Flametree Glen [2002] QBCCMCmr 1 (4 January 2002)

C G YOUNGREFERENCE: 0549-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19252
Name of Scheme:	Flametree Glen
Address of Scheme:	403 Pine Ridge Road RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Stephen Shaun BEST and Margaret Rose BEST, formerly co-owners of Lot5,

C G YOUNGI hereby order that the application for the following orders –

1. Body Corporate Manager

The administration agreement is invalid as only one quotation was presented to the owners at the annual general meeting held 5 May 2001, which is not in accordance with the requirements of the Body Corporate and Community Management Act 1997, Section 113(2)(h) and Standard Module Regulation Section 104.

2. Reimbursement of Owners Costs

That the Body Corporate has not shown a duty of care in maintaining the common property to the benefit of the owners as required under the Body Corporate and Community Management Act 1997, Section 114 or Standard Regulation Module Section 109, especially in regard to subsidence along the boundary fence and retaining wall. It is also noted that there is cracking and movement in the concrete and paving in the driveway adjacent to Lot 5,

is dismissed for lack of jurisdiction.

2yn

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0549-2001

“Flametree Glen” CTS 19252

The applicants, Stephen and Margaret Best the former owners of Lot 5, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

3. Body Corporate Manager

The administration agreement is invalid as only one quotation was presented to the owners at the annual general meeting held 5 May 2001, which is not in accordance with the requirements of the Body Corporate and Community Management Act 1997, Section 113(2)(h) and Standard Module Regulation Section 104.

4. Reimbursement of Owners Costs

That the Body Corporate has not shown a duty of care in maintaining the common property to the benefit of the owners as required under the Body Corporate and Community Management Act 1997, Section 114 or Standard Regulation Module Section 109, especially in regard to subsidence along the boundary fence and retaining wall. It is also noted that there is cracking and movement in the concrete and paving in the driveway adjacent to Lot 5.

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)).

The respondent body corporate has raised a question of jurisdiction concerning the standing of the applicants, the Best’s, in that they are no longer the owners of a lot in the scheme. It has forwarded copies of a notice, “Information for Body Corporate Roll Under Section 158”, which relates to the purchase of Lot 5 from the Best’s on 10 September 2001. The covering letter from the purchaser’s solicitor, Deborah Kelly of Surfers Paradise, confirms that settlement of the sale took place on 10 September 2001.

The records show that this office did not receive the application until 11 September 2001, the day after the Best’s had sold their lot. That is, the application was received when the Best’s were no longer owners.

The “Dispute Resolution” provisions of the legislation are set out in Chapter 6 of the Act. Section 182 provides that a dispute must exist between certain defined parties. Section 183 then sets out the various acts that may constitute a dispute, and in my view the two matters raised by the applicants are properly disputes within the meaning of section 183.

The question arises as to whether the parties to the application are recognised disputants under section 182. This section provides that a dispute must be between either –

(a) An owner or occupier and another owner or occupier.

(b) An owner or occupier and the body corporate.

(c) A body corporate and a Body Corporate Manager.

(d) A body corporate and a service contractor who is also a Letting Agent.

(e) A body corporate and a Letting Agent.

The Best’s application has been brought under (b) as the owners of a lot in dispute with the body corporate. No other recognised category of disputants could possibly fit the circumstances.

However, section 182 must be interpreted to refer only to current owners at the time of application, having regard to the decision of Dowsett J in Suncorp Insurance and Finance–v-Retail Shop Lease Tribunal[1995]2Qd R 429. This was a matter where the court had to determine the standing of an applicant before a Retail Shop Lease Tribunal, where standing was claimed to exist because of the applicant’s past status. His Honour held that a mediator and therefore a Retail Shop Lease Tribunal had no jurisdiction under the relevant Act to determine a dispute between persons who, at the time of reference of the dispute to the mediator, had been but were no longer in the relationship of landlord and tenant under a retail shop lease. His Honour held that the description of a person as a “landlord” or as a “tenant” (to which his Honour said that Ormiston J in Jam Factory Pty Ltd-v-Sunny Paradise Pty Ltd[1989]V.R.584 gave the meanings which those words normally have) implies that he or she currently has such status. His Honour further held that in the absence of words extending that meaning, one would not normally assume that the reference was to persons who had been landlords or tenants at some previous time. Earlier in his judgment, his Honour stated that if it were intended that the word ‘landlord’ include a person who previously had that capacity under a terminated lease, one would have expected the section to refer to a person who, “is or was previously” entitled to such rent.

Section 182 only refers to “owner” and makes no allowance for a person who “is or was previously” an owner. Accordingly, under section 220(2)(a) of the Act, it is the practice of adjudicators to dismiss applications for want of jurisdiction where the dispute concerns a person claiming standing in their former capacity, including as a former owner.

In normal circumstances this would be the end of matter and the application would be dismissed, however there is a further circumstance here that requires further consideration.

The Schedule 4 “Dictionary” to the Act defines “owner” as “the person who is, or is entitled to be, the registered owner of the lot”. Although settlement took place on 10 September, the records of the Registrar of Titles still showed the Best’s as the registered owners of Lot 5 on 11 September, pending the Registry’s processing of the change in titleholders. There is no doubt that the purchaser (Tony Robinson) was on 11 September 2001 “entitled to be” the registered owner of the lot, having paid the purchase price and having a signed memorandum of transfer from the Best’s in his favour. It would be an absurd interpretation which allowed both parties to be the “owner” of the lot in the eyes of the body corporate, giving both parties voting rights, rendering both liable to pay body corporate fees, etc. The situation is merely the result of, and its length determined by, the administrative delay taken in adjusting the title records to show the change in ownership.

Accordingly, for the purposes of the legislation the status of the applicants during the administrative processing period, although still being shown as the registered owners, is not as an owner.

I have therefore dismissed the application on the ground that I have no jurisdiction to determine the matters brought by the applicants as past owners.

Having said that, the Best’s may still have rights to pursue elsewhere. I cannot see that the applicants would have a proper interest in pursuing the first order sought, however as the second matter concerns a reimbursement of costs they believe should have been borne by the body corporate, I would point out that my decision only concerns the jurisdiction of an adjudicator under the Act, and any remedies the Best’s may have in the civil court is unaffected. In saying this, I am not making any comment concerning the merits of the Best’s claim.