Rambling Rose [2001] QBCCMCmr 340 (21 June 2001)

RA MeekREFERENCE: 0088-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1560
Name of Scheme:	Rambling Rose
Address of Scheme:	9-11 Amphora Street PALM COVE QLD 4879

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

James Edward Anderson, the owner of lot 2


RA MeekI hereby order that within one (1) month of the date of this order, James Edward Anderson, the owner of lot 2, shall pay to the body corporate the amount of $372.54 being the amount owing in respect of the special levy struck pursuant to the resolution carried at the general meeting held on 18 June 1999.

I further order that the James Edward Anderson, the owner of lot 2, shall not be liable to pay any amount by way of accrued interest in respect of the outstanding levy, and that the body corporate shall amend its records to reflect that all amounts of interest on the special levy are deducted from the administration account for James Edward Anderson, the owner of lot 2. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0088-2001

“Rambling Rose” CTS 1560

The applicant James Edward Anderson, the owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

a) That the body corporate acts immediately to carry out the further white ant treatment and inspections voted for at an EGM of Friday 18^th June 1999.

b) That the body corporate accepts the fact that we will pay the special levy of $372.54 when we have received positive proof that (a) has been carried out.

c) That the body corporate accepts the fact that we will pay no overdue interest on the abovementioned special levy as this has accrued through no fault of our own.

d) That the body corporate acknowledges the fact that we are completely financial with respect to our admin and sinking fund levies as of 01/02/01 to 30/04/01.

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)).

On Wednesday 20 June 2001, I held a teleconference with the parties in relation to this application. The parties to the teleconference were the applicant, James Anderson, the secretary, Brian Taylor, and Natalie Waters for the body corporate manager, Cairns Body Corporate Management Pty Ltd.

I consider that there are three issues to be determined by this application. Firstly, whether the applicant should pay the outstanding special levy of $372.54 (the levy). Secondly, whether the applicant should pay accrued interest on the levy (approximately $280) and thirdly, the issue of white ants.

I consider that much of this dispute was resolved, in a fashion, in the course of the teleconference. Consequently, I do not intend to comment at length on the issues in dispute.

Suffice to say that I consider that the applicant should now pay the levy. In the teleconference the applicant acknowledged a willingness to pay the levy. I noted that there was no doubt the work the subject of the motion carried in June 1999 had been carried out. The manager indicated that all other owners had paid the levy. In the circumstances, I intend to order that the applicant pay the amount of the levy within one (1) calendar month of the date of this order.

On the issue of whether the applicant should pay interest in the levy of approximately $280, this is still in dispute it seems. The committee have not determined to waive the levy, and apparently were awaiting the outcome of the application before considering the matter further. I did indicate to the parties that the application sought that I determine whether or not the applicant should be liable for the interest, given that the applicant denies receiving notice of the meeting, or of the special levy, or in fact responses to any of his correspondence.

Given that the meeting in question is now more that 2 years ago, I did not canvass with the parties during the teleconference the allegation that notice of the meeting had in fact not been received by the applicant. In the circumstances, I am not in a position to determine this although I do note correspondence to the body corporate manager from the applicant of 28 February 2000 which noted that it had been “over twelve months” since any communication had been received from the manager “concerning this or any other matter”. This includes any notification of any AGM held in 1999. This is a significant irregularity in my view and certainly suggests at the very least, that there had been a significant break down in communication between the applicants and the manager.

If the applicants did not receive any notification of the AGM held in 1999 (I’m assuming there was one), then it is not unreasonable to assume they did not receive notification of the earlier meeting in June 1999 where the relevant motion the subject of the levy was carried. Moreover, given that the applicants alleged no correspondence at all during 1999, then obviously they did not receive any notification about the interest accrued on the levy. In the circumstances, I intend to order that the applicant is not liable to pay any interest component on the levy. I have given the applicant the benefit of the doubt on this aspect, although I consider this determination is reasonably based.

The final aspect to be considered is the concern expressed by the applicant at the apparent inaction of the body corporate to the problem of white ants at the scheme. In the teleconference, I indicated that I was not intending to make any order on the body corporate in regard to this aspect. I did however seek to determine what action the body corporate had initiated, if any, regarding the issue of white ants. It seems that the matter had only been discussed by the committee in connection with the application. The matter was not raised at the AGM earlier this year.

In the circumstances, I indicated that I it thought it prudent for a body corporate to at least monitor the issue of white ant by having 6 monthly or, at the latest, 12 monthly inspections of the common property. If white ant activity was discovered, then certainly further action was required. I suggested that it was within the power of the committee to instigate such inspections. Owners should be informed of such inspections via notification in minutes of committee meetings.

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