Appointing an administrator to a body corporate
Look Up Strata
By Hynes Legal
25 October 2015
You have been fighting an uphill battle against the Body Corporate
(Board of Directors) in the Office of the Commissioner for Body
Corporate and Community Management (Commissioner’s Office) for what
feels like an eternity. Finally – you receive the Adjudicator’s Order.
Victory! Problem solved. Right? Not necessarily…
When the Body Corporate fails to comply with
The recent case of Body Corporate for Donnelly House CTS37465 v Shaw
 (Donnelly House Case) QDC 139 demonstrates how an Adjudicator’s
Order isn’t always enough to make a Body Corporate comply.
Donnelly family owned four of six lots (units)
In that case, the Donnelly family owned four of six lots in a Scheme
with Mr and Mrs Shaw owning one of the two remaining lots. The building
was structurally deficient which led to significant water leakage into
Mr and Mrs Shaws’ Lot.
Despite the Body Corporate’s legal obligation to rectify the building defects
on common property pursuant to section 152 of the Body Corporate and
Community Management Act 1997 (the Act), the Body Corporate failed
to do so.
Left with no other option, the Shaw’s made an application to the Commissioner’s Office for adjudication.
Two and a half years passed, the defects remained unrectified
Despite successfully obtaining an Adjudicator’s Order (in late 2012)
that the Body Corporate must promptly rectify the building’s defects,
the Body Corporate failed to do so. Two and a half years passed, the
defects remained unrectified and water continued to leak into the
Appointing an Administrator
When a Body Corporate fails to carry out its obligations pursuant to an
Adjudicator’s Order, the Act gives both Adjudicators and Magistrates
the power to appoint an Administrator to the Body Corporate. An
Administrator essentially steps into the shoes of the Body Corporate
and has the power to carry out the obligations the Body Corporate has
failed to perform.
In 2015 the Shaw’s successfully applied to the Magistrates Court for an
Administrator to be appointed to the Body Corporate to effect the
repairs to the building pursuant to the Adjudicator’s Order (the
Magistrates Court Order).
At the root of the Donnelly House Case was an appeal by the Body Corporate against the Magistrates Court Order.
The Appeal Judge upheld the decision of the Magistrates Court which now
provides us with clear guidance on the circumstances in which a Court
will appoint an Administrator to a Body Corporate.
Matters a Court will consider in determining whether to appoint an Administrator include:
• whether the affected Lot Owner is a minority Lot Owner;
• whether the affected Lot Owner has attempted to resolve the dispute;
• the period of time over which a Body Corporate has failed to comply with an
• factionalism or hostility between Lot Owners.
Appointment via Adjudicator vs Magistrates Court
The general rule of thumb is that if there is already an Order in place
compelling the Body Corporate to take particular action (and the Body
Corporate is failing to comply with that Order), then the appointment
of an Administrator should be sought in the Magistrates Court.
If, however, there is no Order in place, or the Order in place does not
place strict obligations on the Body Corporate, then the appointment of
an Administrator must be sought from the Commissioner’s Office by way
of an adjudication application.
Appointment is not only available to Lot (unit) Owners
There are other circumstances in which someone, aside from a Lot Owner,
may seek to have an administrator appointed to a Body Corporate.
For example, Body Corporates often engage external contractors to
perform works within the Scheme, whether it be for building works or
for provision of professional services. Unfortunately, in some
circumstances (just like any other customer) after the works are
completed the Body Corporate may fail to pay the bill.
In these circumstances, once an Order is obtained for payment of the
amount owing, the Order can be enforced by applying to the Magistrates
Court for the appointment of an Administrator. Once again, the
Administrator will step into the shoes of the Body Corporate, but this
time, for the purpose of utilising the Body Corporate’s bank accounts
to pay the amount owing or (if the accounts have insufficient funds)
strike the necessary levies against the lot owners to secure the funds
to pay the amount owing.
If you need assistance getting your Body Corporate to fulfil their
obligations or if you are a Body Corporate and the appointment of an
Administrator has been raised, we would be happy to help.
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