Our Practice

Sometimes the best interests of a body corporate mean it must take action in the Commissioner’s office to:

• proactively protect its interests, or 
• to defend itself against a claim lodged by an owner against the body corporate. 

MHL are experts in acting for bodies corporate in the Commission. We can draft/ prepare, strategise and conduct any application or defence you need to make. Some successful examples include:
 

• compelling access to balconies to enable rectification works;
• compelling a recalcitrant body corporate manager to deliver books and records;
• establishing that a principal body corporate was not bound by by-laws to maintain the walkway of a subsidiary scheme;
• opposing owners’ claims for significant damages allegedly arising out of termite damage;
• contesting the validity of exclusive use grants to a caretaker;
• opposing exclusive use grants to a penthouse owner;
• opposing to a plan to force owners to install air conditioners in their units;
• opposing a developer’s use of its voting power to prevent interest being imposed on overdue levies (most of which were the developer’s levies);
• opposing a developer’s use of its voting power to alter administrative and sinking fund contributions without regard to the needs of the Body Corporate;
• opposing one owner’s efforts to ban hard flooring throughout the building;
• seeking orders that a body corporate rectify leaks and repair damage to common property and the owner’s property.

The assignment of caretaking and letting rights seems so simple – until it all blows up! 

So often, assignment deeds were very poorly drafted from the get-go or committees are faced with an incoming caretaker who might well be the wrong person for the job, or committees do not realise they have rights and due diligence to undertake- to protect their best interests when an assignment is to occur. A prudent committee will always seek legal advice as to assignment deeds. These deeds are legal documentation with serious, often long-term, implications for the scheme - and happily, the reasonable costs of an assignment are payable by the outgoing caretaker so advice is pretty-much risk free and very cost effective. No committee wants to be stuck with a bad caretaker governed by a bad assignment document which does not protect its best interests. 

Our highly experienced assignments team find that when we are involved, assignments usually proceed well and without significant issues. Why? Our expert involvement often pre-empts issues and when problems arise, we are there to help resolve them or to promptly assist in legally rejecting the appointment of an undesirable caretaker. 

Some of our recent examples include successfully rejecting a proposed caretaker where:

• a caretaker shareholder had a recent conviction for domestic violence;
• the caretaker purchase of a unit would contravene foreign investment laws;
• the caretaker planned to conduct another business from the premises; and
• the caretaker refused to agree to standard assignment clause.

Even where an assignment is suitable to proceed, MHL uses its experience to negotiate new or improved clauses to better protect the body corporate’s interests going forward. For example, committees may require an incoming caretaker to undergo ongoing training. 

Our team are highly experienced- they will do their absolute best for you.

MHL has extensive experience representing bodies corporate in construction and rectification-related matters. So often bodies corporate are left with incomplete works or unacceptable works (work poorly performed and /or wrong materials or poor application) which presents a headache as to inconvenience, cost, sometimes safety - and getting rectification performed.

We assist committees with:

• drafting contracts to ensure these problems have less chance of occurring in the first place;
• contractual advice;
• actions in the Queensland Building and Construction Commission (QBCC);
• negotiations with builders/developers and contractors; and
• clear and appropriate owner communications as to the legal position.

They key is to act swiftly- as soon as you become aware of a defect or contractual issue, come see us. for advice and a plan of action. Contractors will often respond to us as your lawyers when they will not properly respond to the committee. 

Worried how to manage pets within the law or what to do when people keep smoking on their balcony? MHL has an expert by-laws team. We have written thousands of by-laws and reviewed even more- to ensure legal compliance and efficacy. 

MHL is regularly retained to review and revise by-laws to deal with:

• new decisions (cases) from the Commissioner’s office;
• new legislation; 
• changes to the law affecting specific issues such as selling your building, pets or smoking; and
• new problems and opportunities.

We will draft specific new by-laws as required or provide an appraisal of the existing by-laws – and help you to implement them properly. And where needed we are experts in by-law enforcement- come see us if you have any issue with an owner or occupier who can’t seem to follow the community rules!  

Breach notices must comply with strict legal requirements. Unfortunately, many (often deserving) actions against caretakers have failed because of invalid or defective breach notices. 

If a caretaker is not performing its duties and the committee’s attempts to lift the caretaker’s performance have been unsuccessful, then a committee needs a sensible strategy to ensure that its breach notices are effective and enforceable. As the first step in any termination process, breach notices are technical and legalistic – and we strongly recommend that you include us in the strategy and the process. Usually, it is best that we draft the documentation to ensure that it is legally effective. 

MHL has drafted many breach notices and can advise and guide the committee in this tricky area. 

It is increasingly and disappointingly commonplace that - caretakers are failing to perform various duties, and worse, - requiring the body corporate to pay a third party to perform tasks that are included in the caretaking contract. 

MHL has extensive experience advising committees on every aspect of a caretaker’s contractual obligations and the committee’s options to improve or enforce positive performance. Unfortunately, despite the genuine efforts of a committee, a caretaker may be unwilling or unable to satisfactorily perform their duties. In these circumstances we can strategically advise the committee as to the often-tricky breach notice and termination process. 

If your committee is concerned as to your caretaker’s performance, then we recommend a meeting with MHL to discuss your options.  

Dr Kate runs our contracts law practice and she is a real expert. MHL has extensive experience in drafting and reviewing body corporate contractual documentation, such as construction contracts, services contracts, acquisition of goods and so on. 

Bodies corporate are responsible to ensure their legal documentation is legally compliant, appropriate and effective, containing all relevant safeguards. There are so many different types of contracts which are required- and we can do all of them. Your body corporate will also need many contractual documents reviewed to ensure they properly protect your interests. 

Some examples are: 

• caretaking agreements;
• letting agents’ agreements;
• security providers’ agreements;
• refurb/ painting and building rectification contracts – these are often worth millions of dollars;
• balcony, cladding and other rectification contracts;
• facility share agreements;
• telecommunications licenses;
• crane airspace deeds (and we make sure we get compensation for you for this); and
• much more.

MHL can draft, amend, audit, review and replace contracts documentation to ensure it properly protects the body corporate and meets your objectives. TALK TO US ABOUT YOUR NEEDS! 

Defamation occurs when a person ‘publishes’ a comment about another person that tends to lower the second person’s reputation. Unfortunately it is not uncommon in bodies corporate for defamatory comments to be made in meetings or by email. 

MHL has acted for many people who have been defamed or who have been accused of making defamatory comments. 

There are strict and short time limits for steps to be taken in a defamation action, so please do not delay seeking our advice if you have any concerns.  

Sometimes difficult situations arise where a body corporate is requested to spend significant funds to accommodate a person’s new or evolving needs as a result of a disability. This is a serious issue for any body corporate. 

MHL has advised schemes about discrimination claims and represented them when claims are made. The claims are tricky and technical- often the legal requirements seem unfair or technical to the layperson. Committees need advice on these asap. 

Please take any allegation of discrimination seriously and do not delay in seeking advice.  

MHL has represented bodies corporate in a variety of matters concerning exclusive use over areas such as storage areas, car spaces, roof tops, courtyards and restaurants. 

Recent cases include having exclusive use grants set aside, unreasonable opposition to grants overturned and preventing a grant of exclusive use to a penthouse owner.

This is a very important and potentially lucrative issue and we encourage every committee to pursue debts. 

MHL have long had an expert team who practise both practically and with dignity in this area- for over a decade. A body corporate must ensure that it is financially healthy by raising and collecting levies from lot owners. Unfortunately, there are times where owners are unable or unwilling to pay their levies, and these may amount to significant debts. MHL has an innovative debt recovery practice. 

We assist many bodies corporate to recover unpaid levies. Recent recoveries range from $1,000 all the way to over half a million dollars. We are efficient, proactive and tenacious at every stage – from letter of demand, through to settlement agreements and litigated recovery if necessary. But we focus on negotiated repayment – we find this is far more cost effective and dignified for both the scheme and owner – and that counts. 

But it takes diligence by your debt recovery team- and that’s what we do. Your body corporate manager may promote an alternate firm, and indeed, other firms may offer a slightly cheaper service initially to draw you in, but we confidently offer one that is professional, proactive, efficient and effective. 

We have a track record of achieving incredibly positive results and we genuinely do our best to recover debts outstanding in a focused but dignified and respectful way – and without wherever possible, incurring litigation costs. 

WARNING: Other firms may seem $$ cheap at first - as they have a determined view to taking matters to court and the large fees that follow. 

We don’t do this. 

What we do is send the letter of demand and then we agree immediate repayment or negotiate a dignified repayment schedule. We have had huge success with this measured courteous approach. Having said that, on the rare case where a debtor should be pursued in court, we do litigation with ease. 

Please speak to Peter Hunt to see what we can do for your body corporate in this important area. 

MHL has represented bodies corporate involving licences and contracts for:

• airspace rights and crane oversailing licences;
• pontoons/marina  berths;
• telecommunications;      
• recreation  clubs; 
• the construction of the Skywalk at Q1; 
• ground anchors & so on. 

As experienced lawyers with larger firm experience, we can offer high level advice, drafting and negotiation services to suit every license or contractual arrangement. Whatever the issue, the chances are that MHL will have advised on that issue or a similar one before.

As buildings age it is inevitable that major works will have to be undertaken to protect a building and to update its facilities. 

The contracts are increasingly for $ millions. Often, the project manager, engineer or contractor will provide the body corporate with an often proforma contract drafted in their best interests. Or a contract which is best described as NOT in the body corporate's best interests. 

We always recommend that a prudent committee should seek contracts advice to protect the interests of owners. It is important to understand the legal implications of contracts and to understand when amendments, insertions or changes - or even a fresh and ‘better’ contract - need to be made. MHL has advised bodies corporate in respect of major contracts including for example:

• major renovations and refurbishments; 
• concrete rectification; 
• pool refurbishments; 
• painting contracts; 
• balcony/balustrade replacements; 
• window replacements;
• waterproofing;      
• major rooftop works; 
• building rectification; and 
• everything else that may require works!

When a caretaker seeks a remuneration review the process is rarely straightforward. 

Among the problems we have encountered are that: the relevant clause is so poorly worded that it is difficult to implement or it may even be invalid; or the time for the review may have passed, or the remuneration review process is flawed. Remuneration reviews often result in an increase in the caretaker’s remuneration and that means an increase in levies. 

Committees should protect themselves from criticism, and the owners from unnecessary increases in levies, by seeking legal advice on every review. 

MHL has significant experience in remuneration reviews and can assist with any query about the processes. 

MHL has represented bodies corporate in matters involving security service providers, pool services, gardening services, caretaking services and so on. 

A prudent committee properly documents the costs, the deal and the performance requirements as to these contractors. 

Many buildings are known by a name other than their actual a street address, and the use of that name can be a source of dispute between the caretaker/letting agent and offsite agents.  A Body Corporate or an offsite letting agent can therefore find itself involved in such a dispute. 

MHL has advised bodies corporate as to their rights to use and protect trademarks. Prominent disputes we have worked on have involved Q1 and Circle on Cavill. 

We strongly recommend that anyone who is alleged to have infringed a trade mark or experienced trade mark infringement seeks advice without delay.

It is very common for a caretaker/letting agent to seek to increase the potential term of their agreement by adding an option, in order to increase their security of tenure or to maximise the value of the agreement for a forthcoming sale. 

Variations are not straightforward. A committee should seek legal advice as the body corporate is being requested to execute legal documents (usually) prepared by a lawyer and which often affect existing agreements. 

MHL reviews hundreds if not thousands of variations each year, providing clear explanations as to content and recommendations as to risks. We work with our instructing committee to ensure that any variation is in acceptable form and in the best interests of the body corporate. 

Recent experience shows that it is becoming increasingly common that an under-performing caretaker will allege bullying by the Committee or Chair- when legitimately being requested to perform their job. 

MHL is advising several bodies corporate taken to the Fair Work Commission – and has taken matters on appeal to the Full Bench of the Fair Work Commission. 

We strongly and diligently resist any such allegation where the facts back up that defence.