Surfers Palms North [2000] QBCCMCmr 2 (6 January 2000)

C G YOUNGREFERENCE: 0557-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20846
Name of Scheme:	Surfers Palms North
Address of Scheme:	2 St Kevins Avenue BENOWA QLD 4217

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

Clive Ian MORRIS, the owner of Lot 53,

C G YOUNGI hereby order that the application for an order to terminate the caretaker agreement between the body corporate and Gordon and Monica LOVE, is dismissed. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0557-1999

“Surfers Palms North” CTS 20846

This is the final order to an application by Clive Morris of Lot 53 who has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

We believe that the caretaker/gardener (Mr Gordon Love) contract has been breached. We would like the contract to be dissolved as the current caretaker/gardener has not fulfilled his duties since the contract commenced.

Mr Love is also the current chairman of the body corporate committee. We believe there is a conflict of interest and he should be suspended from this position until this dispute is resolved.

The applicant also sought the following interim order of an adjudicator, quote -

The contract in dispute should not be sold (the contract and letting rights are currently on the market for sale) until the dispute is finalised,

and on 22 September 1999 the following Interim Order 557-99 was issued –

I hereby order that the application for an interim order to stop the assignment of the caretaking agreement until such time as a final order to the application is made, is dismissed.

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 also contain such ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In regard to the grounds and supporting evidence submitted by the applicant, in the sixth paragraph of page 2 of the “Statement of Adjudicator’s Reasons for Decision” (“the Reasons”) to the interim order, I said –

The evidence submitted in support of the grounds that the caretaker has not properly performed the duties required of him under the agreement, is largely general in nature, apart from the photographs which show the state of some gardens at one point in time. It might well be that the applicant is correct and the caretaker has not carried out his duties satisfactorily, but the material submitted does offer any qualitative evidence in support of that allegation.

In view of these remarks, I would have thought the applicant would have considered the need to provide further and better evidence in support of the order he is seeking. The legislation allows for an application to be amended to include such further information, but the applicant has chosen not to do so.

The applicant’s evidence against the caretaker consists of the following: six photographs showing a handful of detached fence palings and some overgrown landscape areas near the common property tennis court; general allegations that certain contracted duties have not been performed; and a copy of a notice served on the committee by 14 lot owners seeking answers to various questions of a financial nature including one concerning “Grounds and Gardens” duties of the caretaker. Four of those owners have subsequently written to the committee objecting to the applicant using the notice to support his application, stating that they were satisfied with the written response to their questions given by the Body Corporate Manager.

I reiterate the remarks made in my Reasons to the interim order that the applicant has supplied no qualitative evidence to substantiate his claims against the caretaker. I can only surmise that his failure to respond to those remarks is because he has nothing further to offer.

In the circumstances I see no point in the matter proceeding to specialist adjudication. As I stated in my Reasons, the course the applicant should take is to convince a sufficient number of his fellow owners that some action against the caretaker is warranted and proceed by way of a motion put before a general meeting. Any such action will, as I also pointed out, very likely draw a counter action from the caretaker and therefore owners need to act with care before proceeding and preferably with the benefit of legal advice.

In regard to the applicant’s submission that the caretaker should relinquish his position as chairperson, because the scheme has adopted the Accommodation Module regulations there is no bar to the caretaker occupying that position. However, section 32 of that module defines those instances where a member has a conflict of interest in respect of a matter before the committee which prohibits the member from voting on the matter.

For the above reasons I have dismissed the application