Can a seller sue the body corporate for failing to provide a Form 33 on time

The remedy for a buyer that is not provided with a certificate before signing the contract (or explanatory statement where the seller is entitled to provide an explanatory statement setting out the reasons why the statement cannot be provided), is to terminate the contract at any time prior to settlement.

That could certainly detrimentally impact the seller in circumstances where:

1. the delay in entering the contract (due to the seller waiting on the body corporate to supply the certificate) causes the buyer to walk away; or
2. the absence of a certificate causes the buyer to terminate the contract before settlement.

Whilst the Body Corporate Community Management Act 1997 imposes a potential penalty of up to 20 penalty units ($3,336 as at 13 November 2025) for the body corporate failing to comply with the requirement to produce the certificate within five business days, such action, which is a private quasi-criminal complaint in the Magistrates Court, does not preclude any civil actions that might also be available to an aggrieved party – such as a seller that requested the certificate.

Accordingly, it is feasible that a seller could bring a claim for damages against a body corporate that fails to comply with its statutory obligations to produce the certificate in accordance with the legislated requirements.