Rata Nui [2000] QBCCMCmr 104 (24 February 2000)

C G YOUNGREFERENCE: 0664-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10669
Name of Scheme:	Rata Nui
Address of Scheme:	26-28 Albatross Avenue MERMAID BEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate,

C G YOUNGI hereby order that the secretary of the body corporate, Marika Maselli of A & M Strata Administration, Suite 7 “Miami Central”, 2098 Gold Coast Highway, Miami Qld 4220, must have available by Monday 28 February 2000 the records of the body corporate, in a complete and accurate form, for collection by the applicant and current chairperson, Sandra Oakman, or her appointed agent. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0664-1999

“Rata Nui” CTS 10669

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

Dismissal of A.M. Strata Admin. As Body Corp Managers – appointment of Body Corporate Services in replacement.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

(a)	a claimed or anticipated contravention of the Act or the community management statement; or
(b)	the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
(c)	a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that A & M Strata Administration (representative Marika Maselli) had; failed to hold an annual general meeting within the statutory 3 month period from the end of the financial year; failed to issue committee nomination forms; failed to give notice of committee meetings or to give 7 days notice of meeting; lost the minutes for two committee meetings (11 June and 13 August 1999); failed to pay caretaker wages, failed to pay carpet layer, failed to pay intercom, resulting in threats of court action. The problems relating to payments stems from the inability of A & M Strata Administration (hereafter “A&M”)to provide current financial information on the body corporate accounts.

The chairperson has advised that she has contacted Ms Maselli of A&M many times and, despite assurances, and after many occasions when calls have not been returned, has been unable to retrieve the body corporate records.

The administration staff of this office has had similar problems in attempting to contact Ms Maselli. It was also found that she had not forwarded the notice inviting submissions to owners as required by this office. Following a number of undertakings that the records would be returned which were not honoured, Ms Maselli responded to a request for the undertaking to be given in writing. By letter dated 21 January 2000 she gave an undertaking to have the records ready for collection on 31 January 2000. This undertaking was not honoured.

In view of the delays in resolving this matter, on 21 February 2000 I telephoned A&M and spoke with Ms Maselli. I had recently spoken with her over a similar situation with regard to another scheme, also the subject of an application. She confirmed her previous statement that a key employee had been overseas for some time and this had caused delays in the administration of various bodies corporate. However she had now returned and Ms Masell gave a verbal undertaking that she would have the records of “Rata Nui” brought up to date as a priority, and that they would be ready for collection on Friday 25 February 2000. She also said that she wished to terminate the A & M contract with the body corporate

I have relayed the undertaking to the chairperson who regards it as acceptable.

On the basis of the undertaken given by Ms Maselli, I have made an order incorporating the undertaking but with an extension of an additional business day (to Monday 28) to ensure it can be complied with. The parties cannot now resile from the undertakings given – any failure to comply with the order can be prosecuted in the magistrates court under the provisions of section 235 of the Act for which a maximum penalty of 400 penalty points (in excess of $28,000) applies.

In regard to the appointment of Body Corporate Services Pty Ltd, an adjudicator does not have the power to appoint a Body Corporate Manager to a body corporate (except as an Administrator in an extreme situation). The engagement of an alternative Body Corporate Manager is a matter for the body corporate in general meeting to decide.