Campbell Marque [2002] QBCCMCmr 231 (22 April 2002)

DP GardinerREFERENCE: 0765-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24172
Name of Scheme:	Campbell Marque
Address of Scheme:	21 Campbell Street TOOWONG QLD 4066

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

I declare that:

1. the respondent resident unit manager does not have an exclusive right of letting lots in the scheme,

2. owners of lots in the scheme may engage letting agents of their choice other than the respondent.

3. the powers and responsibilities of the respondent are contained in the agreement with the body corporate and relevant provisions of the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module)

DP GardinerI hereby order that:

1. the respondent resident unit manager, Kenneth Alan Mayes, and any person employed by him, or, acting on his behalf, are prohibited from preventing access to lot owners and their letting agents to common property.

2. the respondent resident unit manager, Kenneth Alan Mayes, and any person employed by him, or acting on his behalf, are prohibited from engaging in any behaviour which interferes, or is likely to interfere, with the letting of lots by persons other than himself.

3. the respondent resident unit manager, Kenneth Alan Mayes, and any person employed by him, or acting on his behalf, is restrained from harassing or otherwise discriminating against, the owners or tenants of lots for which the resident unit manager has not acted and does not act as the letting agent..

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0765-2001

“Campbell Marque” CTS 24172

The applicant Body Corporate for Campbell Marque, the Body Corporate of lot N/A, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

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 the supporting grounds, the applicant describes actions of the respondent which interfere with the letting of lots by letting agents other than the respondent. The respondent remains of the view that he is solely entitled to letting rights for all lots in the building Moreover, complaint is also made regarding the style of communication employed by the respondent with other occupants and lot owners.

The body corporate obtained legal advice from a leading law firm to the effect that the respondent did not have exclusive letting rights for the building. In a letter of advice dated 14 February 2001, Messrs. Mallesons Stephens Jacques, Solicitors, considered the provisions of the Letting Agreement and commented as follows:

“Use of Outside Letting Agents

• the letting agreement in clause 3.1(c)(ii) expressly requires the letting agent to accept the right of lot owners to use other letting services (i.e. letting services apart from the onsite letting service ) or to let their units themselves. It is therefore clear that the letting agent cannot deny this right to a lot owner.

• an outside letting agent accessing the common property for the purpose of showing a lot to a prospective tenant would have authority to do so on one of two bases:

o as the authorised agent of the owner ( assuming that an appropriate agency agreement is in place ); or

o as theb invitee of the owner.

• neither the letting agent or the body corporate should interfere with this right.

The respondent contends that this advice is incorrect. He has not obtained any independent legal advice concerning this issue.

Having read the advice rendered by Messrs. Mallesons Stephens Jacques, Solicitors, and the information provided from all sources, I consider that advice to be correct, namely that the refusal by the respondents to allow other letting agents into the building is incorrect.

I have read the submission from the respondent which comprises some 86 pages and is very detailed. I do not need to conduct an on site inspection.

Whilst I do not intend to canvass the information supplied by the respondent and other lot owners as well as the body corporate, I have carefully considered all the information provided.

I have formulated orders and made declarations which are designed to be of assistance to the applicant, the respondent and all occupants.2n

In light of the facts as presently explained, I consider that the view formed by the respondent that other letting agents ought not to enter the building including common property is incorrect. I also have formed the view that the respondent, through misplaced zeal, has exceeded his responsibilities by issuing notices which can only be issued by the body corporate. The issue of notices is the function of the body corporate determined at a meeting of the body corporate committee .

I have made the orders and declarations because I am satisfied there is good cause to do so and that failure to do so would work an injustice to those lot owners who wish to engage outside letting agents if they so wish.