Did you know that the Body Corporate and Community Management Commissioner’s Office is not the only avenue to enforce a Body Corporate by-law?
In this video, OMB Solicitors Senior Associate, Elisha Quigg, talks about how you can enforce by-laws through the Magistrates Court in a timely and economical way.
Transcript
Hello, my name is Elisha, solicitor at OMB Solicitors. Today I’m going to be talking to you about enforcement of bylaws. Now you’re probably quite familiar with the process of enforcing bylaws through the adjudication process, through the Body Corporate and Community Management Commissioner’s office.
But there’s also another method of enforcement of bylaws which isn’t as common but just as effective that I’d like to talk to you about today. So that is enforcement of bylaws through the magistrate’s court through a complaint and summons process.
Now as we know, bylaw contravention notices can be issued when a lot owner or occupier does not comply with the bylaws. Now sometimes the response to those bylaw contravention notices is either an owner will start complying with the bylaws or alternatively they might just throw that contravention notice in the bin.
So how do we deal with those owners when they throw those contravention notices in the bin and continue contravening the bylaws? So whether you’ve issued a continuing contravention notice or a future contravention notice, there are two ways in which we can enforce them.
Firstly, through the adjudication process, through the Body Corporate Commissioner’s office. In that process you usually have to complete the conciliation first, which as you know can be quite a painful task, particularly when you just want that owner to start complying with the bylaws, and then if that conciliation is not successful, you then have to go through the adjudication process.
Now that can take anywhere between three to six months, which when we’re talking about bylaw contravention, that’s quite a long time for an owner to be noncompliant. So let’s look at the other option, which is proceeding with a complaint and summons for a breach of a bylaw contravention notice.
So if an owner or occupier does not comply with a bylaw contravention notice, there are maximum penalty units of 20 penalty units that apply that can actually be penalised to a lot owner for their failure to comply with a bylaw contravention notice.
Also, if you go down that process of adjudication and you get an adjudicator’s order and they then don’t comply with that adjudicator’s order, there are maximum penalty units of 400 penalty units which apply to a lot owner as a financial penalty that can be pursued through the magistrate’s court.
Now what are these penalty units that I’m talking about? So with 20 penalty units, that equates to about $2,800 in financial penalties. Whereas if you breach an adjudicator’s order which is about 400 penalty units, that equates to about $57,000.
So why would you go down this process? So what you do is you issue your bylaw contravention notice, they don’t comply. You then engage a solicitor to assist you with filing a complaint and summons in the magistrate’s court, where you will receive a return date before the magistrate’s court, where the owner or occupier will actually have to attend court to enter a plea of either guilty or not guilty and then proceed to sentencing.
Now, the reason why we would go down this process is, number one, it is a lot more timely. You’ll actually get before the court within about four to six weeks, as opposed to three to six months.
Also, it sets an excellent precedent in your scheme to ensure that owners are aware that the committees and the body’s corporate are taking the bylaw contravention seriously. It also attracts the financial penalty, which can be attributed to the body corporate, meaning that you’ll end up actually recovering part of that financial penalty.
In addition, it is also an excellent prompt because owners are really reluctant to want to attend court. So if you file the complaint and summons and serve it on them, nine times out of ten, they’re pretty scared of attending court and they end up complying.
OMB Solicitors has had an excellent track record in proceeding down this course, and it is a lot quicker and more efficient for bodies corporate to do so.
So it’s all about weighing up the options of your matter, you either go down the bylaw contravention notice and proceed to adjudication through the Commissioner’s office, or alternatively, you can jump over to the magistrate’s court and proceed with a magistrate’s court complaint and summons. Both have excellent results, you just have to persevere as a committee when dealing with these nuisance and annoying lot owners.
So if you’d like to learn more about how you proceed down this course, please don’t hesitate to get in contact with OMB Solicitors. As I said, we’ve got an excellent track record of getting great results for bylaw contravention processes, and we’re here to help your schemes today. Thanks.
