Queens Park Court [2001] QBCCMCmr 530 (12 October 2001)

C G YoungREFERENCE: 0101-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	505
Name of Scheme:	Queens Park Court
Address of Scheme:	16 East Gorden Street MACKAY QLD 4740

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

Colin Michael von Holt, the owner of Lot 2



C G YoungI hereby order that the application for orders that:

1.	The applicant be excused from paying body corporate levies, or that the body corporate levies are unreasonably high; and
2.	That the applicant be permitted to obtain his own building insurance,

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0101-2001

“Queens Park Court” CTS 505

The applicant, Colin von Holt of Lot 2, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that he be excused from paying body corporate levies, or that the body corporate levies are unreasonably high and that he be permitted to obtain his own building insurance.

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 applicant states that he is a pensioner and a diabetic with several other medical problems. He states that he cannot afford to pay the body corporate levies. He explains that his disability pension is his only income, while the other two owners are “in the business of renting their units out”. He complains at having been charged penalty interest on levies he has not paid by the due date and also seeks to insure his unit himself on the grounds that “it is cheaper”.

In order for an application of this sort to succeed, it is necessary for the applicant to demonstrate to an adjudicator that certain items included within the body corporate’s budget are unnecessary or unreasonably high. Despite a number of requests from this office to do so, the applicant has not been able to provide any basis upon which he claims that the body corporate levies are too high, other than that they are unaffordable to him with a disability pension as his only income. The applicant has not submitted any revised budget for the administrative or sinking funds and has been unable to identify budgeted items that he believes are unreasonably high. Further, he has not submitted any grounds to support his claim that he should be permitted to obtain his own building insurance, other than that “it would be cheaper” for him.

Submissions in response to this application were received from the Body Corporate Managers, Mackay Community Management Services, and the owner of Lot 3. The content of both submissions indicate that the “Queens Park Court” body corporate appears to be functioning in accordance with the legislation and that the applicant is in the minority with regard to his concerns about insurance and body corporate levies.

I note from material submitted by the applicant, that the body corporate had proposed a repayment plan for the applicant in respect of his outstanding levies, namely that the applicant recommence paying contributions of at least $20 per fortnight and further, that the applicant consider taking over the mowing of the common property lawns in a manner similar to the current contractor, in return for the payment of a fee which would offset the outstanding levies. The applicant appears to have refused both proposals.

This application appears to have originated from the applicant’s misunderstanding of the legislation governing bodies corporate in Queensland. It is simply not an option to “opt out” of a body corporate or to arrange separate building insurance in a building format plan (formerly termed building unit plan). Owners are required to contribute to an administrative and sinking fund, in proportion to their contribution schedule lot entitlement, in order to attend to the maintenance of common property. Perhaps the applicant could consider contacting this office’s freecall information service on 1800 060 119 to learn about his rights and obligations as an owner in a community titles scheme.

The applicant has not supplied any material to indicate that the body corporate has failed in its legislative obligations, that the levies are unreasonably high, or that he should be permitted to obtain his own building insurance. It seems that the applicant is experiencing financial hardship and is simply unable to fulfil his obligations as an owner within this community titles scheme.

I have therefore dismissed the application.



1n