Eleonora Court [2003] QBCCMCmr 456 (2 April 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0613-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10589
Name of Scheme:	Eleonora Court
Address of Scheme:	53 Annie Street

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

Rebecca Ryan, the owner of lot 6



I hereby order that the secretary of the body corporate shall, within 7 days of the date of this order, make available for inspection by the applicant and/or her agent, Robert Herd, of Herdlaw Solicitors, all records of the body corporate, including, but not limited to, financial records, minutes of meetings, roll of owners, service agreements and insurance policies.

I further order that the records referred to above shall be made available for inspection during business hours within the time frame ordered above at the offices of the body corporate situated at 539 Brunswick Street, New Farm.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0613-2002

"Eleonora Court" CTS 10589

The applicant, Rebecca Anne Ryan, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That Herd and Janes Lawyers, as solicitors for the owner of lot 6, be allowed to search the records of the body corporate.

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)).

In the supporting grounds, the applicant explains that she has been threatened with legal proceedings over her non-payment of a special levy, the validity of which she disputes. She further explains that she wishes to search the body corporate records to ascertain if the purported special levy has been struck in accordance with the regulations. The applicant states that she has endeavoured, through her agent, to search the body corporate records, but her request has been refused.

The body corporate committee was invited to respond to the application. A submission was received from the chairperson, in which it was stated that the applicant could inspect body corporate records. No reason was given for the body corporate’s previous refusal of the applicant’s request.

On 29 January 2003, the applicant’s solicitor, Robert Herd, of Herdlaw Solicitors, advised the Commissioner’s office that he inspected certain body corporate records in the presence of the chairperson, in November 2002. Mr Herd stated that not all body corporate records were made available to him. Mr Herd advised that he wrote to the secretary on 17 January 2003 requesting an inspection of all body corporate records. Mr Herd provided a copy of the secretary’s response, dated 20 January 2003, in which Mr Herd was requested to supply evidence to the secretary that not all body corporate records were made available to him for inspection. The letter continued: "As requested, the minutes of all our meetings were provided for your inspection at that time."

The applicant’s solicitors wrote to the secretary on 4 February 2002 requesting an inspection "of the body corporate’s records." The request was not limited to minutes of meetings. Body corporate records obviously comprise of more than minutes of meetings. It is clear on the material that all records have not been provided. Section 162 of the Act provides for information to be given to "interested persons", which term is defined to include an owner of a lot included in a scheme. Section 162(2)(a) provides that after certain steps are taken, the body corporate must permit a person to inspect "the body corporate’s records". Once again no limitation is placed upon these records.

I have made appropriate orders to facilitate the applicant’s search of body corporate records. I do not consider that the applicant should have been put to the trouble and expense of making this application, when it is perfectly clear that she has a right to inspect all of the body corporate records, upon making a written request and tendering the relevant fee, which her legal representative had done more than 12 months ago. There is no evidence before me that the body corporate was entitled to refuse access to the records under section 150(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997, by which this scheme is regulated, nor did it purport to do so. I note that the chairperson has referred to other issues between the body corporate and the applicant, however those alleged issues are completely irrelevant to the question of inspection of records. Furthermore, the issuing of a by-law contravention notice does not constitute a legal proceeding, as referred to in section 150(3) of the Standard Module. In my view, the actions of the body corporate have wasted not only the applicant’s time, but also the time of this office.

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