Privacy Policy

This Privacy Policy deals with the collection, security, use and disclosure of personal information gathered by Prudential Investment Company of Australia and its subsidiaries including those trading as Body Corporate Services Love Owners Corporations pursuant to the Privacy Act 1988 (Cth) and the ten National Privacy Principles set out in that Act.

Information provided by you to Love Owners Corporations will be used in a manner to ensure that Love Owners Corporations is able to fulfil all of its functions and duties under the various Strata Management Acts and associated regulations.

The kind of information that is collected may include your name, address, telephone number, email address. In certain circumstances, sensitive information relating to your health may also be collected.

Should personal information be obtained from a third party, we will take reasonable steps to ensure that you know:

(a) the identity of the third party and how to contact them;
(b) that you have the right to access the information;
(c) the purposes for collecting the information;
(d) whether the third party will disclose the information to other third parties;
(e) the law that requires that information to be collected; and
(f) the consequences (if any) if that information is not provided.

We may contract with a third party and they may require the disclosure of your information to fulfil their obligations to us. For instance, for bulk mail deliveries we may utilise the services of a mailing houses which requires the disclosure of your name and address. In those types of circumstances, we ensure that your personal information will only be used for the specific purpose for which it was provided.

If you do not provide this information or we are unable to gain the information from a third party we may not be able to deal with you, or provide you with our services efficiently. If ever we collect personal information, we do so for the purpose of establishing and maintaining our relationship with you and the reason for its collection will always be explained.

Nevertheless, personal information is usually used or disclosed only after having obtained your consent, either expressly or by implication or where we are entitled or required to. The information provided by you to Love Owners Corporations will be used to, for example:

(a) maintain the strata roll;
(b) obtain and update insurance policies;
(c) aid in identification of products and services which may be required by you;
(d) maintain our relationship with you; and
(e) comply with legislative and regulatory requirements.

We only collect sensitive information with your consent or when we are required to by law. Sensitive information is defined as being any information about a person’s racial or ethnic origin, political opinion, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, member of a trade union, sexual preferences or practices, criminal record or health information.

Love Owners Corporations Internet Privacy Policy

If you visit an unsecured area of our website (where you are not required to log on) to browse or download information, we will record the date and time of your visit, the page that you viewed, the path you followed to get there and the information, if any, that you downloaded. This information cannot be used to personally identify you. The information is used for statistical and maintenance purposes which aid with the continual evaluation of the website.

We take all reasonable steps to ensure that your information is properly protected from unauthorised access, disclosure or modification. Our security measures include, but are not limited to, encrypting the data sent from your computer to our server, firewalls and virus scanning tools. Any information so collected is stored on our server, which can only be accessed by our staff.

We do not use any information collected from our website to send unsolicited advertising material (SPAM) to your computer.

Other information may be collected when you apply for an online product, make a payment online or send us a query via email.

Online Purchase and Payment.

When purchasing online products or making a payment online, the information required by online forms may be collected, used or disclosed by us. The manner in which this may occur is explained on any such online forms.

When purchasing a product with a credit card, your credit card number is not stored and your information is not transferred over the internet to your card provider

January 15, 2020

Are Your Levies Recoverable? The Devil’s in the Detail

This article about recovering levies and the need for attention to detail after a recent VCAT case has been provided by Gary Bugden OAM, Bugden Allen Lawyers.


A recent decision of the Victorian Civil and Administrative Tribunal is a timely reminder about the need for attention to detail when imposing owner corporation or body corporate levies. We also look at the implication for NSW and Queensland after this decision.


In Owners Corporation No. SP034630W -v- Pekar [2019] VCAT 136 the owners corporation (“OC”) was unsuccessful in its efforts to recover $14,418.46 in outstanding fees (the Victorian equivalent of levies or contributions) because of technical non-compliance with their legislation.


The facts of the case were:


  • On 30 May 2018 the OC issued a fee notice for “arrears” of $11,031.31 and “interest on arrears” of $3,402.79, calculated to 1 July 2018 (“Fee Notice”).
  • The Fee Notice was addressed to “Mr I. and Mrs F. Pekar” and sent to the relevant address.
  • On 14 August 2018 the OC issued a final fee notice with an opening balance at 1 April 2017 of $11,504.12 and a closing balance (or total) of $14,418.46 (“Final Fee Notice”).
  • The Final Fee Notice was addressed to “Mrs Ida Pekar” and contained no explanation as to how the April 2017 balance was calculated.
  • “Mr I. and Mrs F. Pekar” do not exist, the lot owner being “Mrs Ida Pekar”, whose husband is Mr Fima Pekar.


The legislation

Section 31(1) of the Owners Corporations Act 2006 (Vic) (“OC Act”) requires a fee notice to be given to a lot owner in the approved form, setting out fees and charges due and payable by the lot owner to the OC. The fee notice must also state certain information relating to the lot owners’ obligation to pay, the interest that will be payable if there is no payment and how the fees and charges can be disputed (sec.31(2)).


Section 32(1) of the OC Act requires the OC to serve on the lot owner a final notice in the approved form if the money owing is not paid within 28 days of the date of the fee notice. Again, this final notice must set out certain prescribed information (sec. 32(2)).


The decision

The Tribunal Member held that:

  • The Fee Notice was not provided to the lot owner as required by section 31(1) of the OC Act.
  • Even if the Fee Notice had been sent to the lot owner (which it was not), it did not prove the balance of the amount brought forward (i.e. the lump sum amount of $11,031.31).
  • The Final Fee Notice was sent to the lot owner, but it was based on the Fee Notice which I have found does not comply with the Act. As a result, any application for an order requiring payment pursuant to the Final Fee Notice cannot succeed and will be dismissed.” (Vide paragraph 21 of the Member’s Reasons.)


The Lesson

Where the legislation governing the imposition and recovery of levies sets up processes, those processes must be strictly followed if the levies are to be recoverable. If the levies are not recoverable:


  • it may be necessary for them to be re-imposed on owners for future recovery action to be successful; and
  • there may be a risk of owners who previously paid the levies seeking to recover the funds they paid based on mistake.


Implications for NSW


The Strata Schemes Management Act 2015 sets the processes for contributions in NSW, including:


  • There must be a determination (i.e. resolution) of the amount of the contributions to be levied.
  • Except in the case of a special contribution, that determination must be based on estimates (i.e. a budget).
  • The determination of the estimates and the amounts to be levied must be made at the same meeting.
  • When the estimates are determined the owners corporation must have before it and take into account a statement of the existing financial situation of the strata scheme and an estimate of receipts and payments.
  • The contributions must be “levied” on the lot owners “by giving the lot owner written notice of the contribution payable” (vide sec. 83(1)).

Other requirements include –

  • Contributions must be based on unit entitlements
  • The levy notice must indicate the date when the contribution is due and payable
  • That date must be at least 30 days after the notice was given
  • Restriction on recovery action before the end of one month after the contribution becomes due and payable.


In the event that recovery action is contested by the lot owner, the owners corporation needs to be in a position to strictly prove that the various processes were duly undertaken. This may even extend to proving the content of the levy notice by producing an actual copy of the notice served (rather than a copy generated by a computerised management system using data drawn from the system’s database).


Implications for Queensland

The Body Corporate and Community Management (Standard Module) Regulation 2008 (which, as regards levies, is indicative of the content of the other Modules), sets the processes for contributions in Queensland, including in the case of annual contributions:


  • They must be fixed by an ordinary resolution of the annual general meeting
  • They must be fixed based on the budgets for the financial year
  • The number of instalments in which the contributions are to be paid must be decided
  • The dates on which instalments are payable must be fixed
  • The contributions must be levied by written notice to the owner of each lot at least 30 days before the payment is required
  • That notice must specify the 6 things set out in section 142(1) of the Module
  • That notice must be served on an owner at their address for service “or in the way directed by the owner”.


Again, in the event of contested recovery action, the body corporate needs to be in a position to strictly prove that those processes were properly undertaken. The availability of an exact copy of the levy notice is particularly important in Queensland because of the amount of information that is required on the notice. Reliance on computer generated historical copies, using data in a computerised management system, is not recommended in Queensland.


Conclusion

It is time to check your determination and levying processes for maintenance contributions, as well as the wording and content of your levy notices. In particular, do you keep an actual copy of the levy notice that was served on each lot owner? If you do, does it contain all the information it is required to contain? Was it served within any required timeframe? The list of questions goes on, so, good luck with your next levy collection!


Gary BugdenPartnerBugden Allen LawyersM: 0412 046 966E: gary@bugdenallenlawyers.com.au


This article does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

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