Community Titles Act 2018

If a termination proposal can proceed further only if the Tribunal confirms the termination resolution, the proponent of the proposal can apply to the Tribunal for that confirmation.

The application must be made within 28 days after the close of voting on the termination proposal or within an extension of that period given by the Tribunal.

The application must be accompanied by —

the full proposal for the termination of the community titles schemes; and

all written submissions made to the proponent about the termination proposal; and

any other material specified in the regulations.

For the State Administrative Tribunal Act 2004 section 45(1)(b), each community corporation in the community scheme is entitled to a copy of, or notice of, the application.

Each community corporation in the community scheme will be taken to be a party to the proceedings.

A community corporation must, within 14 days after being given notice of the application —

serve notice of the application on —

each owner, occupier or registered mortgagee of a lot in its community titles scheme; and

each occupier of common property in its community titles scheme; and

each person whom the Tribunal requires to be served with notice of the application;

if all or part of the tier parcel of the community titles scheme is or is included in a retirement village within the meaning of the Retirement Villages Act 1992 — serve notice of the application on the Commissioner within the meaning of that Act; and

provide the following to the Tribunal (which may then be released by the Tribunal to any person entitled to appear and be heard or to make submissions) —

in the case of the tier 1 corporation —

the record (as provided by the independent person who counted the votes) of each vote on the termination resolution, identifying the lot for which it was cast and the date on which it was cast, and a tally of the votes;

any community development statement in force;

minutes of all meetings of the community corporation or the council of the community corporation at which the termination proposal was considered;

all written submissions made to the community corporation about the termination proposal;

if its community titles scheme is proposed to be terminated — the scheme documents for the scheme;

anything else required by the regulations.

The tier 1 corporation must, within 14 days after being given notice of the application, lodge with the Registrar of Titles notice of the application in the approved form.

A person who is required to be served with notice of the application is entitled to appear and be heard or make written submissions to the Tribunal (as the Tribunal determines).

In proceedings for confirmation of a termination resolution, the Tribunal may —

make an order confirming the termination resolution (which may be subject to the termination proposal being modified in a specified manner as set out in subsection (14)); or

make a decision not to make such an order.

The Tribunal can only confirm a termination resolution if —

for a tier 2 scheme, each tier 3 scheme that belongs to the tier 2 scheme can be terminated; and

for a tier 1 scheme, each tier 2 scheme that belongs to the tier 1 scheme can be terminated; and

in any case, the proponent of the termination proposal satisfies the Tribunal that —

the process required by this Division has been complied with; and

under the termination proposal, the owner of a lot in a community titles scheme that is proposed to be terminated who does not support that termination will receive fair market value for the lot or a like for like exchange for the lot; and

the termination proposal is otherwise just and equitable having regard to —

the interests of the owners of the lots in the community scheme; and

the interests of the occupiers of the lots and the occupiers of the common property in the community scheme; and

the interests of registered mortgagees of the lots in the community scheme; and

the interests of any infrastructure owners; and

the interests of any other person with an estate or interest in, or right over, a lot or common property in the community scheme that is registered or recorded in the Register.

In determining under subsection (10)(c)(ii) whether an owner of a lot will receive fair market value for the lot —

the Tribunal must be satisfied that —

the owner will receive an amount that is at least the amount of compensation that would be required to be paid by an acquiring authority under the Land Administration Act 1997 for taking of the lot without agreement; and

the owner will not be disadvantaged in terms of the owner’s financial position as a result of the termination of the community titles scheme;

in considering the amount of compensation that would be payable under the Land Administration Act 1997 section 241 —

that section is to be read as if the owner of the lot were the claimant and the proponent of the termination proposal were the acquiring authority; and

no regard is to be had to any reference to proposed public works nor to the undertaking of improvements after there is a notice of intention; and

an amount appropriate to compensate for the taking without agreement may be added to the award or offer (but it may not be more than 10% of the amount otherwise awarded or offered unless the Tribunal is satisfied that exceptional circumstances justify a higher amount);

without limitation, regard is to be had to the loss or damage, if any, sustained by the owner by reason of any of the following —

removal expenses;

disruption and reinstatement of a business;

liability for capital gains tax, goods and services tax or other tax or duty;

conveyancing and legal costs and other costs associated with the creation or discharge of mortgages and other interests, including for the acquisition of a replacement property.

In determining under subsection (10)(c)(ii) whether an owner of a lot will receive a like for like exchange for the lot, the Tribunal must consider —

whether the value of what is offered in exchange is equivalent to the fair market value of the lot (as set out in subsection (11)); and

how the location, facilities and amenity of what is offered in exchange compares to that of the lot (including if the lot is proposed to be incorporated into another community titles scheme in the community scheme without a change in ownership).

Without limiting the factors that the Tribunal can take into account under subsection (10)(c)(iii), the Tribunal must consider the following —

any evidence of impropriety in the termination process, including, for example —

evidence of proxy votes being exercised invalidly or votes being affected by undue influence in connection with the termination resolution; and

evidence of false or misleading information (whether by inclusion or omission) having been included in the outline or the full proposal for the termination of the community titles schemes;

the proportion of owners of lots in favour of and against the termination proposal in terms of numbers of lots and unit entitlements of lots and in terms of each community titles scheme to be terminated and across the community scheme;

the termination infrastructure report and options reasonably available to address problems identified in the report (including the extent to which contributions would need to be increased for implementation of an option);

any arrangements for the owner of a lot in a community titles scheme that is to be terminated to buy back into the subdivided land following redevelopment;

the benefits and detriments of the termination proposal proceeding or not proceeding for all those whose interests must be taken into account in terms of each community titles scheme terminated, each community titles scheme not terminated and across the community scheme.

If the Tribunal is not satisfied of the matters set out in subsection (10)(c)(ii) or (iii) but would be satisfied of those matters if the termination proposal were modified in a specified manner, the Tribunal may confirm the termination resolution subject to the termination proposal being modified in the specified manner.

Without limitation, the modifications may include a requirement for the proponent to make a payment to a party to a lease or tenancy agreement over a lot or common property in a community titles scheme that will terminate as a consequence of the termination of the scheme.

The modifications must not have the effect of being less advantageous to any owner of a lot than the termination proposal without modification.

Subsection (16) does not apply to an owner of a lot in the capacity of a proponent of the termination proposal.

Without limiting other powers of the Tribunal to make ancillary orders, if the Tribunal makes an order confirming a termination resolution, it may also order that, on specified conditions connected with the termination being met —

the owner of a lot must execute a transfer of ownership of the lot; or

a person with an estate or interest in, or right over, the whole or a part of a tier parcel that is registered or recorded in the Register must take steps necessary for the discharge, withdrawal or other removal, or for the bringing forward, of the estate, interest or right; or

the occupier of a lot or the common property must vacate the lot or common property.

If the Tribunal orders a person under subsection (18)(b) to take steps for the discharge, withdrawal or removal of an estate, interest or right the Tribunal may order the proponent or the owner of a lot in the community titles scheme to make a payment to that person in respect of the discharge, withdrawal or removal of the estate, interest or right.

If the whole or part of the tier parcel of a community titles scheme is subject to a residential tenancy agreement within the meaning given in the Residential Tenancies Act 1987 section 3, the Tribunal may order that on the termination of the community titles scheme —

the tenant and the lessor must terminate the residential tenancy agreement under that Act; and

the premises subject to the residential tenancy agreement are taken for the purposes of section 69 of that Act to cease to be lawfully usable as a residence; and

if the tenant is given notice of termination under section 69 of that Act, then despite section 69(2) of that Act the period of notice must be not less than a period specified by the Tribunal; and

the proponent or the owner of a lot in the scheme is to make a payment to the tenant under the residential tenancy agreement in respect of the termination of the residential tenancy agreement.

If the whole or part of the tier parcel of a community titles scheme is subject to a retail shop lease within the meaning given in the Commercial Tenancy (Retail Shops) Agreements Act 1985 section 3(1), then despite anything in that Act the Tribunal may order that —

the retail shop lease is terminated on the termination of the community titles scheme; and

the proponent or the owner of a lot in the scheme is to make a payment to the tenant under the retail shop lease in respect of the termination of the retail shop lease.

If the whole or part of the tier parcel of a community titles scheme is subject to a lease or licence not referred to in subsection (20) or (21), the Tribunal may, subject to any other written law, order that —

the lease or licence is terminated on the termination of the community titles scheme; and

the proponent or the owner of a lot in the scheme is to make a payment to the lessee or licensee in respect of the termination of the lease or licence.

The Tribunal’s powers under this section are exercisable only by a judicial member (or by the Tribunal constituted of a judicial member and other members).

A community corporation must, as soon as practicable after being given notice of the decision of the Tribunal on an application under this section —

lodge with the Registrar of Titles notice of the decision in the approved form; and

give written notice of the decision to each person entitled to receive notice of the application.