Div 2ADelegations by strata corporation

Division 2A—Delegations by strata corporation 27A—Delegation of corporation's functions and powers (1) A strata corporation may delegate any of its functions and powers (except this power of delegation) to a member or employee of the corporation. (2) A strata corporation may delegate the following functions and powers to any person: (a) the receipt and holding of money and other personal property on behalf of the corporation; (b) payment of money on behalf of the corporation; (c) the preparation of statements of expenditure and proposed expenditure and statements of accounts; (d) the collection of money due to the corporation; (e) entering into contracts of insurance with insurers on behalf of the corporation; (f) maintaining and keeping records on behalf of the corporation; (g) issuing and signing notices on behalf of the corporation; (h) preparing minutes of meetings of the corporation; (i) providing information as required by the Act on behalf of the corporation; (j) investing money on behalf of the corporation; (k) arranging for the maintenance and repair of the common property on behalf of the corporation. (3) A delegation by a strata corporation is to be made by ordinary resolution of the strata corporation. (4) However, a strata corporation cannot delegate a function or power under subsection (1) or (2) if the function or power is of a kind that can only be performed or exercised by the corporation by passing a special or unanimous resolution. (5) A delegation by a strata corporation— (a) may be absolute or conditional; and (b) does not derogate from the power of the corporation to act in any matter; and (c) is— (i) in a case where there is a contract relating to the delegation between the corporation and a body corporate manager—revoked on termination or expiry of the contract; or (ii) in any other case—revocable by the corporation at any time by notice given in writing (notwithstanding any agreement to the contrary by the corporation). 27B—Body corporate managers (1) This section applies to a delegation of functions or powers by a strata corporation if— (a) the delegation is made to a person (the body corporate manager) who carries on a business, or is an employee in a business, that consists of, or includes, acting as a delegate of strata corporations or of community corporations under the Community Titles Act 1996; and (b) the delegation is made after the commencement of this section or a contract, between the body corporate manager and the corporation, relating to the delegation is made, renewed or extended after the commencement of this section; and (c) it is proposed that the body corporate manager be remunerated in respect of work performed in exercising the delegated functions or powers. (2) A body corporate manager is only entitled to receive remuneration in respect of work performed in exercising functions or powers under a delegation to which this section applies if— (a) the body corporate manager and the strata corporation enter into a contract in compliance with subsections (3) and (8); and (b) the body corporate manager, prior to entering into the contract referred to in paragraph (a), provided the strata corporation with documents of a kind prescribed by regulation verifying the body corporate manager's entitlement to act as a body corporate manager and any other prescribed matter; and (c) the body corporate manager, whilst performing such work, maintains professional indemnity insurance complying with the requirements prescribed by the regulations, (and if a body corporate manager has received, from a strata corporation, remuneration to which he or she is not entitled under this subsection, the strata corporation may recover the amount of the remuneration as a debt). (3) The contract must— (a) be in writing; and (b) specify the term of the contract; and (c) set out the functions or powers to be delegated; and (d) specify the rights of the strata corporation under subsection (4); and (e) set out the remuneration payable to the body corporate manager in respect of the work performed in exercising the delegated functions or powers, or set out the basis on which such remuneration is to be calculated; and (f) contain any other particulars required by the regulations; and (g) have annexed to it a copy of each document provided by the body corporate manager in accordance with subsection (2)(b). (4) Where— (a) there is a contract (other than a contract that is for a period of 12 months or less) in force between a strata corporation and a body corporate manager; and (b) the strata corporation has had relevant contractual arrangements with the body corporate manager for a continuous period of at least 12 months, the strata corporation may terminate the contract by written notice given to the body corporate manager at least 28 days (or a lesser period specified in the contract) before the termination of the contract is to come into effect. (5) For the purposes of subsection (4)(a), the period of a contract is the term of the contract disregarding any renewal period that may occur at the end of that term unless the renewal occurs at the option of the body corporate manager (in which case the period of the contract will be taken to include the period of the renewal). (6) The right of a strata corporation to terminate a contract under subsection (4) is in addition to, and does not derogate from, any other right of the strata corporation to terminate the contract. (7) A decision to terminate a contract in accordance with subsection (4) is to be made by ordinary resolution of the strata corporation. (8) The body corporate manager must ensure that a copy of the contract, and any other prescribed information or document of a kind prescribed by regulation is available for inspection by unit holders at least 5 clear days before the date of the meeting at which the corporation is to consider whether or not to enter into the contract. (9) The body corporate manager must, at the request of any member of the corporation, make a copy of the body corporate manager's policy of professional indemnity insurance available for inspection and copying by the member within 3 business days of the request. (10) The Minister may, by notice in the Gazette, exempt body corporate managers from compliance with subsection (2)(c) for such period as the Minister thinks fit. (11) An exemption granted by the Minister under subsection (10)— (a) may be subject to conditions specified in the notice of exemption; and (b) may be varied or revoked by the Minister at any time by subsequent notice in the Gazette. (12) In this section— relevant contractual arrangements mean contractual arrangements relating to a delegation of functions or powers by a strata corporation to a body corporate manager. 27C—General duties (1) For the avoidance of doubt— (a) the body corporate manager stands in a fiduciary relationship with the strata corporation; and (b) the duties owed by the body corporate manager under this Act are in addition to, and do not derogate from, the duties arising out of that fiduciary relationship. (2) Without derogating from subsection (1), a body corporate manager— (a) must act honestly and in good faith in the performance of the manager's functions; and (b) must exercise due care and diligence in the performance of the manager's functions; and (c) must not make improper use of the manager's position to gain, directly or indirectly, an advantage personally or for any other person. 27D—Offences (1) A delegate of a strata corporation who has a direct or indirect pecuniary interest in a matter in relation to which he or she proposes to perform delegated functions or powers must disclose the nature of the interest, in writing, to the corporation before performing the functions or powers. Example— For example, if the delegate would receive a commission from a person for placing business of the strata corporation with that person, it would be an offence to fail to disclose that fact before placing business with the person. Similarly, if the delegate were to profit by placing business of the strata corporation with a related body corporate, it would be an offence to fail to disclose that fact before placing business with the related body corporate. (2) If an employee or agent of a delegate has a direct or indirect pecuniary interest in a matter, the delegate is, for the purposes of subsection (1), taken to have a direct or indirect pecuniary interest in the matter. (3) A delegate who is a unit holder is not obliged by subsection (1) to disclose an interest that he or she has in common with all of the unit holders. (4) It is a defence to a charge of an offence against subsection (1) for the defendant to prove that he or she did not know and could not reasonably have been expected to know of his or her interest in the matter. (5) A delegate of a strata corporation must, on application by a unit holder, provide the applicant, on a quarterly basis, with a statement setting out details of dealings by the delegate with the corporation's money (and must continue to so provide the statements until the applicant ceases to be a unit holder or revokes the application). Maximum penalty: $500. (6) If all delegations by a strata corporation to a delegate are revoked, the delegate must return to, or make available for collection by, the corporation— (a) all records of the corporation held by the delegate; and (b) all trust money held pursuant to the delegations, in accordance with any requirements prescribed by the regulations. (7) A delegate of a strata corporation who holds records of the corporation must, at the request of any unit holder— (a) make those records available for the unit holder to inspect within 10 business days of the request; and (b) provide the unit holder with a copy of any of the records on payment of a fee (not exceeding a fee calculated in accordance with the regulations). Division 3—Special powers of strata corporation to maintain the integrity of the strata scheme 28—Power to enforce duties of maintenance and repair (1) A strata corporation may, by notice in writing to a unit holder, require the unit holder— (a) to carry out specified work in pursuance of a duty of maintenance or repair imposed on the unit holder by the articles; (b) to carry out specified work to remedy a breach of this Act or the articles on the part of the unit holder, a former unit holder, or an occupier or former occupier of the unit; (c) to carry out specified work required to be carried out on the unit by a public authority or council. (2) If the unit holder does not comply with a requirement imposed under this section within the time allowed in the notice, a person or persons authorised by the strata corporation may (using such force as may be reasonably necessary in the circumstances) enter the unit and carry out the specified work. (3) A power of entry must not be exercised under subsection (2) unless the unit holder and the occupier of the unit have been given at least 2 days notice in writing of the proposed entry. (3a) Despite any other provision of this section, an officer of a strata corporation or a person or persons authorised by a strata corporation may, if satisfied that urgent action is necessary to avert a risk of death or injury or significant damage to property, enter a unit (using such force as may be reasonably necessary in the circumstances) and carry out such work as is reasonably necessary to deal with the risk. (3b) A person proposing to enter a unit in accordance with subsection (3a) must give such notice (if any) to the unit holder and the occupier of the unit as he or she considers reasonable in the circumstances. (4) Any cost reasonably incurred by the strata corporation in having work carried out under this section may be recovered as a debt from the unit holder. (5) Where— (a) the strata corporation recovers costs from a unit holder under subsection (4); and (b) the circumstances out of which the work was required are attributable to the act or default of another person, the unit holder may in turn recover those costs from that other person as a debt. 29—Alterations and additions (1) Subject to subsection (1a), a person must not carry out prescribed work in relation to a unit unless the person is authorised to do so— (a) where all of the units comprised in the strata scheme consist of non-residential premises—under the articles of the strata corporation; or (b) in any case—by special resolution of the strata corporation. (1a) Subsection (1) does not apply to— (a) prescribed work carried out in compliance with a direction under section 23 of the Housing Improvement Act 1940; or (b) prescribed work carried out on a unit in a strata scheme consisting only of 2 units if the work is approved development under the Planning, Development and Infrastructure Act 2016. (1b) Where a person carries out prescribed work referred to in subsection (1a)(b), the strata corporation may, by notice in writing to the owner of the unit, require the owner to carry out, within a reasonable period fixed in the notice, specified work to remedy any structural deficiency caused by the work. (2) Where a person acts in contravention of subsection (1), the strata corporation may, by notice in writing to the unit holder, require him or her to carry out, within a reasonable period fixed in the notice, specified work— (a) to remedy any structural deficiency caused by the work; or (b) to restore the unit to its previous state. (6) In this section— prescribed work in relation to a unit means— (a) the erection, alteration, demolition or removal of a building or structure; (b) the alteration of the external appearance of a building or structure. Division 4—Duty to insure 29A—Application of Division This Division does not apply to a strata corporation if all units comprised in the strata scheme are held by the same registered proprietor and no unit comprised in the strata scheme is subject to a contract for sale. 30—Duty to insure (1) A strata corporation must keep all buildings and building improvements on the site insured to their replacement value. (2) The replacement value of buildings and building improvements is the cost of their complete replacement including the cost of any necessary preliminary demolition work, any necessary surveying, architectural or engineering work and any other associated or incidental costs. (3) The insurance must be against— (a) risks of damage caused by events (other than subsidence) declared to be prescribed events in relation to home building insurance under Part 5 of the Insurance Contracts Act 1984 of the Commonwealth; and (b) risks against which insurance is required by the regulations. (4) Any money to which a strata corporation is entitled under a contract of insurance in relation to damage to buildings or building improvements must, subject to any contrary order of the Court, be applied by it in reinstating or repairing those buildings or building improvements. 31—Other insurance by strata corporation (1) A strata corporation must keep itself insured against liability in tort. (2) The insurance cover must be for at least $5 000 000 or such greater amount as the regulations may prescribe. (2a) A strata corporation (other than a corporation of a kind prescribed by regulation) must maintain fidelity guarantee insurance complying with the requirements prescribed by the regulations. (2b) The Minister may, by notice in the Gazette, exempt strata corporations from compliance with subsection (2a) for such period as the Minister thinks fit. (2c) An exemption granted by the Minister— (a) may be subject to conditions specified in the notice of exemption; and (b) may be varied or revoked by the Minister at any time by subsequent notice in the Gazette. (3) A strata corporation must keep itself insured against any other liability— (a) determined by special resolution of the corporation; or (b) prescribed by the regulations. 32—Right of unit holders etc to satisfy themselves as to insurance (1) A strata corporation must, within 5 business days after the making of a request by a unit holder, a mortgagee of a unit or a prospective purchaser or mortgagee of a unit, produce for inspection all current policies of insurance taken out by the corporation. (2) A request under subsection (1) may be addressed to the secretary.