Adelphi Springs - Paros [2001] QBCCMCmr 114 (26 February 2001)

P J HANLYREFERENCE: 0011-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26624
Name of Scheme:	Adelphi Springs - Paros
Address of Scheme:	100 Cotlew Street East SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Peter Paul Judge and Lynda Jean Judge, the previous owners of lot 17 and the directors of Dushou Pty Ltd, the previous caretaker and letting agent for the scheme

I hereby order that the application for an order that the body corporate refund to Dushou Pty Ltd the sum of $4,420.00 paid by that company as a condition of the body corporate consenting to the assignment of the caretaking and letting agreements to a third party, is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0011-2001

“Adelphi Springs - Paros” CTS 26624

The applicants Peter Paul Judge and Lynda Jean Judge, the previous owners of lot 17 and the directors of Dushou Pty Ltd, the previous caretaker and letting agent for the scheme, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate refund to Dushou Pty Ltd the sum of $4,420.00 paid by that company as a condition of the body corporate consenting to the assignment of the management and letting agreements to a third party.

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 applicants state that Dushou Pty Ltd took over the management rights at Adelphi Springs on 1 February 1999, and sold those rights to a third party with settlement taking place on 4 December 2000.

Section 182 of the Body Corporate and Community Management Act 1997 (“the Act”) defines a dispute as follows:

182. In this chapter—

“dispute” means a dispute between—

(a) the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or

(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or

(c) the body corporate for a community titles scheme and a body corporate manager for the scheme; or

(d) the body corporate for a community titles scheme and a service contractor for the scheme who is also a letting agent for the scheme; or

(e) the body corporate for a community titles scheme and a letting agent for the scheme.

“occupier”, of a lot, means a person in the person’s capacity as the occupier of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

“owner”, of a lot, means a person in the person’s capacity as the owner of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme.

Section 192 of the Act sets out the requirements for an application to resolve a dispute. That section provides that an application for an order of an Adjudicator-

a) must be made by a person (including, if appropriate, the body corporate for a community titles scheme) who is a party to, or is directly concerned with, a dispute for which an adjudicator may make an order under this chapter; and

b) must be made in writing to the commissioner; and

c) must state the nature of the order sought; and

d) must state the name and address of each person against whom the order is sought (the “affected person”) or who would, if the order were made, be affected by the order (also the “affected person”); and

e) must state in detail the grounds on which the order is sought; and

f) must be accompanied by the fee prescribed under a regulation.

(emphasis added)

At the date of application, the applicants were no longer the caretakers and letting agents of Adelphi Springs. The assignment of the caretaking and letting agreements had been completed, with settlement having been effected on 4 December 2000. The application to resolve a dispute was not received in this office until 5 January 2001. I therefore consider that I do not have jurisdiction to make the order which the applicants are seeking (section 220(2)(a) of the Act), for the reason that, at the date of the application, the applicants were no longer the caretakers and letting agents and do not therefore fall within that category of parties defined in section 182 of the Act.

In making this determination, I have had regard to the decision of Dowsett J in Suncorp Insurance and Finance–v-Retail Shop Lease Tribunal[1995]2Qd R 429, wherein his Honour held that a mediator and therefore a Retail Shop Lease Tribunal had no jurisdiction under the relevant Act to determine a dispute between persons who, at the time of reference of the dispute to the mediator, had been but were no longer in the relationship of landlord and tenant under a retail shop lease. His Honour held that the description of a person as a “landlord” or as a “tenant” (to which his Honour said that Ormiston J in Jam Factory Pty Ltd-v-Sunny Paradise Pty Ltd[1989]V.R.584 gave the meanings which those words normally have) implies that he or she currently has such status. His Honour further held that in the absence of words extending that meaning, one would not normally assume that the reference was to persons who had been landlords or tenants at some previous time. Earlier in his judgment, his Honour stated that if it were intended that the word ‘landlord’ include a person who previously had that capacity under a terminated lease, one would have expected the section to refer to a person who, “is or was previously” entitled to such rent.

As the applicants do not satisfy this threshold requirement under section 182, it has not been necessary for me to turn my mind to the substantive issue of whether the body corporate should have imposed a transfer fee on the assignment of the caretaking and letting agreements.

I have dismissed the application.

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