Il Villaggio [2005] QBCCMCmr 748 (9 June 2005)

Last Updated: 13 July 2007

ORDER Number 0215/2005 Applicant Jane Marie Lamason Respondent Body Corporate for Il Villaggio CTS

I further direct that the Body Corporate send to each lot proprietor at the address shown on the roll a copy of these orders and reasons. I direct that the applicant and any party or lot owner wishing to make a submission about the matters raised in the submissions on behalf of the Body Corporate give notice of such intention within seven (7) working days of receipt of these orders and reasons. Further, I order that any written submissions on behalf of the applicant by way of response to the submissions made on behalf the Body Corporate be lodged with the Office of the Commissioner for Body Corporate and Community Management within twenty-eight (28) days of receipt of these orders and reasons. Further, I order that there be liberty to apply generally and in particular for further directions after seven (7) days of the receipt of any of the submissions on behalf of the applicant in reply. I give each party and any lot proprietor liberty to apply to me in writing for any additional order that should be made in accordance with these reasons. I order that the further costs of this application be reserved.

P J Favell
Specialist Adjudicator
9 June 2005

I, Paul Favell hereby certify that this is a true and correct copy of my
order made 9 June 2005.

DECISION



Number 0215/2005

Applicant Jane Marie Lamason

Respondent Body Corporate for Il Villaggio CTS

On 31 May 2005 I was provided with copies of submissions received in the Office of the Commissioner for Body Corporate and Community Management with respect to this matter. I have read and considered those submissions which include a submission dated 20 May 2005 by Grant and Katalin Brown, an email dated 3 May 2005 from Christine Weatherby and an email from Domingo Martinez dated 25 May 2005 all to the effect of supporting the resident managers position.

I have also been supplied with submissions from Mr Scott Guthrie of Dibbs Barker Gosling Lawyers, Solicitors for the Body Corporate for Il Villaggio. Those submissions are dated 25 May 2005 and are in their body twelve pages in length. Attached to them are a number of attachments.

The submissions on behalf of the Body Corporate adopted and rely on the recital of facts set out in paragraphs 2.1 to 2.6 of the Applicants submissions and further to clause 2.2 of the applicants submissions make reference to clauses 3, 4 and 5 of the Management Agreement. They also make reference to clause 3(v) which was inserted into the Management Agreement by an extraordinary general meeting of October 2002. The submissions assert that Schedule A to the submissions forms part of the Management Agreement as an aid to interpretation and amounts to a "reasonable direction" of the Body Corporate "in and about the administration and management" of the premises within the meaning of clause 3(k) of the Management Agreement and therefore requires compliance against the applicant.

It is further asserted that during negotiations with the applicant at the time of assignment of the Body Corporate Agreement in October 2003 the applicant provided the Body Corporate with answers to "questions for prospective buyers" which document it is said is incorporated into the Management Agreement and therefore forms part of the Management Agreement.

The submissions also claim that during negotiations with the applicant the Body Corporate agreed with the applicant that it would rectify the standard of the premises at its cost. Works which were included are set out in paragraph 2.7 of the submissions. It is said that the estimated cost to the Body Corporate to undertake the works was in the order of $45,000.00.

It is submitted that although there was no formal resolution passed by the Body Corporate Committee authorizing one representative pursuant to clause 13 of the Management Agreement to be the contact point, nevertheless any correspondence or notices to remedy issued by the secretary were issued in her capacity as secretary and therefore represented a communication from the Body Corporate directly. I am referred to annexure 5 to the submissions which are said to be a true copy of the by-laws of the Body Corporate.

It is asserted on behalf of the Body Corporate that it is entitled to withhold the applicant’s remuneration by way of setoff for the damages incurred by reason of the applicant’s breach of the Management Agreement. Further, it is said, contrary to paragraph 2 of the applicant’s supplementary submissions the decision not to meet the payment of the applicants remuneration was determined by unanimous resolution of the committee on 1 April 2005 and was not a unilateral decision by the secretary. To support the latter contention I am referred to annexure 6 which is said to be a true copy of the resolution as passed and annexure 7 as a true copy of the minutes of the meeting. The resolution I have been referred to reads as follows:

"that the motion is recording a vote of no confidence in the resident manager in respect of her lack of communication with the committee executive and specifically her failure to respond to the chair persons correspondence of 18 March 2005 consequently, the Body Corporate will pay someone else to perform the duties and set off the amount of the Body Corporate loss against the resident managers remuneration. The minutes records such a vote of no confidence was carried unanimously."

It seems to me that the resolution referred to is not a resolution not to meet the payment of the applicants remuneration (even if it was properly made).

It is also asserted that the applicant has evinced an intention to no longer be bound by the Management Agreement by reason of the applicant’s continuing and successive breaches from the inception of the Management Agreement. It is asserted that throughout the entire term of the Management Agreement the applicant has been in breach by failing to adequately carry out her duties.

Paragraph 5 of the submissions details the alleged "major areas of failure" of the manager to carry out her duties properly.

Given the extent of those matters it is appropriate that the applicant be given the chance to respond and I think in the circumstances, if sought, the chance to have oral argument.

It seems to me that there is a question of whether there is a repudiation of the Management Agreement by the applicant and if that is so the consequences of any such repudiation.

Further, there is a real question as to the Body Corporate’s entitlement to withhold payment for the reasons claimed in paragraph 8.2.

There may well also be a question as to the terms of the Management Agreement.
I note that in paragraph 8 the Body Corporate has now nominated the chairman as the contact person for the applicant within the Body Corporate.

Orders and Directions

Because of the matters raised as outlined above and my orders of 19 April 2005 I direct that the Body Corporate provide to the applicant a copy of the submissions provided to the Office of the Commissioner for Body Corporate and Community Management.

I further direct that the Body Corporate send to each lot proprietor at the address shown on the roll a copy of these orders and reasons.

I direct that the applicant and any party or lot owner wishing to make a submission about the matters raised in the submissions on behalf of the Body Corporate give notice of such intention within seven (7) working days of receipt of these orders and reasons.

Further, I order that any written submissions on behalf of the applicant by way of response to the submissions made on behalf the Body Corporate be lodged with the Office of the Commissioner for Body Corporate and Community Management within twenty-eight (28) days of receipt of these orders and reasons.

Further, I order that there be liberty to apply generally and in particular for further directions after seven (7) days of the receipt of any of the submissions on behalf of the applicant in reply.

I give each party and any lot proprietor liberty to apply to me in writing for any additional order that should be made in accordance with these reasons.

I order that the further costs of this application be reserved.


P J Favell
Specialist Adjudicator
9 June 2005

I, Paul Favell hereby certify that this is a true and correct copy of my
order made 9 June 2005.

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