Moreton View Tower & Villas [2004] QBCCMCmr 72 (6 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0576-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4934
Name of Scheme:	Moreton View Tower & Villas
Address of Scheme:	55 Darragh Street KANGAROO POINT QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Emily Yau of Emily Yau Legal Services Pty Ltd, the owner of lot 52

I hereby order that the application by Emily Yau of Emily Yau Legal Services Pty Ltd, the owner of lot 52 for orders that – 1. The committee of the body corporate to act reasonably in respect of the request to give consent to keep a puppy at lot 52 and to treat all members or occupiers of lots equally. 2. That the body corporate to rectify their payment record and remove all penalty interests (namely overdue interests stated in the statements) incurred in this matter during the period from February 2003 to the date of decision by the commissioner, and 3. That the body corporate to issue a updated Notice of Contribution revealing accurate current levy for the period of August 2003 to November 2003 in the sum of $2195.44 without any penalty interests and 4. Such further or other relief as the commissioner deems appropriate, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0576-2003

"Moreton View Tower & Villas" CTS 4934

The applicant, Emily Yau of Emily Yau Legal Services Pty Ltd, the owner of lot 52 has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

1.	The committee of the body corporate to act reasonably in respect of the request to give consent to keep a puppy at lot 52 and to treat all members or occupiers of lots equally.
2.	That the body corporate to rectify their payment record and remove all penalty interests (namely overdue interests stated in the statements) incurred in this matter during the period from February 2003 to the date of decision by the commissioner, and
3.	That the body corporate to issue a updated Notice of Contribution revealing accurate current levy for the period of August 2003 to November 2003 in the sum of $2195.44 without any penalty interests and
4.	Such further or other relief as the commissioner deems appropriate.

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

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

The scheme is a subdivision of 106 lots registered under a building unit plan of subdivision (now a building format plan).

The applicant raises two issues in her application. The first concerns her right to keep an animal in her lot, and the second, that she be relieved of penalty interest charges incurred.

The animal

The applicant’s grounds concerning this issue are minimal. The applicant requested permission to keep a puppy which request was refused by the committee. In her grounds, the applicant does not seek to argue how the body corporate has not acted reasonably in respect of her request. In contrast, in her reply to the submission of the body corporate committee, the applicant makes several allegations and adduces further material in support of her position. As well, the applicant seeks to rely on provisions of the legislation which have no application whatsoever to this dispute. All the applicant’s additional material should have been in her original application, not in her reply. In including it in her reply, the applicant denies the respondent to the application, namely the body corporate, the right to respond to the allegations raised. In the circumstances, I am not prepared to accept the additional submissions made in the applicant’s reply.

I intend to dismiss this requested order. The body corporate committee’s explanation of why the applicant was refused permission to keep a pet is consistent with its policy of approximately 3 years. The applicant is not being treated unreasonably by the body corporate, nor are members or occupiers not being treated equally. Rather there is a point in time for this body corporate after which all requests to keep animals have been refused. The applicant has not even acknowledged this policy of the body corporate.

The penalty interest charges

The applicant next seeks that the body corporate "remove all penalty interests" from the applicants contributions payable. The applicant’s grounds concerning this issue are lengthy and difficult to follow. Much of it is irrelevant given that it does not relate to the relief sought; namely, relief from penalty interest charges. In contrast, the body corporate submission is more to the point. The body corporate submission points out that the applicant’s grounds fail to address the pertinent point; namely that the applicant’s payments of contributions were consistently received after the due date for payment.

All the applicant’s material about how she attempted to pay, and payments being dishonoured, and on other occasions, that she in fact paid twice, does not explain or alter the fact that the applicant consistently failed to pay her contributions by the due date, or explain some reasonable basis on which the applicant should now be exempted from penalty interest. The penalty interest is charged due to the fact of the applicant’s contributions being in arrears. For example, the contributions notice dated 17 June 2002, and due for payment on 1^st August 2002 is stamped by the ANZ as being paid on 22 November 2002. This date is almost 4 months after the date on which the contribution was due for payment. Similarly, the payment made on 13 January 2003 of $2371.07 related to an number of charges dating from December 2001 to 28 November 2002 inclusive. The applicant’s own material acknowledges these facts. What the applicant is seeking is to have these penalty interest charges waived. What reasonable basis is there for this?

The body corporate submission states –

The body corporate notes the occupant’s request to have all penalties waived, however as none of the payments were received by the due date (a point acknowledged by the owner of lot 52) the body corporate sees no reason way any discount should be allowed or interest waived in this matter. ...

In the circumstances, I also see no reason why it would be just and equitable for me to waive penalty interest charges. The applicant’s contributions were either overdue, or in later instances, not paid at all, at least at the date of the body corporate’s submission. This application is dismissed.