Beechwood Gardens [2003] QBCCMCmr 229 (19 November 2003)

Number of Scheme:	13281
Name of Scheme:	Beechwood Gardens
Address of Scheme:	9 Norwood Street TOOWONG QLD 4066

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

I hereby order that –

(1) Barard Management Pty Ltd of Technology One Centre, Level 1, 67 High Street, Toowong Qld 4066 (PO Box 302, Toowong Qld 4066) must pay the sum of One hundred and ninety four dollars and thirty seven cents ($194.37) to the body corporate within two (2) months of the date of this order.

(2) Denise Stanley of 7/22 Norwood Street, Toowong Qld 4066 (PO Box 786 Toowong Qld 4066) must pay the sum of One hundred and forty eight dollars and fifty cents ($148.50) to the body corporate within two (2) months of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0301-2003

"Beechwood Gardens" CTS 13281

JURISDICTION:
This is a dispute between the body corporate (the applicant) and:

These are both matters falling within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:
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 –

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

APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondents Barard and Stanley with an invitation for each to respond to their respective matters of dispute raised in the application. Both respondents made a submission opposing the application so far as it concerned them. The applicant body corporate (committee) viewed the submissions and subsequently lodged a reply (see sections 244 and 246 of the Act).

The disputes were initially referred to the Dispute Resolution Centre of the Department of Justice and Attorney-General in an attempt to have them mediated between the parties, however the Centre advised that the matters were "deemed unsuitable" for mediation. They were subsequently referred for adjudication.

DETERMINATION:
"Beechwood Gardens" was registered as a building units plan (now referred to as a building format plan) on 20 June 1975 and comprises 20 lots. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Order 1 – Reimbursement of $194.37 by Barard:
The body corporate is seeking reimbursement of the amount of $194.37 charged by Barard as part of an electronic funds transfer amount on 27 June 2001, and shown as "Outlay – Management PEGM $194.37".

Both owners Jan Haines and Hank Kylstra had discussions with Richard Holmes, a director of Barard, in September 2000 concerning the possible management of the body corporate by Barard. They state that there was no mention of costs involved in the appointment. In a letter dated 29 March 2001 addressed to Haines, Barard states as follows –

The words used do not refer to a waiver of its basic fee or some other charge, nor is it conditional. The plain meaning of the words underlined is that Barard will meet all costs, whether in waiver of its own fee or some other cost otherwise normally charged, or indeed any cost it may have to pay another. It would be reasonable for the body corporate to regard this concession as income foregone by Barard in order to obtain the body corporate’s business, or even perhaps as an incentive for the owners to vote for its engagement.

In response to a query from Haines (as chairperson) concerning the $194.37 charged, Barard replied as follows –

The first point to be made here is that there was no venue (see underlining) for the meeting as the vote on its engagement was done by flying minute, that is, there was no meeting and the vote was taken by a written voting paper being returned to Barard. Hence, presumably, the term "PEGM" in the accounts and the description "Postal Meeting" in the Grounds to the application. The legislation only allows for flying minutes by committees; there is no similar provision for general meetings (there is provision in section 103(1)(b) of the Standard Module for every owner to give written consent to allow the committee to spend over its relevant limit, but that is not relevant here). While it is not relevant to this application, except for explanatory purposes, the documentation before me shows that the engagement did not comply with the legislation (see section 87 of the Standard Module).

There is no explanation of what the costs were that Barard would have to absorb, though apparently the amount does not include any fee for labour (time).

The final explanatory document put by Barard is its submission to the application, where it states -

Prior paragraphs refer to the engagement agreement providing for a base fee of $95 per lot per annum and for disbursements such as "stationery, postage and photocopying etc that are legitimate expenses of a body corporate. Postage stamps (or similar), envelopes and copying paper are purchased in advance for a body corporate and photocopying equipment is leased and kept at Barard Management to avoid many visits to a copy shop."

If the term "Our Cost" only referred to relief from the base fee, then, as the fee is constant, there could only be relief if its commencement was delayed. If what is being suggested is that the fee did not run from when Barard first did some work on organising the vote for its engagement, then that is a fallacy as the fee could not in any case start until the engagement was voted on and entered into. The relief extended could only relate to either labour cost (which has been specifically excluded) or "disbursements" such as photocopying the voting paper and notice, envelopes and postage to owners, and perhaps some other such minor costs. I could not see how these would reach $194.37 for 20 owners if they were actually recovery of amounts actually "disbursed".

Regardless, as commented previously, the plain words "at our cost" would in my view be reasonably taken to mean that all costs were to be borne by Barard for its engagement.

I have hesitated in issuing the order for Barard to repay this amount because of the length of time since the charge was made (June 2001) and the absence of complaint by the body corporate until February this year (some 20 months). There is no time limitation on an application for such a claim, as these is for say the invalidation of a meeting or resolution which is three months (which can be waived though), however given that there is no satisfactory explanation why the amount was charged and the engagement was not valid in any case, I have made the order.

Order 2 - Reimbursement of $163 by Denise Stanley:
The body corporate contends that the committee decided not to hold a budget meeting with Barard staff attending, to avoid the additional fees which applied under the engagement agreement. It states that Stanley, who was then secretary/treasurer, called the meeting "at her cost" for 18 February 2003 at Barard’s office. A copy of the notice for that committee meeting has the following words at the top –

The charge of $163 comprises $148.50 for labour costs and the balance being the cost of copying minutes and motions duplicated by Stanley. Haines and Kylstra attended the meeting after telephoning Nicole Meiklejohn of Barard who allegedly said there would be no charge for Newton’s attendance.

Barard states that it had offered its office free of charge for the meeting provided no staff member attended. However, it states that the arrangement changed on the day and consequently both Newton and Meiklejohn attended and their time was charged at $148.50. Barard states that Newton was asked to attend the meeting with Meiklejohn and Saxby, but does not say whether the person making the request was Stanley, Haines or some other member.
Also, Newton was instructed by Barard directors to inform those present at the meeting that an additional fee for staff presence would be charged; both Newton and Saxby say they told this to those present.

In her submission, Stanley refers to comments by Barard (Holmes) in a letter to her dated 4 June 2003 that Haines was advised that if staff attended then fees would apply, and they only attended at the insistence of Haines. Stanley said she had been told by Meiklejohn that there would be no fee charged for either her or Newton’s attendance at the meeting. Stanley says she knew nothing of the charge until May 2003, and she is of the belief that Haines deliberately set out to discredit me by advising other body corporate members that Barard’s would charge for their staff attendance.

There are a number of obvious conflicting statements. It need not necessarily be the case that one of more parties are telling deliberate lies in the matter – there are often misunderstandings in what others have said, conclusions drawn from what is left unsaid, and people hearing what they want to hear.

This jurisdiction does not have the time, resources or indeed the ability to conduct a hearing at which the evidence given can be tested to determine, as far as possible, the truth of the matter. Nor given the amount involved, $163, would the expense be justified.

However, it seems to me that having given clear notice to other members that the costs of the meeting were to be borne by her, the onus was on Stanley to be aware of whatever charges may arise in the conduct of the meeting. The terms of the agreement allows for additional charges to be made by Barard for additional meetings and time spent by staff on various tasks. Accordingly, despite her alleged assurances from Meiklejohn that the presence of both Newton and her at the meeting would not be charged, she should have confirmed that and if she chose not to, as appears was the case, then she must bear the consequences. As well, Stanley’s allegation that somehow the gratis presence of Newton and Meiklejohn became chargeable because of something said between Haines and Barard (Holmes?) does not make sense – it is highly unlikely she would bring on a charge to the body corporate just to discredit Stanley.

In the circumstances, I consider that Stanley must honour her undertaking to be responsible for the costs of the meeting of 18 February 20003, and my order is to that effect. However the cost will be set at $148.50 – the duplicated photocopying appears to be an innocent mistake which occurred during work undertaken for the benefit of the body corporate.

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 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.

(1)	the Body Corporate Manager, Barard Management Pty Ltd ("Barard"), as the respondent to the first order sought above, in which the body corporate is seeking the reimbursement of $194.37 charged it by Barard for certain services which it believed were to be rendered free of charge by Barard; and
(2)	Denise Stanley, the secretary/treasurer at the relevant time, as the respondent to the second order sought, in which the body corporate is seeking the reimbursement of $163 charged by Barard for a budget committee meeting (including cost of minutes) convened at the request of Stanley.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Beechwood Gardens [2003] QBCCMCmr 229 (19 November 2003)