Bage Court [2005] QBCCMCmr 660 (25 November 2005)

Last Updated: 16 January 2006

REFERENCE: 0538-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12360
Name of Scheme:	Bage Court
Address of Scheme:	412 Gympie Road Strathpine Qld 4500

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

Robert Seng Mun Foong, the owner of lot 4

I hereby order that the application by Robert Seng Mun Foong, the owner of lot 4, for the appointment of an administrator (R Jackson Pty Ltd B.C. Managers) who shall be given the authority to call for an EGM and to implement the necessary reform and re-organisation, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0538-2005

"Bage Court" CTS 12360

The applicant, Robert Seng Mun Foong, the owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Appointment of an administrator who shall be given the authority to call for an EGM and to implement the necessary reform and re-organisation. R Jackson Pty Ltd B.C. Managers have offered to act as such.

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 scheme is a subdivision of 6 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the standard module. The applicant purchased his lot in March of this year. I understand from a submission that the building in question is approximately 40 years old.

The applicant grounds are not extensive. He alleges that he raised concerns with the "secretary cum manager ... over routine maintenance problems and requesting action". An EGM was called and held on 22 April 2005. The applicant believes that at that meeting, his matters "got to be hurriedly heard" and "those issues have not been dealt with and there is no sign that they will be". The applicant is currently withholding payment of his contributions.

The applicant further alleges that:

• The body corporate is in disorder and there is no accountability from the committee;
• AGM’s are not held;
• Administration and management have not been done within the legislation;
• The secretary / manager is unfit for the post.

The applicant concludes that the body corporate needs a qualified manager to take on a full time role in areas of maintenance, administration, AGM and EGM, asset improvement, budget and sinking fund and financial statement.

This office sought submissions from the body corporate and other owners. In response I have submissions for 4 of the remaining 5 owners in the scheme. All owners who made submissions oppose the application and the order sought in it.

Whilst certain matters are alleged, I conclude there is very little to substantiate or evidence the applicant’s allegations. The applicant has attached certain correspondence as part of materials accompanying his application. As part of that material I note an email from the applicant to the "secretary / manager" dated 26 July 2005. This email lists 12 items which the applicant describes as "items of change I wish to see". I note that the application to this office was made shortly after the date of this email, although several subsequent amendments were required.

I consider the tone and contents of the applicant’s email to the secretary / manager to be unreasonable. The applicant appears to assume that he sets or establishes the agenda for the body corporate. This is not correct. The applicant is but one of six owners, and in a body corporate, matters are determined in the main by the vote of a majority of owners. Currently, it is stated that the applicant is unfinancial, not having paid contributions which he acknowledges. This means that the applicant will not be able to vote at an general meeting, except in limited issues. This will mean that the applicant has no say in how the affairs of the body corporate are conducted. This situation is the fault of the applicant and no other. This office does not support or advocate the withholding of contributions.

I note in particular, one of the applicant’s "items of change": "overhaul in attitude towards use of funds and priority on asset value". This item is reflective of something mentioned by other owners in submissions. Namely that other owners perceive that the applicant wants to make improvements to the value of the scheme so as to improvement the value of lots. The item as states certainly seems to reflect this expectation. The applicant should note that a body corporate has a duty to maintain, and then only the common property. There is no obligation on a body corporate to make improvements, or in other ways to upgrade the amenity of lots or the common property.

If the applicant wants to make improvements to the common property, I suggest that he propose motions to the requisite effect on the agenda of a forthcoming general meeting. Provided those proposals are carried by the requisite resolutions (usually a special resolution for improvements to the common property) then they should be implemented. Until this occurs however, I consider the applicant should have no expectation of his demands to this effect being met or otherwise acted upon. Further, the applicant’s expectation that:

You fulfil without further delay the outstanding instructions which I made in Feb 2005 on building upkeep ...

I suggest given the attitude and conduct displayed by the applicant towards the body corporate and members of it, it is little wonder that other owners have formed an adverse view of him.

There are other items in this email list I could take issue with. For example, there is no obligation for a body corporate to hold quarterly meetings.

I conclude that whilst the applicant might have some limited basis for concern, those concerns are not substantiated in such a way that evidences to me that the applicant is entitled to the relief which he seeks. Rather, I suggest to the applicant that he consider his own behaviour and that he adopt a more conciliatory approach towards his body corporate, and to understand the current culture of it before making further demands. Moreover, that he seek to bring about his expected changes in the body corporate by means of the democratic consideration of proposals at a general meeting, rather than in demands to honorary committee members. The appointment of an administrator, and the intended purposes of that appointment, are not justified in the circumstances.