Hi-Surf [2005] QBCCMCmr 659 (25 November 2005)

Last Updated: 16 January 2006

REFERENCE: 0429-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11533
Name of Scheme:	Hi-Surf
Address of Scheme:	150 The Esplanade SURFERS PARADISE QLD 4217

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

Maryanne Morrin, the Owner of lot 6

I hereby order as follows - The body corporate must within one month following the next general meeting of the body corporate provide - a) a mail box or pigeon-hole for each lot; b) if the mail boxes or pigeon-holes provided are within the common property, so that Australia Post delivers to the scheme in bulk, the services of a designated, responsible person, answerable to the body corporate to place mail so delivered into the respective mail boxes or pigeon holes of lot owners. And I further order - 1. that within six weeks of the date of this order, the body corporate committee must submit a detailed motion or motions to the body corporate manager showing the preferred location, design and cost of at least two proposals for letter boxes or pigeon holes; 2. the motion, or motions in the alternative, concerning the location, cost and design, is to be put to the next general meeting of the body corporate; 3. If the proposal is for external letter boxes, the body corporate committee shall consult with Australia Post and the results of such consultation shall be circulated in the explanatory notes put out with the motion. 4. If the next general meeting is not until the annual general meeting for 2006, the body corporate shall in the meantime, and in any event until the next general meeting, take every care to ensure that mail is correctly and promptly allocated to lot owners within the existing system. 5. that a copy of this order within two weeks of the date hereof is to be distributed by and at the expense of the body corporate to all lot owners

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0429-2005

"Hi-Surf" CTS 11533

APPLICATION

This is an application dated 9^th June 2005 and amended on 8^th July 2005, by Maryanne Morrin, (the applicant) owner of Lot 6 in the scheme for an order against the body corporate for the scheme (the body corporate) that it be instructed to take all measures necessary to ensure the prompt and safe delivery of mail to the allocated letterbox of the applicant.


JURISDICTION

"Hi-Surf" community Titles Scheme 11533 is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation Module). There are 106 lots in the scheme which are created under a building unit plan of subdivision.

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 dispute concerns the failure of the body corporate to make sure mail is delivered to lot owners. There is no jurisdiction for a lot owner to bring an application against a caretaking service contactor. Further, a dispute " about a claimed or anticipated contractual matter about the engagement of a person as a... caretaking service contractor" must proceed to specialist adjudication. ( section 265 Act.)

APPLICANT’S GROUNDS AND SUBMISSIONS

The applicant says that delivery of mail to her mailbox, with the exception of internal mail, has ceased since April 2005, which she says is a deliberate act by the body corporate. She attributes this to her success in a previous application to this office against the body corporate, wherein the body corporate was ordered to pay to the applicant the sum of $2088, concerning tiling to her lot.

The applicant further says that "missing mail for me has been systemic and entrenched since 2002." By this she means that she has noted that her mail delivery ceases every time she makes a complaint about the body corporate and then, "when the dust has settled" the mail is delivered once again.

She has sought advice from Australia Post who says that it will not deliver to individual boxes unless the postman can gain access to the boxes without dismounting his bike. The post boxes are all internal so the postman delivers all mail to the scheme office for distribution.

The applicant refers to a motion put to a general meeting on 16^th June 2004 concerning the positioning of individual boxes. The motion was defeated 31-12. She concluded from this that other owners have concerns about receiving their mail. She has not discussed it with any other lot owner since then and "had absolutely positively no connection with that motion."

Included in the application is much material which is irrelevant to the applicant’s application save that I understand that there is bad feeling between the applicant and the body corporate or the caretaking service contractor for the scheme Greg Kafritsas. (Mr Kafritsas). The applicant feels that she is the victim of retaliatory attacks on her property.

Submissions were invited from all lot owners in accordance with section 243(2)(b) of the Act. Submissions were received from Lawrence and Rhonda Dore, owners of Lot 83, who say that they are aware that a number of owners have complained about mail not being received, and they are concerned that the non-delivery of mail is a deliberate omission. They say that they have taken this up with the resident manager and that he has said that he has no legal obligation to deliver the mail. They feel that an order of an adjudicator that the resident manager delivers the mail is required.

Stan Huskinson, lot owner, says that the building manager and the committee have received " a constant stream of complaints" about missing mail and phone calls not being put through to apartments. He wonders if tampering with mail is a federal offence.

On behalf of the committee for the scheme, Body Corporate Services (the body corporate manager) quotes section 109 of the Accommodation Module which states that the body corporate must make "suitable arrangements for receipt of mail". The committee says it has made "suitable arrangements" in that the mail is delivered to the reception area and sorted by the resident building manager, and there is no duty on the body corporate to ensure "prompt and safe delivery" as requested by the applicant. Furthermore, the applicant could if she wished hire an Auspost post office box for collection of her mail.

In reply, the applicant says she does not think that the service provided by the body corporate is complying with section 109. She says that in the 16 years prior to 2001, the date of the current caretaking agreement, her mail was delivered and that members of the body corporate paid $63,000 in caretaking fees and $75,000 in wages last year which should ensure "suitable arrangements" are made so that "mail travels safely from one side of the foyer to the other."

On 14^th October 2005, I sought further information and a response from Mr Kafritsas concerning his duties regarding the mail and his view of the allegations which concern him. Solicitors Small Myers Hughes (SMH) responded on his behalf on 21^st October 2005. They say that Mr Kafritsas is the caretaking service contractor (described as "manager") by deed of engagement of Hi-Surf Resort Pty Ltd of which he is a director. He sorts the mail and places it into internal letterboxes, but only about 50% of owners have letter boxes. He says that the rest of the mail is left in a box at reception, and sometimes sorted through by owners before Mr Kafritsas deals with it. They further say that sorting and distribution of mail is not one of the duties detailed in his contract.

In a reply to this, the applicant says that there is no box left at reception which is accessible to other owners, renters or casual holidays-makers. The mail which is not put in letterboxes is kept at the back of the office and lot owners have to ask the receptionist to go to check it for them.

I am given to understand that Mr Kafritsas was the caretaking service contractor prior to 2001 and that the contract was merely renewed in 2001. SMH say - "The issue of mail had been discussed at committee level on more than one occasion" but I do not know why it was discussed or the outcomes of those discussions.

Mr Kafritsas does not want to handle the post at all and ideally thinks the answer is for the body corporate to install external individual letterboxes outside for delivery by Australia Post. He denies any deliberate intervention with the mail, although he acknowledges that he or his employees Mark and Tania Stewart could make mistakes and that the system is not foolproof.

On 8^th November 2005, I sought further information from the body corporate manager as to why only 50% of owners had letterboxes, and the reason why the motion about external letterboxes which was proposed in June 2004 was defeated. I wondered if had been because of the cost but it does not appear that any quotations for this work were put to the body corporate.

On 15^th November 2005, the body corporate manager replied that only 50% owners have letter boxes because approximately 8 years ago, letterboxes were situated in the main foyer, but they were unsightly. When the main foyer was refurbished, the letterboxes were moved to another location but there was not room for all, so "owners were canvassed and only 50% of owners were interested in having a letterbox." The applicant was one of those owners.

The explanatory notes for the motion put to the general meeting on 16^th June 2004 said –

"The moving of the letterboxes from the lobby area to the basement, in view of the security system, would allow owners to collect mail without the necessity of going to the lobby. This is subject o Australia Post being able to deliver and place mail directly into individual boxes without the Building manager having to distribute incoming mail."


DETERMINATION

This is the fourth application brought by the applicant since 21^st March 2003, and much of the material attached to the application is irrelevant to the applicant’s desired outcome that the body corporate ensure prompt and safe delivery of her mail. The applicant also refers repeatedly to a "contract" between herself and the body corporate which is being breached by the body corporate.

She has apparently played no part in the various discussions about the delivery of post, and has not discussed it with other lot owners, nor put forward a motion to a general meeting. There seems to be some misunderstanding that the body corporate has some contractual duty to the applicant and that she has no power to influence or control the body corporate despite "the contract" and the fact that she pays contributions to the body corporate.

There is no contract between a lot owner and the body corporate. The body corporate is made up entirely of lot owners in the scheme. The applicant, as a member of the body corporate has rights given to her under legislation and should discuss matters about which she is not happy with other lot owners, and should put forward to the committee, any problems and concerns for discussion at committee level, and should submit motions to a general meeting for a vote to be taken by the other lot owners.

The body corporate as an entity may enter contracts ( provided lot owners have agreed to this by voting at a general meeting) with both caretaking service contractors, such as Mr Kafritsas and body corporate managers , such as Body Corporate Services. The body corporate has a duty to make sure those contractors comply with their respective contracts. Any lot owner may bring a motion to the committee or to a general meeting seeking compliance with a contract. Powers are given under the legislation to give warnings and seek performance of contracts. Ultimately, a contractor who does not perform his duties under a contract, will not get his contract renewed.

The applicant supplies no evidence that she has put her concerns about mail delivery to the committee or that a motion proposed by her to a general meeting has been unreasonable voted against by the body corporate. As such, she has not provided any evidence that she has " a dispute" with the body corporate. Remarks such as " The b/corp has made it quite clear what they think of me..." about the committee, and reports of her possessions disappearing and rubbish appearing on her doorstep do not help me to address the problem of poor delivery of mail.

I do not find the body corporate committee’s submission very helpful. Clearly non-delivery of mail for whatever reason is a problem experienced by several lot owners, and a better system than the haphazard one described by Mr Kafritsas needs to be put in place. It appears that it is " nobody’s job" to ensure that it is sorted properly or at all.

Mail is very important particularly to persons who may not conduct their affairs by internet and telephone, and failure to receive mail promptly can lead to dire consequences and confusion such that the quality of life is impaired.

I am not satisfied that the body corporate has made " suitable arrangements for the receipt of mail" contrary to section 109 Accommodation Module and the general duty of the body corporate to administer the common property for the benefit of owners of the lots in the scheme. ( section 94 Act).

The body corporate must make suitable arrangements. Such arrangements in a scheme of 106 lots as a minimum will be -

o The provision of a mail box or pigeon-hole for each lot, so that no mail is left in a box in Reception;
o If the mail boxes are internal, that a responsible person, answerable to the body corporate, is designated or employed to place mail delivered by Australia Post into the respective mail boxes or pigeon holes.

I shall make an order that within one month following the next general meeting, the body corporate will provide individual mail boxes or pigeon holes. The extent to which the system is secure, and the type, design, cost and positioning on common property, and the costs of the designated person to sort the mail, if any, are a matter for the body corporate to vote upon. Within six weeks of the date of this order, the body corporate committee must submit a detailed motion or motions to the body corporate manager for inclusion to the next general meeting, showing the preferred designs and costs of at least two proposals. The choice of where the boxes will be and their design is to be voted upon at the next general meeting of the body corporate. I make it clear that the provision of the boxes or pigeon holes is an order, and only the detail of their provision is to be voted on.

If the proposal is for external letter boxes, the body corporate committee shall consult with Australia Post and the results of such consultation shall be circulated in the explanatory notes put out with the motion. This may in any event be prudent in assisting lot owners make a choice if the preferred proposal is for the provision of internal boxes.

Lot-owners may of course, also submit motions for the design, and/or placement of the mail boxes or pigeon holes, with supporting quotations.

If the next general meeting is not until the AGM in June or July, the body corporate shall in the meantime, and in any event until the next general meeting, take every care to ensure that mail is correctly and promptly allocated to lot owners within the existing system.

Interference with mail articles can be a criminal matter, under the Australian Postal Corporation Act 1989 (Cth) and the Crimes Act 1914 (Cth), but concerned lot owners may like to take legal advice on this topic.