Body Corporate Tips: Penalty Provisions

By October 30, 2018Legal Issues

Mosaic Property Group – Greenhills by Mosaic

If you’re in the penalty area and don’t know what to do with the ball, put it in the net and we’ll discuss the options later – Bob Paisley.

One of the little known or used options for dealing with offences under the Body Corporate and Community Management Act 1997 (BCCMA), is a proceeding for the imposition of a penalty. 

The foul

Let’s take section 288 (1) of the BCCMA, by way of example. It provides that a person who contravenes an adjudicator’s order (other than for the payment of an amount) commits an offence, with a maximum of 400 penalty units prescribed. The current value of a penalty unit is $130.55. Here, that is a maximum penalty of $52,220.

Taking the penalty

Section 42 of the Acts Interpretation Act 1954 (AIA) provides that, “Any person may take a proceeding for the imposition or enforcement of a penalty, or the making of a forfeiture order, under an Act”. However, section 4 of the AIA states that, “The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act”. In other words, in the absence of a provision constraining who may bring such a proceeding, any person is entitled to.

Going back to our example, section 288 (2) of the BCCMA sets out who may bring such a proceeding and it includes the applicant and respondent for the adjudicator’s order, as well as the body corporate.

Scoring from the penalty

Section 43 (2) of the AIA provides, “The court that imposes the penalty, or makes the forfeiture order, may order that not more than half of the amount recovered be paid to the party prosecuting”.

In other words, it is at the discretion of the court, to make an order for half of the penalty imposed to be paid to the person that brought the proceeding.

Returning to our example, it is possible for a court to make an order requiring a person who failed to comply with an adjudicator’s order to pay a penalty of up to $26,110 to the body corporate.

Full-time

In conclusion, this is another option to tackle non-compliance with an adjudicator’s order (and other contraventions of the BCCMA which have penalty provisions).

Author: Nicholsons Solicitors

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