(By Martin Punch of Short Punch & Greatorix Lawyers)
Many court cases involve the interpretation of legislation, which in some cases leaves room for a variety of interpretations. This has particularly been the case with management rights, which has resulted in expense which can easily be avoided if more thought was given in the first place to what the legislation should say, to avoid unintended consequences.
Three management rights cases illustrate the problem:-
The Rocks Case
This case revolved around what information had to be in Forms 22a under the old PAMDA Act, in relation to charges made for services organised by a letting agent, for example, cleaning units and supervision of tradesmen.
The original decision made by QCAT as to what the legislation meant for practical purposes, made compliance with the legislation nonsensical and impractical. Since similar wording has been used in the Property Occupations Act, this decision would also apply to the new agency regime under that Act. Fortunately a recent decision by QCAT’s Appeal Tribunal has interpreted the legislation in a more practical way, in favour of letting agents. However, it would have been best, and saved a lot of litigation, for the wording of the legislation to have been more clear cut in the first place. Further, the legislation should be changed to avoid any future doubt as to its application.
Gallery Vie decision
The Gallery Vie debacle can be firmly put down to bad drafting of legislation. The fact is that the sections in the Body Corporate and Community Management legislation considered in the Gallery Vie case, were supposed to protect financiers of management rights, not put them in a worse position, because of actions beyond their control. The decision in that case took away a financier’s right to continue operating a management rights business in receivership, as set out in the Act, because another party had liquidated the bank’s client’s management company, due to the Management Agreement’s default provisions extending to the management company being liquidated, which was additional to what constituted default under the legislation. It is obvious that the legislation should be changed to remove the unintended consequences revealed by the QCAT decision, but for now the government appears to have put the matter on the back burner.
A number of years ago, I was asked to give an opinion as to whether a Body Corporate could legally contract with a towing company for the removal of cars from common property. While the towing company promised a QC’s opinion supporting the Body Corporate’s right to do so, this was never supplied.
We advised that the Body Corporate, and its committee members, could be subject to prosecution for a crime if it did so, because of a provision in the criminal code, and a provision in the Transport legislation, which made it an offence to deprive a car owner of use of the vehicle without the owner’s consent and made it an offence to wilfully interfere with a mechanism attached to a motor vehicle, without the owner’s express consent. None of the statutory law has been changed since we gave that opinion.
A number of Body Corporate and Community Management adjudicators have considered a Body Corporate’s right to request or authorise such towing, but generally the adjudicators have only considered what processes are required to authorise the Body Corporate to arrange for such towing without considering the common law relating to consent, by way of notification to the vehicle’s owner, and the criminal law.
A recent options paper delivered by the Queensland Government Property Review team addresses the issue. However, it mainly discusses the process that should be put in place for Body Corporate action in respect to the Body Corporate authorising the towing, and does not address in detail, changes that would need to be made to the common law and the criminal law. Once again, it is a case where the law should be completely codified by changes to statutory law, that leaves no doubt. Changes to the Body Corporate and Community Management Act would be just a part of what is required.
Fortunately the whole issue of removal of vehicles from private property has become very prominent, as a result of the methods being used by some tow truck operators to remove, impound and charge owners of vehicles purportedly illegally parked on private property, and the Queensland government is setting up an enquiry into the matter. Those involved in management for Bodies Corporate should ensure that submissions are made to the enquiry to ensure that any legislative changes are practical and apply to Body Corporate common property.
The Government Approach
I think it is incumbent on a government to rectify a problem created by badly drafted legislation, by making appropriate amendments to the legislation, as quickly as possible, to avoid doubt as to how the legislation should be implemented.