Kamerunga Villas [2001] QBCCMCmr 448 (13 August 2001)

RA MeekREFERENCE: 0459-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18650
Name of Scheme:	Kamerunga Villas
Address of Scheme:	31 Lake Placid Road CARAVONICA QLD 4878

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate of Kamerunga Villas

RA MeekI hereby order that within seven (7) days of the day of this order, Cairns Body Corporate Management Pty Ltd shall deliver to the chairperson of Kamerunga Villas, Brian C Hebblewhite all body corporate records, the common seal, minute books, books of account, all body corporate correspondence files, a cheque for the balance of the administrative and sinking fund accounts, and all other documents the property of the body corporate. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0459-2001

“Kamerunga Villas” CTS 18650

The applicant the Body Corporate for Kamerunga Villas, the Body Corporate, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We are seeking an order for the return of all records, seal, minute books, books of account, cheque for balance of account, bank reconciliation, to the end of previous month and all other documents of the property of the body corporate to the chairperson Brian C Hebblewhite.

The body corporate also sought an interim order, quote -

We are seeking an interim order for the urgent return of all the records or documents including the bank balance of the body corporate for Kamerunga Villas.

Whilst the applicant has sought an interim order, I intend to this order to be a final order, and should be considered by the parties as such.

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)).

Prior to the making of this order, a submission was sought from the respondent, Cairns Body Corporate Management Pty Ltd (CBCM). Despite requesting an extension of time in which to make a submission, which was granted, CBCM ultimately failed to make any submission in response to the application. Given this outcome, I consider that CBCM should not have sought to delay the process by requesting the extension.

The body corporate states that it has sought to have returned all the documents and property which is the body corporate. It alleges that the manager has refused to respond in writing, “other than a demand for money”. The body corporate states that it has “complied with this request and were still refused our property”. The body corporate further states –

So that we strictly comply with the requirements of Part 10, Section 152(1&2) ... we have today delivered to the manager a request by all committee members at a duly convened committee meeting for the return of our property within seven (7) days. We seek an order for the return of our property based on Section 152(1&2) of the Standard Regulations. The management company has refused to date and we request an interim order for their return.

Section 152 of the Standard Module provides as follows -

Return of body corporate property—Act, s 268
152.(1) This section applies if—
(a) a person has possession or control of a body corporate asset for a community titles scheme (other than a body corporate asset in the lawful possession or control of the person under a body corporate manager or service contractor engagement); and
(b) the person took possession or control of the body corporate asset in the person’s capacity, or purportedly in the person’s capacity, as—
(i) a member, or an associate of a member, of the body corporate or of the committee; or
(ii) a body corporate manager or service contractor; and
(c) the person is served with a notice of a resolution of the committee requiring the person to deliver the body corporate asset to a committee member named in the notice within 7 days after the person is served with the notice.
(2) The person must comply with the notice.
Maximum penalty for subsection (2)—20 penalty units.

The body corporate has attached various correspondence and minutes as part of its application. Part of that correspondence is a termination of its agreement with the body corporate manager. That termination includes a statement that –

The termination is pursuant to a dissatisfaction with your company in carrying out it’s duties in a professional and timely manner in the interests of the lot owners.

We are prepared to pay you all monies due to you up to the 22^nd October which is the completion of the term of your contract.

This was in response to correspondence from the manager which stated –

At the present time your body corporate owes this company a considerable amount of money and arrangements will have to be made for payment of this sum before we would consider handing over documents associated with Kamerunga Villas. We still believe it is essential we meet to consider issues you purport to be substantial.

I consider that the committee position on the matter is very clear. It wishes to terminate the services of CBCM and has served notice to this effect. In addition, it has indicated a willingness to pay all outstanding amounts, and in fact, in its grounds, states that it has now done this.

There are over 130 lots in this scheme. The reluctance of CBCM to let go such a large scheme, as evidenced by its desire to meet, is understandable. Perhaps however, CBCM should have considered the level of service it provided to this body corporate before this aspect reached a crisis point.

CBCM has no basis to retain the property and records of Kamerunga Villas, as it is seeking to do. I consider that the actions of the body corporate in this matter have been correct and appropriate, and in compliance with section 152. CBCM has provided no legitimate basis for seeking to retain the property and records of Kamerunga Villas. I intend to order CBCM to deliver to the chairperson Brian C Hebblewhite all body corporate records, seal, minute books, books of account, a cheque for the balance of the administrative and sinking fund accounts, and all other documents the property of the body corporate within seven (7) days of the day of this order. If CBCM fails to comply with this order, then in addition to enforcement of this order, there is a penalty provision provided in section 152 of the standard module which it might consider.
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