QLD: Q&A Where do I Lodge Body Corporate Manager Complaints?

No. Depending on the way the management company is set up and the nature of the buildings, a manager could be running smoothly with a large number of buildings or terribly with a few.

Unfortunately, many managers are overloaded. Companies tend to want to get the maximum return for the salary dollar paid.

If your manager takes a long time to respond, doesn’t provide much assistance or always seems stressed out, this is probably a sign they are overloaded.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the May 2023 edition of The QLD Strata Magazine.

Question: What are Strata Software Migration fees? What is Strata Software Annual software subscription?

What are Strata Software Migration fees? What is Strata Software Annual software subscription? Do these fees have to feature in a Strata Management Agreement and are they compulsory?

Answer: In Queensland, many managing agencies do list additional fees for an annual software subscription.

It’s important to note that all body corporate agreements are a private agreement between the managing agency and the owners of each body corporate. Every agency will have different variations in how their agreement is written and applied and specific questions would have to be answered by that agency.

In Queensland, many managing agencies do list additional fees for an annual software subscription. Typically, this is a per lot fee reflecting costs charged by an external software provider for provision of a body corporate management system. Some companies, such as Tower, charge this at cost, while others apply cost plus a premium.

No fee is compulsory in the sense that no agreement is compulsory – body corporates can self-manage or find another agency – but if agencies are listing the fee as part of their agreement then they are probably intending to use the software in the management of your scheme. Owners can negotiate costs with managing agencies, but use of the system itself is likely to be baked into the agreement.

Migration fees are less common, although you might also see items in an agreement along the lines of ‘building set-up’. The fee likely exists to cover the costs of transferring the data of a building from one software provider to another. For example, in Queensland many managing agencies use StrataMax as their key software provider. If a Body Corporate changes from one agency using StrataMax to another using the same system, the data should migrate easily as most key details are already set-up. However, if the data has to be transferred between different systems, then a fee may be applied to reflect the volume of work to do this. Most owners won’t be aware, but setting up a new building can be quite a time consuming business depending on the quality and format of the records handed over.

One wider question may be whether software fees should be included in the base management fees offered by managing agencies? As indicated by the question, they tend to be known and fixed costs. The fact that they are not probably reflects their historical status as an add-on, where now they have become something permanent. It’s a small anomaly, but may not matter significantly provided owners check their agreements carefully to ensure they understand the costs in the agreement and what services are included and what are extra. Caveat emptor, buyer beware, applies as the rule here.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the November 2022 edition of The QLD Strata Magazine.

Question: Most body corporate management contracts have a clause that limits their liability to the body corporate or removes it altogether. Are clauses like this valid and where does a body corporate manager’s liability begin and end?

Answer: These clauses are generally valid to an extent.

A limitation of liability clause is a common clause that is contained in a body corporate manager’s administration agreement. These clauses are generally valid to an extent. Ultimately where it ends will depend on the precise wording of the clause which:

must be considered reasonable; and

cannot contract out of things such as negligence, fraud or misrepresentation.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the November 2022 edition of The QLD Strata Magazine.

Question: Who is responsible for the loss if the Strata Manager pays BC funds into a fraudulent bank account?

A contractor had his email account hacked and an invoice was sent by the fraudster to the building manager with the bank account details changed. The manager and treasurer approved the invoice for payment.

The committee are considering taking legal action against the strata manager for the loss. They claim the strata manager should have had controls in place to detect this and they should not have paid the fraudster. There is nothing in the strata managers agreement referring to this.

I am concerned that, not only would our scheme lose the case, but we would also be up for the legal costs of both the scheme and the strata manager on top of the loss.

Who should be responsible for the loss and should the strata manager bear some responsibility?

Answer: Resolving the law relevant to the factual scenario is complex because of the many issues involved.

This is a distressingly common sight, and becoming more common week by week. Resolving the law relevant to the factual scenario is complex because of the many issues involved. For example:

the contract between the Body Corporate and the contractor;

the contract between the Body Corporate and the strata manager;

consumer and banking laws and the policies and practices of banks and credit card providers;

the fiduciary relationship between a body corporate and it’s strata manager; and

the strata legislation.

Courts in Queensland have examined some of these issues but the combination of facts rarely come up the same, from case to case, not the least because of the speed with which the scams change and evolve. Claims for similar matters under the Australian Consumer Law have had some success, while claims in negligence for economic loss typically don’t succeed unless the relationship is one giving rise to a recognised duty of care; for example solicitor and client. Solicitors are commonly found to be liable in similar situations, and as a result are now subject to very strict obligations when dealing with client moneys.

It’s hard to see how a strata manager would have a significantly lower standard of care owed to their bodies corporate than a solicitor to their client. If the standard of care was reasonably similar, then the strata manager would have to verify the payment details before making the payment, using a separate and secure communications channel with the contractor.

Claims against solicitors are a useful comparison for two other reasons. First, there is usually an apportionment of loss between the parties at fault, based on how ‘at fault’ the court thinks they are. For example, the fraudster may be 80% liable and the solicitor 20% liable. Apportionment can easily turn a victory Pyrrhic if the claim amount is not large to begin with. What plaintiffs suing solicitors have the advantage of, however, is dealing with professional indemnity insurers keen to dispose of valid claims quickly and at least cost. Settlement without protracted litigation is the usual result.

It is common for strata managers to have professional indemnity insurance, or at least the larger or corporate ones usually do. Litigation should be a last resort but is often necessary where novel issues of liability arise. Costs are almost always a two way risk, because in most courts they ‘follow the event’. If you win, you can expect some of your costs back. If you lose, you can expect to have to pay some. Good advice before making the decision to litigate is the best protection for most bodies corporate.

Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280

This post appears in the October 2022 edition of The QLD Strata Magazine.

Question: Our strata manager does not conduct AGMs or respond to correspondence. How do we tackle the issues and improve their service?

My Strata manager does not appear to be conducting annual AGMs, and won’t respond to emails or phone calls requesting minutes of previous AGMs (or various other issues). I want to replace the manager but this seems impossible when I can’t even arrange a meeting or even communicate with them. What can I do?

Answer: If you are not getting reasonable responses, there are multiple avenues available to you.

Body corporate managers are a critical hub for information at your body corporate, but they are not the be all and end all of a scheme. If you are not getting reasonable responses, there are multiple avenues available to you depending why you think there is a lack of communication and what steps you want to take next. Try one or a combination of the following:

Review all information you can:

Can you go online to get information – most body corporates have a portal facility these days that holds information about your scheme. Check all of your past correspondence. Do you have contact details for Committee members or other owners you can contact? Does your manager have a secretary or are there other admin or finance staff at the body corporate who can be contacted? It is unusual that the manager would be the sole point of information for a scheme – reach out to others.

Make a complaint to the directors of the management company:

Most body corporates will have options for contacting company management either on their website or by phoning them directly. Outline what your issues are and see what response you get from the next level up. Maybe you could make a complaint online by leaving a review for the company on Google or Facebook – that tends to get people’s attention these days.

Arrange an inspection of the books and records:

All owners are entitled to inspect the books and records and it is a legal requirement that the company provides you with access within seven days once it has received your written request and fee. If necessary you could hire a body corporate searcher to do the work for you. All meeting notices should be available to you as part of a search.

Talk to other owners:

The Committee is probably the best place to start if you have their contact details. If you have any records from previous meetings you should be able to find out their names and lot numbers. If not, speak to other owners in your building. Are they having the same experience as you or do they have different or additional information. If other owners have the same experience it is likely they will want things to change as well.

Submit an owners motion to the Committee to review the situation:

If you do this the Committee has to call a meeting within six weeks or give you a reason why not. If the answer is unsatisfactory you can take the matter up with the Commissioner’s office. By submitting a motion, you can start forcing a dialogue of some kind.

Submit a motion for replacement of the manager:

This may be difficult if you don’t have any details about when their contract is coming up but you should receive an annual letter seeking submissions to the Committee and calling for motions. You can submit an owners motion at that stage.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the September 2022 edition of The QLD Strata Magazine.

Question: For a motion to consider a new body corporate manager, the committee submitted the wording of the agenda item and this was changed by the incumbent BCM before being distributed to all owners. Is the BCM in breach?

I am on the committee of a Body Corporate and we were asked by the Body Corporate Manager to vote outside of a committee meeting for an AGM agenda item.

The item was:

That the owners vote to keep the incumbent Body Corporate Manager as their preferred manager for a further 3 years.

The owners will vote for the incumbent BCM at a cost of $x per lot for administration fees and $x per lot for disbursements.

The owners will vote for Y Strata Management Company at $x per lot for administration fees and $x per lot for disbursements.

The committee voted for the latter.

What the incumbent BCM actually wrote in the AGM agenda that was sent to all owners was not what the committee agreed to.

They wrote –

The owners will vote for the incumbent BCM at a cost of $x per lot for administration fees.

The owners will vote for Y Strata Management Company at $x per lot for administration fees and $x per lot for disbursements.

Are the incumbent Body Corporate Managers in breach of Regulations, the Act or the agreement?

Answer: You could raise the matter with the Commissioner’s office, but there are more direct means of resolution at hand.

The motion to consider a new body corporate manager is usually a committee motion, unless an individual owner has submitted an individual proposal – that doesn’t seem to be the case here.

As such, the body corporate managers are required to list the proposal as the Committee has indicated.

From the information provided it seems like the Committee had a clear preference to list the contract of a competitor only, so it appears the incumbent was incorrect in listing their agreement for consideration as well. As a start point, I would just ask the incumbent why the motion has been presented in the way it has been and see what they say about why – at least give them the opportunity to advise and rectify.

The question asks whether the incumbent is in breach – maybe, but you would probably have to review all communications around the matter to determine this and even if it were it’s hard to say what might happen next. You could raise the matter with the Commissioner’s office, but there are more direct means of resolution at hand.

Firstly, you could let the meeting notice stand and let owners make a choice as presented. If they vote against the incumbent, the Committee’s objective is achieved anyway. To make matters clearer you could also write to all owners advising them of the situation and why the Committee wants to make a change. You may want to make explicit the full costs so that owners know the basis they are voting on. If owners vote to keep the incumbent then maybe that is what they want and the Committee should be happy with that.

If you thank that too much time has passed since the issuing of the notice, and that owners have voted on the basis of misinformation, the Committee would withdraw the motion. You would subsequently need to hold an EGM to rerun the appointment motion – you could ask the incumbent to pay for this as they made the error in presenting the motion incorrectly.

In a similar vein, the motion could be ruled out of order either at the meeting itself on the grounds that incorrect information was provided. Again, an EGM would be required after this.

The key thing to remember is that it is a meeting for owners, not the body corporate manager. If owners are unhappy with the presentation of the notice you have the right to correct that if you feel it necessary.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #586.

Question: Our strata manager does not pass on communications addressed to our secretary, such as motions, until the budget meeting. Should they be sharing communications with the committee when received?

We have a Committee and a Secretary. Should our Body Corporate Manager forward on all communication addressed to our building secretary? Our BCM states they act as a Secretary and they don’t have to inform us of owner motions submitted for the AGM until the budget meeting. When asked after our AGM deadline if any motions were submitted, they claim a motion was handed in to their office by an owner in person before the deadline. There is no electronic or mail trail that the motion was in fact submitted on time. The motion is to extend the Body Corporate Manager’s contract for another year.

Answer: The information the strata manager holds is your information.

Under most body corporate agreements the body corporate manager is delegated the authority of the secretary and the treasurer so they can act on behalf of the body corporate. However, the secretary is still the secretary, the treasurer is still the treasurer, and the body corporate manager is employed by the body corporate to assist them. The information they hold is your information. If you ask for some basic details like confirming motions and nominations received, there is no reason not to supply this in a reasonable timeframe. The idea that it is only provided at the budget meeting is a nonsense.

As for a motion that was delivered by hand – well, it is possible for this to happen but I think most offices would also look to scan that motion in to keep a record of receipt and that would be date stamped automatically so there are other ways to verify this. You could also contact the owner who submitted the motion to ask them to confirm the date.

In terms of the reappointment of the manager. If an owner has made a submission to reappoint them, that is their right. Provided the motion was submitted on time, the motion has to be listed. However, the Committee can still submit its own motions after the deadline for individual submissions. So, if you want to look at an alternative to your current managers, there should still be ample opportunity to do this. The committee also has the right to communicate their opinion on the managers to owners either in letters in advance or on the meeting notice so that they are aware of how the relationship stands.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #575.

Question: Our Body Corporate Manager has charged each lot owner $45 for an email for a ‘Duty of Care Obligation’ email advising of the 1 Jan 2022 Smoke Alarm legislation. Does a strata manager have the authority to levy such fees?

Answer: Even if the terms of their agreement permit this, it seems unusual that a managing agency would unilaterally take this action and bill for it.

Even if they are permitted by the terms of their agreement with the body corporate, it seems unusual that a managing agency would unilaterally take this action and bill for it.

However, it’s important to make sure you have as many facts as possible to determine what your next step might be, or if one is required.

You ask whether the manager has the authority to levy fees such as this? Maybe, it depends on the agreement the body corporate has with them. If you don’t have a copy of the agreement you can ask the manager to supply one – it may also be available through the online portal if you have one. You can also ask the manager to identify the section that permits them to make this charge. It’s a red flag if they can’t or won’t do this.

The other key question is whether the notice was sent out at the direction of, or with the permission of, the Committee.

If so, then a charge of some kind seems justified – typically body corporate managers will charge for following up on lawful requests by the committee as per the terms of their agreement.

If not, then I’m not sure about the rationale of a ‘duty of care obligation’. Advising owners of a change to the smoke alarm legislation may be useful, but there is no requirement to send this out. I’m not aware of any general direction from strata professional bodies that managers should send this information out. ‘Duty of care’ can be a wide umbrella, but this seems like a stretch given the charge applied.

For the fee, is it $45 total for the complex or $45 for each lot? Is the fee being charged to the body corporate or individual lots? You say the fee is charged to each lot but I would recommend double checking this as it seems odd. We can’t see the communication, but presumably, it would be just one generic letter emailed and posted to each lot. It couldn’t have taken long to write or send so how has the fee been calculated?

There are a lot of valid questions there that aren’t answered by the blanket response you have received. As a next step, I would suggest raising the matter with the Committee and proceeding from there.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #549.

Question: Can our Body Corporate Manager authorise the expenditure of body corporate funds without committee or body corporate approval?

Our Body Corporate Manager (BCM) has authorised expenditure of body corporate funds without knowledge or approval of our committee or the body corporate via either a committee or general meeting motion.

Specifically, they engaged a fire services contractor to undertake an audit of the body corporate fire equipment for $220. A subsequent $1770 quotation for alleged remedial work was then provided for approval. At this point, the committee became aware and refused the quotation but not before a further unauthorised periodic inspection costing $451.

The body corporate committee chairperson rang the fire service provider and was advised that approval was given by the BCM manager who was concerned in general with the low standard of fire service inspections of his body corporate clients. Since early December the committee has been trying unsuccessfully to get the BCM to provide an explanation. An unspecified refund has been offered. My questions are:

Given the above circumstances can the BCM unilaterally authorise the expenditure of body corporate funds without committee or body corporate approval? and

if not then how can the BCM be held accountable now and going forward?

Note: The body corporate already has a fire service inspection provider to do inspections.

Answer: The fact that your management agency has offered you a refund stands as an acknowledgement that their process has gone wrong at some point.

William Marquand, Tower Body Corporate:

The limits of the body corporate manager’s power are established by the legislation, by the agreement your scheme has with the appointed managing agency and any relevant decisions made at general or committee meetings. You would probably need to review the agreement and last AGM and Committee meeting minutes to check if the body corporate manager had any mandate to act as they did. However, the fact that your management agency has offered you a refund, albeit without explanation, stands as an acknowledgement that their process has gone wrong at some point.

It’s really difficult to understand why the body corporate manager would take this kind of unilateral action. If they have concerns about fire safety in the properties they manage that is reasonable and they are entitled to raise the issue with the Committee, perhaps even mandating that continued management is dependent on improved standards. However, that is a long way from independently arranging inspections without prior agreement. And that’s before even asking why they would do this when your scheme already has an appointed fire contractor.

You ask how the body corporate manager can be held responsible moving forward. There are a number of different avenues here, but as a start point, I think you are entitled to an explanation from the principal of the managing agency as to what has happened and a demonstration of why it won’t happen again. In the best-case scenario, it is possible that the body corporate manager has made an honest mistake in trying to make sure fire safety at your site is up to date. If that is the case then it should be possible to explain that. If they believe they acted within their authority, then they could explain that. If they just got it wrong, then an apology would probably go a long way.

If that is to your satisfaction, you could look at making a complaint against the agency either at the Commissioner’s office or, if the agents are members, through Strata Community Australia. If either of those bodies viewed the matter seriously enough the agency should be censured. Most likely, you need to determine if this action has irreparably broken your trust in the agency. In that case, you could look at changing body corporate managers. You can seek quotes from alternative companies and put them before the body corporate for consideration.

There is also a question here about whether the actions of the manager can be viewed as a breach of the body corporate’s agreement with them. If you think the matter is serious enough then you might want to seek the advice of a strata solicitor.

Chris Irons, Strata Solve:

I think Will’s comments are pretty much on the money.

Not that I’m ‘on the side’ of the manager, but do you think it is possible the manager had the best possible intentions – altruistic ones at that – in doing what they did? Perhaps the manager has seen too many instances of fire safety being overlooked. Or, perhaps they even have been exposed to the worst possible outcome of fire safety and thought, “I’m not letting that happen again on my watch”.

If any of the above is true (and I don’t know if it is or not) then you can at least understand what has happened, without necessarily liking it. In terms of the questions you ask, the answer to the first one is “no”. For your second question, I’m going to answer it with another question: what do you want to have happened here? What does “accountable” look like to you? If the body corporate got refunded the unauthorised expenditure, would that be enough? Or do you want punishment? If it is the latter, then you’d need to, as Will suggests, seek legal advice and/or consider lodging a complaint with Strata Community Association (Qld), if the manager is a member.

I think the question you need to now be asking: has the relationship and trust with this manager broken down irretrievably, noting what I say above about intentions? The answer to that determines where you go from here.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #542.

Question: What is a reasonable timeframe for a Body Corporate Manager to respond to an email?

What is a reasonable timeframe for a Body Corporate Manager to respond to an email? It has been 2 weeks since I contacted them for an update on our 2020 AGM with no acknowledgment. It has been a week since the Body Corporate Secretary/Treasurer emailed them for the same thing.

Answer: This is a matter for each scheme and managing agency to determine when looking at service standards as part of your agreement.

Other than where there is a statutory requirement, such as to issue minutes, there is no fixed period fixed in the legislation by which body corporate managers must provide information. Rather, this is a matter for each scheme and managing agency to determine when looking at service standards as part of your agreement.

Those service standards can vary and be affected by numerous factors, but as a general rule of thumb routine questions shouldn’t take more than 2-3 days to receive a response of some kind. However, that response may be relatively neutral if the body corporate manager can’t provide a direct answer themselves.

If you are unhappy with the service standards you are receiving then the next step is probably to refer the matter to the appropriate manager of the company. If you don’t get a satisfactory response, you may need to look at nominating an alternative management agency when the time comes.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #520.

Question: As a secretary on our Committee, should the strata manager be copying all committee members into a private email correspondence?

I’m a secretary and a committee member.

I emailed my Strata Manager a general question about who can authorise outstanding invoices via a software app we use. The Strata Manager sent a link to Read through which was fine, however, he also chose to include other committee members into my email to which was only addressed to him.

Why did he include these other members? Is he allowed to do this? I understand all strata records are public records if owners ask for the communication and records however were his actions out of line or illegal even?

Answer: If an individual or committee has specific instructions for the strata manager they should make those clear so that the expectation can be met.

Each body corporate scheme has to work with its manager to determine how it wants to communicate. It is not always an easy balance to achieve and missteps will happen from time to time. If an individual or committee has specific instructions for the manager they should make those clear so that the expectation can be met.

In this case, it is difficult to see what the issue is with the body corporate manager cc’ing in the other members of the committee unless you have specifically requested that not happen. Presumably, the other committee members already had your email address so that is not a secret and the information in your request and the response doesn’t seem personal in anyway. The manager probably thinks they were being helpful in sending the information to the whole committee and likely wants to be seen as transparent and efficient – this doesn’t seem like a bad thing.

The fact that you are asking the question hints at some other level of mistrust either with the body corporate manager or the other committee members and you may want to consider why that is and how that can be changed rather than focusing what seems like a fairly routine correspondence intended to assist the committee.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #506.

Question: Is the Body Corporate Manager under any obligation to offer advice on what is the law and what is not when the matter is discussed at a committee meeting?

Answer: The Code of Conduct for body corporate managers states that they must have a good working knowledge and understanding of the Body Corporate Act relevant to their functions.

For the most part, body corporate managers aren’t qualified lawyers so they can’t offer specific legal advice. However, the Code of Conduct for body corporate managers states that they must have a good working knowledge and understanding of the Body Corporate Act relevant to their functions. As such they should be able to provide advice on the Act at committee meetings if asked to do so.

The question asks if there is an obligation to provide advice of this nature. There is no obligation as such, but also included in the Code of Conduct is a provision that states that they must act in the body corporates best interests unless it is unlawful to do so. If a committee is going down a wayward path, you would expect a responsible body corporate manager to provide some advice at that point.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #477.

Question: Who can I contact in Queensland regarding complaints about the services of our body corporate managers? Is there a Qld body corporate ombudsman?

Can you please advise me who I can contact regarding complaints about our body corporate managers in Queensland? Is there such a thing as a Qld body corporate ombudsman?

I am highly annoyed by the way our body corporate managers conduct business. I feel we are paying them for nothing, as their services are non-existent.

Answer: The committee might like to take the complaints up with the body corporate manager directly and give them a chance to respond.

I do think it is important to first ask yourself first if your complaint is realistic. What is it that you are not happy about? It may well be that that isn’t part of their contracted duties anyway, so there’s no point complaining that they aren’t doing it.

Different managers have different contractual arrangements and just because you think the manager should be doing something, doesn’t mean they are meant to be. Moreover, the thing that you are not happy with may well be something that is perfectly in line with the legislation and the manager is just doing their job. In other words, before you do anything else, stop and try to be very specific about what it is that is bothering you.

After that, you need to remember that the manager is contracted by the body corporate and that relationship is managed by the committee. A manager is generally not answerable to individual owners. So, you’d need to raise your concerns with the committee. The manager might be under specific instructions from the committee about how they perform their role.

The committee might like to take the complaints up with the manager directly and give them a chance to respond. It may well be something that can be easily resolved thereafter.

Body corporate managers in Queensland are not licensed and there is not an Ombudsman for them. If you’ve exhausted all the steps above and the manager is a member of the Strata Community Association, then you can potentially lodge a complaint with the organisation. I stress, however, that in order to do that, you will need to show that you’ve attempted to resolve the matter yourself in the first place, i.e., by the steps noted above.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #460.

Have a question about body corporate manager complaints in Queensland or something to add to the article? Leave a comment below.

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