Whitfield Gardens [2005] QBCCMCmr 61 (4 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0067-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	695
Name of Scheme:	Whitfield Gardens
Address of Scheme:	15 - 19 Keith Street Whitfield Qld 4870

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

Body Corporate for Whitfield Gardens CTS 695

I hereby order that the former body corporate manager, Cairns Body Corporate Management shall, within 7 days of the date of this order, provide to the new body corporate manager, Body Corporate Services, the aged balance list and the general ledger transaction list for this scheme for the period 1 September 2004 to 9 December 2004 inclusive.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0067-2005

"Whitfield Gardens" CTS 695

ORDER SOUGHT:

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

The recovery of the financial records for the body corporate from their year end of August 2004 to the handover date to BCS of 9 December 2004.

The applicant also sought an interim order in the same terms.

JURISDICTION:

The application evidences a dispute between the body corporate manager for a community titles scheme and a former body corporate manager for the scheme about the return, by the former body corporate manager to the body corporate, of body corporate property (section 227(1)(i) 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)).

BACKGROUND:

The present body corporate manager, Body Corporate Services (BCS) was engaged by the body corporate at the annual general meeting held on 30 November 2004. Following that engagement, a representative of BCS (Mr John Rae) collected books and records from the former body corporate manager, Cairns Body Corporate Management (CBCM) on 9 December 2004. It was subsequently ascertained that those records only contained the financial information up to the end of the body corporate’s financial year, namely 31 August 2004.

On 24 January 2005 the secretary of the body corporate advised CBCM that she would be in their offices between 3-5pm to collect the outstanding information. Upon receipt of that letter, a representative of CBCM, Ms Kristy Middleton, telephoned a representative of BCS, Ms Jessica Richardson, and advised that all records had been handed over. However, Ms Middleton stated that she would email the general ledger transaction list to Ms Richardson. The applicant stated that at the date of signing the Dispute Resolution Application no email had arrived in the offices of BCS.

On 27 January 2005 a further email was sent to CBCM requesting the relevant records. The records had not been forwarded at the date of signing the Dispute Resolution Application.

On 31 January 2005 the body corporate committee resolved to lodge the Dispute Resolution Application, which was received in the Commissioner’s office by email on 1 February 2005.

DETERMINATION:

On 3 February 2005 I conducted a teleconference with Ms Middleton and Ms Richardson, having first arranged for a copy of the application to be emailed to Ms Middleton. Ms Middleton stated that all financial records of the body corporate had been handed over, and noted that Mr Rae had acknowledged receipt of the material on 9 December 2004. I pointed out to Ms Middleton that the list signed by Mr Rae had not stipulated the dates for which the financial records were provided. I enquired if Ms Middleton had personally checked the records that were handed over to ascertain if they did in fact cover the period from 1 September 2004 to 9 December 2004, and she said that she had not, but that another member of CBCM’s staff had done so. Ms Richardson reiterated that a BCS staff member in the Gold Coast office had informed her that the records for the period in question had not been provided. Ms Richardson stated that all she required was an aged balance list and a general ledger transaction list.

I requested that Ms Middleton be provided with a copy of the financial records that were handed over, and that unless those records revealed that the requested information was already contained within the material handed over, she would then take steps to provide a copy of the relevant records within 7 days. Ms Middleton agreed that she would do so. I informed the parties that I would proceed to make an order to that effect unless I heard from either of them prior to 3.00pm on 3 February 2005 that I should not do so. I have not had any communication from either party and I have therefore made an appropriate order.

Although the applicant sought an interim order, the order that I have made disposes of the application in its entirety, and therefore this order shall be regarded as a final order.