Tea Trees [2001] QBCCMCmr 572 (14 November 2001)

RA MeekREFERENCE: 0517-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20878
Name of Scheme:	Tea Trees
Address of Scheme:	4 Itong Place CURRUMBIN QLD 4223

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

Rita Rosaria Blanzan, the owner of lot 46


RA MeekI hereby order that the application by Rita Blanzen, the owner of lot 46, for an order for payment of secretarial fees and outlays incurred whilst I acted as secretary / treasurer of the body corporate and as specified in a motion passed at a general meeting of the body corporate held on 20 May 2001 which I was elected secretary / treasurer, is dismissed for reason of the terms of the order made pursuant to application 0471 of 2001.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0517-2001

“Tea Trees” CTS 20878

The applicant Rita Rosaria Blanzan, the owner of lot 46, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking for an order of payment of secretarial fees and outlays incurred whilst I acted as secretary / treasurer of the body corporate and as specified in a motion passed at a general meeting of the body corporate held on 20 May 2001 which I was elected secretary / treasurer.

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)).

In respect of application 0471 of 2001 I made the following order, which is specifically relevant to the order now being sought, quote -

RA MeekI hereby order that the body corporate shall pay the amount of $104.57 to Rita Blanzen by delivering a cheque for this amount payable to her at her address at 13 Moorea Court, Pacific Pines.

I further order that immediately upon delivery of a cheque for this amount payable to her, Rita Blanzen shall deliver up to the committee member or committee agent who delivers the cheque, all body corporate books and records in her possession.

I further order that Rita Blanzen shall have available at her address at 13 Moorea Court, Pacific Pines all body corporate books and records in her possession.

I further order that as these actions are to occur at the address of Rita Blanzen, that Rita Blanzen must make herself or an agent on her behalf available to carry out her obligations under the terms of this order at a time reasonably amenable to the body corporate, provide such time is on a weekday between the hours of 8.30 am and 5.00 pm.

I further order that the above events shall occur within one (1) week of the date of this order.

In the order to application 0471 of 2001, I set out the following reasons, quote -

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

That Ms. Blanzan be ordered to return all body corporate property within her possession and that she accepts only the remuneration owing her as specified by the Tea Trees Body Corporate at their AGM held on Sunday the 20^th May 2001.

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 –

d) a claimed or anticipated contravention of the Act or the community management statement; or

e) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

f) 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)).

The facts of this dispute are very simple. At the AGM held on 20 May 2001, Rita Blanzen (Blanzen) was elected to the positions of Secretary and Treasurer, for the collective fee of $25 per unit per annum. On 12 June 2001, Blanzen resigned her position. I calculate the length of service to be 22 clear days. The body corporate now claims return of its records. Blanzen seeks payment of fees and outlays which she alleges are owing to her.

Blanzen is now claiming $251.89 as per her (amended) invoice of 21 June 2001 in her submission. In addition, Blanzen also appears to be claiming storage fees of $5 per week starting from Friday 24 August 2001 as per her letter of 16 August 2001. I calculate that the records have now been “stored” almost 12 weeks (24 August to 16 November inclusive), a fee of $60.

The body corporate is prepared to pay Branzen $72.24 for her services, being professional fees calculated on a daily basis.

I am empowered to make orders which I consider to be just and equitable for the resolution of a dispute. I am not prepared to go through each of the several accusations and counter accusations in the parties material. I consider this dispute to be somewhat petty, and certain of the parties actions to be unreasonable. Given the current workloads of this office and the limited resources, I proposed to consider Blanzen’s claims as per her invoice and to determine what is fair and reasonable.

I accept Blanzen’s claim for $72.24 for fees. I accept Blanzen’s outlays excepting Motor Vehicle expenses. Whilst it is impossible to determine without a copy of the notice of meeting whether “outlays” were included in the motions as per the notice, I consider them to be nevertheless reasonable. However, I do not accept the claim for motor vehicle expenses. I consider the other expenses are specifically related to the carrying out of the functions of secretary and treasurer. However travelling expenses are not so related, and I intend to disallow them. In respect of storage, I consider that there was no agreement as to storage expenses, and that as such this expense cannot now be unilaterally claimed.

Therefore, I calculated that the amount owing to Blanzen is $72.24 fees, $22.83 disbursements, and GST of $9.50, a total of $104.57. I intend to order that the body corporate pay this amount to Blanzen. Upon delivery of a cheque for this amount payable to Blanzen, I expect Blanzen to deliver up to the committee member or committee agent who delivers the cheque, all body corporate books and records in her possession. In particular, Blanzen should not object to the person who calls to collect the records and refuse claiming any alleged lack of committee authorisation. The cheque shall be delivered to 13 Moorea Court, Pacific Pines, and Blanzen will have available at that address all body corporate books and records in her possession. Finally, whilst I cannot order a specific time for all this to occur as I do not know the parties availability, I intend to order that the above events shall occur within one (1) week of the date of this order. I have ordered accordingly.

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I conclude that no further order or statement of reasons are necessary to dispose of this application, and I have dismissed it for the reason that the dispute the subject of the application has been resolved in the order for application 0471 of 2001.
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