Inveroona Villas [2000] QBCCMCmr 631 (5 December 2000)

P G DanielsREFERENCE: 0651-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24623
Name of Scheme:	Inveroona Villas
Address of Scheme:	24 Norfolk Ave SURFERS PARADISE QLD 4217

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

Julie Rose Carroll a co-owner of lot 2



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

1.	Remove Ms Vincent as Chairperson and appoint Mrs Julie Carroll as Chairperson;
2.	Direct Kim Elliott and Complete Body Corporate Services to return all monies, books, and any other material belonging to the “Inveroona Villas” Body Corporate;
3.	Give leave for the Chairperson (Julie Carroll) to instigate legal action on behalf of the Body Corporate to recover all its property and/or the re-development of statutory documentation not recovered;
4.	Give leave for the Chairperson (Julie Carroll) to instigate legal action on behalf of the Body Corporate to recover all costs of legal action and re-development of documentation from Ms Vincent.

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0651-2000

“Inveroona Villas” CTS 24623

The applicant, Julie Rose Carroll, a co-owner of lot 2, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	Remove Ms Vincent as Chairperson and appoint Mrs Julie Carroll as Chairperson;
2.	Direct Kim Elliott and Complete Body Corporate Services to return all monies, books, and any other material belonging to the “Inveroona Villas” Body Corporate;
3.	Give leave for the Chairperson (Julie Carroll) to instigate legal action on behalf of the Body Corporate to recover all its property and/or the re-development of statutory documentation not recovered;
4.	Give leave for the Chairperson (Julie Carroll) to instigate legal action on behalf of the Body Corporate to recover all costs of legal action and re-development of documentation from Ms Vincent.

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 initially note that the applicant has stated in her application that she is the owner of lot 1. The applicant is actually a co-owner of lot 2. Carlene Vincent is the owner of lot 1.

This application follows on from an earlier application, 293-2000. In that earlier application an adjudicator on 14 August 2000 dismissed an application for an order that Complete Body Corporate Services Pty Ltd be engaged as the body corporate manager.

It has come to the attention of the applicant that the Body Corporate bank account at the Commonwealth Bank was closed. The applicant seeks orders for the return of records and funds. Additionally, she seeks to be appointed the chairperson and given leave to commence legal action.

Submissions in respect of this application have been received from Carlene Vincent and Kim Elliott of Complete Body Corporate Services Pty Ltd (CBCS).

It is indicated in those submissions that CBCS has already returned the books and records of the Body Corporate to Carlene Vincent. It is also indicated that the Body Corporate funds were transferred to the National Bank, Bundall. The account is held in the name, “The Proprietors Inveroona Villas CTS 24623.” A copy of a bank statement for the period 18 July 2000 to 31 July 2000 has been provided. It is indicated in the submissions that Body Corporate funds were never transferred to CBCS.

Carlene Vincent holds all body corporate records including records about the new bank account at the National Bank. In these circumstances, I do not propose to make any of the orders sought. It is not necessary to order the return of records and funds. The other orders sought relate to this primary order.

Carlene Vincent must allow the applicant and the other co-owner of lot 2, Gregory Carroll, the right to access the records. That right is given by section 150(1) of the Body Corporate and Community Management (Standard Module) 1997. I will set out the entire section 150:

Access to records—Act, s 161

150.(1) The body corporate must allow all members of its committee

reasonable access (without payment of a fee) to the body corporate’s

records.

(2) Also, the body corporate must, if asked by an adjudicator, allow the

adjudicator access (without payment of a fee) to the body corporate’s

records within 24 hours after the request is made.

Maximum penalty—20 penalty units.

(3) However, the body corporate is not required to allow a person access

to records under this section if a legal proceeding between the body

corporate and the person has started or is threatened and the records are

privileged from disclosure.

In this scheme of two lots, section 11(4) of the Regulation provides that the applicant and Gregory Carroll, co-owners of lot 2, are members of the Committee. I will set out section 11(2) and (4):

(2) Subsection (1) does not apply for an annual general meeting if, when

the annual general meeting is held—

(a) there are only 2 lots included in the scheme, and the 2 lots are in

identical ownership; or

(b) there are only 2 lots included in the scheme, and the 2 lots are in

different ownership; or

(c) there are 3 or more lots included in the scheme, and all of the lots

are in identical ownership; or

(d) there are 3 or more lots included in the scheme, and there are only

2 different owners for all the lots.

.........

(4) If subsection (2)(b) or (d) applies, the committee consists of

2 individuals who are owners, or the nominees of owners, of lots, and they

must decide between themselves who are to hold the positions of the

executive members of the committee (and, if they cannot agree, the

positions of the executive members are jointly held by both of them).

The reference to “2 individuals” in sub-section 4 includes all co-owners. Consequently, the Committee in this scheme consists of three persons. Gregory Carroll has made a submission in which he states that both co-owners of lot 2 have no objection to the engagement of a body corporate manager, provided it is not CBCS. This may be an option of interest to Carlene Vincent. It is a matter for the owners to determine at general meeting.

I dismiss the application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0651-2000

“Inveroona Villas” CTS 24623

I made an order on 5 December 2000 dismissing this application.

Since making the order, it has come to my attention that there is an error in my reasons. The error does not affect the outcome of the application. The application is dismissed however I will correct the error I made.

I stated in my previous reasons that the Committee for this scheme comprises three persons, the owner of lot 1 and the two co-owners of lot 2. That is not correct.

Section 10(5) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) provides:

(5) Only 1 co-owner of a lot can be a member of the committee, on the

basis of ownership of the lot, at a time.

The effect of section 10(5) is that only one co-owner of lot 2 can be a member of the Committee. The two co-owners of lot 2 will have to agree amongst themselves about which of them will be on the Committee and inform the owner of lot 1. The nominated co-owner of lot 2 and the owner of lot 1 will be the members of the Committee for the purpose of section 11(2) and (4) and 150 of the Regulation (referred to in my previous reasons.)

I apologise for the error and regret any inconvenience caused.