Tahmine Lodge [2001] QBCCMCmr 25 (17 January 2001)

C G YOUNGREFERENCE: 0585-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12928
Name of Scheme:	Tahmine Lodge
Address of Scheme:	52 Twentyfifth Avenue PALM BEACH QLD 4221

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

Prudence Shirley DIXON, as the owner of Lot 2,



C G YOUNGI hereby order that the owner of Lot 1, June Shirley Picknell, is liable for the payment of $120 (one hundred and twenty dollars) to the body corporate for quarterly contributions levied and due in May and August 2000.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0585-2000

“Tahmine Lodge” CTS 12928

The applicant, Prudence Dixon of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

Seeking an ordinary order to have Unit 1 owner resume payment of Body Corporate levy each quarter and payment of arrears for May and August.

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)).

This is one of two applications that were lodged by Dixon against the only other owner, June Picknell, concerning payment of contributions levied by the body corporate. The other application, Application No. 428-2000, was lodged on 4 August but later withdrawn by Dixon on 15 August 2000. That application sought an arrears amount of $60 from Picknell being the quarterly levy due in May. The standing body corporate schedule for payments of contributions is the amount of $60 payable quarterly in the months of February, May, August and November.

This application was then lodged on 23 October 2000. The applicant Dixon claims that Picknell has not paid her contributions for both May and August, a total amount of $120. In the grounds to the application, Dixon states that prompt payment is necessary so the balance of the body corporate bank account does not fall below $500 when bank charges apply.

The respondent Picknell has not disputed the facts put by the applicant, but has submitted that though she fully intends to pay her share of the funds (which apparently is spent predominantly in meeting insurance) she will only do so 4 weeks before the insurance premium falls due. She also says that the bank balance was $692.18 (ay 23 October when she wrote her submission) and therefore no bank charges were applicable.

From her response, it appears that Picknell has no argument with paying the levy but does not wish to do so on the current quarterly basis.

It is a matter for the two owners to determine when the contributions are to be paid. The legislation does not specify that payment must be quarterly and it can be paid monthly, half-yearly or even yearly if owners agree. However, once it is set for the year then owners must pay their contributions by the due date scheduled. It seems here that the body corporate (ie the owners) have previously set the contributions to fall quarterly and therefore they should continue to be due quarterly unless there is an agreement on a change. Both owners might consider this and discuss the matter before the next annual general meeting/financial year arrives. That is, they can agree to change the timing of payments from quarterly to whatever they wish.

In the meantime though payments must be paid quarterly. Where an owner does not pay their contribution by the due date, the legislation provides that the body corporate may take an action in the Courts (as an unpaid debt in the Small Debts Court) against the offender. Because the legislation provides this specific avenue of recovering outstanding contributions, adjudicators do not have the jurisdiction to make an order to recover contributions for a body corporate. However an adjudicator can make orders concerning whether a contribution is valid and whether an owner is liable to pay a contribution.

It is clear that for some years now, payments have been levied quarterly. My order is therefore that the respondent Picknell is liable to pay the two quarterly contributions outstanding for May and August, a total of $120.

In regard to the timing for levying future contributions (ie quarterly, monthly, half-yearly etc), I hope that the information I have provided will assist both owners in understanding the law so that they might reach an agreement about when payments are to be made in the future.2n