Kensington Gardens Retirement Village [2004] QBCCMCmr 515 (28 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0670-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30198
Name of Scheme:	Kensington Gardens Retirement Village
Address of Scheme:	45 Glen Kyle Drive BUDERIM QLD 4556

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

Michael Joseph KEHOE, as a co-owner of Lot 62,

I hereby order that the address for service for all body corporate documents, including minutes of committee meetings, notices of contribution, and correspondence, on Michael Joseph KEHOE of Lot 62, is PO Box 8253 Maroochydore DC 4558, unless later changed by him, and all body corporate documents must be served on him by mailing to that address.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0670-2004

"Kensington Gardens Retirement Village" CTS 30198

The applicant, Michael Kehoe of Lot 62, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"I want all correspondence from the Committee & the Management Company to be addressed & sent to PO Box 8253, Maroochydore DC 4558."


JURISDICTION:
This is a dispute between an owner (the applicant) and the body corporate (the respondent) concerning the alleged failure by the body corporate to send correspondence to the applicant’s post office box rather than placing it in his lot letterbox. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and therefore may be determined by an adjudicator.

General powers of an Adjudicator in making an order:
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 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:
In consideration of the minor nature of the order sought by the applicant, I determined that the dispute could likely be resolved promptly by way of a teleconference with the parties without a need for them to make submissions in writing. This has allowed the matter to be resolved with days whereas the normal process would not have seen an order before some 5 months had elapsed (the current delay in adjudicating matters).

The brief facts of the matter are that the applicant wrote to the body corporate committee on 6 September 2004 requiring that correspondence be sent to his long time address, PO Box 8253 Maroochydore. On receiving no response he again wrote on 13 October saying that correspondence (committee minutes and a contribution notice) had been placed in his letterbox and not sent to his post office box and repeated his requirement that correspondence be sent to the box. On 26 October 2004 he made the present application.


DETERMINATION:
"Kensington Gardens Retirement Village" was initially established on 10 April 2002 (under Survey Plan 146365 and expanded through a number of stage developments since) as a building format plan and comprises 80 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").
On 27 October 2004 I conducted a teleconference with the applicant, Michael Kehoe, and the committee chairperson, Neville Gardner, representing the body corporate committee.

Kehoe said that he was recently away from his lot for some 3 months and because a contribution notice and other correspondence had not been mailed to his post office box, it was not forwarded on to him. Frequent absences from his lot are the reason for having correspondence sent to the box.

Gardner said that Kehoe had caused problems for the committee in a number of areas and it was disinclined to expend postage in mailing correspondence to him when home delivery was available, but would do so if postage costs were reimbursed.

I informed the parties that the legislation allowed an owner to nominate an Australian address and Kehoe was entitled to require correspondence (body corporate notices, invoices, correspondence etc) be sent to his box (see sections 140 and 141 of the Standard Module). The postage cost was a normal and reasonable day-to-day administrative expense of the body corporate that must be borne by it in the interests of good governance. Gardner accepted this outcome.

My order is therefore that documents must be sent to the applicant’s box as required by him.