Carmel Lisa Court [2005] QBCCMCmr 589 (25 October 2005)

Last Updated: 19 July 2006

REFERENCE: 0472-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6883
Name of Scheme:	Carmel Lisa Court
Address of Scheme:	21 Fortitude Street AUCHENFLOWER 4066

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

Therese A Rynne, the Owner of lot 3

I hereby order that the applicant is not liable for the amount of $135.05 in debt recovery fees.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0472-2005

"Carmel Lisa Court" CTS 6883

APPLICATION

This application was made by Ms Therese Rynne, the owner of lot 3 on 4 July 2005 under the Body Corporate and Community Management Act 1997 (Act). The applicant seeks the following orders against the Body Corporate for Carmel Lisa Court:

1. The balance of charges $135.05 and any additional charges related to debt recovery costs removed / reversed from my account.

2. Information as to what building repairs/ maintenance and works as described in minutes dated 2 August 2003 have been completed and why any have not been completed.

BACKGROUND

The application concerns disputed debt recovery costs relating to unpaid levies for the period 1 October 2004 to 31 March 2005. The applicant states that levies were not paid during this period because invoices were not received by her, notwithstanding that she had provided her postal address to the body corporate manager. The applicant submits that although the body corporate manager had the opportunity to contact her at the postal address that she had previously advised, it neglected to do so with the result that late penalty fees and debt recovery fees were wrongly debited to her account.

Attached to the application were various items of correspondence including the following:

• Letter to Body Corporate Manager dated 15 December 2004 showing the applicant’s address in the ACT. In this letter the applicant requested information regarding maintenance work on the relevant building and also requested that all documentation including invoices be forwarded to her current address.
• Letter to Body Corporate Manager dated 14 February 2005, in which the applicant advised that she recently received the statement of amounts owing which included two late payment charges of $33 each and debt recovery charges of $45.76 and $89.29. In that letter the applicant also pointed out that she had provided her current address to the Body Corporate Manager in August 2004 and also December 2004. She also pointed out that she was intermittently in contact with the Body Corporate Manager by email.
• Copy of email communication dated 19 August 2004 in which the applicant advised the Body Corporate Manager that she had previously provided her current address details.
• Email communications dated June and December 2004 requesting information regarding building maintenance proposed at the 2003 AGM convened on 2 August 2003.

Pursuant to section 243 of the Act, a copy of the application was posted to all lot owners inviting submissions. As at the date of making this order, only one short submission was received from another lot owner who is also the Chairperson of the body corporate committee. This submission raised the following:

• The applicant had advised the body corporate manager of her change of address on a number of occasions and consequently, the quarterly levy notices should have been sent to that address.

• The applicant should therefore be refunded the total debt recovery charges of $135.05 as debt recovery action would have been unnecessary had the body corporate records been updated when the applicant advised of her change of address.
• Frustration by the author with delays by the body corporate manager in obtaining quotations for building maintenance.

JURISDICTION

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)).

DETERMINATION

There are two issues arising in relation to this dispute. Firstly, whether there was appropriate service of the contribution notices by the respondent to the applicant. Secondly, if the contribution notice was validly served, whether the respondent is entitled to charge legal or other debt recovery costs associated with the recovery of unpaid contributions.

Section 96(3) of the Standard Module provides that a contribution notice must be served at the lot owner’s address for service or in the way directed by the lot owner. In the circumstances I consider that it is reasonable to draw the conclusion that in August 2003, and on a number of subsequent occasions, the applicant notified the body corporate manager of her change of postal address. In the absence of any contrary information, I consider that the applicants have acted appropriately in notifying the respondent Body Corporate of their address for service. It conclude that the respondent has failed to send the contribution notice to the applicants’ correct address for service, and that the applicant should not be liable for cost of debt recovery action.

Accordingly, I believe it is just and equitable for me to order that the applicant is not liable for the amount of $135.05 in debt recovery fees.

The applicant also seeks information from the body corporate manager as to what building repairs/ maintenance and works as described in minutes dated 2 August 2003 have been completed and why any have not been completed and raises concerns regarding lack of communication by the body corporate manager.

While a body corporate may authorise a body corporate manager to perform certain functions of the body corporate committee, ultimate responsibility is retained by the body corporate. Accordingly, the body corporate committee should be approached for information regarding the progress of building maintenance.

If, as is alleged, the body corporate manager is remiss in performing its functions, the body corporate may resolve to replace that body corporate manager.