Gold Coast Central [2003] QBCCMCmr 613 (2 May 2003)

Number of Scheme:	16779
Name of Scheme:	Gold Coast Central
Address of Scheme:	cnr Barney Street & Brighton Parade SOUTHPORT QLD 4215

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

I hereby order that the application for an interim order:

That the body corporate be prohibited from imposing the conditions marked A, B and C, in the attached document, titled ‘Relevant Dates’ until such time as a final order is granted under Ref No: 0753-2002.
That the body corporate be instructed to provide copies of all correspondence, received from CHU. to the owners, particularly that which purports to demand that all units be vacated and Mr Noel Wills be removed as manager before insurance will be reinstated.

is dismissed.

The applicant, Manufacturing & Management Systems Pty Ltd, as trustee, has sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The conditions to which order 1 refers appear to apply to an agreement for sale between Noel Stanley Wills and Chevron Palms Resort Pty Ltd and Venro Pty Ltd. A copy of the agreement has not been provided, but the document referred to in the order appears to be a schedule to such an agreement. The specific conditions require that, prior to completion of the sale, the body corporate consent to the assignment of rights and consent to and execute new caretaking and letting agreements. A further condition required the seller, Mr Wills, to cause all occupants of lots to vacate the complex prior to completion of the sale.

Section 279(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

In the supporting grounds, the applicant states that the body corporate is attempting to impose conditions on the sale of the management rights, and that one of the conditions in particular, namely the condition requiring the seller of the management rights to cause all occupants of lots to vacate the complex prior to completion of the sale, infringes the rights of individual owners. The applicant expresses the view that the body corporate should be prohibited from making decisions relating to the management of the scheme until the earlier dispute (0753-2002 between this applicant and the body corporate) concerning maintenance, insurance and provision of records, is resolved.

The body corporate committee was invited to respond to the application. A submission was received from Herdlaw Solicitors. The submission detailed the background to the dispute between the body corporate and the previous onsite manager, Broadwater Park Pty Ltd, of which Mr Wills is a director. The submission also noted that the conditions A, B and C, in respect of which the interim order has been sought, are conditions imposed as a result of contractual negotiations between two parties, neither of whom is the body corporate. The submission further notes that the body corporate has not had any input or discussion in respect of the conditions, nor has it imposed the conditions. On this basis, therefore, it was submitted that the order sought is meaningless and unenforceable and therefore should not be granted.

In relation to the second of the orders, relating to the provision of correspondence from CHU, the body corporate contended that the documents are privileged. The body corporate pointed out that this application contains a document that could only have been provided to the applicant by Broadwater Park, which is a party to the threatened legal proceedings. The body corporate therefore contended that the application is clearly an attempt by Broadwater Park through the applicant, to obtain documents to which it is not entitled by virtue of the provisions of the Act and the Regulation Module.

Mr Inglis, a director of the applicant, replied to the submission, and did not deny that Mr Wills gave him the document to which the body corporate referred. Mr Inglis expressed the view that he was entitled to be provided with such a document, as it has a direct impact on his income. On the question of privilege in relation to the CHU letters, Mr Inglis dismissed the claim that such letters could be privileged as “nonsense”. He contended that the Act clearly gives the right to all lot owners to view such documents.

Section 149 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module), by which this scheme is regulated, provides as follows:

(2) Also, the body corporate must, if asked by an adjudicator, allow the

(3) However, the body corporate is not required to allow a person access

I do not consider that the effect of section 149(3) is limited only to the parties to threatened proceedings. It may well be that in certain proceedings the interests of the body corporate can only be protected by limiting access to records generally. I have not been provided with sufficient information to determine whether the threatened proceedings in this instance fall within this category. However, as CHU allegedly claims to have only sent two letters to the body corporate, and the applicant acknowledges that copies of those letters are already in his possession, the order sought appears to be superfluous. I do not propose to make the order sought.

As to the first of the orders sought, Mr Inglis reiterated that it was only necessary because of the delay in finalisation of application 0753-2002. I am unable to see any correlation between an application to have the body corporate declared in breach of the Act because of its alleged failure to maintain common property, and effect insurance, and an order prohibiting it from imposing conditions on the sale of management rights, which, in any event, it states that it has not imposed. I accept the body corporate’s submission that it is not a party to the agreement in which the conditions have been imposed. I further accept that the order sought would be meaningless and unenforceable. I decline to so order.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Gold Coast Central [2003] QBCCMCmr 613 (2 May 2003)