Kookaburra Park Eco Village [2002] QBCCMCmr 43 (30 January 2002)

C G YOUNGREFERENCE: 0051-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19671
Name of Scheme:	Kookaburra Park Eco-Village
Address of Scheme:	MS 368 GIN GIN QLD 4671

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

Rudolf ONDRICH, as a co-owner of Lot 73,



C G YOUNGI hereby order that the application for an order that Rudolf Ondrich, a co-owner of Lot 73, be allowed to pay less than the full amount of contribution resolved and levied by the body corporate, is dismissed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0051-2002

“Kookaburra Park Eco-Village” CTS 19671

The applicant, Rudolf Ondrich of Lot 73, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“To make an order whether we have to pay full levy contributions or our amount which I believe is right. See letter to Mr Mobley dated 29.12.01 Page 3 bottom.”

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)).

This is an extraordinary application by an owner who is seeking to reduce his contribution to body corporate funds based on what he believes the body corporate should and should not fund. He does not dispute the validity of the motions authorising the contribution totalling $216, but disputes the funding of a number of the projects and works that comprise the contribution.

For example, he is of the mistaken belief that the body corporate must provide a letterbox for him and seeks to deduct from his annual contribution the amount of $45 for the rent of an alternative individual post office box, and another $50 for vehicle running costs to regularly access the box. The only responsibility the body corporate has concerning mail boxes is that set out in section 110 of the Standard Module regulations, namely to maintain one for the body corporate (not individual owners).

I do not intend to go through the list of items the applicant wants to reduce his contribution for, except to say that it is not within his discretion to say that the body corporate should only collect and pay the cost of a project after it has been completed – I have no doubt the body corporate will not pay until after completion, however the committee cannot be expected to call meetings, strike special levies and collect the necessary money each time an account is to be paid. In other areas the applicant believes he should not pay until proper details of a project is given, or a project supervisor named.

It is not a matter for individual owners to determine what portion of contributions they wish to pay, whether based on personal usage, the prior provision of certain information, or some other personal need or complaint.

The legislation provides that the body corporate in general meeting adopts a budget, thereby determining the contributions to be levied on owners according to the proportion of lot entitlements. Owners are obliged to pay these levied amounts – there is no room for negotiating the amount.

If an owner does not pay by the due date, then not only does the owner lose certain voting rights, but is liable to a debt action in the courts instituted by the body corporate for the amount plus costs (see section 99 of the Standard Module).

Accordingly, the applicant was liable to pay the full contribution of $216 by the due date 1 December 2001. If he has not paid then it is the duty of the committee to recover the amount, by court action if necessary.

Because this application sought an order that is clearly contrary to the legislation, and for which any response from the body corporate committee was unnecessary, no submissions were sought from any party before this order was made. My order is, for the above reasons, to dismiss the application as being wholly without any merit.

I might comment generally on other information disclosed by the applicant in his grounds to the application. Firstly, that there are quite a number of owners who have outstanding contributions. Not only is this unfair on those other owners who have paid their share, but it prevents the body corporate from carrying out the tasks it has decided need to be done. The body corporate needs to act firmly in obtaining these outstanding amounts plus any penalties incurred, and to pursue the payments in the local small debts court.

Secondly, I note that the chairperson/treasurer and secretary have resigned, seemingly because of the ill-feeling and discontent that has plagued this scheme for some time, evidenced by adjudicators by the nature and frequency of applications coming before this office. This application is typical of these. For a scheme that has been established to develop an alternative community lifestyle, free from many of the social problems and behaviours which characterise “normal” western society, “Kookaburra Park” has not been even a partial success. Each of you needs to re-read the founding statement that first drew you to this scheme and negotiate a way of living together under those principles, otherwise you are no more than another slice of society on a bush block.


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