company titles (home units) act 2013 - …the main purpose of this act is to confer jurisdiction on...

Version No. 001

Company Titles (Home Units) Act 2013No. 19 of 2013

Version as at1 October 2013

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 13 Definitions 14 Neighbourhood matter 35 Neighbourhood dispute 3

PART 2—VCAT JURISDICTION OVER NEIGHBOURHOOD DISPUTES 5

6 VCAT may hear and determine neighbourhood disputes 57 Applicants 58 Orders 59 Penalty for breach of rule 710 Factors that VCAT must consider 711 Monetary orders 812 More appropriate forum 813 Rule or term of no effect if inconsistent with Act 914 Displacement provisions 10

PART 3—GENERAL 11

15 Court jurisdiction 1116 Money to be paid to Victorian Property Fund 1117 Supreme Court—Limitation of jurisdiction 1118 Regulations 11

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PART 4—AMENDMENTS AND REPEAL 13

19 Estate Agents Act 1980 1320 Victorian Civil and Administrative Tribunal Act 1998 14

PART 4—COMPANY TITLES (HOME UNITS) ACT 2013 14

6A Any member of Tribunal may make a declaration 1421 Repeal of Part 4 14

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SCHEDULE—Neighbourhood Matters 15

1 Health, safety and security 152 Residual land 153 Units—in building subdivisions or forming part of land owned

by company title corporations 164 Units—forming part of land owned by company title

corporations 165 Design 176 Behaviour of persons 177 Dispute resolution 178 Notices and documents 17

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ENDNOTES 18

1. General Information 18

2. Table of Amendments 19

3. Explanatory Details 20

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Version No. 001


Version as at1 October 2013

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose

The main purpose of this Act is to confer jurisdiction on VCAT to hear and determine neighbourhood disputes affecting company title corporations and service companies for building subdivisions.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 December 2013, it comes into operation on that day.

3 Definitions

In this Act—

building has the same meaning as in the Subdivision Act 1988;

building subdivision means the subdivision of a building or buildings in accordance with a plan of subdivision approved by the Registrar under the Transfer of Land Act 1958;

company means a company registered under the Corporations Act;

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company title corporation means a company that is the registered proprietor of land if ownership of a share or shares in that company entitles the owner of the share or shares to the exclusive use and occupation of a specified part of the land but does not include an owners corporation within the meaning of the Owners Corporations Act 2006;

Director has the same meaning as in the Australian Consumer Law and Fair Trading Act 2012;

neighbourhood dispute has the meaning set out in section 5;

neighbourhood matter has the meaning set out in section 4;

Registrar has the same meaning as in the Transfer of Land Act 1958;

residual land means—

(a) in relation to land owned by a company title corporation which contains units, any area of the land which is not a unit; or

(b) in relation to a building subdivision, all the land comprised in the subdivision that is not included in any of the several stratum estates;

rule, in relation to a company title corporation or service company, means—

(a) a clause of the constitution of the company title corporation or service company;

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s. 3

(b) a by-law, rule or regulation made by the company title corporation or service company in accordance with its constitution—

but does not include a term of a service agreement of the service company;

service agreement has the same meaning as in the Transfer of Land Act 1958;

service company has the same meaning as in the Transfer of Land Act 1958;

shareholder means a person who owns a share or shares in a company title corporation or a service company;

stratum estate has the same meaning as in the Transfer of Land Act 1958;

unit means—

(a) in relation to land owned by a company title corporation, a specified part of that land to which a shareholder is entitled to exclusive use and possession by reason of his or her ownership of a share or shares in the corporation;

(b) in relation to a building subdivision, an allotment shown on the plan of subdivision.

4 Neighbourhood matter

For the purposes of this Act, a neighbourhood matter is any matter that is set out in the Schedule.

5 Neighbourhood dispute

(1) Subject to subsection (3), for the purposes of this Act a neighbourhood dispute is a dispute that—

(a) relates only to a neighbourhood matter or matters; and

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s. 4

(b) affects a company title corporation or a service company.

(2) For the purposes of subsection (1), a dispute affecting a company title corporation or a service company includes, but is not limited to, a dispute as to whether an obligation imposed by a rule of a company title corporation or service company or by a term of a service agreement has been met.

(3) A neighbourhood dispute does not include a dispute—

(a) relating to the sale, transfer or forfeiture of a share or shares in a company title corporation or service company; or

(b) relating to the lease of a unit that is part of land owned by a company title corporation; or

(c) relating to a licence to use a unit that is part of land owned by a company title corporation; or

(d) relating to the winding up of a company title corporation or service company; or

(e) in relation to which a party to the dispute claims relief under Part 2F.1 of the Corporations Act.

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s. 5

PART 2—VCAT JURISDICTION OVER NEIGHBOURHOOD DISPUTES

6 VCAT may hear and determine neighbourhood disputes

Subject to this Act, VCAT may hear and determine a neighbourhood dispute.

7 Applicants

The following persons may apply to VCAT to resolve a neighbourhood dispute—

(a) a shareholder or former shareholder;

(b) a company title corporation;

(c) a service company;

(d) an occupier or former occupier of a unit that is part of land owned by a company title corporation;

(e) an occupier or former occupier of a unit in a building subdivision;

(f) a mortgagee of a unit in a building subdivision.

8 Orders

(1) Subject to subsection (2), in determining a neighbourhood dispute VCAT may make any order it considers fair, including one or more of the following—

(a) an order requiring a party to do or refrain from doing something;

(b) an order requiring a party to comply with this Act, a rule of a company title corporation or service company or a term of a service agreement;

s. 6Part 1—Preliminary


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(c) an order for the payment of a sum of money—

(i) found to be owing by one party to another party;

(ii) by way of damages (including exemplary damages and damages in the nature of interest);

(iii) by way of restitution;

(d) an order varying any term of a contract or agreement (other than a rule of a company title corporation or service company);

(e) an order declaring that any term of a contract or agreement (other than a rule of a company title corporation or service company) is, or is not, void;

(f) an order declaring the meaning of a rule of a company title corporation or service company or term of a service agreement that relates to a neighbourhood matter;

(g) an order in relation to damaged or destroyed buildings or improvements;

(h) an order as to the payment of insurance money under any policy taken out by a company title corporation or service company.

(2) An order cannot be made under subsection (1) that—

(a) alters a person's shareholding in a company title corporation or service company; or

(b) winds up a company title corporation or service company; or

(c) alters the composition of the board of directors of a company title corporation or service company.



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(3) In awarding damages in the nature of interest, VCAT may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.

(4) VCAT may make any interim orders and ancillary orders it thinks fit in relation to a neighbourhood dispute.

(5) In this section, party means a party to a neighbourhood dispute being heard and determined by VCAT.

9 Penalty for breach of rule

If VCAT determines that a person has failed to comply with a rule of a company title corporation or service company relating to a neighbourhood matter that imposes a binding obligation on that person, VCAT may make an order imposing a civil penalty not exceeding $250.

Note

The penalties imposed under this section will be paid into the Victorian Property Fund.

10 Factors that VCAT must consider

VCAT, in making an order, must consider the following—

(a) the conduct of the parties;

(b) an act or omission or proposed act or omission by a party;

(c) the impact of a resolution or proposed resolution of a company title corporation or service company on the shareholders as a whole;



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(d) whether a resolution or proposed resolution of a company title corporation or service company is oppressive to, unfairly prejudicial to or unfairly discriminates against a shareholder or shareholders;

(e) any other matter VCAT thinks relevant.

11 Monetary orders

If VCAT makes an order under section 8 relating to the payment of money by a company title corporation or service company, it may by order—

(a) direct that any money (including expenses and costs) payable must be paid from contributions from the corporation's or company's shareholders levied in the proportions specified in the order; and

(b) direct the corporation or company to levy contributions in accordance with the order; and

(c) prohibit the corporation or company from levying a contribution from another party to the dispute.

12 More appropriate forum

(1) This section applies if a person—

(a) commences proceedings in a court; and

(b) the proceedings arise wholly from a neighbourhood dispute in respect of which VCAT has jurisdiction under this Act.

(2) The court must stay the proceedings if—

(a) the proceedings could be heard by VCAT under this Act; and



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(b) the court is satisfied that the proceedings would be more appropriately dealt with by VCAT.

(3) In determining whether proceedings would be more appropriately dealt with by VCAT, the court must consider—

(a) whether, having regard to the likely costs and duration of the proceedings and any other matters the court considers relevant, a party is reasonably likely to gain a material advantage if the proceedings are determined by VCAT; and

(b) whether that advantage is outweighed by a material disadvantage that would be reasonably likely to be suffered by another party if the proceedings were determined by VCAT.

(4) If proceedings are stayed under this section, any party to the proceedings may apply to VCAT for an order with respect to the dispute or matter on which the proceedings were based.

13 Rule or term of no effect if inconsistent with Act

A rule of a company title corporation or service company or a term of a service agreement is of no effect if—

(a) it is inconsistent with or limits a right or avoids an obligation under this Act; or

(b) it unfairly discriminates against a shareholder or an occupier of a unit.



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14 Displacement provisions

Sections 12 and 13 are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act.Note

Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

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PART 3—GENERAL

15 Court jurisdiction

Nothing in this Act is intended to prevent a court exercising jurisdiction conferred under the Corporations Act in relation to a dispute that relates to a neighbourhood matter.

16 Money to be paid to Victorian Property Fund

All penalties, including civil penalties, payable under this Act must be paid into the Victorian Property Fund established under the Estate Agents Act 1980.

17 Supreme Court—Limitation of jurisdiction

It is the intention of section 12 to alter or vary section 85 of the Constitution Act 1975.

18 Regulations

(1) The Governor in Council may make regulations for or with respect to providing for any matter that is authorised or required to be prescribed or necessary to be prescribed to carry out this Act.

(2) The regulations may—

(a) differ according to differences in time, place and circumstance; and

(b) leave any matter to be determined by the Director.

(3) The regulations may apply, adopt or incorporate any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether—

(a) wholly or partially or as amended by the regulations; or



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(b) as formulated, issued, prescribed or published at the time the regulations are made or at any time before then; or

(c) as formulated, issued, prescribed or published from time to time.

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PART 4—AMENDMENTS AND REPEAL

19 Estate Agents Act 1980

(1) In section 75(1) of the Estate Agents Act 1980—

(a) in paragraph (ea), after "administration of" insert "the Company Titles (Home Units) Act 2013,";

(b) in paragraph (f), after "duties under this Act" insert ", the Company Titles (Home Units) Act 2013".

(2) In section 76(3) of the Estate Agents Act 1980—

(a) after paragraph (a)(iv) insert—

"(iva) company title corporations and service companies;";

(b) after paragraph (d) insert—

"(da) dispute resolution and advocacy services in relation to neighbourhood disputes involving company title corporations and service companies;";

(c) after paragraph (e)(iii) insert—

"(iiia) company title corporations and service companies;".

(3) For section 76(4) of the Estate Agents Act 1980 substitute—

"(4) In subsection (3)—

(a) company title corporation, neighbourhood dispute and service company have the same meanings respectively as they have in the Company Titles (Home Units) Act 2013;

See:Act No.9428.Reprint No. 11as at1 April 2011and amendingAct Nos63/2010, 36/2011 and 21/2012.LawToday:www.legislation.vic.gov.au



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(b) occupier of a lot means an occupier of a lot within the meaning of the Owners Corporations Act 2006.".

20 Victorian Civil and Administrative Tribunal Act 1998

After Part 3 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert—

"PART 4—COMPANY TITLES (HOME UNITS) ACT 2013

6A Any member of Tribunal may make a declaration

Despite anything to the contrary in section 124, a declaration may be made in a proceeding under the Company Titles (Home Units) Act 2013 by the Tribunal constituted by any member.".

21 Repeal of Part 4

This Part is repealed on 1 December 2014.Note

The repeal of Part 4 does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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See:Act No.53/1998.Reprint No. 7as at1 January 2011and amendingAct Nos11/2010, 16/2010, 74/2010, 6/2012, 20/2012, 21/2012, 22/2012 and 27/2012.LawToday:www.legislation.vic.gov.au



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SCHEDULE

NEIGHBOURHOOD MATTERS

1 Health, safety and security

1.1 Health, safety and security of shareholders, occupiers of units and their invitees in units or on residual land.

1.2 Safety of children, including their exclusion from areas that may be unsafe for them or restricting activities that may be unsafe on land owned by the company title corporation or service company.

1.3 Storage of flammable liquids and other dangerous substances and materials in units or on residual land.

1.4 Waste disposal by a company title corporation or a service company.

2 Residual land

2.1 Use of residual land.

2.2 Use of equipment, services and amenities on residual land.

2.3 Parking on residual land.

2.4 Vehicle access to residual land and units.

2.5 Drying of laundry on residual land or external or visible areas of units.

2.6 Repair and maintenance of residual land.

2.7 Maintenance of services relating to residual land.

2.8 Damage to residual land (but not preventing the installation of insect screens or safety lock devices).

Sch.Part 1—Preliminary


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2.9 Deposit of rubbish and other material on residual land.

2.10 Metering of services and apportioning of costs of services relating to residual land.

3 Units—in building subdivisions or forming part of land owned by company title corporations

3.1 Change of use of units.

3.2 External appearance of units.

3.3 Requirements for notice to the company title corporation or service company of renovations to units.

3.4 Times within which renovation work on units can be carried out.

3.5 Keeping animals or birds in units or on residual land.

3.6 Metering of services and apportioning of costs of services relating to units.

3.7 Effect of repair and maintenance of units on the amenity of residual land or other units.

4 Units—forming part of land owned by company title corporations

4.1 Repair and maintenance of units.

4.2 Use of equipment, services and amenities in units forming part of land owned by a company title corporation.

4.3 Deposit of rubbish and other material in units forming part of land owned by a company title corporation.

4.4 Entry into units by an officer, employee or agent of a company title corporation.



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5 Design

Design, construction and landscaping of residual land or units.

6 Behaviour of persons

6.1 Behaviour of shareholders, occupiers of units and their invitees—

6.1.1 in a building subdivision, on residual land;

6.1.2 on land owned by a company title corporation containing units, in units or on residual land.

6.2 Noise and other nuisances caused by shareholders, occupiers of units and their invitees.

6.3 Compliance with nuisance control provisions contained in the rules of company title corporations and service companies and in service agreements.

7 Dispute resolution

Adequacy of dispute resolution procedures, including internal grievance procedures, hearing procedures and communication procedures.

8 Notices and documents

8.1 Provision of noticeboards and display of advertising.

8.2 Adequacy of provision of notices including, but not limited to, notices relating to fees and charges.

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ENDNOTES

1. General InformationMinister's second reading speech—

Legislative Assembly: 20 February 2013

Legislative Council: 21 March 2013

The long title for the Bill for this Act was "A Bill for an Act to confer additional jurisdiction on the Victorian Civil and Administrative Tribunal to hear and determine neighbourhood disputes affecting company title corporations and service companies for building subdivisions and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 20 February 2013

Legislative Council: 21 March 2013

Absolute majorities:

Legislative Assembly: 21 March 2013

Legislative Council: 18 April 2013

The Company Titles (Home Units) Act 2013 was assented to on 23 April 2013 and came into operation on 1 October 2013: Special Gazette (No. 337) 24 September 2013 page 1.

EndnotesPart 1—Preliminary


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2. Table of AmendmentsThere are no amendments made to the Company Titles (Home Units) Act 2013 by Acts and subordinate instruments.



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3. Explanatory DetailsNo entries at date of publication.



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