Admiralty Gardens [2001] QBCCMCmr 205 (5 April 2001)

P J HANLYREFERENCE: 0132-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15228
Name of Scheme:	Admiralty Gardens
Address of Scheme:	5 Thornely Close BELLARA QLD 4507

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

Barry John Lee and Carol Ann Caldwell, the owners of lot 1



I hereby order that Brian Shoobert of Delrey Pacific Body Corporate Management Services be appointed as administrator of Admiralty Gardens CTS 15228 for a period of two years from the date of this order to perform the obligations of the body corporate and its committee under the Body Corporate and Community Management Act 1997 or the community management statement.

I further order that the body corporate shall remunerate Brian Shoobert in the sum of $457.60 per annum plus reasonable disbursements.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0132-2001

“Admiralty Gardens” CTS 15228

The applicants, Barry John Lee and Carol Ann Caldwell, the owners of lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Appoint an administrator for a period of 2 years who will have the full powers of the body corporate and its committee with specific powers to collect unpaid levies and make recommendations to the Commissioner regarding the future harmonious running of the building.

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 stated that only an administrator who is completely autonomous can achieve stability in the management of this property. The applicants appear to have formed this view on the basis of the history of the scheme, and in particular the actions of Mr and Mrs Crittenden. Mrs Crittenden owns 2 lots in the scheme, and Mr Crittenden has his wife’s power of attorney and her proxy. The applicants provided a copy of a letter dated 4 December 2000 from the Crittendens, addressed to their fellow owners.

All owners were invited to respond to the application. Submissions were received from Reverend and Mrs Hall, the owners of lot 3, and from Mr Crittenden as proxy for Mrs Crittenden.

Reverend and Mrs Hall supported the application, stating that in their view it is essential for the administrator to have the necessary powers to safeguard the interests of all unit owners in Admiralty Gardens. The Halls also provided copies of three letters from the Crittendens to support their assertions. The letter dated 4 December 2000 from the Crittendens to their fellow owners had also been supplied by the applicants. The second letter dated 23 December 2000 was apparently placed under the Hall’s door to their lot, as was a third, undated, unsigned, letter apparently placed under their door on 29 December 2000.

Mr Crittenden also supported the application in principle, but stated that the person to be appointed as administrator should not be associated in any way with the applicants. I understand that the person nominated has no association with the applicants. Mr Crittenden also stated:

We will continue to use every legal means within our rights to some day receive fair treatment from the other owners and yourselves (the Commissioner’s office), be it the present owners or subsequent owners who also might want to freeload on us both financially and physically as to working on the property.
and later in the submission:

The key to settling this bruhaha is for you or the administrator to convince them to pay their fair share of the operating costs and to pay others or us to properly manage this building.
and later still in the submission:

Another issue that I want you to understand is to stop telling us that it is our fault that the levies were originally set up with entitlements. The attorney that strata titled our building was Mr Paul Clough of Bribie Island. Mr Clough was recently disbarred for one year for fouling up another client in some manner. He was ordered to go back to school for further legal training. The story was in the Courier Mail twice. He is the culprit.
and finally, as an addendum to the submission, but addressed to Mr Beattie, Premier of Queensland, and Mrs Sullivan MP:

Although the present law allows a change to equal cost sharing, the only chance that you might get this change is if you are lucky enough to go before an intelligent judge in a high court with solicitors and barristers at a cost of $15,000 to $50,000 dollars. But you can still lose as the law is written today. ... Please look into it, and make it easy to change your status if you are caught in this ridiculous web through ignorance of the law as we are.

The background to the present impasse, which exists in this scheme, is, briefly, as follows:

• Mrs Crittenden was the original developer

• The lot entitlements were determined at the time of registration of the plan, even if Mrs Crittenden was unaware of the significance of them

• Mrs Crittenden still owns 2 of the 4 lots

• Mrs Crittenden believes that lot entitlements should be equal

• Mrs Crittenden made an application to this office to have the contribution schedule lot entitlement changed

• Mrs Crittenden’s application was unsuccessful, and she was advised that, unless owners agree, the only way that lot entitlements may be adjusted is by the Court, as an adjudicator does not have the power to do so

• Mrs Crittenden has not made an application to the Court to adjust the lot entitlements

It also appears from the material that the Crittendens have previously carried out various works in and around the common property, presumably because of their desire to maintain the common property and have it present a neat appearance, since it is their home. The scathing letters from the Crittendens to the other owners suggest that the Crittendens do not believe that the other owners are “pulling their weight” when it comes to the maintenance of the common property. No one owner is required to maintain the common property at his or her own expense or in his or her own time. It is the responsibility of the body corporate to maintain the common property in good condition (section 109 of the Standard Module) and all owners are members of the body corporate.
Accordingly, the maintenance of the grounds and the common property are matters which should be included in the body corporate’s budget. No doubt, that is a matter to which the administrator will turn his mind.

I am concerned, however, at the attitude displayed by the Crittendens. The letter dated 4 December 2000 to the other owners contains a number of examples of their arrogance:

•	“In view of your stand we shall now operate the building on “the golden rule” i.e. “those that put up the gold shall rule”. That is the way that it will always be until you have sold your units to people that are willing to work and pay evenly in a democratic manner for the benefit of all.”
•	“I shall vote myself as the chairperson and building manager and make all of the major decisions including the budget as to what I deem should be done to get back and keep the exterior grounds and building in top condition at all times. Remember that we are paying 62 percent of the costs so there should be no whinging from any of you.”
•	“I will announce through the new Jackson Body Corp. manager the date of the first meeting, but as you now live out of town there is no need for you to attend the meetings. You can vote by proxy instead if you care to avoid an office meeting which we all know will probably be bitter and unproductive.”
•	“Like every war, the end is the beginning of the reconstruction of our jointly held property which is going to take a vast amount of money to bring it back to our standards of neatness and cleanliness. Additionally, there will be repairs of all the worn, broken, or damaged parts of the property and the reconstruction of the gardens, grass, driveway, tiles, and anything else that we deem must be restored to its original condition or better.”

It seems that the Crittenden’s definition of democracy is when they get their own way. The Act is perfectly clear in relation to the adjustment of lot entitlements. The Crittendens have been informed of those provisions in the decision made in Application 0615-1999, but they have made no application to the Court. Instead, they continue to rail at their fellow owners, who are simply adopting the stance to which they are legally entitled. The simple fact is that until an application is made to the Court, the lot entitlements will remain as they are, and the levies will be based upon them.

In the submission dated 3 March 2001, Mr Crittenden expressed the hope that the administrator “will be wise enough to bring harmony to the building operation once and for all.” It is obvious that Mr Crittenden would consider that harmony had been brought to the building if all owners made equal payments of body corporate contributions. As I stated in my previous order dated 9 November 1999, contributions must be levied in accordance with section 95(5) of the Standard Module. The administrator is authorised to perform obligations of the body corporate, its committee, or a member of its committee under the Act or the community management statement (section 223(3)(v)(i) of the Act). The administrator does not have the power to adjust lot entitlements, from which the whole issue of contributions flows. In other words, an adjudicator cannot adjust lot entitlements; an owner cannot unilaterally adjust lot entitlements and an administrator cannot adjust lot entitlements. In the absence of agreement of all owners, the only mechanism for adjustment of lot entitlements is an application to the District Court. In my view, a degree of harmony could be brought to this scheme if the Crittendens were prepared to modify their offensive, overbearing behaviour.

I propose to appoint an administrator for this scheme for a period of two years. The administrator has consented in writing to his appointment. I have also ordered that the body corporate pay the administrator’s fees, which appear to be reasonable, and to be based on current market rates.