Fairway View Caloundra [2005] QBCCMCmr 457 (16 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0306-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19838
Name of Scheme:	Fairway View Caloundra
Address of Scheme:	8 Lyon Street DICKY BEACH QLD 4551

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

the owner of lot 32, Elizabeth Gallon

I hereby order that the application by the owner of lot 32 Elizabeth Gallon, for a refund of $670.82 representing interest and charges incorrectly deducted from her last payment, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION – REF 0306-2005

"Fairway View Caloundra" CTS 19838

The applicant, the owner of lot 32 Elizabeth Gallon, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

A refund of $670.82 representing interest and charges incorrectly deducted from my last payment.

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 48 lots recorded under a group title plan (now a standard format plan) of subdivision. The regulation module applying to the scheme is the standard module.

The dispute concerns the reasonableness of the body corporate’s decision to charge (or at least not waive) charges of $670-82 (being $276.37 arrears of interest and $394.45 recovery charges) on the applicant’s late payment of contributions. Specifically the applicant is seeking to invalidate the committee decision at the meeting held on 19 March 2004 when the committee resolved that the owner of unit 24 be held responsible for all costs of debt collection. Under section 242 of the Act, specific time limits apply to applications seeking invalidation of committee or general meeting resolutions:

242 Time limit on certain applications
(1) This section applies to an application for an order declaring void--
(a) a meeting of the committee for the body corporate, or a general meeting of the body corporate; or
(b) a resolution of the committee or body corporate; or
(c) the election of an executive or other member of the committee.
(2) The application must be made within 3 months after--
(a) if subsection (1)(a) applies--the meeting; or
(b) if subsection (1)(b) applies--the meeting at which the resolution was passed or purported to be passed; or
(c) if subsection (1)(c) applies--the meeting at which the executive or other member was elected.
(3) However, if the making of the application does not comply with subsection (2)--
(a) the commissioner must deal with the application (including making a dispute resolution recommendation for the application) as if the making of the application complied with subsection (2); and
(b) an adjudicator to whom the application is referred for specialist or department adjudication may, for good reason, waive the non-compliance.

This application should have been made within 3 months of 19 March 2004. That is, by 19 June 2004. The application, though dated 26 April 2005, was in fact not received by this office until almost a month later on 23 May 2005. This application is some 11+ months outside the time limitation contained in section 242 of the Act. Is there good reason to waive this non-compliance?

In the appeal decision of Judge Dodd of the District Court in John William Weeks v. the Commissioner for Body Corporate, his Honour stated -

As to waiving compliance for good reason ... the objects of the Act, for instance section 5(a) and (h) mitigate against too strict or legalistic a view about good reason for waiving non-compliance with the time limit. What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought.

Considering the criteria mentioned by Judge Dodd, I note that –

• The length of the delay is almost 4 times the period required for making of the application;
• I consider the applicant’s explanation of her delay unconvincing. An overseas trip of unexplained duration and allegedly being "passed around from one department to the next" might explain a minimal delay, but not 11 months.
• As to the effect on others, of those owners who chose to make a submission regarding the application, 6 of 7 oppose the making of the order as sought by the applicant. Clearly, the majority of those who responded do not support the applicant’s position.

I now turn to what Judge Dodd considers the most important criteria. This appears to involve a merits assessment of the application; namely excepting the delay, whether the applicant would ordinarily have been entitled to the relief sought. Whilst this invites a merits assessment of the application, I consider that a full merits assessment is not required. To do so would defeat the whole purpose of there having to be good reason to waive the non-compliance and consider the application.

Generally I am not satisfied with the merits of the applicant’s position for these reasons:

• The applicant claims that she posted a cheque "that was either mislaid in the office or lost" by the body corporate manager. There is no proof of this. In subsequently correspondence, the applicant states that she is enclosing a "copy of lost cheque which I issued a stop payment". This record was not in fact provided. A photocopy of a transaction record was provided. It only shows transactions after the date the alleged cheque was posted. None of the transactions shown relate to the alleged cheque. In the circumstances, I am not satisfied there is any evidence to show on the balance of probabilities that the cheque was in fact posted as alleged. This issue is simple unable to be determined one way or the other;
• In her grounds, the applicant acknowledges that "The North Coast Body Corporate had wrote notes and contacted a Debt Collector about the amount of $1225". That is, the applicant acknowledges that the body corporate, via its agent, had sought to contact her regarding the unpaid contributions.
• This attempted contact had proved unsuccessful, until eventually registered correspondence was sent. The applicant had apparently been overseas. Prima facie the onus is upon an owner to ensure that their contributions are paid by the due date. There are several ways the applicant might have made greater endeavours to ensure that her contributions were paid. For example, internet banking records (accessible overseas) would show that a cheque sent by the applicant had been presented for payment. Failing this, other banking records (ie. statements and balances) would show that the funds in question remained in the applicant’s cheque account.
• Alternatively, if going overseas, I suggest that the applicant had responsibilities to ensure arrangements were in place to the management of her affairs. There might have been numerous issues which arose requiring her attention. For example, a flooding emergency in the applicant’s lot requiring instructions or involvement of the applicant. Had the applicant done this, then clearly this matter would have come to her attention prior to when it in fact did.
• Finally, I have not been referred to any aspect which suggests to me that the conduct of the body corporate in relation to this matter has been unreasonable. It might be considered unsympathetic, or even commercially hard nosed, however it is not unreasonable. I conclude that rather, it is the applicant’s own failures which have lead to this situation.

In the circumstances, this application is dismissed. There is not good reason to waive the applicant’s non-compliance with the time limitations in section 242 of the Act and I decline to do so.