Glen Idle Court [2003] QBCCMCmr 52 (6 August 2003)

Number of Scheme:	12003
Name of Scheme:	Glen Idle Court
Address of Scheme:	52 Union Street NUNDAH QLD 4012

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Karen JOHNSON, the owner of Lot 3,

I hereby order that the application for the following order –

To review the decision of the body corporate secretary refusing to reverse Professional Collection Service’s charges of $166.10 from my account after the debt was paid in full and final settlement,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0074-2003

"Glen Idle Court" CTS 12003

JURISDICTION:
This is a dispute between an owner (the applicant Johnson) and the body corporate (the respondent), concerning the reimbursement to the body corporate of the service fee paid to a Collection Agent for collecting the applicant’s outstanding contributions. This is a matter which falls within the disputes resolution provisions of the legislation (see sections 227, 228 and 276, and Schedule 5, 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 –

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 body corporate (committee) and to all other owners, with an invitation to each to respond to the disputed matter raised in the application. The body corporate secretary, Chris Fabila, has made a submission on behalf of the respondent, presumably on the authority of the committee, and two owners have also made submissions. The applicant Johnson viewed the submissions and subsequently lodged a written reply (see sections 246 and 244 of the Act respectively).

The brief facts of the matter are as follows.

The applicant admits that she had not paid contributions levied on her by the body corporate amounting to $940. She states that she had deliberately not paid the contributions because of perceived inaction by the body corporate in carrying out necessary maintenance and repair tasks.

The secretary states that she (again presumably on the authority of the committee) referred the debt to a collection agent, Professional Collection Services, who subsequently served a notice of demand on Johnson for the amount. The applicant says she spoke to Harold Neal of the collection agency, who said that, after purportedly seeking instructions from the secretary, if she did not pay the amount then she would be liable for the costs of collection. On 11 October 2002 she paid $840, being the outstanding amount less $100 owing to her for having personally purchased some irrigation supplies for the body corporate (the body corporate accepts this reimbursement). In her December levy notice, the collection agent’s fee of $166.10 was included as an outstanding debt. The applicant relies on the statement by Harold Neal that he had received instructions from the secretary that she would only be liable for the collection costs if she did not pay the outstanding amount promptly in full. She now makes application to be relieved from paying that cost.

The secretary (Fabila) states that she had telephoned the applicant regarding payment of the outstanding debt but had been told that there would be no payment until the body corporate, started doing its job. She states that she did not discuss the collection fees with the applicant, though makes no response to the statement the applicant attributes to Harold Neal. She states that the fee was a result of the applicant’s refusal to pay her contributions and also, other owners all agree that she should pay it; in any case, section 99 of the Standard Module requires that the applicant pays the fee.

DETERMINATION:
"Glen Idle Court" was registered as a building unit plan (now termed a building format plan) on 20 December 1978, and comprises 7 residential lots.

The dispute has arisen out of a perception by the applicant that the body corporate was not properly discharging its duty to maintain the common property. She names those matters as including gardening, the cleaning of gutters and the replacement of the television antenna.

The obligation of an owner to pay contributions once struck and levied, cannot be ignored by an owner because of a belief that the body corporate is not carrying out its duties. The course open to the applicant at the time was to have made an application against the body corporate for it to carry out its statutory responsibilities to maintain the common property, including the relevant gardening, gutter cleaning and antenna replacement. The applicant did not take this course of action and instead opted not to pay levies until she was satisfied that proper maintenance, in her view, was carried out.

The legislation, of course, makes no provision for an action on the part of an owner to withhold levy moneys. A contribution levied must be paid regardless of the views of an owner – there may be a case in respect of a set-off of moneys owed to an owner by the body corporate (as with the $100 for irrigation equipment here) but there can be no exemption in respect of a valid contribution levied. The applicant failed to separate the issues of liability and duties.

Neither can the applicant rely on the advice of a collection agent as to her liability or exemption from paying a fee. The secretary has not commented on the applicant’s allegation that Neal only relayed her advice to the applicant that she would avoid the fee if she paid the amount in full (promptly presumably). Had she not made this statement then it would have been a simple matter for her to have said so, but she hasn’t. However, I do not intend to see further evidence on the point because if she did say it then she had no authority to do so – it would require the authorisation of either the body corporate in general meeting or the committee and that does not appear to be the case. That is, the applicant can not rely on an unauthorised promise of the secretary and would still have to pay the fee (though she could seek private legal advice as to any civil right of action in the matter).

In regard to the reliance by the secretary (and committee presumably) on section 99 for the fee, I assume this is a reference to the general term or other amount payable, as the fee is not a contribution, instalment or penalty within the meaning of the section. However, the general term is really a reference to fees such as an annual fee attaching to an exclusive use by-law, a lease payment, or reimbursement under a section 119 arrangement, etc. That is, it is not a catchall but refers to payments the relevant owner is a party to that arises under the legislation. Bodies corporate often have a by-law (not being in the statutory by-laws) that specifically provides for the recovery of such fees.

However, I have no hesitation in determining that the just and equitable resolution of the dispute in the circumstances, is that the applicant should pay the fee. The alternative where the body corporate is responsible, would result in other owners being penalised financially for an owner’s failure to pay contributions on time (given that there are no proper circumstances for exemption – see my previous comments on this).

Accordingly, my order is that the application is dismissed.

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 –

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Glen Idle Court [2003] QBCCMCmr 52 (6 August 2003)