The Palms [2006] QBCCMCmr 46 (6 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0602-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13806
Name of Scheme:	The Palms
Address of Scheme:	12 Rutland Street Coorparoo Qld 4151

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

Ms Robyn Wilson-Larsen, the former Owner of lot 5

I hereby order that the application for an order that the body corporate provide copies of letters dated 20/12/04, 2/7/04, 2/4/04 written to the Body Corporate by Mr. D Muirhead, Unit 4/12 Rutland Street, Coorparoo Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0602-2005

"The Palms" CTS 13806

THE SCHEME

The Palms is a subdivision of 6 lots on a Building format plan. The regulation module applying to the scheme is the Standard Module.

APPLICATION

By application received by this Office on 19 August 2005, and subsequently amended in December 2005, the applicant seeks the following order:

To obtain full copies of the letters dated 20/12/04, 2/7/04, 2/4/04 written to the Body Corporate by Mr. D Muirhead, Unit 4/12 Rutland Street, Coorparoo and which I sighted as filed documents on the books of the Body Corporate

BACKGROUND

On 24 July 2005 the applicant was the owner of lot 5 in this scheme and wrote to the body corporate manager seeking copies of the letters mention in the application. By reply dated 1 August 2005, the body corporate manager advised the applicant that her request had been referred to the body corporate committee for consideration and that if the committee were to grant permission, copies would be provided upon payment of relevant search and photocopying fees. The applicant advises that no further correspondence was received by her. I note that the applicant transferred ownership of the lot on 6 October 2005.

SUBMISSIONS

The body corporate manager has advised as follows:

• The applicant arrived at body corporate manager’s office at approximately 3:30 on or about 22 July 2005 requesting to view body corporate records;
• The body corporate manager advised the applicant that it would be necessary to make an appointment so that relevant files could be retrieved or otherwise wait 30 minutes until this could be done;
• The applicant returned later that afternoon and was allowed to inspect the documents without having to pay the prescribed fee;
• The applicant stated that she was "taking the matter further" which the body corporate manager took to mean the applicant intended to use the relevant documents for evidentiary purposes in future litigation;
• The body corporate manager decided to refer the matter to the Committee which decided to deny the request on the basis that provision of copies of the documents could give rise to liability on the part of the committee and that in the event of litigation, documents could be released under statutory discovery procedures.

The body corporate Committee made a submission confirming the above submission from the body corporate manager. The committee was aware of the applicant’s stated intention to take defamation action against the author of the documents and therefore declined to provide access .


JURISDICTION

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)).

DETERMINATION

Under section 149 of the Standard Module bodies corporate are required to keep records for a specific period of time including correspondence to and from the body corporate. Further, under section 205 of the Act, "interested persons" are permitted to inspect the records of a body corporate, or to obtain a copy of a record kept by a body corporate following a written request accompanied by the prescribed fee.

In accordance with section 205(6) of the Act, "interested persons" include owners and mortgagees of lots included in the scheme, the buyer of a lot included in the scheme, or any other person who satisfies the body corporate of a proper interest in the information sought.

However it should be noted that, section 205(3) exempts a body corporate from providing access to part of a records, if the body corporate reasonably believes that part of the record contains defamatory material.

I note that the applicant is no longer an owner of a lot in the scheme and accordingly, I have some doubts as to whether the applicant is now an "interested person". Nevertheless, even if I were to assume that the applicant is an "interested person", I believe that in the circumstances, the body corporate was entitled to refuse access to the relevant documents under section 205(3) of the Act. The Committee advised that the applicant stated she intends to take action for defamation against the author of the documents and accordingly, I believe that the committee would have a reasonable apprehension that the material in question contained defamatory material and were therefore entitled to refuse access.

I have therefore dismissed the application.