Madison Garden Villas [2002] QBCCMCmr 87 (15 February 2002)

D P GardinerREFERENCE: 0596-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25921
Name of Scheme:	Madison Garden Villas
Address of Scheme:	83 Heeb Street BENOWA QLD 4217

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

Mr Terry Vertigan, the Owner of lot 50



D P GardinerI hereby order that the body corporate is prohibited from charging lot owners for the expense of policing the by-laws and further order that the resident managers, Ian and Raewyn Furness are prohibited from charging lot owners for the cost of policing by-laws.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0596-2001

“Madison Garden Villas” CTS 25921

The applicant Mr Terry Vertigan, the Owner of lot 50, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

D P Gardiner' that the body corporate is prohibited from charging lot owners for the expense of policing the by-laws and further order that the resident managers, Ian and Raewyn Furness are prohibited from charging lot owners for the cost of policing by-laws".2n



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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that the resident mangers have charged tenants/owners for when he has had to police by-laws outside of his office hoursfor e.g. noise/disturbance affecting other tenants and contends that there is nothing in the agreements ( ie the service agreement ) warranting such charges, the managers’ salary being paid by levy on the owners.

This dispute seems to have originated from the engagement of letting agents other than the resident managers by some unit owners which does seem to have met with the approval of the residents.

Be that as it may, it is quite clear that call out charges are being applied in respect of those units where letting agents other than the resident managers have been engaged.

On 21 June 2001, written opinion was received from Messrs. Quinn & Box, Solicitors and Attorneys, in the following terms:

“MANAGEMENT AGREEMENT

The general duties and obligations of the Manager are set out in Schedule 1 of the Agreement.
Relevantly, sub-clause ( c ) provides :-

( c ) Police the observance of the by-laws of the Body Corporate by the owners and the occupiers ( including their guests and licensees ) for the time being of the Lots in the Property. The Manager is hereby authorised by the Body Corporate to evict or deal with any person creating a nuisance or annoyance on the Common Property or committing any breach of the by-laws of the Body Corporate to the same extent as the body corporate itself.”

Sub-clause ( n ) provides:-

“Comply with and carry out all reasonable directions from to time given by the Body Corporate to the Manager in and about the administration and management of the Property and the performance by the body corporate of its lawful obligations and duties.

It is specifically contemplated by Schedule I clause I 1(c) that the Managers’ obligations to police the observance of the by-laws does not discriminate between owners, occupiers and their guests and licensees ( which would include tenants ). In our view, it is clear and unequivocal that the Managers’ obligations to police the by-laws means that the Managers must treat each of the tenants or occupiers ( whether they are tenants through the letting pool, tenants of owners, owners, other occupiers or visitors ) equally.

If the body corporate gives a reasonable direction to the Manager pursuant to Schedule 1(n) in relation to the administration and management of the property and the performance by the body corporate of its lawful obligations and duties then the Managers should comply with that direction. If the Managers do not comply with the direction then they are likely to be in breach of the Management Agreement ( subject to the terms of the Agreement ) and the procedures set out in the Agreement in respect of default may be activated.”

Whilst I have not sighted the entire management agreement and assuming that Messrs, Quinn & Box have accurately quoted those provisions which appear in their written opinion, I concur in their advice and consider that the Resident Managers are not entitled to demand payment for policing the by-laws out of office hours and consequently it iis not correct for the body corporate to levy owners for such amounts.

In the result, I order D P Gardiner that the body corporate is prohibited from charging lot owners for the expense of policing the by-laws and further order that the resident managers, Ian and Raewyn Furness are prohibited from charging lot owners for the cost of policing by-laws.2n





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