Katchris [2002] QBCCMCmr 372 (13 June 2002)

DJ ReardonREFERENCE: 0093-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13853
Name of Scheme:	Katchris
Address of Scheme:	24 Croydon Street TOOWONG Q 4066

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

Tung Ngan Cheung, the representative of the Owner of Lot 1

I hereby order that within 7 days of the date of this order, the Body Corporate must provide the representative of the Owner of Lot 1, Tung Ngan Cheung with a written statement of the cost of providing copies of each bank statement for Body Corporate’s passbook savings account, term deposit account, and cheque book account in accordace with the fees set out in section 110 of the Body Corporate and Community Management (Small Schemes Module) Regulation 1997.

I further order that within 14 days of receiving the prescribed fee, the Body Corporate must provide the representative of the Owner of Lot 1, Tung Ngan Cheung with the requested copies of records.

I further order that the application for an order “Katchris Body Corporate is run by other owner of the building or other Body Corporate management company” is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0093-2002

“Katchris” CTS 13853

1.	Orders Sought

This dispute resolution application has been made on behalf of the Owner of Lot 1. I have been provided with a copy of a General Power of Attorney appointing Cheung Tung-Ngan, (“the Applicant’s representative”) as Attorney for Cheung Tung Wah, the registered Owner of Lot 1. The Applicant’s representative has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“(1) To have the photocopies of all pages from the beginning to now of bank transactions record of (A) Passbook saving

(B) Term Deposit

(C)Cheque Book A/C

by Body Corporate Act.

(2) Katchris Body Corporate is run by other owner of the building or other Body Corporate management company because Mr P Day still do not run the Body Corporate according to the Body Corporate Act”.

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 the 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 community management statement for the “Katchris” community titles scheme indicates that the Body Corporate and Community Management (Small Schemes Module) Regulation 1997 (“the Small Schemes Module”) applies to the scheme.

2.	Application and Submissions

This dispute resolution application was made on 12 February 2002. On 27 February 2002, and 4 April 2002, the Commissioner for Body Corporate and Community Management requested the Applicant’s representative to provide further information in relation to the application, and clarification of some issues raised in the application.

On 1 May 2002, the Commissioner for Body Corporate and Community Management invited the Committee for the Body Corporate, and all owners of a lot included in the scheme, to make a written submission about the application. The Secretary for the scheme (the Owner of Lot 3), and the owners of Lots 2,and 4 have made written submissions about the application.

3.	Matters in Dispute

3.1 Copies of Documents

The applicant is seeking an order that he be provided with copies of all bank statements received by the Body Corporate “from the beginning to now” for a passbook savings account, a term deposit account, and a cheque account. In the supporting grounds to the application, the Applicant indicates that he has not been able to obtain copies of these documents.

Section 162 of the Act enables “interested persons” to access information from the records of the Body Corporate. Specifically, section 162 provides the following, quote-

162.(1) This section provides for the giving of information by the body

corporate for a community titles scheme from the body corporate’s records.

(2) Within 7 days after receiving a written request from an interested

person accompanied by the fee prescribed under the regulation module

applying to the scheme, the body corporate must—

(a) permit the person to inspect the body corporate’s records; or

(b) give the person a copy of a record kept by the body corporate.

(3) The body corporate must, within 7 days after receiving a written

request from an interested person accompanied by the fee prescribed under

the regulation module applying to the scheme, issue a certificate (a “body

corporate information certificate”) in the approved form giving financial

and other information about the lot.

(4) A person who obtains a certificate under subsection (3) may rely on

the certificate against the body corporate as conclusive evidence of matters

stated in the certificate, other than to the extent to which the certificate

contains an error that is reasonably apparent.

(5) In this section—

“interested person” means—

(a) the owner, or a mortgagee, of a lot included in the scheme; or

(b) the buyer of a lot included in the scheme; or

(c) another person who satisfies the body corporate of a proper

interest in the information sought; or

(d) the agent of a person mentioned in paragraph (a), (b) or (c).

The prescribed fees for obtaining information pursuant to section 162 of the Act are outlined in section 110 of the Small Schemes Module. Section 110(1) provides the following

110.(1) For section 162(2) of the Act—

(a) the prescribed fee for inspection of the body corporate’s records

is—

(i) if the person inspecting the records is a lot owner—$10; or

(ii) if the person inspecting the records is not a lot owner—$20;

and

(b) the prescribed fee for obtaining a copy of a record kept by the

body corporate is 50c for each page supplied.

The Secretary for the scheme has made a submission opposing the application. In his submission the secretary makes the following comment, quote-

“I refuse to make copies of monthly bank statements (which do not identify payments in or out, if any). I have explained to him that all the important information, such as it is for a small block of four units, is in the body corporate’s cheque book which he can inspect at any convenient time (but not remove).”

The Act does not provide discretion for bodies corporate to release information pursuant to section 162. While I personally agree that it seems somewhat excessive for the Applicant to require copies of all bank statements from the commencement of the scheme, it is not for me, or the Body Corporate to question the motivations of a person entitled to information pursuant to section 162.

In the circumstances, I consider that the Applicant’s representative is entitled to the information requested. However, I also consider that the Body Corporate is entitled to require payment of the prescribed fee before providing the copies of the documents. To this end, I intend to order the Body Corporate to provide the Applicant’s representative with a written statement of the cost of providing copies of the documents requested in accordance with the fees set out in section 110 of the Small Schemes Module. I also intend to order that upon receipt of the prescribed fee, the Body Corporate must provide the Applicant’s representative with copies of the requested documents.

I do note that the Applicant’s representative is requesting bank statements “from the beginning to now” which appears to mean from the commencement of the scheme in 1974. I also note that in a note to the applicant from the Secretary for the scheme, the Secretary refers to monthly bank statements. As such, the Applicant’s representative should be aware that the cost of obtaining the records may be significant. In the circumstances, the Applicant’s representative may wish to consider refining his request, however, this is a matter for him to decide. Given the potentially large amount of records requested by the Applicant’s representative, I intend to allow the Body Corporate two weeks after receiving the prescribed fee to provide the Applicant’s representative with the requested documents.

I also wish to make it clear that this order does not impose an ongoing obligation on the Body Corporate to provide the Applicant’s representative with monthly bank statements. If the Applicant’s representative wishes to obtain copies of bank statements or other Body Corporate documents in the future, he will again be required to make a written application to the Body Corporate accompanied by the relevant prescribed fee. The Body Corporate would then be required to fulfil its obligations under section 162 of the Act.

3.2	Administration of the Body Corporate

In addition to seeking an order in relation to obtaining copies of bank statements, the Applicant’s representative also appears to be seeking an order that a person other that the current secretary be appointed to administer the Body Corporate.

In supporting of an order appointing an administrator, the Applicant’s representative states that the financial statements were not properly distributed to owners with the notice of an annual general meeting, and restates issues surrounding access to records of the Body Corporate.

I wish to point out to all parties that an order appointing an Administrator for the scheme for any significant period of time, is not made lightly. Generally, to be successful in an application for the appointment of an Administrator, an applicant must demonstrate that the day-to-day administration of this body corporate has broken down, and/or that the affairs of the body corporate are in such disarray as to warrant the appointment of an administrator. Indeed one of the secondary objects of the Act is “to balance the rights of individuals with the responsibility of self management as an inherent aspect of community titles schemes” (my emphasis). In my view the right of a Body Corporate to administer its own affairs should only be disrupted in very serious circumstances.

In this case I am not satisfied that the irregularities in calling a meeting and the issue concerning access to records warrant the appointment of an Administrator. It is for the Body Corporate to decide on membership of the Committee and whether or not to appoint a body corporate manager for the scheme.

For these reasons, I intend to dismiss the second order sought by the Applicant’s representative.