Vielpa [2004] QBCCMCmr 113 (23 February 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Valerie Elizabeth Wilson, the owner of lot 4

I hereby order that the application by Valerie Elizabeth Wilson, the owner of lot 4, for orders, quote –

1. That the appointment of Delray Pacific Pty Ltd as manager be assessed according to the requirements of the Body Corporate and Community Management Act 1997.
2. That no unnecessary and excessive expenditure occurs until sinking fund balance improves.
3. That propreitors conduct Vielpa CTS 13821 affairs according to requirements of the BCCM.
4. That the correct anniversary date of 10 July – resulting from a Referee’s Order – be used.
5. That the chairman provide proof of her claims (letter dated 27/11/02) that (then follows a list of 8 claims alleged to have been made in the said letter)

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0673-2003

"Vielpa" CTS 13821

The applicant, Valerie Elizabeth Wilson, the owner of lot 4, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

Section 276(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 the Act or the community management statement; or

(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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The scheme

The scheme is a subdivision of 6 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the standard module.

The application and submissions

I do not intend to restate the applicant’s grounds to the application in any detail. These details are known to the parties (other owners) in consequence of the notice inviting submissions forwarded by this office. Similarly, I do not intend to set out the contents of submissions in any detail. Again, these are known to the applicant via the inspection of submissions, and her having a right of reply to such submissions. The applicant’s reply to such submissions is voluminous.

In contrast to the applicant in her application and reply to submissions of others, I intend to be brief.
I refuse to dissent into the dysfunction that obviously exists within this body corporate.

The applicant has sought 5 orders. I intend to deal with each inturn.

That the appointment of Delray Pacific Pty Ltd as manager be assessed according to the requirements of the Body Corporate and Community Management Act 1997.
The applicant states –

The applicant incorrectly assumes that a body corporate might only ever have one body corporate manager engaged at any one time, and that a period of engagement can never overlap. The legislation is silent in respect of such matters, and there is no prohibition on there being two engagements existing at any one time. Whilst this might not be financially purdent, there are a number of reasons engagements might overlap, probably for a short period of time.

The motion appointing DP is for a term of 13 months at a fee of $725 inclusive of GST. Whilst I acknowledge that the cost of engageing a body corporate manager will usually include additional charges, as these are not known at the time the motion to appoint the manager is considered, then only the base cost can be used to determine the level of expenditure for the motion for the purposes of section 104 of the standard module. In the circumstances, I am satisfied that the expenditure is below the relevant limit for major spending for this scheme.

I am uncertain of the intent of the reference to the manager’s office being 23kms from the scheme. Perhaps the applicant is referring to the requirement that committee and general meetings must be held at a location within 15 kms of the scheme (sections 29 and 44 respectively). There are however exceptions to this requirement; section 44(2) allows a meeting to be so held unless "owners of at least 25% of the lots" object. The applicant represents 1/6 of lots and would not achieve the necessary 25%. Any objection by her would not succeed. The minutes indicate that 4 of the remaining 5 owners attended the meeting, obviously without objection.

I have already dealt with the issue of concurrent engagements and do not propose to comment further.

On the basis of statements made by the applicant, I find no deficiency in the engagement of DP as body corporate manager for this scheme, and do not proposed to investigate further.

That no unnecessary and excessive expenditure occurs until sinking fund balance improves.

I will not impose any blanket prohibition upon the functioning of a body corporate, and in particular expenditure from its sinking fund. To do so has the potential to create a conflict with other requirements of the legislation, for example, the requirement (in fact the duty) of the body corporate to maintain the common property.

If the sinking fund is depleted, then section 95(2) contemplates that -

(2) If a liability arises for which no provision, or inadequate provision, has been made in the budget, the body corporate must, by ordinary resolution--
(a) fix a special contribution to be levied on the owner of each lot towards the liability; and
(b) decide whether the contribution is to be paid in a single amount or in instalments and, if in instalments, the number of instalments; and
(c) fix the date on or before which payment of the single amount or each instalment is required.

Clearly, the legislation provides a mechanism for raising additional funds if the same are required. This is the approach which the legislation required, rather than a prohibition being placed on necessary spending.

That propreitors conduct Vielpa CTS 13821 affairs according to requirements of the BCCM.

As an adjudicator, I do not make orders to the effect that owners conduct affairs according to requirements of the Act. The requirements of the legislation are mandatory, and by implication, all owners are bound. Consequently to make an order to this effect is meaningly. Rather, my role is to determine disputes which arise in relation to the legislation. The concept is different.

That the correct anniversary date of 10 July – resulting from a Referee’s Order – be used.

The applicant claims that an order of this office dated 13 April 1989 numbered 16/89B established the anniversary date for the body corporate as 10 July. This office has no record of this order, as records of orders made for that period have not been maintained. The applicant apparently has provided a copy of this order to others.

Section 330(9) of the Act provides –

(9) The financial year for the new scheme is, unless the first annual general meeting has not been held for the existing plan--
(a) each year ending on the last day of the month containing the anniversary of the first annual general meeting held for the existing plan; or
(b) if a referee under the 1980 Act has fixed a date to be taken to be the anniversary of the first annual general meeting of the body corporate--each year ending on the last day of the month
containing the date fixed by the referee.

This section obviously provides a mechanism for determing the financial year end date of a body corporate where there has been an anniversary date previously ordered by a referee. The body corporate should apply the provisions of this section to determine its financial year end date and thereafter conduct its affairs on the basis of such date.

That the chairman provide proof of her claims (letter dated 27/11/02) that (then follows a list of 8 claims alleged to have been made in the said letter)

I refuse to investigate allegations which are -

(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 the Act or the community management statement; ...

Number of Scheme:	13821
Name of Scheme:	Vielpa
Address of Scheme:	13 Buckland Road NUNDAH QLD 4012

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Vielpa [2004] QBCCMCmr 113 (23 February 2004)