Paddington Lane [2003] QBCCMCmr 481 (24 April 2003)

Last Updated: 10 September 2007

C G YOUNGREFERENCE: 0654-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19170
Name of Scheme:	Paddington Lane
Address of Scheme:	141 Herses Road EAGLEBY QLD 4207

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

C G YOUNGI hereby order that Sarah Eva Vasiliadis, the owner of Lot 10, of 7 Parson Street, Clayton Vic 3169, must deliver all of the body corporate records and other assets in her possession or under her control, to Body Corporate Services Pty Limited at Level 3, 88 Jephson Street, Toowong Qld 4066, by means of a commercially recognized courier service so as to reach that company within 14 (fourteen) days of the date of this order. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0654-2002

"Paddington Lane" CTS 19170

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That the owners of Lot 10 Mrs Sarah Vasiliadis be ordered to hand over to the secretary pf the Body Corporate any books and records of the body corporate held by her. This request is in terms of BCCM Act Standard Module Section 151."

JURISDICTION:
This is a dispute between a body corporate (the applicant) and an owner (the respondent Sarah Eva Vasiliadis of Lot 10), concerning the failure of the owner to deliver up the body corporate records and assets to the body corporate. This is a matter falling within the dispute 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) 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 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) 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 respondent Vasiliadis and other owners, with an invitation to respond to the matter of dispute raised in the application. The respondent did not make a submission in answer to the application, despite the following history of contact with this office –

• Notice to Vasiliadis that submission is to be lodged by 6 December 2002.

• Facsimile from Vasiliadis stating that she will provide a response by 13 December.

• On 17 December she replied to a telephone call from this office, saying she would send her submission that week. Told she needed to formally ask for an extension of time.

• Facsimile received seeking extension to 6 January 2003 to make submission.

• Extension to 24 January (additional leeway given) notified to Vasiliadis.

• On 12 and again on 13 February, this office telephoned and left message for Vasiliadis to return call regarding her submission.

• Facsimile from Vasiliadis on 5 March blaming a family trauma for delays. She added that she would –

"have the documentation ready for collection from my place of business Howie & Maher, Solicitors, Level 3, 116 Hardware Lane, Melbourne. The documentation can be ready for collection as from Tuesday 11^th March 2003. Please ensure the courier contacts me during working hours on 03 9642 0499 to confirm their collection time and/or date."

On 17 April, Logan Irwin of Body Corporate Services Pty Limited, the Body Corporate Manager to the body corporate, telephoned stating he had been attempting to telephone Vasiliadis without result, then on 16 April the body corporate solicitor called on her to collect the records as agreed to. However, Vasiliadis had refused to hand over the body corporate records saying that the body corporate owed her money.

The brief facts of the matter are as follows. The body corporate was previous managed by A & M Strata Management which terminated in November 2000 and was replaced by Body Corporate Services Pty Limited in January 2002. Few records were available to the incoming Body Corporate Manager, with some being held by Burleigh Heads Police relating to an investigation of alleged missing funds, and the balance being held by Sarah Vasiliadis who was elected chairperson at the annual general meeting on 2 May 2000. There evidently was no committee election in 2001, and elections next took place in January 2002 when Vasiliadis was not re-elected.

DETERMINATION:

"Castaway Cove" was registered as a building units plan (now termed a building format plan) on 3 November 1995, and comprises 25 lots.

The legislation requires the body corporate to keep certain records, including those relating to financial transactions, meetings, maintenance matters, insurance policies, etc. These are variously held by the relevant executive committee members, or by a Body Corporate Manger engaged by the body corporate if relevant delegations and contract terms so provide. Records are part of the assets of a body corporate.

Section 152 of the Body Corporate and Community Management (Standard Module) Regulation 1997 provides that, after notice to that effect, a person in possession or control of a body corporate asset must deliver the asset to a committee member. The section provides that failure to comply with a notice for return of an asset is an offence with a penalty of up to 20 penalty points ( $1,500).

The requirement to return an asset to a body corporate is a statutory one, and the person in possession or controil of an asset cannot claim a right of lien over an asset isn respect to any moneys owed to the person.

Accordingly, the respondent Vasiliadis cannot retain the body corporate records as a lien against its payment to her of any claimed moneys owing. The records must be returned as required by law, and any claim against the body corporate must be pursued separately – she will need to establish her claim by reference to an appropriate resolution of the body corporate for such a fee. The legislation does not specify that committee executive members are eligible for a fee, and though it is not precluded by the legislation, such a fee, particularly for a chairperson, would be highly unusual.

I am satisfied the body corporate has properly sought return of its asset, that Vasiliadis has receipt of that claim and has failed to comply. Accordingly, my order is that Vasiliadis must return the documents by the date specified. In cosideration that the body corporate has been put to unnecessary expense in attempting to recover its records, I am requiring that the respondent herself pay for the courier delivery of the records to the office of the Body Corporate Manager. I would inform the respondent that failure to comply with an adjudicator’s order attractys a penalty of up to 400 penalty points ($30,000) under section 288 of the Act.2n