Federation Court [2005] QBCCMCmr 6 (7 January 2005)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Stephanie Miller, a co-owner of Lot 6:

I hereby order that within 7 days of the date of this order, the Body Corporate shall credit the accounts of all lot owners with $45, that amount representing an error in the calculation of owners’ contributions to the administrative fund in 2003.

I further order that within 7 days of the date of this order, the Body Corporate shall credit the account of Stephanie Miller and George Miller (the Owners of Lot 6) an additional amount of $45.20, that amount being comprised of the sum of improper charges for the preparation and issuing of a "reminder letter" ($11.00), unauthorised "administration fees’ ($19.80) and penalties for unpaid contributions ($14.40).

I further order that the Body Corporate shall ensure that its records reflect that the amounts described in the above orders were never owed by the relevant lot owners.

I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0197-2004

"Federation Court" CTS 19618

Stephanie Miller, a co-owner of Lot 6 (the Applicant) has made a dispute resolution application to the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act). The Applicant states that she is seeking the following final outcomes:

The "Federation Court" community titles scheme was originally created under a group titles plan of subdivision (now known as a standard format plan) registered on 14 May 1993. The scheme land consists of six lots and common property and is primarily used for residential purposes.

A standard community management statement was recorded for "Federation Court" on 15 July 2000 and shows that the Act’s Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) applies to the scheme.

The Body Corporate Manager for the scheme is a company called Bellborough Pty Ltd, trading as P.B.C.M (PBCM). I understand that at all relevant times, Mr Graeme Perkins (referred to by the Applicant in the outcomes being sought by the application) was the managing director of Bellborough Pty Ltd and the elected secretary of the "Federation Court" Body Corporate.

The material before me shows that the Commissioner’s administration of this application has been both time consuming and difficult. After reviewing the material, I am satisfied that the application has been administered in accordance with the Act and the normal processes of this Office. However, I have set out the steps taken in administering this application in some detail due to serious allegations about the conduct of members of this Office which have been relayed by the Applicant’s representative (Mr Will Jamieson of Will Jamieson & Co Consultants and Accountants). I will discuss these allegations in due course.

The Commissioner received this application (in its original form) on 31 March 2004. In the original form of the application, the Applicant sought a number of outcomes in the form of interim and final orders. While I do not wish to be unduly critical of the Applicant (or Mr Jamieson who appears to have prepared the application on behalf of the Applicant), I think it is fair to say that the application in its original form was poorly presented and difficult to follow.

On 2 April 2004, the Commissioner provided the Applicant with a lengthy letter about the application. Firstly, the Commissioner explained that the orders sought in the application were not suitable for consideration by an adjudicator for interim orders. The Commissioner went on to identify a number of substantial defects in the application. Importantly, the Commissioner found that the outcomes sought by the Applicant were unclear, and that the Applicant had failed to provide a proper statement of grounds in support of the application. The Commissioner went on to invite the Applicant to remedy those defects before the matter continued.

On 21 April 2004, Mr Jamieson provided further information and material on behalf of the Applicant in response to the Commissioner’s letter. However, it appears that the Commissioner considered that the material only served to further confuse the application and the relief being sought by the Applicant. To this end, on 11 May 2004 a staff member of this Office wrote to Mr Jamieson on behalf of the Commissioner and requested (among other things) a single, consolidated statement listing all of the orders that the Applicant was seeking, as well as a separate statement of grounds addressing each of the orders being sought.

Records before me show that in two separate telephone conversations with two different members of this Office, Mr Jamieson took strenuous objection to our letter of 11 May 2004, and went as far as suggesting that the Applicant considered that staff of this Office had been accepting bribes and that the matter would be referred to the Queensland Crime and Misconduct Commission (CMC). There is nothing before me to confirm whether or not the Applicant or Mr Jamieson has pursued these allegations with the CMC.

Having not received the further information requested in the Commissioner’s letters of 2 April 2004 and 11 May 2004, on 24 June 2004 a staff member of this Office again wrote to the Applicant and suggested that the application may be rejected under section 241 of the Act if the Applicant failed to provide the requested information. On 2 July 2004, the Applicant wrote to this Office and stated that Mr Jamieson considered that "it is impossible to ascertain what further information could possibly be required" regarding the application. On 8 July 2004, this Office provided the Applicant with another letter, yet again setting out (in considerable detail) the Commissioner’s requirements for the application. On 13 July 2004, the Applicant requested an extension of time to provide the further material, which was granted.

On 28 July 2004, the Applicant resubmitted the application, again seeking interim and final orders. In the fresh application, the Applicant sought a number of outcomes, including an order about an election of committee members that occurred in August 2003. On 3 August 2004, the Commissioner wrote to the Applicant and requested that the Applicant provide good reasons why this matter should be considered outside of the time limits imposed by section 242 of the Act. It is unclear whether those reasons were ever provided by the Applicant. The Commissioner also advised that for the same reasons as had been outlined previously, the matters raised by the Applicant were not suitable for consideration for interim orders.

On 18 August 2004, the Commissioner issued the Body Corporate and PBCM with formal notice of the application (section 243(1) and (2) of the Act). The Commissioner also invited PBCM, the Body Corporate Committee and all owners of a lot included in the scheme to make written submissions about the application (section 243(2) and (4) of the Act). Subsequently, the Applicant raised concerns about the Body Corporate Secretary distributing the application to owners with extraneous material. However, at this point, I simply wish to note that a member of PBCM has confirmed by email of 23 September 2004 that an unannotated copy of the application has now been provided to all owners in accordance with section 243(4) of the Act.

Mr Perkins of PBCM provided something of a response to the application. That response simply states that the matters raised by the application were to be considered by the Body Corporate at an upcoming annual general meeting (ultimately held on 18 October 2004). Apart from that, the submission provides no information regarding the substantive issues raised in the application, and is of virtually no assistance to me. I also note at this point that no written submissions were received from other lot owners, or from the Body Corporate Committee.

The Commissioner provided the Applicant with copies of Mr Perkins’ correspondence in accordance with section 246 of the Act. The Applicant has made written responses to that correspondence.

On 15 September 2004, the Commissioner made a dispute resolution recommendation that the dispute should be resolved by departmental adjudication (section 248 of the Act). The Commissioner subsequently referred the application to me for consideration.

On 16 December 2004, I wrote to Mr Perkins and invited him to provide me with further information about the "administration fee" complained of by the Applicant. Mr Perkins responded to this invitation by letter of 21 December 2004. As I do not intend to rely on Mr Perkins letter to the detriment of the Applicant’s claims in this application, I have not invited the Applicant to respond to the material. However, copies of my letter and Mr Perkins’ response have been provided to the Applicant.

Section 227 of the Act limits the types of disputes that may be resolved under the Act’s dispute resolution provisions to those between particular combinations of parties involved in community titles schemes. This application, which describes a dispute between an owner of a lot included in a community titles scheme and the body corporate for that scheme, falls into the category of dispute contemplated by section 227(1)(b) of the Act.

Section 276 of the Act allows adjudicators to make just and equitable orders to resolve disputes in community titles schemes about a range of matters, including claimed or anticipated contraventions of the Act or a scheme’s community management statement. In this case, the Applicant claims that various contraventions of the Act have occurred concerning a number of matters, including the setting and collection of body corporate contributions and the election of committee members. As a result, the application is one that may be considered by an adjudicator.

As mentioned above, I am aware that on two occasions (13 May 2004 and 19 May 2004) the Applicant’s representative Mr Jamieson made two telephone calls to this Office suggesting that staff of this Office may be taking bribes, and indicating that he intended to involve the CMC in the matter. I am unaware of whether Mr Jamieson or the Applicant has pursued this allegation with the CMC.

These are obviously very serious allegations. While the allegations do not seem to be directed at me personally, I do feel that I must at least consider whether the allegations have any impact on whether or not I should continue as the decision maker in the matter. I feel this is particularly the case given Mr Jamieson’s further concerns about "lack of consistency within the adjudicators" (correspondence from Mr Jamieson to the Commissioner of 16 April 2004).

I have decided to continue with my consideration and determination of this application for a number or reasons. Firstly, neither the Applicant nor Mr Jamieson has provided anything to me to substantiate Mr Jamieson’s allegations of corruption in any way.

Secondly, I have had no notice that either the Applicant or Mr Jamieson is actually pursuing allegations of corruption against me or any other member of this Office. It seems to me that Mr Jamieson is well aware of the forums in which he may pursue allegations of this nature, and that it is for him or the Applicant to pursue those allegations if they wish to do so. I have had no notice of any investigation or action that suggests that I should refrain from deciding this matter.

Thirdly, I note that the Applicant and Mr Jamieson have both expressed concern about the length of time it has taken for this Office to resolve this application. Presumably therefore, the Applicant does wish for a member of this Office to decide the matter notwithstanding the serious allegations relayed by Mr Jamieson.

Finally, I am satisfied that the administration of this application has been reasonable, fair and in accordance with the legislation. It is perfectly apparent that the Commissioner and other staff members of this Office have gone to considerable lengths to point out to the Applicant substantial defects in this application, and to allow the Applicant to remedy those defects, simply in an attempt to avoid wasting the time and resources of the Applicant, affected parties, and this Office. If in future the Applicant and/or Mr Jamieson have difficulty properly completing a dispute resolution application, or in meeting the Commissioner’s requirements about the form of an application, I suggest that they seek independent legal advice.

I intend to determine this application objectively and according to my understanding of the law. I assure all parties that I have no personal interest in the outcome of this application.

I will now turn to the orders sought by the Applicant.

As mentioned previously, in his submission of 9 September 2004, Mr Perkins stated that the matters that were the subject of this application were to be considered by the Body Corporate at a then upcoming annual general meeting. Subsequently, both the Applicant and Mr Perkins have provided me with a copy of the minutes of an annual general meeting held on 18 October 2004. While consideration of these matters at the annual general meeting had the potential to resolve at least some of the issues in dispute, the minutes show that the relevant motions were ruled out of order at the meeting on the basis that the matters presented in the motions were the subject of a current dispute resolution application.

The first order sought by the Applicant concerns administrative fund contributions levied on lot owners in 2003. The Applicant claims that in determining the quantum of contributions payable by owners, the Body Corporate failed to take into account an interim contribution that had already been paid by owners towards a body corporate insurance premium. I understand that the interim contribution paid by each owner was in the amount of $45.

The Applicant has provided two letters in support of the application (a letter dated 2 October 2002 signed by Mr Nicholas Taktikos of PBCM responding to the Applicant’s letter of 13 September 2002, and a letter to this Office dated 5 June 2003 signed by Mr Graeme Perkins of PBCM).

In his letter, Mr Taktikos appears to agree with the Applicant’s claim that an error had been made regarding the administrative fund contributions. However, and in my opinion, Mr Taktikos is entirely unhelpful in rectifying the error. Rather than informing the Applicant of what steps either the Body Corporate or PBCM will take to remedy the mistake, Mr Taktikos seeks to impose the responsibility for rectifying the error on the Applicant by requiring the Applicant to provide him with "the agenda, motions, time, date and venue" for a fresh general meeting, as well as "a new Administrative Fund Budget and Insurance Fund Budget".

In his letter to this Office of 5 June 2003, Mr Perkins states that "notwithstanding that the levies set were so desired by the applicant, we will comply with her application and re-do them, so that some sort of calm may be restored to the building". However, the Applicant claims that this undertaking was never carried out.

As mentioned above, neither the Body Corporate nor PBCM have made a meaningful submission about this application. Given the failure of the Body Corporate and PBCM to repudiate the Applicants claims, and given the relatively minor amount of money involved, I do not consider that any further investigation of this part of the application is either warranted or necessary. In the circumstances, I accept the Applicant’s claims about this issue, and have ordered that the Body Corporate credit each owner’s account with $45.

The second outcome sought by the Applicant is that the Body Corporate reimburse the Owners of Lot 6 approximately $90 for charges that she believes the Body Corporate improperly imposed. I understand that the Applicant paid these charges under protest to protect her rights to fully participate in and vote at general meetings of the Body Corporate.

From the material, I understand that the $90.20 in dispute is made up of the following:

(1) Claimed overcharge of administrative contributions for 2003 (considered above in section 6.1 of this statement of reasons):

45.00

(2) Reminder letter regarding unpaid $45 described in (1):

11.00

(3) Unsolicited "administration fees" for internet access to certain body corporate records:

19.80

(4) Penalties accrued on above amounts:

14.40

TOTAL:

$90.20

For the reasons outlined above, I have decided to order the Body Corporate to reimburse each owner the amount of $45 on the basis of an incorrect calculation of administrative contributions in 2003. This addresses number (1) of the above list of charges.

Again, given the failure of the Body Corporate and PBCM to repudiate the Applicant’s claims, as well as the relatively minor amount of money involved, I do not intend to undertake an investigation of the validity of the other charges described above. Rather, I accept the Applicant’s claim that the charges were improperly imposed and have made a further order that the Body Corporate shall credit the account of the Owners of Lot 6 the amount of $45.20.

Before moving on, I wish to make some brief comments about the "administration fees" referred to in the above list of charges. I understand that the payment of the fee entitles lot owners to internet access to certain body corporate records. I note that at the annual general meeting of 18 October 2004, the Body Corporate resolved to require PBCM to return all of the monies purportedly collected as "administration fees" and in turn, to return those monies to the relevant owners. The Body Corporate should ensure that this resolution is promptly carried out. I also note that in his letter to me of 21 December 2004, Mr Perkins has confirmed that the charges do not form part of the current body corporate management agreement. It should go without saying that PBCM must take particular care to ensure that the "administration fee" charge does not appear on any future contribution notices.

The Applicant has raised a number of concerns regarding the election of committee members that took place at an annual general meeting of the Body Corporate held on 8 August 2003. I do not intend to investigate or determine this matter in the context of this application.

I am aware that since this application, the Body Corporate has elected another committee (at the annual general meeting held on 18 October 2004) of which the Applicant is a member. I see little purpose in me revisiting the 2003 election at this time. For these reasons, I have dismissed this part of the application.

Number of Scheme:	19618
Name of Scheme:	Federation Court
Address of Scheme:	32 Government Road Labrador, Queensland

a)	that it be confirmed that the nominations of Mr & Mrs Miller for positions of Secretary/Treasurer and Mrs Miller as Ordinary Committee Member were valid at all times, and
b)	that in accordance with Section 22(3) of BCCM Regulations (Standard Module) 1997 Mrs Miller has, at all times, been an ordinary committee member since the 2003 AGM".

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Federation Court [2005] QBCCMCmr 6 (7 January 2005)