Chiara Sands [2004] QBCCMCmr 549 (11 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0396-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29522
Name of Scheme:	Chiara Sands
Address of Scheme:	3 / 27th Avenue PALM BEACH QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Roland Michael CURIE and Adelia Mary McCALLUM as the co-owners of Lot 5,

I hereby order that the application for the following orders – 1. Elimination of Special Levy for Sinking Fund to the amount of $512.00 levied to all owners on the 3rd June 2004. 2. Two signatories on bank account, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0396-2004

"Chiara Sands" CTS 29522

The applicants, Roland Curie and Adelia McCallum of Lot 5, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

3.	Elimination of Special Levy for Sinking Fund to the amount of $512.00 levied to all owners on the 3rd June 2004.

4.	Two signatories on bank account.

JURISDICTION:
This is a dispute between owners (the applicant co-owners of Lot 5) and the body corporate (the respondent) concerning the striking of a "special levy" and the need for two signatories for expenditure from the body corporate bank account. These are matters that fall 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 AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (committee), to all other owners, with an invitation to each to respond to the matter of dispute raised in the application. Submissions were received from the following: J & L Bridges of Lot 2; B & L Webster of Lot 3; and the committee through its chairperson, Desmond Ryan. All were opposed to the application. The applicant did not view the submission in order to lodge a reply (see sections 244 and 246 of the Act).

It is not necessary that I set out the facts of the matters presented by the parties as the first order sought flows directly from the events dealt with in my previous order, Order 153-2004 issued on 21 April 2004, and the second relates to a single, simple legislative requirement.


DETERMINATION:
"Chiara Sands" was established as a building format plan on 10 August 2001 and comprises five lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

The two applicants, Curie and McCallum were two of the three co-applicants to a previous application for which I issued Order 153-2004. The first complaint here arises out of a decision made at an extraordinary general meeting I ordered to be held as part of that order, for which purpose I appointed Ryan as Administrator of the body corporate.

That decision (Resolution 4 at the meeting held on 2 June 2004) was made in respect of one of several financial motions before owners and was passed on a vote of 3 in favour and 1 against. These motions followed upon my comments made in the "Statement of Reasons" to my previous order, the following extracts in particular –

At page 2 –

My perusal of documents for both applications showed that the body corporate had immediate financial problems (both the striking of contributions and solvency) and in order to better understand them, on Thursday 15 April 2004 I conducted a teleconference with Roland Curie (representing the applicants for both applications) and Patrick Desmond (Des) Ryan (chairperson representing the respondent body corporate).

At page 5 –

It is also important that the body corporate should consider some correction to the under-funded Sinking Fund before the contributions for the next financial year are struck at the AGM due later this year and subsequently levied. The contributions set at the 2003 AGM will still apply but the body corporate at the forthcoming ordered meeting should also consider a special contribution. Again Ryan as Administrator should provide explanatory notes and figures to support any motion put. Not only will a special contribution bring the Sinking Fund nearer to what it should be, but it will ensure (as regular contributions are meant to ensure) that all owners contribute their share including any owners who may be considering selling their lot. Owners should realise that, aside from the case of someone selling beforehand, owners will have to contribute a certain amount over time and any payment now means lower payments in the future.

The motions, including that complained of by the applicants for $640 (less 25% discount), were made in keeping with those comments, specifically to restore moneys to the Sinking Fund that had been improperly expended from that account on a lawn mower, whipper snipper, spear pump etc.
In my view this restoration was the type of motion that I envisaged when making the above comments.

I would also point out to the applicants that, apart from giving the above guidance for the restoration of the fund, I went to considerable length (5 pages) to explain the financial requirements for fund contributions under the legislation. The reasons went beyond what was necessary to substantiate my orders and were intended to educate owners – it appears that the applicants have not understood what I thought had been put in plain language. Not only is that the case but the applicant’s cite my reasons in supporting their error! The applicants should consider matters carefully before putting this office, the committee and other owners to the time and expense of an application that should not have been submitted.

In regard to the two signatories for the bank account, section 151 of the Act requires that there be at least two signatories for a scheme the size of "Chiara Sands". The applicants should have brought this to the attention of the committee to remedy, and only brought it as a "dispute" if it refused to act on the advice. They didn’t and therefore no dispute exists. In fact I understand the committee has since acted on the matter.

The level of ill-will and disputation between owners in this scheme, particularly between the applicants and certain other owners is becoming apparent from applications lodged. I would warn the applicants and others that this jurisdiction will not let itself be used as a vehicle to denigrate and cause a nuisance to other owners; adjudicators are hard pressed in assisting in genuine disputes and does not have the time to deal with serial applications in furtherance of personal animosities. I would refer owners to the provisions of section 270 of the Act.