Cambridge Court [2005] QBCCMCmr 584 (21 October 2005)

Last Updated: 19 July 2006

REFERENCE: 0465-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5625
Name of Scheme:	Cambridge Court
Address of Scheme:	50 Junction Road MORNINGSIDE QLD 4170

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

Dorothy Monica Smith, the Owner of lot 3

I hereby declare that the applicant, Dorothy Monica Smith, was not in arrears with her levy payments to the body corporate for the period 9 December 2004 to 8 June 2005, contrary to the information provided on the tax invoice issued to the applicant by the body corporate secretary on 8 June 2005.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0465-2005

"Cambridge Court" CTS 5625

ORDER SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that she is not in arrears with body corporate payments and never has been in arrears. The applicant has also requested that this information be made known to all unit owners in the scheme.

JURISDICTION

The application evidences a dispute between the owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).

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)).

SCHEME DETAILS

Cambridge Court was registered as a building unit plan of subdivision (now described as a building format plan) on 7 December 1989. The scheme comprises 11 lots and common property, and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicant provided a copy of a Tax Invoice issued to her by the secretary/treasurer on 8 June 2005 for body corporate levies due for the period 9 June 2005 to 8 December 2005. This invoice, although dated 8 June 2005, states at the bottom of the page "Payment Due 9 January 2005". On the same invoice the body corporate levies for the period 9 December 2004 to 8 June 2005 were shown as being overdue, with immediate payment required.

The applicant further provided a list of all levy payments made by her since she purchased the lot in September 2001, and the dates on which those payments were banked into the National Bank account for the body corporate. The applicant stated that she has not been in arrears at any time since she purchased her lot. The applicant sought a declaration to that effect, and requested that all owners be notified.

The body corporate committee and all owners were invited to respond to the application by 25 August 2005.

The secretary advised the Commissioner on 2 September 2005 that the body corporate committee would be lodging a submission and requested an extension of one week within which to do so. The extension was granted, but in spite of three further telephone contacts with the secretary after the extended closing date, no submission was ever received from the committee. No other owner in the scheme lodged a submission.

DETERMINATION

The applicant stated that her levies for the period 9 December 2004 to 8 June 2005 were paid within the prescribed time and that the money orders by which she made the payments were banked into the body corporate bank account on 15 December 2004. The applicant did not provide a copy of the Tax invoice for this period.

Section 96 of the Standard Module provides:

96 Notice of contribution payable

(1) At least 30 days before the payment of a contribution, or

instalment of a contribution, is required, the body corporate

must give the owner of each lot written notice of--

(a) the total amount of the contribution levied on the owner;

and

(b) the amount of the contribution, or instalment of

contribution, of which payment is currently required;

and

(c) the date (the date for payment) on or before which the

contribution, or instalment of contribution, must be

paid; and

(d) any discount to which the owner is entitled for payment

of the contribution, or instalment of contribution, by the

date for payment; and

(e) any penalty to which the owner is liable for each month

payment is in arrears; and

(f) if the owner is in arrears in payment of a contribution or

penalty--the arrears.

39 See, for example--

• section 127 (Insurance of common property and body corporate assets)

• section 130 (Premium)

• section 131 (Improvements affecting premium).

(2) The written notice under subsection (1) may also include

notice about an amount payable by a lot owner to the body

corporate for--

(a) a specially contracted service enjoyed by the owner; or

(b) an exclusive use or special right over common property

enjoyed by the owner.

(3) A written notice under this section may be served on a lot

owner at the lot owner’s address for service, or in the way

directed by the lot owner.

The tax invoice dated 8 June 2005 for the June-December 2005 levies showed a due date for payment of 9 January 2005. Clearly such a date bears no relationship to that levy period, however, I consider it probable that the date was the due date for the previous levy period, namely the 9 December 2004 to 8 June2005 period, which would accord with the requirements under section 96, above. I am assuming that the secretary/treasurer simply overlooked changing the due date when sending out the Tax Invoice for the June-December 2005 levies.

On the basis that the due date for the 9 December 2004 to 8 June 2005 levies was 9 January 2005, then the applicant’s payment for those levies, which I have accepted (in the absence of any assertion to the contrary by the body corporate committee) was banked into the body corporate account on 15 December 2004, was well before the due date, and therefore the tax invoice issued on 8 June 2005 showing that the levies for that period were overdue was incorrect.

I am prepared to make an order declaring that the applicant was not in arrears with her body corporate levies for the period 9 December 2004 to 8 June 2005, contrary to the information provided on the Tax Invoice issued to the applicant by the body corporate secretary on 8 June 2005. However, whilst the applicant’s assertions in this application that she has always paid her levies on time for all previous levy periods has not been denied by the body corporate committee (there being no submission lodged by the committee at all), and I have no reason to doubt that she has done so, I have not been provided with copies of all previous levy notices to independently satisfy myself of that fact. Accordingly I do not propose to make any further declaration in relation to the applicant’s levy payments since September 2001.

The secretary should ensure that future Tax Invoices accurately record the financial status of all owners, and should, in particular, ensure that the "Payment Due" date shown on the Tax Invoice does in fact relate to the levy period being invoiced.

In the interest of minimising costs to the body corporate I also do not propose to order that the secretary forward a copy of this order and the statement of reasons to all owners, however, there is nothing to prevent the applicant from forwarding it to all owners herself if she chooses to do so. Alternatively, the applicant might simply have copies of the order available to be distributed to all owners at the next general meeting.