Tall Trees [2000] QBCCMCmr 94 (22 February 2000)

P J HANLYREFERENCE: 0674-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14005
Name of Scheme:	Tall Trees
Address of Scheme:	31 Sunset Boulevarde SURFERS PARADISE QLD 4217

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

George Azoury, the owner of lot 5

P J HANLYI hereby order that the application for an order that late payment penalties, interest and a $95.00 fee for repairs be waived, is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0674-1999

“Tall Trees” CTS 14005

The applicant George Azoury, the owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

All our bills have been paid on time since we acquired this property and yet we have been charged late payment penalties and now interest without reference to pertinent statements. In addition we have been charged a $95.00 fee for a repair which has not been carried out.

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

In the supporting grounds, the applicant states that he has always paid his bills on time, and that journal entries have been passed on to him without proper explanation of the reasons for a late payment penalty. The applicant also alleges that he has been charged a $95.00 fee for a repair that is in common property, and which has not been repaired in any event.

At the time that I made my interim order on 10 December 1999, I was not aware that the submission from the committee of the body corporate had been forwarded by facsimile transmission at 7.46am that day. The submission had not been placed on the file at the time that I made my interim order. The submission is now available to me, and I have noted its contents. In essence, the committee has explained that the applicant’s levies were in arrears when the previous body corporate manager handed over the books and records to the present body corporate manager. The committee has also provided a statement of all levies and payments made by the applicant since 23 December 1998. I have also perused the Debtor Financial Status Report prepared on 4 December 1998, which showed that the applicant was then in arrears of $294.40. On the basis of that information, and in the absence of any evidence from the applicant that he has paid his levies (cheque numbers, dates of payment, copies of bank statements showing cheques having been presented etc) I accept that the amount shown on the statement is correct.

As far as the charge for $95.00 is concerned, I note that the applicant states in his application that the repair has not been carried out, and yet in a letter from the applicant to the body corporate manager dated 4 August 1999, the applicant states that the hole in the external wall of the building “has not been repaired except for a glued on tile”. This suggest to me that the applicant’s complaint is more about the extent or nature of the repair, than the absence of repair altogether. In this regard, I note that the committee’s description of the repair was “the hole in the wall was fixed earlier this year and a plate installed where the Lot 5 screen door handle hits the wall.” The committee also provided a copy of the letter dated 27 March 1999 from Mr Fixit confirming that the repair of the hole in the fibro wall had previously been carried out.

I am therefore satisfied that the charges appearing on the applicant’s levy statement are correct, and I have dismissed the application.