Riverglen Lodge [2000] QBCCMCmr 31 (27 January 2000)

P G DanielsREFERENCE: 0009-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9138
Name of Scheme:	Riverglen Lodge
Address of Scheme:	266 Stan Hill Drive CHEVRON ISLAND QLD 4217

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

Dr Janice Leona Hills the owner of lots 3 and 4,



P G DanielsI hereby order that the application for the following orders:

1.

An agreement from Mrs Westmore to allow me to continue running the Body Corporate which is the cheapest and most efficient way. I am happy to consult and inform on matters, as I have always done. Currently Hookers divide expenses between us and this has been done in differing and incorrect proportions.

2.	An order made on Mrs Westmore to pay moneys owed to the Body Corporate in outstanding fees i.e. $600 for the 1997-98 year.

3.	An undertaking from Mrs Westmore to reply to correspondence from me regarding the management of the Body Corporate affairs (e.g. the suggestion that we both needed to increase our per unit contribution, major maintenance needed on the property etc.)

4.	An agreement to some recompense for the duties I undertake. $250 per annum.

5.	An agreement to immediate clearing of guttering etc as required. Inspection and new quote required.

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0009-2000

“Riverglen Lodge” CTS 9138

The applicant, Dr Janice Leona Hills, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1. An agreement from Mrs Westmore to allow me to continue running the Body Corporate which is the cheapest and most efficient way. I am happy to consult and inform on matters, as I have always done. Currently Hookers divide expenses between us and this has been done in differing and incorrect proportions.

2. An order made on Mrs Westmore to pay moneys owed to the Body Corporate in outstanding fees i.e. $600 for the 1997-98 year.

3. An undertaking from Mrs Westmore to reply to correspondence from me regarding the management of the Body Corporate affairs (e.g. the suggestion that we both needed to increase our per unit contribution, major maintenance needed on the property etc.)

4. An agreement to some recompense for the duties I undertake. $250 per annum.

5. An agreement to immediate clearing of guttering etc as required. Inspection and new quote required.

Section 223(1) 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)).

I will deal with orders 1 and 4 together as they are related and the remainder of the orders separately.

Orders 1 and 2

It seems the applicant wants to be appointed as the Body Corporate Manager for the scheme and be paid $250 per annum for her work.

I am unable to make such an order. Sections 78 and 87 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) provide how a Body Corporate Manager may be appointed. These sections provide as follows:

ú

Form of engagement

78.(1) The engagement of a person as a body corporate manager or

service contractor is void if the engagement does not comply with the

requirements stated in subsection (2).

(2) The engagement must—

(a) be in writing; and

(b) state the term of the engagement (including when the term begins

and when it ends); and

(c) state the functions the body corporate manager or service

contractor is required or authorised to carry out; and

(d) state the basis on which payment for the body corporate

manager’s or service contractor’s services is to be worked out.

Examples of paragraph (d)—

1. A body corporate manager’s payment could be calculated on the basis of an

amount per lot.

2. A body corporate manager’s payment could include charges calculated on the

basis of a stated amount per telephone inquiry or a stated amount for attendance fees

for additional committee or general meetings.

(3) The engagement must not be in the form of a by-law.

ú

Authority to make engagement or give authorisation

87.(1) The body corporate may engage a person as a body corporate

manager or service contractor, or authorise a person as a letting agent, only

if—

(a) the engagement or authorisation is approved by ordinary

resolution of the body corporate;17 and

(b) the terms of the engagement or authorisation are included in the

material forwarded to members of the body corporate for the

general meeting that considers the motion to approve the

engagement or authorisation.

(2) If subsection (1) is not complied with, the engagement or

authorisation is void.

(3) A body corporate may agree to the amendment of an engagement or

authorisation mentioned in subsection (1) only if the amendment is

approved by ordinary resolution of the body corporate.

(4) If subsection (3) is not complied with, the amendment of the

engagement or authorisation is void.

17 If the cost of the engagement is more than the relevant limit for major spending

for the scheme, quotations may be required under section 104 (Quotes for major

spending).

I also refer the applicant to section 80 of the Regulation which provides as follows:

ú

Term of engagement of body corporate manager

80.(1) The term of the engagement of a person as a body corporate

manager (after allowing for any rights or options of extension or renewal)

must not be longer than 3 years.

(2) If the term purports to be longer than 3 years, it is taken to be 3 years.

As will be apparent from the above, the engagement of a Body Corporate Manager must be approved by ordinary resolution at a general meeting. The engagement must also comply with formal requirements of section 78 and 80.


Order 2 – Outstanding fees

An adjudicator does not have jurisdiction to order that an owner pay outstanding levies. An application will need to be brought in an appropriate Court or Tribunal.


Order 3 – Correspondence

It is, of course, highly desirable for owners in a Body Corporate to communicate effectively in respect of matters pertaining to the Body Corporate. This will tend to ensure the Body Corporate operates for the mutual benefit of all owners.

However, there is no legal obligation for an owner to respond to correspondence. I therefore cannot make an order as requested by the applicant.


Order 5 – Guttering

External guttering is part of the common property. It must be maintained by the Body Corporate pursuant to section 109(1) of the Regulation which provides as follows:

ú

Duties of body corporate about common property—Act, s 114

109.(1) The body corporate must maintain common property in good

condition, including, to the extent that common property is structural in

nature, in a structurally sound condition.

Normally, a Committee makes decisions about the maintenance of common property within the limits of its spending. The limits are provided by section 103 of the Regulation as the number of lots times $100. In this Body Corporate comprising of five lots, a Committee could resolve to spend up to $500. Where the amount proposed to be expended is greater than $500, the Body Corporate in general meeting must approve the expenditure.

I am informed by the applicant that there is no functioning Committee for this Body Corporate. Consequently, there is no elected Secretary who can call a Committee meeting or a general meeting of the Body Corporate.

It seems to me that the applicant needs to apply for an order to call and hold a general meeting of the Body Corporate at which the Body Corporate can determine whether to pass a resolution in respect of maintaining the guttering, whether to engage the applicant as a Body Corporate Manager and the election of a Committee. If possible, the applicant should obtain the consent of Ms Westmore in respect of the proposed meeting. If consent cannot be obtained, then the application can still be made but an order will not be made until Ms Westmore has been invited to make a submission in respect of the matter.

I am providing with these reasons copies of brochures produced by this office titled, “The body Corporate – An Introduction”, “General Meetings”, and “Maintenance Issues”. These brochures contain useful information about the operation of a Body Corporate. Parties should also be aware that this office operates an information line that assist persons with enquiries about Body Corporate matters. The number is 1800 060 119.

Submissions were not sought from Ms Westmore in respect of this application as I have determined that I do not have power to make the orders sought.

I dismiss the application.