Think Nicholsons

Nov 15

Merry Christmas - You have invalid by-laws


There is an odd dichotomy between the adoption and enforcement of by-laws in Queensland.

A body corporate can generally approve a change to its by-laws at a general meeting by special resolution. Let’s say an owner, Mr Scrooge, has a strong aversion to Christmas and submits a motion to adopt a by-law prohibiting residents from placing Christmas wreaths on their front doors. If that motion gains sufficient support at the meeting, the body corporate is required to record a new community management statement that adopts the by-law. The registrar of titles is not required to assess whether the new by-law is valid and so, voila! , the new community management statement is recorded and the by-law takes effect.

Now the fun begins.

On the first of December, Deirdre adorns her front door with her Christmas wreath, as she has done for the past 65 years. Mr Scrooge brings the contravention to the attention of the committee. The legislation requires the committee to enforce the by-laws. 

The committee gives Deirdre a by-law contravention notice. The wreath remains on the door in all its gaudy glory. The committee attempts conciliation, but Deirdre is too busy baking mince pies and shortbread to attend. 

The committee instructs  a lawyer to make an adjudication application to enforce the by-law, but Deirdre is too busy making Christmas puddings to make a submission.

Just after Easter, long after the wreath was removed from the door, an adjudicator dismisses the committee’s application, declares the by-law to be invalid on the basis it is oppressive and unreasonable and because it seeks to prohibit rather than regulate the adorning of Christmas wreaths on front doors and orders the body corporate to record a new community management statement that removes the offending by-law within 3 months.

The committee appeals the adjudicator’s decision and engages a barrister to represent it in those proceedings. The barrister advises the committee has little chance of success, but the committee is determined to comply with its obligation to enforce the by-law and instructs the barrister to push on. Deirdre also engages a barrister.

On the first of December, Deirdre adorns her front door with her Christmas wreath, as she has done for the past 66 years.

On the second of December, the tribunal dismisses the appeal and awards costs to Deirdre. Merry Christmas Deirdre.

The moral: invalid by-laws do not stand out like baubles and do not have a shiny nose but you need to get rid of them, like relatives and indigestion after Christmas lunch.

If you would like to discuss any of the above, please telephone Andrew Suttie on (07) 3226 3944,  before the silly season starts living up to its name.


Andrew Suttie

Partner
Andrew practices predominantly in strata law. He has extensive experience in advising bodies corporate and other stakeholders of their rights and obligations under the Body Corporate and Community Management Act 1997 and related legislation.