Ocean Plaza Apartments [2000] QBCCMCmr 312 (29 June 2000)

RA MeekREFERENCE: 0125-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5879
Name of Scheme:	Ocean Plaza Apartments
Address of Scheme:	70-80 Marine Parade COOLANGATTA QLD 4225

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

Garry David Honour, the owner of lot 110



RA MeekI hereby order that the body corporate of Ocean Plaza Apartments shall immediately credit to the administrative contribution account of the owner of lot 110, Garry David Honour, the disputed amount of $469.32, such that the next administrative contribution owing for that lot shall be reduced by the disputed amount.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0125-2000

“Ocean Plaza Apartments” CTS 5879

The applicant Garry David Honour, the owner of lot 110, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking reimbursement of AUD $469.32 paid under protest, paid by international draft on 14 February 2000 for discount lost and interest charges applied subsequently.

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 do not intend to restate the applicant’s grounds, since they are lengthy and I consider that they are known to the respondent body corporate via the submission process. The body corporate has responded by submission opposing the application.

The basic facts of this dispute are very simple. The applicant received a notice of maintenance contributions dated 16 July 1999 and which was due on 1 September 1999. By letter dated 11 August 1999, the applicant instructed the body corporate manager to debit his visa card with the amount of the maintenance contribution. The body corporate states that its manager was not able to do this, and that subsequently, the payment was received after the due date of 1 September 1999. The applicant was then refused the discount, and incurred additional interest charges, totalling $469.32, which the applicant has paid under protest. The applicant requested the committee to waive these charges, and allow the discount, in the circumstances. This request was refused by the committee. What this application will determine is whether this refusal by the committee was reasonable.

In its submission, the body corporate states in part that –

Without notice from either SSKB or the bank Mr Honour forwarded his credit card details requesting SSKB debit his credit card for the next due payment. On receipt of this letter by SSKB it was forwarded to our bank’s processing centre. As the processing centre are not authorised to process manual card debits, they wrote to Mr Honour advising the same. The advice was not received by Mr Honour until after the payment due date and he subsequently remitted payment via an approved method, being overseas draft.

As the payment was not received until after the due date, the discount was lost, Mr Honour wrote to SSKB requesting the discount be allowed. As this is not a decision that SSKB can make, it was referred to the committee. The committee did not approve the discount being allowed.

I have considered the material provided as part of this application, and the submission of the body corporate in response. I intend to allow the application, and to order the body corporate to credit the disputed amount of $469.32 against the next maintenance contribution owing for the applicant’s lot.

I have come to this decision for the reason that, whilst there are several claims and counter claims by both parties, I consider that the applicant at all times acted in good faith in respect of this matter. In particular, the applicant attempted to pay the maintenance contribution for his lot almost 3 weeks before the due date. Moreover, there is certainly no suggestion by the body corporate that the applicant was attempting to delay payment of his maintenance contribution by selecting an invalid method of payment. Further, the body corporate manager did not refuse the method of payment selected outright. Rather the manager sent the letter of authorisation to its banker, clearly expecting that it might be accepted. I further conclude that in the event that the method of payment was not acceptable, the manager had an obligation to inform the applicant of this within the period before 1 September 1999. I consider that three weeks is a sufficient period of time to allow the manager to respond to the applicant regarding this matter, and advise that the method of payment was not acceptable. Moreover, there is no evidence before me that the applicant was routinely late with payment of maintenance contributions.

The body corporate has a duty to act reasonably. This includes the committee. I conclude that in refusing to allow the applicant the discount, and further in charging interest on the overdue maintenance contribution, the body corporate committee acted unreasonably, and failed to take proper account of the circumstances. For this reason, the applicant is entitled to succeed. However rather than order the body corporate to reimburse the disputed amount, I intend to order that the applicant’s maintenance account be credited with this amount, so that the applicant’s next maintenance contribution will be reduced by the disputed amount.

However, I suggest to the applicant that in future all body corporate contributions owing be paid by international bank draft, as this appears to be the method of payment most suitable to the applicant’s circumstances, and which method is also accepted by the body corporate. It is the applicant’s circumstances which are unusual, not the body corporate, and as such it is the applicant’s responsibility to select a method of payment which is acceptable to the body corporate; not the body corporate to provide a method of payment suitable to the applicant.
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