Cairns Village Resort [2001] QBCCMCmr 162 (19 March 2001)

P G DanielsREFERENCE: 0127-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18161
Name of Scheme:	Cairns Village Resort
Address of Scheme:	Corner Anderson Road and Bruce Highway CAIRNS QLD 4870

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

the Body Corporate

1. P G DanielsI hereby order that Cairns Body Corporate Management Pty Ltd (CBCM) must within 14 days of receiving the election notice as provided by order 3, give to Hastlow Pty Ltd trading as Richards Body Corporate Management all records and documents of the Body Corporate for Cairns Village Resort community titles scheme 18161.

2.	I further order that documents held in photographic or electronic image form must be returned in the form stated in the election notice as provided by order 3.

3.

I further order that John Erbacher must within 5 days of the date of this order give written notice to CBCM stating whether documents held in photographic or electronic image form are required to be returned in that form or are required to be reproduced and returned in paper form PROVIDED THAT the notice may require some documents to be returned in one form and other documents in the other form.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0127-2001

“Cairns Village Resort” CTS 18161

The applicant, the Body Corporate, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

Mr Jim Spenser of Cairns Body Corporate Management, deliver to the Body Corporate Chairperson, Mr John Erbacher or his Agent, all Body Corporate books and records pursuant to Accommodation Module Regulations 151 and 152 within seven days of this Order.

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)).

The Body Corporate resolved at its last annual general meeting to engage Hastlow Pty Ltd trading as Richards Body Corporate Management (RBCM) as its body corporate manager. It did not pass a motion to continue with its former manager, Cairns Body Corporate Management Pty Ltd (CBCM). The Body Corporate resolved that CBCM should deliver to RBCM or the owners’ agent “... all Body Corporate books, records and documents in electronic image form and in paper form ...”

RBCM forwarded a facsimile transmission to CBCM dated 24 January 2001 asking for a date when the books and records could be collected.

Hillhouse Burrough McKeown, Solicitors and Attorneys, engaged by the Committee, forwarded a letter to CBCM dated 24 January 2001 requesting that all records of the Body Corporate be handed to Mr Erbacher, the chairperson, immediately on request. Other issues are also raised in the letter.

Mr Erbacher forwarded a notice dated 19 February 2001 to CBCM requiring the return of all books, records and other documents in electronic and paper form within seven days after service of the notice.

CBCM has not returned the records. The applicant accordingly seeks an order that the records be returned.

CBCM has made a submission in respect of the application. The submission is signed by Mr Jim Spencer. Mr Spencer argues that the last AGM was invalid as no member of the Body Corporate was financial. Section 47(11) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Regulation) provides that unfinancial owners cannot generally vote at a general meeting as follows:

(11) A person does not have the right to exercise a vote for a particular

lot on a motion (other than a motion for which a resolution without dissent

is required), or for choosing a member of the committee, if the owner of the

lot has not paid to the body corporate—

(a) a contribution, or an instalment of a contribution, owing by the

owner to the body corporate, if the contribution or instalment is

owing at the time of the meeting; or

(b) a penalty for not paying a contribution or instalment of a

contribution by the date for payment, if the penalty is owing at the

time of the meeting; or

(c) any other amount owing to the body corporate, other than an

amount owing under a legal relationship between the body

corporate and the owner not associated with ownership of the lot.

The allegation that members were unfinancial is contested in a letter from Hillhouse Burrough McKeown dated 24 January 2001 (referred to above).

In my view, this is not a basis to deny relief. The validity of the last AGM has not been challenged by application to the Commissioner nor has any order been made declaring the meeting or any resolutions made void. In these circumstances I intend to accept the validity of the resolutions. If a challenge is ever made to the meeting or resolutions, the matter can be assessed at that time.

Mr Spencer also indicates that CBCM is owed money by the Body Corporate.

That is not a basis to deny relief. CBCM can take separate action to recover money owing without holding Body Corporate records.

Mr Spencer argues that no order should be made and an arbitration process should be put in place so that all the facts of the matter can be understood. I have been able to understand the relevant facts as they relate to the order sought. I will make orders as a departmental adjudicator.

I will order that all body corporate records be returned. In respect of records held in photographic or electronic image form I will require an election to be made. Mr Erbacher, on behalf of the Body Corporate, can require that the documents be returned in photographic or electronic image form or in paper form: section 152(2) of the Regulation.

I have decided to make a final order in respect of this matter. The issues are not complicated and the Body Corporate needs its records.