Chatswood Place Medical Centre [2003] QBCCMCmr 349 (24 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0522-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16399
Name of Scheme:	Chatswood Place Medical Centre
Address of Scheme:	50 Chatswood Road, SPRINGWOOD QLD 4127

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

Craig Andrew Sole and Lorraine Margaret Sole, the co-owners of lots 3 and 4



RA MeekI hereby order that the body corporate for Chatswood Place Medical Centre shall, within two months (2) of the date of this order, pay to the owners of lots 3 and 4, Craig Andrew Sole and Lorraine Margaret Sole, the amount of $1030 being reimbursement for air-conditioning repair costs incurred by them prior to the meeting held on 22 May 2002, at which meeting the body corporate agreed that all future air conditioning costs and repairs should be paid by owners individually. y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0522-2002

"Chatswood Place Medical Centre" CTS 16399

The applicants, Craig Andrew Sole and Lorraine Margaret Sole, the co-owners of lots 3 and 4, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Removal of the air-conditioning from the responsibility of the body corporate to individual owners.

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

I do not intend to restate the applicant’s grounds nor the respondents, Rowan Nicholas Seton and Erica Judith Seton, the co-owners of lots 2 and 5, submission, and further submission, in any detail.

The application initially sought a declaration to the effect that "air-conditioning" costs be removed from responsibility of the body corporate. The respondents submitted that this had already occurred in consequence of a decision taken at a body corporate meeting held on 22 May 2002. When this was acknowledged by the respondents, the applicants reiterated their request for "an order for reconciliation of amounts of money either paid by or not paid by the body corporate". The respondents were requested to address this aspect, which they did in a further submission.

I consider that in consequence of that submission, the parties have essentially agreed to a resolution of this dispute on a particular basis. The applicants, in their original material stated –

This repair cost ($1030 paid by the applicants) having now been presented to the b/c has to be recorded as a credit to C&L Sole in the final solution of a/c cost responsibility or all monies paid by the body corporate be repaid to the b/c.

In their reply, the respondents state –

We believe that the current dispute over reconciliation of monies paid or not paid should honour the body corporate responsibility to pay for A/C repairs up until the time of the meeting of 22/05/02 since this is when that responsibility was revoked by agreement of all property owners as stated in my previous submission. This implies that the Body Corporate should reimburse Drs Sole the $1030 they expended on A/C repairs up to that time.

I conclude that the respondents agree that the body corporate should reimburse the applicants the cost of the final air-conditioning account which they paid. This solution is consistent with one of the solutions proposed for the dispute by the applicants (namely a credit).

Whilst the parties have essentially agreed to the resolution of the dispute on this basis, I consider it incumbent on me to ensure that this proposed resolution is "just and equitable" to both parties to the dispute. I conclude that it is.

Had no solution been proposed by the parties, I consider that I would have concluded that some form of reconciliation between the parties was required in respect of air-conditioning repairs. There are several forms this reconciliation might have taken including –

• Deeming all air conditioning costs to have always been a responsible of individual owners, and adjusting accordingly;

• Accepting body corporate responsible for costs to May 2002, and again adjusting accordingly;

• Some other form of reconciliation which took into account the exact amounts paid by the parties, and adjusting on the basis of equal portions.

The agreement of the parties removes the requirement for me to make an apportionment on some basis I conclude would have resulted in the most "just and equitable" reconciliation between the parties. Further, a solution to a dispute which emanates from the parties is almost always to be preferred to an imposed solution.

I therefore intend to order that the body corporate shall, within two months (2) of the date of this order, pay to the owners of lots 3 and 4, Craig Andrew Sole and Lorraine Margaret Sole, the amount of $1030 being reimbursement for air-conditioning repair costs incurred by them prior to the meeting held on 22 May 2002, at which meeting the body corporate agreed that all future air conditioning costs and repairs should be paid by owners individually. I have allowed two months only for the reason that the body corporate might have to convene an EGM (requiring 21 days notice) to pass a special levy in order to pay the amount, and thereafter to issue contribution notices to meet the levy, and allowing a time for payment by owners of this levy. If however the body corporate has sufficient funds in its administrative fund currently, then I see no reason why payment to the applicants should be delayed for any unreasonable length of time (say more than a week).





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