally determined.

92   Tribunal may dispense with formalities

(1)  Before it makes an order under Division 4 or 5 (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)  The investigation must be made without regard for legal forms or technicalities.
(3)  The Tribunal is not bound to apply the rules of evidence and may inform itself in any way it pleases.
(4)  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.
(5)  A hearing need not be formal.
(6)  Before deciding whether or not to make an order, the Tribunal must take into account the relative market position, economic resources and commercial sophistication of the parties.

93   Appearance before Tribunal

(1)  A person who:
(a)  applies for an order under Division 3 or 4, or
(b)  makes a written submission on such an application, or
(c)  is, or whose conduct is, the subject of an application,
may appear, or be represented, before the Tribunal dealing with the application.
(2)  A person who:
(a)  appeals to the Tribunal, or
(b)  is entitled to be served with a notice of an appeal to the Tribunal, or
(c)  is, or whose conduct is, the subject of an appeal to the Tribunal,
may appear, or be represented, before the Tribunal dealing with the appeal.
(3)  Representation before the Tribunal may be by counsel or solicitor, or by an agent authorised in writing.
(4)  A representative may examine witnesses and address the Tribunal.

94   Summons to appear before Tribunal

(1)  The member who constitutes the Tribunal, or the Registrar with the authority of the member, may summon a person to attend the Tribunal at the time and place stated in the summons and then and there:
(a)  give evidence, and
(b)  produce any documents specified in the summons that are in the custody, or under the control, of the person summoned.
(2)  A summons may be issued at the request of:
(a)  a person whose application or appeal is to be, or is being, dealt with by the Tribunal, or
(b)  a person given notice by the Registrar of such an application or appeal, or
(c)  the agent of a person referred to in paragraph (a) or (b),
on payment of the prescribed fee.
(3)  A person is not bound to produce any documents:
(a)  that are not specified or sufficiently described in the summons, or
(b)  that the person would not be bound to produce on a subpoena for production in the Supreme Court.
(4)  A summons need not be obeyed by a person whose reasonable expenses for attendance as required by the summons have not been tendered.
(5)  A person who disobeys a summons is guilty of an offence unless reasonable cause for the disobedience is proved.

Maximum penalty—subsection (5): 10 penalty units in the case of a corporation or, in any other case, 5 penalty units or imprisonment for 6 months, or both.

95   Examination of witness on oath

(1)  The Tribunal may administer an oath to a witness and may examine a witness on oath.
(2)  A witness in proceedings before the Tribunal:
(a)  has the same protection, and
(b)  in addition to any liability under this Act is subject to the same liabilities,
as a witness in proceedings before the Supreme Court.
(3)  If a witness in proceedings before the Tribunal:
(a)  refuses to take an oath, or
(b)  refuses to answer a question that is relevant to the proceedings and is put to him or her by the Tribunal or a person entitled to appear in the proceedings, or
(c)  knowingly gives false evidence to the Tribunal,
the witness is guilty of an offence.

Maximum penalty—subsection (3): 5 penalty units or imprisonment for 6 months, or both.

96   Contempt of Tribunal

(1)  A person who wilfully:
(a)  insults or disturbs the Tribunal, or
(b)  interrupts the proceedings of the Tribunal, or
(c)  speaks or writes words about the Tribunal that are false or defamatory, or
(d)  is in any other way in contempt of the Tribunal,
is guilty of an offence.

Maximum penalty: 5 penalty units or imprisonment for 6 months, or both.

(2)  If a person commits an offence under subsection (1) in the face of the Tribunal, the Magistrate who constitutes the Tribunal has the same powers as a Local Court has in relation to a contempt in the face of the Local Court.

97   Order and records to be sent to Registrar

The Tribunal must, on making an order under Division 4 or 5, send it to the Registrar together with all the records of the Tribunal relating to the application for the order or to the appeal.

97A   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 a barrister, solicitor or 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.

Division 6A Enforcement of orders of Adjudicators and Tribunal and certain notices

97B   Civil penalties for contravention of orders under this Part

(1)  The Tribunal may, by order, require a person to pay a pecuniary penalty of an amount of up to 50 penalty units for contravention of an order under this Part (the original order).
(2)  An application for an order under subsection (1) may be made by:
(a)  the applicant for the original order, or
(b)  an association or strata corporation involved in the order, or
(c)  in the case of an order that gives effect to any agreement or arrangement arising out of a mediation session—either party to the mediation.

97C   Civil penalties for contravention of notice of association

(1)  The Tribunal may, on application by an association, by order require a person to pay a pecuniary penalty of an amount of up to 5 penalty units if the Tribunal is satisfied that:
(a)  the association served a notice under section 13A on the person requiring the person to comply with a particular by-law, and
(b)  the person has since contravened the by-law.
(2)  An application for an order under this section must be made by the association within 12 months after the notice under section 13A was served.

97D   Order as to costs

(1)  The Tribunal may also make an order for the payment of costs when making an order requiring the payment of a pecuniary penalty under this Division.
(2)  Any costs awarded against a person on an application for an order under section 97B include the amount of the fee paid when the application for the original order was made.
(3)  The making of an order as to costs operates as a judgment under the Local Courts (Civil Claims) Act 1970 for the amount of the costs against the person required to pay it in favour of the applicant for the order.

97E   Payment of civil penalties

(1)  If the Tribunal makes an order under this Division requiring a person to pay a pecuniary penalty, the Tribunal may specify in the order that the penalty or a part of the penalty must be paid to the applicant for the order as damages for work carried out by the person in relation to the matter the subject of the proceedings.
(2)  The imposition of the pecuniary penalty operates as a judgment under the Local Courts (Civil Claims) Act 1970 for the amount of the pecuniary penalty against the person required to pay it and in favour of:
(a)  the applicant for the order, or
(b)  the applicant for the order and the Director-General of the Department of Fair Trading, if the order requires part only of the penalty to be paid to the applicant, or
(c)  the Director-General of the Department of Fair Trading only, if the order so requires.
(3)  Any pecuniary penalty or part of a pecuniary penalty recovered under this Part that the Tribunal has not ordered to be paid to an applicant for an order is to be paid to the Director-General for payment into the Department of Fair Trading Operating Account or an account prescribed by the regulations for the purposes of this subsection.

Division 7 Miscellaneous

98   Orders generally

(1)  An order under this Part may include ancillary or consequential provisions.
(2)  In so far as an order (including an amended order) under this Part requires an association, or a strata corporation, to do, or refrain from doing, a specified act:
(a)  the order operates as if it were a resolution of the association or strata corporation, and
(b)  the association or strata corporation has a duty to comply with the order while it is in force.
(3)  A document that purports to be a copy of an order made by an Adjudicator or the Tribunal is evidence of the making of the order of which it purports to be a copy.

99   Time at which order takes effect

(1)  An order made under this Part that affects:
(a)  unit entitlements, or
(b)  amendments to a management statement, or
(c)  restricted property,
is ineffective until recorded in the Register.
(2)  Any other order under this Part takes effect:
(a)  when it is made, or
(b)  if the order otherwise provides—in accordance with the order.

100   Resolution purporting to alter effect of order

(1)  If an order under this Part has effect as if it were a resolution, the order may be amended or revoked only by a unanimous resolution or as provided by subsection (2).
(2)  If an order under this Part fixes a period during which a resolution of an association or strata corporation purporting to alter the effect of the order would be inoperative, such a resolution passed during that period has effect if:
(a)  it is a unanimous resolution, or
(b)  it is passed on a motion submitted to a general meeting after being authorised by the Tribunal.
(3)  An application to the Tribunal for an order authorising a motion for submission to a general meeting:
(a)  may be made by any person who, at the time of the application, could have applied for the order to which the proposed motion relates, and
(b)  must be made to the Registrar in writing, and
(c)  must specify the order sought, and
(d)  must state the grounds on which it is based, and
(e)  must be accompanied by the prescribed fee and any prescribed deposit.
(4)  The application is to be dealt with as if it were an application required to be referred to the Tribunal for determination.
(5)  On the final determination of the application, the applicant is entitled to a refund of the deposit paid under subsection (3) (e) unless, in making the determination, the Registrar, Tribunal or Supreme Court finds that the application was frivolous, vexatious, misconceived or lacking in substance.

101   (Repealed)

102   Protection of Director-General and Adjudicators

In exercising a function under this Part, the Director-General and an Adjudicator have the same protection and immunities as a Magistrate.

103   Title to land

(1)  An Adjudicator or the Tribunal may determine a question of title to land only for the purpose of deciding a matter under this Part.
(2)  A determination under subsection (1) has effect only for the purposes of the decision to which it relates.

104   Orders relating to costs

An Adjudicator or 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 because:
(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.

105   Expenses in proceedings under this Part

(1)  A community association or precinct association may not, in respect of its costs and expenses in proceedings brought by or against it under this Part, make a levy on:
(a)  another party who is successful in the proceedings, or
(b)  a subsidiary body of which such a party is a member.
(2)  A neighbourhood association, or a strata corporation, may not, in respect of its costs and expenses in proceedings brought by or against it under this Part, make a levy on another party who is successful in the proceedings.
(3)  An association, or a strata corporation, that is unsuccessful in proceedings brought by or against it under this Part may not pay any part of its costs and expenses in the proceedings from its administrative fund or sinking fund but, except as provided by subsections (1) and (2), may make a levy for the purpose.
(4)  In this section, a reference to proceedings under this Part includes a reference to proceedings on appeal to the Tribunal or the Supreme Court in relation to a matter arising under this Part.
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