Commissioner Chris Irons: Dispute Resolution Application

Image: Mosaic Property Group – Habitat On Ashgrove

For anyone who has read these types of articles before or who has some knowledge of what my Office does, you might know that we are in the business of dispute resolution.

To be more specific, my Office has exclusive jurisdiction to resolve body corporate disputes – in other words, with the exception of some contractual matters, all body corporate disputes will get resolved in my Office.

If you happen to be in a situation where you have a body corporate dispute needing resolution, here are some basic yet essential points to bear in mind about how the experience might pan out.

Firstly, we provide a dispute resolution “service”.

This means that a party comes to us to initiate a process to resolve their dispute and only after they have attempted to do so themselves.

In this way, our “service” is quite distinct from other agencies in which there might be the capacity to lodge a complaint and have it investigated.

My Office does not have an investigative role.

Instead, at all times, the applicant is responsible for ‘making their case’ to my office. This includes making sure their application meets the requirements of legislation.

While this may seem an onerous task to some, it is necessary because the dispute resolution service we provide can result in orders which are both legally enforceable and appealable. In other words, it is essential that the prescribed requirements about an application are followed to ensure proper process and natural justice occurs.

It is also for these reasons that my Office must remain impartial and cannot provide legal advice. Instead my office might recommend that parties seek their own, legal advice if they are not sure about how, or if, to progress an application to my Office.

To assist a party with their application, my Office has a number of resources available. There is a guide to completing an application form, as well as a suite of Practice Directions. My Office publishes Practice Directions to provide guidance for a range of situations which arise in dispute resolution applications, as well as for particular kinds of applications.

I would strongly recommend that any party who may be in a position to access my Office’s dispute resolution service familiarise themselves with both the guide and Practice Directions.

Once an application is lodged, my Office undertakes a thorough case management of the application. Along with basic matters such as ensuring the application is signed and the application fee is paid, case managers assess the application for legislative compliance. Some of those compliance issues include:

  • Is the application within the jurisdiction of my Office?
  • Is there actually a “dispute” and have there been reasonable attempts at self-resolution?
  • Can the outcome sought actually occur – in other words, is it within the scope of my Office to conciliate or a matter on which an adjudicator to make an order upon?

This is not an exhaustive list and there may be a range of other matters for an applicant to consider.

My Office communicates these matters to applicants and invites the applicant to attend to those matters which might involve an amendment to their application or supplying further information.

It is not the role of my Office to advocate for the interests of one party over another and if matters start to appear complex or challenging, my Office is unable to advise or instruct. The applicant is responsible for their application.

A final point I would like to make is about the word “resolution”.

“Resolution” does not necessarily always mean that the applicant gets absolutely everything that they seek. Indeed, “resolution” can have several meanings, including an application being dismissed or rejected.

It can also mean that any time after an application is lodged, the parties are free to discuss the issues in dispute and come to their own resolution. Either party can make an offer to the other to settle the matter. If this occurs, the applicant is then free to withdraw the application. While it is not appropriate for my Office to be involved as a conduit amongst the parties to achieve this resolution, I am sure that most readers would agree that this is the ideal outcome.

For further information about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, or visit our website.

Author: Chris Irons, Commissioner for Body Corporate and Community Management