Sailfish Point [2006] QBCCMCmr 398 (25 July 2006)

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

I hereby order as follows:

1. that the Body Corporate remove from the applicant’s Notice of Contributions:

• $24.00 for soil taken;
• $20.00 delivery fee;
• $15.00 mulch taken;
• $3,818.18 for legal costs (HW) invoice dated 31 March 2005;
• $1,011.67 for legal costs (HW) invoice dated 24 December 2004;
• $64.30 filing fees, Southport Magistrates Court receipt dated 23 December 2004; and
• $682.33 legal costs (HW) invoice dated 31 January 2005.

2. that the applicant need not pay any amounts demanded under the by-law breach notices of 21 March 2006 and that the amount of $360 must not be included on her account.
3. that the Body Corporate remove from the applicant’s Notice of Contributions:

• $3.52 interest accrued to 31 January 2006;
• $3.52 interest accrued to 28 March 2006; and

all other interest wrongly accrued to the applicant’s account.

4. that the Body Corporate reinstate to the applicant’s account discount for levies paid by the due date for the December 2005, March 2006 and June 2006 quarters.
5. by-law 16(b) is invalid.
6. by-law 19 is invalid.
7. by-law 20 is invalid.
8. by-law 21 is invalid to the extent that the sentence "The house rules are to be observed in the same manner as these by-laws" should be disregarded.

9. the necessary amendments to by-laws 16(b), 19, 20 and 21 above are to be recorded in the registered community management statement within 3 months of the date of this order.
10. that the secretary shall provide a copy of this order and the accompanying Statement of Reasons for Decision to all owners within 1 month of the date of this order.
11. that payment by the Body Corporate of legal fees (that were incurred by the resident manager in the relevant Peace and Good Behaviour Order), was beyond the powers of the Committee and the Committee should either take steps to have the payment ratified by the Body Corporate or take steps to recover the amount from the resident manager.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0219-2006

"Sailfish Point" CTS 20973

Application

Susan Gogolka, the Owner of lot 1 (the applicant) has sought orders that:

Jurisdiction

Sailfish Point CTS 20973 is a 99 lot scheme registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Accommodation Module) Regulation 1997. Typically, this module is intended for residential arrangements.

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

(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 applicant has included a levy statement for the period 1 January 2005 to 2006. The following transactions are of interest to this determination:

I note that administrative and sinking fund levies have consistently been $467.46 and $96.60 recurrently and that the discount has been $93.49 and $19.32 recurrently.

When these discounts amounts are added to the sum above, the amount I calculate as being in dispute at the time of the application (actuals) was $5,755.33.

I assume that since this time, levies will have fallen due at the end of March and June with further discounts and further interest likely to be the subject of dispute.

The applicant also encloses three "By Law Breach" Notices dated 21 March 2006 from the Body Corporate Manager, Complete Body Corporate Services as follows:

Each notice also states that the applicant is "ordered to immediately cause observance of the By Laws by your invitee". The notices also state:

"Pursuant By Law 19 and 20 the cost of $120 has been billed immediately to the levy account of your lot to incentivize your compliance and observances of the By-Laws. Any further legal, breaches, court or recovery costs will also be levied against your lot pursuant to these By Laws and the legislation".

By-Laws cited

No:

Text

NOISE

a) An Occupier must not create any noise likely to interfere with the peaceful enjoyment of a person lawfully on another Lot or Common Property.

OBSTRUCTION NUISANCE

a) An Occupier must not obstruct lawful use of Common Property by any other person.
b) An Occupier must not cause a nuisance or act in such a way as to interfere with the peaceful enjoyment of a person lawfully on another Lot or Common Property.

DAMAGE TO COMMON PROPERTY

a) An Occupier must not mark, paint, or drive nails or screws or the like into, or otherwise damage or deface a structure that forms part of the Common Property, except with the consent in writing of the Body Corporate Committee.
b) An Occupier must not erect any structure on the Common Property for his own benefit, unless consent has been obtained in accordance with the Act.

16.

BEHAVIOUR OF INVITEES

a) Occupiers must take all reasonable steps to ensure that their invitees abide by the by-laws and do not behave in a manner likely to interfere with the peaceful enjoyment of a person lawfully on another Lot or Common Property.
b) Owners will be liable to compensate the Body Corporate for all damage caused to the Common Property caused by their Occupiers and Invitees.

17.

USE OF RECREATIONAL FACILITIES

a) An occupier will not use the recreational facilities on the Common Property between 9pm and 7am, except with the consent in writing of the Body Corporate Committee.

19.

RECOVERY BY BODY CORPORATE

Where the Body Corporate spends money to repair damage caused by a breach of the Act or of these by-laws by an Occupier or Invitee then the Body Corporate is entitled to recover the amount spent as a debt in any court action from the Owner of the Lot from which that occupier or Invitee came.

20.

RECOVERY OF COSTS

An owner must pay on demand the whole of the Body Corporate’s costs and expenses (including solicitor and own client costs), such amount to be deemed a liquidated debt, incurred in:

a) Recovering levies or any other money that the Body Corporate is entitled to receive from the owner; and
b) All proceedings, including legal proceedings, taken against the Owner concluded in favour of the Body Corporate including, but not limited to, applications for an order by the Commissioner.

21.

HOUSE RULES

The Body Corporate Committee may make house rules concerning the Common Property and in particular the recreational facilities, however the house rules must not be inconsistent with these by-laws. The house rules are to be observed in the same manner as these by-laws. The house rules are to be displayed on the Body Corporate’s notice board or other areas of the Common Property.

Section Number	Text
11(2)	Meaning of Body Corporate assets Body corporate assets may consist of any property an individual is capable of acquiring.
62	Body corporate to consent to recording of new statement (1) This section provides for the form of the consent of the body corporate for a community titles scheme to the recording of a new community management statement for the scheme in the place of the existing statement for the scheme. (2) The consent must be in the form of a resolution without dissent. (3) However, the consent may be in the form of a special resolution if the difference between the existing statement and the new statement is limited to the following-- (a) differences in the by-laws (other than a difference in exclusive use by-laws); (b) the identification of a different regulation module to apply to the scheme.
94	Body corporate’s general functions (1) The body corporate for a community titles scheme must-- (a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and (b) enforce the community management statement (including any by-laws for the scheme); and (c) carry out the other functions given to the body corporate under this Act and the community management statement. (2) The body corporate must act reasonably in anything it does under subsection (1).
100	Power of committee to act for body corporate (1) A decision of the committee is a decision of the body corporate. (2) Subsection (1) does not apply to a decision that, under the regulation module, is a decision on a restricted issue for the committee.
167	Nuisances The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that-- (a) causes a nuisance or hazard; or (b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or (c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
169(1)	Content and extent of by-laws (1) The by-laws for a community titles scheme may only provide for the following-- (a) the administration, management and control of common property and body corporate assets; (b) regulation of, including conditions applying to, the use and enjoyment of-- (i) lots included in the scheme; and (ii) common property, including utility infrastructure; and (iii) body corporate assets, including easement areas relevant to common property; and (iv) services and amenities supplied by the body corporate; (c) other matters this Act permits to be included in by-laws.
180(1)	Limitations for by-laws If a by-law for a community titles scheme is inconsistent with this Act (including a regulation module applying to the scheme) or another Act, the by-law is invalid to the extent of the inconsistency. Example for subsection (1)-- If a by-law for a community titles scheme purporting to give a body corporate manager, service contractor or letting agent exclusive use of common property is inconsistent with the regulation module applying to the scheme, the by-law is invalid to the extent of the inconsistency.
180(6)	Limitations for by-laws A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.
182(4)	Continuing contravention notice The continuing contravention notice must state-- (a) that the body corporate believes the person is contravening a provision of the by-laws; and (b) the provision the body corporate believes is being contravened; and (c) details sufficient to identify the contravention; and (d) the period (which must be reasonable in the circumstances) within which the person must remedy the contravention; and (e) that if the person does not comply with the notice the body corporate may, without further notice-- (i) start proceedings in the Magistrates Court for the failure to comply with the notice; or (i) make an application under chapter 6 for resolution of the dispute.
183(4)	Future Contravention Notice The future contravention notice must state-- (a) that the body corporate believes the person has contravened a provision of the by-laws; and (b) the provision the body corporate believes has been contravened; and (c) details sufficient to identify the contravention; and (d) that the person must not repeat the contravention; and (e) that if the person does not comply with the notice the body corporate may, without further notice-- (i) start proceedings in the Magistrates Court for the failure to comply with the notice; or (ii) make an application under chapter 6 for resolution of the dispute.

Section Number

Text

10A

Non-voting members of committee [SM, s 9A]
(1) The following persons are, without further election or appointment, members of the committee--

(a) a body corporate manager for the scheme;
(b) a caretaking service contractor for the scheme.

(2) A person who is a member under this section is a non-voting member of the committee.

(3) Subsection (2) applies even if the person is a member of the body corporate.

24(1)(e)

Restricted issues for committee--Act, s 100 [SM, s 26]
(1) A decision is a decision on a restricted issue for the committee if it is a decision--

(e) to start a proceeding, other than--

(i) a proceeding to recover a liquidated debt against the owner of a lot; or
(ii) a counterclaim, third-party proceeding or other proceeding in relation to a proceeding to which the body corporate is already a party; or
(iii) a proceeding for an offence under chapter 3, part 5, division 410 of the Act; or
(iv) a prescribed chapter 6 proceeding;

24(1)(f)(i)

Restricted issues for committee--Act, s 100 [SM, s 26]

(1) A decision is a decision on a restricted issue for the committee if it is a decision--

(f) to pay remuneration, allowances or expenses to a member of the committee, unless the decision--

(i) is made under the authority of an ordinary resolution of the body corporate; or
(i) is for the reimbursement of expenses incurred by the member in attending a committee meeting, if--

(A) the amount is not more than $50; and
(B) the reimbursement does not result in the member being reimbursed more than $200 in a 12 month period for committee meeting attendance.

Voting outside committee meetings [SM, s 35]

(1) A resolution on a motion before the committee is a valid resolution of the committee, even though the motion is not passed at a meeting of the committee called and conducted under division 7, if--

(a) notice of the motion is given to all committee members or, in an emergency, as many members as it is practicable to contact; and

(b) a majority of all voting members of the committee entitled to vote on the motion agrees to the motion.

(2) The notice must be given in writing, and the members’ agreement to the motion must be given in writing but, in an emergency, the notice may be given, and the member’s agreement expressed, orally or by another appropriate form of communication.

(3) Advice of the motion must be given, at the time notice of the motion is given or, in an emergency, as soon as reasonably practicable, to each lot owner, other than a lot owner who--

(a) has instructed the secretary that the lot owner does not wish to be given advice of committee meetings; and

(b) has not withdrawn the instruction.

(4) The notice and advice of the motion may be given by--

(a) the secretary; or

(b) another member of the committee who is authorised by a majority of voting members of the committee to give the notice and advice.

(5) For the operation of section 32(1) and (2), the committee, in dealing with a resolution under this section, is taken to deal with the resolution at a meeting of the committee.

(6) A motion voted on under this section must be confirmed at the next meeting of the committee held after the motion is voted on.

Minutes and other records of committee [SM, s 36]
(1) The committee must ensure--

(a) full and accurate minutes of its meetings are taken; and

(b) a full and accurate record is kept of each motion voted on other than at a meeting.

(2) The secretary must give a copy of the minutes of each meeting and of any resolution voted on other than at a meeting to the following persons--

(a) each member of the committee;

(b) each lot owner who is not a member of the committee.

(3) Subsection (2)(b) does not apply to a lot owner who--

(a) has given the secretary a written notice instructing the secretary that the lot owner does not wish to be given copies of the minutes of committee meetings and resolutions voted on other than at meetings; and

(b) has not withdrawn the instruction.

(4) The copy must be given to the person--

(a) within 21 days after--

(i) for a copy of minutes of a meeting--the holding of the meeting; or
(ii) for a copy of a resolution voted on other than at a meeting--the passing of the resolution; and

(b) in 1 of the following ways--

(i) by handing it to the person;
(ii) by sending it by mail;
(iii) by sending it by facsimile;
(iv) by sending it electronically.

Contributions to be levied on owners [SM, s 95]
(1) The body corporate must, by ordinary resolution--

(a) fix, on the basis of its budgets for a financial year, the contributions to be levied on the owner of each lot for the financial year; and

(b) decide the number of instalments in which the contributions are to be paid; and

(c) fix the date on or before which payment of each instalment is required.

(2) If a liability arises for which no provision, or inadequate provision, has been made in the budget, the body corporate must, by ordinary resolution--

(a) fix a special contribution to be levied on the owner of each lot towards the liability; and

(b) decide whether the contribution is to be paid in a single amount or in instalments and, if in instalments, the number of instalments; and

(c) fix the date on or before which payment of the single amount or each instalment is required.

119

Obligations of owners and occupiers--Act, s 160 [SM, s 120]

(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.

(2) The owner of a lot included in the scheme must maintain the lot in good condition.

(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.

(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.

(5) This section applies only to a lot that is not a community titles scheme.

Submissions were received from 6 lot owners (including one voting committee member and the resident manager). The committee consists of 7 voting lot owners and the resident unit manager.

The committee’s submission, the resident manager’s submission and the other voting committee member’s submission were received late.

The four individual submissions that were received on time say that the body corporate should not be paying for the legal costs. Three of them add that the resident manager (O’Callaghan) should be paying for his legal expenses himself.

The committee states that the applicant is responsible for the behaviour of her invitees, in this case her partner Jim Brown. They state he threatened to kill the resident manager via a phone message and that the police were called. The resident manager independently applied for a peace and good behaviour order. They say the resident manager had decided to leave the complex if the Body Corporate did not support him.

They allege the outcome of an adjourned hearing was that on Mr Brown’s admission of "guilt" (after first electing to defend the matter), he was placed on a good behaviour bond. They state that the adjournment and need to engage a barrister (as the matter was defended), has necessitated considerable costs. They say they are entitled to retrieve these from the unit owner.

In relation to costs of soil and mulch, they advise the Body Corporate had acquired this for the purpose of landscaping the common property. They say Mr Brown took some and placed it adjacent to Lot 1. They say they incurred costs in replacing it and that the applicant was fully aware of Mr Brown’s actions.

They include the flying minutes which gave rise to the "By-Law breach Notices". They say the costs of these notices were met in accordance with By-Laws 19 and 20.

They justify the giving of a notice for drinking on common property, as being a safety issue.

The applicant raised concerns in relation to the lateness of the individual committee member’s submissions and resident manager’s submission. In any event, I do not consider these submissions relevant to my determination in the terms of the orders sought.

Applicant Response

The applicant took the opportunity to inspect the submissions received.

Her response largely recaps the basis of her original application. She also observes that notice of the motions to issue the By-Law Breach Notices were not distributed in accordance with S33(3) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997. She states that the emergency exception did not apply. She makes reference to the correct form to use in requesting the Body Corporate to address a breach of the by-laws.

She also provides narrative and a significant volume of material relating to the history of this matter. She states the Body Corporate submission contains little or no supporting evidence. She addresses some of the allegations made by the committee, some of which have nothing to do with the application at hand. She has had statements prepared in support of her response.

She is concerned as to the admissibility of some of the submissions made by the committee.

Determination

Firstly, I observe that I find it unlikely that a court has found Mr Brown guilty of anything at this point. A peace and good behaviour application is a civil proceeding. The outcome of these civil proceedings is not a finding of guilt, followed by a sentence of a good behaviour bond. Rather, the magistrate makes a civil order that a person be of good behaviour and keep the peace towards another. In this case the order was for 12 months.

Breach of the order may be referred back to the Magistrates Court which can result in the defendant being summonsed and if found guilty fined up to $1000 and/or being jailed up to 12 months.

Body Corporate’s Original Payment of the Debt

Section 94(1)(a) of the Act requires the Body Corporate to administer Body Corporate assets for the benefit of the owners of the lots included in the scheme. Further it must act reasonably in anything it does (S94(2)). Section 11(2) of the Act provides that Body Corporate assets may consist of any property an individual is capable of acquiring. I therefore conclude that the Body Corporate must act reasonably in administering financial assets for the benefit of the owners of the lots included in the scheme.

Section 94(1)(c) of the Act states that the Body Corporate must carry out the other functions given to the Body Corporate under the Act. In the case of resident managers, various provisions within the Act and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 govern the engagement of contractors such as residential managers. I therefore conclude that the Body Corporate must also act reasonably in dealing with its contract with the resident manager.

The committee appears to argue that they undertook to meet the costs of the resident manager in order to protect the interests of all owners. Section 100 of the Act provides that a decision of the committee is a decision of the Body Corporate. It therefore appears that the committee considers that it has acted reasonably on behalf of all lot owners, when it determined to pay the cost of a legal action commenced by the resident manager. Some owners have expressed the view that conflicts with neighbours are one of the unfortunate circumstances that can befall anyone, but that does not therefore mean that your neighbours become liable to pay your legal costs.

I am inclined to this view also, and do not accept the committee’s rationale that it was necessary to pay the resident manager’s legal costs in order to retain his services. Whether the resident manager saw the conflict as reason to leave was entirely within his discretion. The Act provides for the transfer of contracts such as these and there are many capable people ready willing and able to avail of opportunities such as these. I therefore do not consider it a reasonable decision for the Body Corporate to pay the resident manager’s legal fees.

More significantly however, the actions of the committee involved a decision on a restricted issue and are in breach of Section 24 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

I consider the issue to be restricted in two aspects. Firstly, I am of the view that by piggy backing on an application initiated by the resident manager in the Magistrates Court, the committee is involved in a proceeding which does not meet any of the three exceptions under Section 24(1)(e) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

Secondly under Section 10A of the Body Corporate and Community Management (Accommodation Module) Regulation 1997, the resident manager was automatically a non-voting member of the committee. In this case then, the committee has resolved to pay the expenses of the resident manager, without the authority of an ordinary resolution of the Body Corporate (as required by Section 24(1)(f)(i).

For these reasons I will order that the Body Corporate take steps to recover the amount the monies distributed to the resident manager without valid authorisation.

Body Corporate’s Ability to Pass the Debt to the Owner of Lot 1

By-law 16(a) states that occupiers must take all reasonable steps to ensure that their invitees abide by the by-laws. However, 16(b) and 19 purport to make the owner of the lot liable for any damage caused to the common property, without regard to the reasonableness of the steps taken by the occupier or owner to ensure the invitee or occupier’s compliance.

The applicant is required under the by-law to take reasonable steps to control the behaviour of invitees. It cannot be made an absolute obligation to control the behaviours of others, as that of itself is unreasonable.

Section 119 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 outlines the obligations of owners and occupiers. It does not include any provision that an owner is responsible for the actions of an occupier or invitee.

The creation of a community titles scheme does not create a scenario where the plan can cede from the jurisdiction of Australian Law. Some of the by-laws seek to take away fundamental rights such as a "fair hearing" or, that with certain exceptions, liability rests with culpability. By-law 20 seeks to eliminate the principle that where a debt is disputed, its quantification as a liquidated debt is a matter for the courts. Taken to a ridiculous extreme, based on the principles employed in these by-laws, they could include a requirement that the applicant could be held responsible for damages if the occupier of her lot decided to fly a plane into the premises.

Section 169(1) of the Body Corporate and Community Management Act 1997, details the matters that by-laws may address. None of these areas includes fines or the imposition of monetary penalties. In fact, Section 180(6) of the Body Corporate and Community Management Act 1997 expressly states that a by-law may not impose a monetary liability. As the applicant has referred to, the operation of this provision has already been discussed at some length in relation to by-law 20 of this scheme in the files 0212-2005 and 0259-2005.

In any event, I note that by-law 20(b) does not apply in relation to the resident manager’s debt, as the proceedings were taken out against Mr Brown (not the owner) and further were concluded in favour of the resident manager and not the Body Corporate.

I observe that adequate provision is made within the Act for the recovery of levies by Section 97 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997. However, the costs recoverable under that provision are limited to the costs ordered by the Court. In that regard, I find the opening stanza of by-law 20 to be incompatible with the Act in a number of aspects:

Section 180(1) provides that if a by-law is inconsistent with the Act, the by-law is invalid to the extent of the inconsistency.

I have examined the operation of this by-law after removing those portions of the by-law which are incompatible with the Act or the Common Law. However, in every case I find that the by-law cannot stand without some additional clarification the by-law does not currently include e.g. recover as a debt.

I will make orders that by-laws 16(b), 19 and 20 are invalid and that the Community Management Statement should be amended to reflect this. A special resolution is not required where the change is pursuant to the order of an adjudicator (Section 62((4)(b) Act). The Body Corporate should note that under S295 of the Act, they must register the change within 3 months of this order.

I will order that the applicant is not liable to the Body Corporate for the amounts claimed and that they are to be removed from the statement of account. I will make orders that adjustments are made to discounts disallowed and interest charged as a consequence.

Fines

The "By-Law Breach Notices" issued include reference to $120 to be billed to the levy account to "incentivize" the applicant. I note that in the committee’s submission, this amount is described as a "cost" of the notice and is entitled to be recovered under by-laws 19 and 20.

I have already determined that by-law 19 is invalid and 20 is effectively invalid. A Body Corporate is not entitled to charge fines as these are the imposition of a monetary liability and are prohibited by section 180(6) of the Act. I will order the applicant is not liable.

Mulch

In effect, the Body Corporate has summarily convicted Mr Brown for placing the mulch on part of the common property without consultation. Further, they are punishing the applicant for the allegations they make against Mr Brown. Under the law of Queensland, investigation of and prosecution for an alleged conversion should have been handed to the Queensland Policy Service. Even if charged by the Police, Mr Brown would be entitled to a trial. The applicant has nothing to do with it.

Again, the Body Corporate is governed by the laws of Australia and Queensland and cannot operate in a legal system that is repugnant to the law generally.

I will order that the charges relevant to mulch are to be reversed, along with all interest and lost discounts.

Notices

The requirements of Section 182(4) and 183(4) of the Act and are:

Provision	Body Corporate Compliance
Body Corporate believes the person is contravening the by-laws:	The Body Corporate’s notice states that it is the applicant’s occupier who is causing the breach. The notice should be directed to the person causing the breach.
The provision of the by-laws the Body Corporate believes is being contravened:	Each of these notices identifies the by-laws allegedly being breached, though it is unclear to me how a person can breach 16(b), 19 or 20. I will discuss the validity of by-law 21 under a separate heading.
Details sufficient to identify the contravention:	None of the notices specifies the dates of the alleged breaches. I am unable to locate a by-law prohibiting alcohol on common property.
The period within which the contravention must be remedied or that the person not must not repeat the contravention	There is no statement as to the time frame for remedy of the breach other than immediately. The nominated time frame must be reasonable to the circumstances of the breach and immediately may or may not be appropriate to the gate.
That if the person does not comply than either Magistrates Court proceedings or a dispute resolution application may be made without further notice	These references are missing in their entirety.

It is not clear to me whether or not the "By-law Breach Notices" issued by the Body Corporate were intended to comply with the Act’s requirements in relation to Continuing Contravention Notices.

It would be in the Body Corporate’s best interests to use the Commissioner’s standard Forms 10 or 11 which are available at www.bccm.qld.gov.au if it wishes to produce actionable notices of contravention.

The paragraph beginning "Pursuant By Law 19 and 20........" should not be included.

Flying Minutes

The applicant is correct in stating that advice of the motion should have been given to her under section 33(3) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997. The circumstances of this matter do not constitute an emergency. Further, once the committee had resolved to issue the notices, a copy of the minutes should have been distributed in accordance with Section 34(4)(a)(ii).

By-law 21 - House rules

Bodies Corporate are required to register community management statements, including by-laws, with the Department of Natural Resources, Mines and Water. This enables prospective proprietors to see if they are happy to live with the by-laws of a particular scheme. One of the most obvious examples of this is the keeping of animals, where individuals can be passionate in either their dislike or support of companion animals.

To provide purchasers who have entered a community titles scheme some certainty in the continuity of by-laws, Section 62(3) of the Act provides that where the Community Management Statement is to be amended to the extent of the by-laws (other than exclusive use), then consent of the Body Corporate to the changes in by-laws must be in the form of a special resolution. Section 106 details the requirements of a special resolution more fully but, at a minimum, at least two thirds of the votes cast (at a general meeting in relation to a motion to change a by-law) must be in favour of the change.

While the Committee may make house rules, they cannot be required to be observed or enforced in the same manner as the by-laws. This is because potential purchasers must be able to search any rules effecting their decision to buy into the scheme and the committee cannot, by the introduction of a rule, change the by-laws.

Therefore, I will order that by-law 21 is invalid to the extent that the sentence "The house rules are to be observed in the same manner as these by-laws" is invalid and should be disregarded.

Correct Procedures

Any notice issued should be issued to the party who is alleged to be causing the breach, not the owner or another occupier. The correct layout for a Continuing or Likely Future Contravention Notice is Form 10 or 11 and should address specific details. A copy of any Contravention Notice issued should be provided to the owner of the lot in accordance with Section 187 of the Act. Fines are not permissible and costs cannot be passed onto another person.

If a notice is issued and the person on notice does not comply, then the committee, or the Body Corporate in a general meeting, can decide to commence enforcement proceedings in the Magistrates Court or in the Commissioner’s Office. The Act empowers the Magistrates Court to impose a financial penalty for failure to comply with the notice.

The resident manager’s legal proceedings with the Body Corporate are for the resident manager alone and steps should be taken to ensure the resident manager reimburses the Body Corporate accordingly.

Number of Scheme:	20973
Name of Scheme:	Sailfish Point
Address of Scheme:	300 Cottesloe Drive MERMAID WATERS QLD 4218

Date	Description	Amount
15/12/2005	Other - B/C Soil Taken	24.00
15/12/2005	Other - B/C Delivery Fee	20.00
15/12/2005	Other - B/C Mulch Taken	15.00
31/1/2006	Overdue Interest Jnl – Interest to 31/1/2006	3.52
28/2/2006	Overdue Interest Jnl – Interest to 28/2/2006	3.52
14/3/2006	Other – Peace/Goodwill Order	3,818.18
14/3/2006	Other – Peace/Goodwill Order	1,011.67
14/3/2006	Other – Peace/Goodwill Order	64.30
14/3/2006	Other – Peace/Goodwill Order	682.33
		5,642.52

Description of breach	By-laws cited
Occupier of your lot drinking alcohol on common property:	2(a), 5(b), 16(a) and (b), 17(a), 21.
Occupier of your lot interfering with common property specifically the security eye and tracks of the entrance gate:	5(b), 9(a), 16(a) and (b).
Occupier of your lot threatening and abusing other residents:	2(a), 5(b), 16(a) and (b).

1.	The additional charges of $5,756.83 on the levy notice for Lot 1, dated 15 march, 2006, and issued by Complete Body Corporate Services for sailfish Point Body Corporate CTS 20973, be immediately declared unwarranted and unlawful and be withdrawn;
2.	The three notices, dated 22 march, 2006, and which make allegations of breaches of by-laws, and information that additional charges will be added to the levies notice, be declared unwarranted and unlawful, and that the charges be withdrawn;
3.	That a member or members of the Committee of the Body Corporate have acted improperly in authorising the payment of legal fees relating to the action taken by K O’Callaghan, and that is was unlawful to make the payment of such fees from Body Corporate funds without the appropriate consent from the Body Corporate as a whole.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sailfish Point [2006] QBCCMCmr 398 (25 July 2006)