Cairns Aquarius [2001] QBCCMCmr 432 (7 August 2001)

P J HANLYREFERENCE: 0213-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1439
Name of Scheme:	Cairns Aquarius
Address of Scheme:	107 The Esplanade CAIRNS QLD 4870

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

Robyn Gaye Bonehill, the owner of lot 8



I hereby order that the application for an order that the body corporate be instructed to make all documentation in relation to orders signed by Mr Ross Rogers and the committee outside official committee meetings available to the treasurer and assistant and all documentation in relation to the refurbishment of the foyer area of Cairns Aquarius, is dismissed.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0213-2001

“Cairns Aquarius” CTS 1439

The applicant, Robyn Gaye Bonehill, the owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate be instructed to make all documentation in relation to orders signed by Mr Ross Rogers and the committee outside official committee meetings available to the treasurer and assistant and all documentation in relation to the refurbishment of the foyer area of Cairns Aquarius.

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 item 13 of the application, in which the applicant was required to give brief details of the dispute and the reasons why she considered the order sought should be made, she simply wrote “See attached”. The applicant then attached 61 pages of assorted material, comprising, amongst other things, letters, invoices, statements of income and expenditure and minutes of a committee meeting held on 28 February 2001. Although there are various matters alluded to throughout the attached material, I have confined my deliberations to the actual order sought.

The body corporate committee was invited to respond to the application. A submission was received from Miller Harris, Lawyers, on behalf of the body corporate, and individual submissions were received from the secretary, the treasurer and the chairperson. The secretary’s submission, although referenced to this application, appears to relate to another application in this office concerning a new community management statement, which has been determined by another adjudicator.

The chairperson’s submission confirmed that the request for access to documents was answered in a letter dated 23 March 2001 from her to Mr J Bethune, when he was advised to direct all enquiries for documents to the body corporate manager.

The treasurer’s submission questioned whether the solicitors’ submission on behalf of the body corporate had been properly authorised, but did not otherwise contribute to the evidence before me.

I note from at least one of the letters in the material attached to the application, namely a letter dated 20 March 2001 from Mr J Bethune, in his capacity as acting treasurer, to the chairperson, that a request was made for the provision of documents relating to legal services provided by Morrow & Associates. The request purported to be made under section 150(1) of the regulations.

The Standard Module regulates this scheme. Section 150(1) of the Standard Module provides that the body corporate must allow all members of its committee reasonable access (without payment of a fee) to the body corporate’s records. The section does not require the body corporate to make copies of documents and supply them to committee members. In this case, the applicant is seeking an order on behalf of the acting treasurer. I do not have any evidence as to whether that person, Mr Bethune, was ever officially appointed as “acting treasurer”. I note that he attended at a committee meeting held on 28 February and his presence was minuted as being the proxy for the treasurer. Section 67(2) of the Standard Module provides that the secretary or the treasurer may appoint a proxy only with the committee’s approval. I have not been provided with evidence that the committee approved the proxy to Mr Bethune, however, as there is no order sought in respect of that matter I have not made any finding in relation to it.

In response to Mr Bethune’s letter dated 20 March 2001, the chairperson responded on 23 March 2001, advising him that any enquiries regarding accounts should be directed to the (then) body corporate manager, whose contact details were then supplied. I am unaware if any attempt was made by the applicant or Mr Bethune to obtain details from the body corporate manager.

The other mechanism for body corporate members to obtain information is provided in section 162 of the Act, which states as follows:

162 Information to be given to interested persons

(1) This section provides for the giving of information by the body

corporate for a community titles scheme from the body corporate’s records.

(2) Within 7 days after receiving a written request from an interested

person accompanied by the fee prescribed under the regulation module

applying to the scheme, (emphasis added by adjudicator) the body corporate must—

(a) permit the person to inspect the body corporate’s records; or

(b) give the person a copy of a record kept by the body corporate.

(3) The body corporate must, within 7 days after receiving a written

request from an interested person accompanied by the fee prescribed under

the regulation module applying to the scheme, issue a certificate (a “body

corporate information certificate”) in the approved form giving financial

and other information about the lot.

(4) A person who obtains a certificate under subsection (3) may rely on

the certificate against the body corporate as conclusive evidence of matters

stated in the certificate, other than to the extent to which the certificate

contains an error that is reasonably apparent.

(5) In this section—

“interested person” means—

(a) the owner, or a mortgagee, of a lot included in the scheme; or

(b) the buyer of a lot included in the scheme; or

(c) another person who satisfies the body corporate of a proper

interest in the information sought; or

(d) the agent of a person mentioned in paragraph (a), (b) or (c).

Neither the applicant, nor Mr Bethune, appears to have made a request under section 162 of the Act. It is not the role of this office to make orders, which simply restate rights that owners, and interested persons, have under the Act and the Standard Module, particularly where those rights have not been exercised in the first instance. The applicant, and Mr Bethune, have not availed themselves of the right to either inspect the body corporate records, or to obtain copies of specified documents upon payment of the prescribed fee. Part of the material being sought appears to span a considerable period of time, given that the foyer refurbishment was first approved by the body corporate in 1995. The remainder of the material, in respect of decisions made by the committee outside of committee meetings, would also form part of body corporate records. I suggest that the applicant and Mr Bethune first avail themselves of their rights under the Act and the Standard Module. If that exercise is unsuccessful, then they may need to seek some relief from this office. I would not, of course, expect that there would be any impediment to their search, if a request is made in the proper form and the appropriate fee is paid.

In the circumstances, I have dismissed the application.2n