As you are aware, the 2017 decision of Mount Saint John Industrial Park CTS v Superior Stairs & Joinery Pty Ltd, precluded a body corporate from pursuing levies older than 2 years and 2 months under the limitation period set by s145(2) of the Body Corporate and Community Management (Standard Module) Regulation 2008. Section 145(2) states that “…If the amount of a contribution or contribution instalment has been outstanding for 2 years, the body corporate must, within 2 months from the end of the 2-year period, start proceedings to recover the amount…”
The decision was recently overturned by the Queensland Supreme Court in the decision of Body Corporate for Mount Saint John Industrial Park v Superior Stairs & Joinery Pty Ltd – .
The Court concluded that “…the purpose and effect of s145(2) of the Regulations is to compel a body corporate to bring a proceedings, rather than to impose a time limit, for the benefit of the defendant, upon any proceedings which a body corporate might see fit to commence.” The Court further stated that: “…Section 145(2) is engaged only where … an amount is owed, rather than where an amount is claimed to be owed. …It is yet more difficult to see the purpose of a limitation period being imposed where the defendant has no defence on the merits“.
Ultimately, it was held that s145(2) does not imply a limitation period.
Based on the above decision, a body corporate is no longer statute barred from pursuing levies older than 2 years and 2 months.
This article was written by Rebecca Jaffe, Partner and Rachel Doubleday, Paralegal.
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