The Oasis on Golden Beach [2002] QBCCMCmr 30 (24 January 2002)

RA MeekREFERENCE: 0486-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4778
Name of Scheme:	The Oasis on Golden Beach
Address of Scheme:	2 Landsborough Parade CALOUNDRA QLD 4551

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Bradley Ian Wolff, the co-owner of lot 32

RA MeekI hereby order that the application by Bradley Ian Wolff, the co-owner of lot 32, for an order that the Commissioner order Pronor Pty Ltd to pay the outstanding levies / contributions for the amounts of $17784.02 for stage 2 and $81,521.62 for stage 3 to the “Oasis on Golden Beach” Body Corporate, is dismissed.
n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0486-2001

“The Oasis on Golden Beach” CTS 4778

The applicant, Bradley Ian Wolff, the co-owner of lot 32, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The Commissioner should order Pronor Pty Ltd to pay the outstanding levies / contributions for the amounts of $17784.02 for stage 2 and $81,521.62 for stage 3 to the “Oasis on Golden Beach” Body Corporate.

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 states that –

Based on the approved levies from the AGM held by the “Oasis on Golden Beach” body corporate, levy payments from Pronor Pty Ltd for Stage 2 and Stage 3 are outstanding – based on the lot entitlements for each stage and based on the levy for each lot entitlement.

This dispute is in essence a debt recovery action. The alleged debt sought to be recovered is for outstanding contributions. The alleged debtor is a lot owner, Pronor Pty Ltd. The creditor is the body corporate. The applicant however is another lot owner.

The legislation establishes a mechanism, not only for how contributions are to be recovered, but by whom. Section 99(1) of the standard module provides, quote –

If a contribution, or instalment, is not paid by the date for payment, the body corporate may recover the amount of the contribution or instalment, together with any penalty, as a debt.

In short, it is the body corporate who may commence a debt action for recovery of contributions alleged not to have been paid. The recovery of contributions is not an order an adjudicator is authorised to make. I intend to dismiss this application.

By way of observation, I do however intend to make some additional comments. It seems that the applicant is in conflict with the body corporate regarding the question of contributions alleged to be outstanding by Pronor Pty Ltd. The minutes of a committee meeting held on 28 April 2001 state as follows –

After consideration of the correspondence tabled it was resolved that there were no outstanding contributions owing by Pronor Pty Ltd and then invoice dated the 9^th February 2001 for $15,288.51 be withdrawn by way of credit to Pronor Pty Ltd thereby indicating a nil balance as outstanding. A previous invoice issued on the 12^th April 2000 for $19,199.50 and dealt with is also to be withdrawn by way of credit to reflect any balance outstanding by Pronor Pty Ltd as a nil balance.

The applicant’s grounds appear to ignore this resolution.

I consider some explanation of the background to this dispute can be discerned from a submission made by one of the applicant’s co-owners. That submission states –

... Over a period of time various B/C committee meetings where held to discuss the (issue of outstanding contributions owing by Pronor Pty Ltd) with B/C members, Mrs L Provan, SSK&Burns over C Stage III payments. Finally the amount owing was resolved by the B/C committee. Unfortunately Mr D King (SSK&Burns) became ill and was unable to participate in a number of these deliberations. His place was taken by Mr P Burns ... . Mr Burns unfortunately did not appear to have the same detail knowledge of the “Oasis” as Mr D King and pertinent information was not forth coming from SSK&Burns ... .

The B/C committee can only recommend action to the AGM and due to lack of unit owners and “competent knowledge” on this matter it was difficult to make a recommendation or judgement.

In essence, this statement appears to be suggesting that the writer is not satisfied with the negotiations between the body corporate and Pronor Pty Ltd regarding outstanding contributions, and now seeks that “this matter should be resolved by a competent independent body to finalise this matter for all concerned”. It seems from this statement, and others made in response to the application, that there is dispute regarding the quantum of contributions owing, in addition to the question of whether contributions are owing at all.

I suggest that if there is a dispute here, then it must firstly be addressed at committee level, and if considered appropriate, referred to the body corporate in general meeting for a determination as to whether to proceed to an action for recovery of contributions (if any are determined to be outstanding) as a debt, in accordance with section 99. Alternatively, the applicant, as an owner is entitled to submit a motion for inclusion on the agenda of a general meeting, proposing that the body corporate pursue an action for contributions against Pronor Pty Ltd. If this motion is carried, the body corporate will be required to act on the motion.
n