Juanita Court [2001] QBCCMCmr 150 (14 March 2001)

P J HANLYREFERENCE: 0138-2001

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3339
Name of Scheme:	Juanita Court
Address of Scheme:	44 Cintra Road BOWEN HILL QLD 4006

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Juanita Court CTS 3339

I hereby order that within 21 days of the date of this order, Barry Burton of A.D. Body Corporate Management shall hand over to Kim Jordan of Strata Solutions all records and property of the body corporate for Juanita Court in his possession.

I further order that within 21 days of the date of this order, Barry Burton of A.D. Body Corporate Management shall take such steps as are necessary to transfer any bank accounts and/or body corporate funds for Juanita Court over which he has control to Strata Solutions.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0138-2001

“Juanita Court” CMS 3339

The applicant, the Body Corporate for Juanita Court, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Immediate interim order on Barry Burton of A.D. Body Corporate Management to surrender up all records and property of the body corporate for “Juanita Court” that he has in his possession and to facilitate the release of any body corporate funds into the control of Strata Solutions.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. 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 following the appointment of receivers and managers to the previous body corporate manager, owners were polled by postal vote on the appointment of a new body corporate manager, having been offered a choice between two firms. The voting result was 3 votes for each firm, resulting in neither firm being formally appointed. The applicant further states that the committee met on 7 February 2001, at which time it decided to request that Strata Solutions take necessary steps to obtain the books and records, call an extraordinary general meeting and appoint a body corporate manager.

Mr Burton was invited to respond to the application. No response was received by the closing date for submissions. I contacted Mr Burton by telephone on 13 March 2001, to ensure that he had received the notice inviting a submission. Mr Burton advised me that he had received the letter, and that as far as he is concerned there is no dispute. He further stated that he has no intention of holding onto the records of Juanita Court against the wishes of the owners, but simply wants to be assured that the handing over of the records has been properly authorised. Mr Burton further advised that the body corporate funds are held in a Macquarie bank account, and that he has opened a further Macquarie bank account, in the name of the body corporate, into which he has deposited a couple of levy cheques which he has received since he issued levy notices earlier this year. Mr Burton further stated that he will take the necessary steps to transfer these funds when an order is made.

I note that the committee met on 7 February 2001 and authorised Strata Solutions to obtain the records and funds of the body corporate. I further note that the committee purported to appoint Strata Solutions as body corporate manager. Section 87 of the Standard Module, by which this scheme is regulated, requires the engagement of a body corporate manager to be authorised by an ordinary resolution. The section also requires that the terms of the engagement must be included in the material forwarded to owners for the general meeting at which the motion to appoint is considered. Clearly, the committee cannot make such an appointment, and the applicant recognises this in the application, when it states that an extraordinary general meeting is to be called “to formally appoint Strata Solutions as the managers.”

I am satisfied that the committee has authorised Strata Solutions to collect the records and property of the body corporate from A.D Body Corporate Management. I have made appropriate orders for this to occur.
In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If any party considers that an appeal of this decision is warranted, then they should appeal the interim order.

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