Wishart Village [2000] QBCCMCmr 65 (10 February 2000)

C G YOUNGREFERENCE: 0697-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19482
Name of Scheme:	Wishart Village
Address of Scheme:	28 Stackpole Street WISHART BRISBANE QLD 4122

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

Wei Xin CHEN, as the owner of Lot 6,

C G YOUNGI hereby order that the application seeking an indeterminate order concerning letting and management agreements between Wei Xin CHEN and the body corporate, is dismissed as being without substance. 2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0697-1999

“Wishart Village” CTS 19482

The applicant, Wei Xin Chen of Lot 6, has made application under the Body Corporate and Community Management Act 1997 (“the Act”) for an adjudicator to resolve a dispute that is unclear from the wording submitted.

At Item 10, where applicants are asked to state the order they are seeking, the applicant has said as follows, quote –

Roy Phillips entered my workplace and pumproom and changed locks of these two rooms by showing me such two papers (one is signed Mr Don Caslick, the other is Sarah Frost).

If such papers can be looked (sic) as legal documents without any seals on them, anyone can enter my workplace to say he/she is a on-site manager now??

If Highrise Management Pty Ltd wants my management rights and letting rights I would like

to sell it to them.

My solicitor is Mr Marcus Ford for Brian Gasteen Solicitors who completed this transaction for me. He can be contacted at No. 3221 2133.

There is no order apparent from this wording. The applicant has also provided a page of written grounds in which she alleges that: Don Caslick breached the “Management Act” ( presumably the Act) as he had not covered her gardening costs as on-site manager; someone had entered the storage room and stolen tools and damaged the lawn mowers, and her fence was damaged and the garden lights broken. The applicant then describes how the scheme common property was in a state of disrepair despite her complaints to the Body Corporate Manager, including leaves in the swimming pool, the water irrigation system broken and the lawns not being fertilised.

The applicant also attached copies of the following items of correspondence –

•	A letter from Brad Bell Real Estate dated 24 July 1999 advising that it had been appointed managing agent for the owner of Lots 34 and 35, and seeking relevant documentation, unit keys and redirection of any future rent moneys.

•

A circular letter to owners dated 13 October 1999 from Sarah Frost (chairperson), advising owners that, on the basis of legal advice, the committee had served notices of breach on the applicant on 22 September 1999 in respect of her management and letting agreements with the body corporate. It also advised that a property report on the scheme was being obtained.

•

A letter from Caslick on behalf of Highrise dated 1 November 1999 to the applicant, giving notice of the termination of both agreements, and requiring the delivery of all body corporate property. The letter also advised that the body corporate would consider a proposal from the applicant for the transfer of the letting pool. There is also a facsimile letter to the applicant of the same date advising of the by-law breach and the damage from mowing and spraying weeds.

•	“A Notice of Continuing Contravention of a Body Corporate By-law” dated 11 November 1999 issued against the applicant for unauthorised garden mowing causing damage to lawns and sprinkling system heads, by Mr Caslick for Highrise Management Pty Ltd (“Highrise”).

It is relevant to the order made that I set out the dealings, both by letter and telephone, between this office and the applicant.

Because of the lack of clarity of the application, both as to the order sought and the supporting grounds, on 30 November 1999 a letter was sent by this office to the applicant seeking further and better information; in particular a “brief statement of the order you are seeking” and grounds as to “why the order sought should be made.”

When no response was received, a staff member telephoned the applicant on 2 December 1999 and inquired whether she had received the office letter and whether she understood it. She said she had received and understood it and would forward a response. A letter was received from her the next day 3 December 1999, which is on file. In it she states having purchased the management and letting rights to the scheme on 1 October 1998 (mistakenly shown as “1999”) and then describes a number of adverse happenings that have occurred in relation to those agreements, including termination of the agreements (“stop me from doing my daily job”), the removal of property, not being paid (presumably under the caretaking agreement), external real estate agents taking over the property management of some of her client owners, and decisions being made against her by the Small Claims Tribunal.

The letter again failed to state what order the applicant was seeking while the grounds were a narrative of loosely connected events. Consequently, later that day the staff member again telephoned the applicant. He again had difficulty in understanding her and offered to obtain an interpreter to assist her but she did not take up this offer. On being advised that it was in her best interests to obtain advice from her solicitor on the matter, she referred the staff member to Marcus Ford (see application grounds referred to above) as her solicitor. The staff member subsequently telephoned Mr Ford who said that he no longer acted for the applicant.

On 6 December 1999 this office again wrote to the applicant pointing out that “there are a number of problems with your application” and referring to the previous letter and telephone conversations, advising also that Mr Ford of Bain Gasteeen Solicitors had advised he no longer acted for her. The letter requested that she should address the deficiencies in her application in writing by 13 December 1999, otherwise the application would proceed in its present unsatisfactory form.

On 6 January 2000, having received no response from the applicant, the application was forwarded to the secretary (and the Body Corporate Manager, (Highrise)) under notice for distribution to owners, inviting them to make a submission to the application by 28 January 2000. A letter was sent on the same day to the applicant advising her of the action that had been taken and inviting her to inspect any submissions that might be received. On 10 January 2000 Highrise advised that it was no longer the Body Corporate Manager and that the matter should be referred to the secretary, Sarah Frost. This was done, however on 19 January 2000 Ms Frost advised that the application was largely unreadable and she was unhappy in having to distribute such a document to owners.

The Body Corporate Manager, Body Corp Management, lodged a submission to the application on behalf of the chairperson, but no others were received.

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)).

It appears to me that the applicant has been given a reasonable opportunity to properly make out her case for whatever order she believes would resolve her dispute. She has also been offered the use of an interpreter to assist her in understanding the requirements of the process for completing an application. In particular, she did not respond to the last office letter to her dated 6 December 1999, despite the deadline and the advice given that the application would proceed in its current unsatisfactory form if not amended.

I am also mindful of the cost and inconvenience to the body corporate in having to meet the cost of copying and distributing the application, and the difficulty in addressing and responding to the application. The chairperson has strongly commented on this.

Section 220 provides that an adjudicator may make an order dismissing an application on the basis that the application is outside of an adjudicator’s jurisdiction or it is frivolous, vexatious, misconceived or without substance. In my opinion the application, as it stands, is without substance and my order is that it is dismissed on this ground.

This order does not preclude the applicant from making a further application providing she specifies the order she is seeking, and providing it is supported by relevant and comprehensive grounds.

I am unaware as to what action the applicant has taken in regard to the termination of her agreements but I strongly recommend that she seek private legal advice as to what action, if any, is available to her.

Having dismissed the application, I would offer the following comment on a misunderstanding that the applicant seems to have concerning letting owners and letting agreements.

The applicant speaks of local real estate agents grabbing her clients. Under the legislation, letting agreements are entered into by the body corporate and a letting agent (such as the applicant) and they do not, and cannot, bind owners to only let their lots through the letting agent. Owners who are renting their lot can choose whether to use the on-site letting agent, a real estate agent or rent it themselves. Letting agreements do not give the letting agent an exclusive right to rent lots in the building; owners are free to choose who they wish to act as their renting agent.