Palm Grove Village [2003] QBCCMCmr 140 (26 September 2003)

Last Updated: 17 May 2005

REFERENCE: 0154-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28536
Name of Scheme:	Palm Grove Village
Address of Scheme:	86 Lawrence Drive NERANG QLD 4211

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Amanda Meiling Plumb, the owner of lot 26

I hereby order that the application by Amanda Meiling Plumb, the owner of lot 26, for orders that - 1. lot owners to receive only one quarterly invoice based on lot entitlements from only the body corporate; 2. the body corporate to comply with body corporate laws and hold meetings and give sufficient notice pertaining to financial increases in contributions / invoices; 3. a refund of all past unauthorised increases, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0154-2003

"Palm Grove Village" CTS 28536

The applicant, Amanda Meiling Plumb, the owner of lot 26, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

The order I am seeking is for lot owners to receive only one quarterly invoice based on lot entitlements from only the body corporate.
I am also seeking order for the body corporate to comply with body corporate laws and hold meetings and give sufficient notice pertaining to financial increases in contributions / invoices.
Subsequently, I am seeking a refund of all past unauthorised increases.

Section 276(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 contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The application

The applicant attaches quarterly invoices from both the body corporate and monthly invoices from a Mr Grant Dickson (Dickson). The applicant states –

Currently, lot owners are paying two invoices ie. quarterly for body corporate and monthly for Mr Dickson. The reason I am seeking an order is because it seems unnecessary to pay Mr Dickson for pool care, land care, electricity on common land, rates on common ground and administration when we already contribute to the body corporate administration and sinking fund. Please note Grant Dickson’s invoices are not based on lot entitlements. ... Let it be known that I have never received evidence of a "registered easement agreement" (as per working of Grant Dickson’s invoices) even thought I’ve requested it from body corporate.

On the second and third orders sought by the applicant, she states –

Neither have the increases between September 2002 and January 2003 been authorised. ...

Submissions

This office sought submissions in response to the application from the body corporate committee, all owners, and Mr Grant Dickson (as an "affected person"). Submissions from the body corporate committee and Mr Dickson oppose the application. Submissions from owners are generally supportive of the application.

The easement issue

Grant Dickson, the registered owner of lot 4 on RP 181802 has responded to the application by way of submission. He commences by stating that –

This has NOTHING to do with the body corporate and therefore is NOT in your jurisdiction. This is a matter between the individual owners and myself only. However as a matter of courtesy I will give the following explanation.

I appreciate that Mr Dickson did, out of courtesy, respond. The scenario is a very unusual one and I would not have understood the position had he not replied. He states –

The individual properties within this complex are the beneficiaries of an easement agreement over lot 4 RP 181802 which in a "normal" complex would incorporate the "common land". However in this complex the unit owners and body corporate only own the land that basically the units are located on. The surrounding land including the driveways, swimming pool, gardens and lawns are on a separate title, which is in my ownership. The owners cannot access the street without crossing Lot 4.

The "registered easement" referred to in the agreement that allows for the use of this land by the unit owners, providing that they contribute their share (1/52) of the maintenance and upkeep costs of this land. A copy of this easement is available to any owner from the Department of Natural Resources.

These costs vary from month to month and as I have to make payments monthly, I require in turn that the owners pay me monthly.

Dickson is correct in his initial observation. Under the Act, I have no jurisdiction in this dispute, and for this reason, I intend to keep my comments to a minimum. My jurisdiction is limited to parties in community title schemes; not to a party or parties in schemes and an owner of an adjoining land. Such a dispute would be a matter for the courts. All I intend to add is that the applicant states that she has not been provided with a copy of the easement. A copy of the title search for the applicant’s lot shows the easement in question – Easement No. 601089839 benefiting the land over lot 4 on RP 181802. I suggest that the details of such easement should have come to light at the time of the applicant’s purchase of her lot. The applicant is able to obtain a copy of the easement from the Department of Natural Resources and to acquaint herself with the terms of the easement. The application is dismissed to the extent of this issue.

The unauthorised contributions issue

The applicant claims that certain contribution increases have not been authorised.

The body corporate manager, Body Corporate Administration, has responded opposing the application. The manager states that at the 2002 AGM, admin and sinking fund budgets were approved for the period to the end of the financial year (31 March 2003). The manager states –

An interim levy has been issued in accordance with Section 95(3) of the Standard Module Regulations. The levy was calculated on the level of contributions applying for the previous financial year and relates to the period 1 April to 30 June 2003.

The interim levy, calculated as above, does represent an increase on the previous two quarterly payments, as levy contributions were not equal for each of the four quarters, in the financial year. The levy does not represent a "financial increase in contributions or unauthorised increases" based on the approved budgets and section 94(3) of the standard module regulation.

I have set out section 95 hereunder -

95 Contributions to be levied on owners
(1) The body corporate must, by ordinary resolution--
(a) fix, on the basis of its budgets for a financial year, the contributions to be levied on the owner of each lot for the financial year; and
(b) decide the number of instalments in which the contributions are to be paid; and
(c) fix the date on or before which payment of each instalment is required.
(2) If a liability arises for which no provision, or inadequate provision, has been made in the budget, the body corporate must, by ordinary resolution--
(a) fix a special contribution to be levied on the owner of each lot towards the liability; and
(b) decide whether the contribution is to be paid in a single amount or in instalments and, if in instalments, the number of instalments; and
(c) fix the date on or before which payment of the single amount or each instalment is required.
(3) Also, the committee may fix an interim contribution to be levied on the owner of each lot before the owner is levied contributions fixed on the basis of the body corporate’s budgets for a financial year.
(4) The amount of a contribution mentioned in subsection (3)--
(a) must subsequently be set off against the liability to pay contributions mentioned in subsection (1); and
(b) must be calculated on the basis of the level of contributions applying for the scheme for the previous financial year; and
(c) must relate, as closely as practicable, to the period from the end of the previous financial year to 30 days after the annual general meeting.
(5) The contributions levied on the owner of each lot (other than contributions payable for insurance and any other matter for which, under the Act or this regulation, the liability attaching to each lot is calculated other than on the basis of the lot’s contribution schedule lot entitlement)
must be proportionate to the contribution schedule lot entitlement of the lot.

The applicant attached 3 notice of contributions to her application. The three are October – December 2002, January to March 2003 and the interim contribution notice for April to June 2003. The first two contain amounts which were approved at the 2002 AGM. The third contains amounts which reflect the average contribution over the previous 4 quarters. There are no "unauthorised increase" in contributions. The body corporate has simply imposed an "interim contribution" which it is entitled to do, pending the AGM for 2003 being held and new contributions being resolved (see section 94(3), and moreover, I conclude that the interim contribution has been set in a way which complies with the requirements of section 94(4).

In the circumstances, this application is dismissed.