The Tribunal’s power to make “any order it considers fair” is not unlimited

The Supreme Court has re-iterated that legislative provisions providing a broad power for VCAT to make orders as it sees fit do have their limitations.  The Tribunal can only apply a remedy if there is a separate legal right which can be identified enabling it to do so.  If the right is identified, the broad power provision to make orders enables wide remedies to be applied to exercise that right.

In relation to owners corporations, the limitation applies to s165 of the Owners Corporations Act 2006 which states that in determining an owners corporation dispute, the Tribunal “may make any order it considers fair”.

The issue was discussed in Energy Technology Australia Pty Ltd v Owners Corporation PS 439401J [2017] VSC 145. Continue reading

Correcting errors on the plan of subdivision to change the boundary between two private lots

ASA Nominees Pty Ltd v Owners Corporation PS 513436B and Adamopoulos [2016] VSC 562 arose from a surveyors error which occurred when lots in the plan of subdivision were re-subdivided.  An amended plan was registered which showed the boundary between two lots as located 3 metres to the west of the wall that was intended to form the boundary.  Continue reading

Special Rules – they might be made by the owners corporation but are they valid?

An owners corporation has the power to make special rules under s138 of the Owners Corporation Act through a special resolution.  Special rules are required to be lodged with the Registrar of Titles (s142 of the Act) and can therefore be found on the Register by prospective purchasers.

Importantly, making rules by special resolution and placing those rules on the Register does not mean those rules are necessarily valid.  Continue reading