Shannon Lodge [2007] QBCCMCmr 129 (7 March 2007)

Last Updated: 12 March 2007

REFERENCE: 1040-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8296
Name of Scheme:	Shannon Lodge
Address of Scheme:	197 Tor Street TOOWOOMBA QLD 4350

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

The Body Corporate, throught its secretary Charles John Wilkes, owner of Lot 1

I hereby order that the application for an order that- " the registered owner of Lot 2 supply to the body corporate, details of any lease or sub-lease relating to the occupancy of Lot 2." is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1040-2006

"Shannon Lodge" CTS 8296

THE APPLICATION

This is an application dated 11th December 2006 and amended on 16^th January 2007 by the body corporate for Shannon Lodge through secretary Charles (John) Wilkes (the Applicant) against Roslyn Hanlon, (the Respondent) owner of Lot 2 in the scheme for an order that the Respondent supply to the body corporate details of any lease or sub-lease relating to the occupancy of Lot 2.


JURISDICTION

Shannon Lodge Community Titles Scheme 8296 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 2 lots in the scheme, often known as "a duplex" , 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)).


SUBMISSION

The Applicant says there is a history of the Respondent ignoring her responsibilities in respect of the body corporate and living in a community title scheme. On 8^th April 2003, the Applicant sent to the Respondent a form headed "Information for Body Corporate Roll" and asked the Respondent to complete it. A copy of the same form was sent to the Respondent on 22^nd January 2004. On 1^st March 2004, a copy of BCCM Forms 8 and 9 were posted to the Respondent for completion and return, with a reminder on 23^rd April 2004. The Respondent did not come to the AGM on 23^rd May 2005 and the Applicant says that it is obvious that she has no intention of complying with the "relentless requests and her obligations" in relation to the body corporate roll.

The Applicant convened the 2006 AGM for 31^st October 2006, with a notice for quarterly contributions payable. There was no response from the Respondent.

The Applicant disputes that a tenancy agreement in respect of Lot 2 is a legitimate document or shows a true state of affairs in respect of the occupancy of Lot 2. The agreement refers to "Ros-Lyn and Co P/L" as the lessor as well as Roslyn Hanlon, and states that there are no body corporate by-laws applicable to the tenant.

The Respondent was invited by this Office to make a submission to this application by 8^th February 2007. The Respondent did not make any submission.

Thereafter a member of the administrative staff telephoned "5462 2701" to speak to the Respondent on 9^th February 2007 and on 12^th February 2007. On 13^th February 2007, messages were left on a message bank on that number. A message was also left on mobile phone number 0407 101 957, a mobile number given by a gentleman who answered the land-line phone. On 14^th February 2007, a member of the administrative staff again rang the mobile number and left a message on a message bank. On 6^th March 2007, I caused the administrative staff member again to call the two numbers for the Respondent. The "land line" was answered by a gentleman called "Michael" who confirmed that the number was correct to contact the Respondent. The mobile number was answered by a recorded message stating: "You have reached Roslyn Hanlon’s voicemail..." The staff member again left a message.

I am satisfied that the Respondent is aware of this application but does not wish to make a submission.


DETERMINATION

In this matter, the Applicant who acts as secretary for the scheme and who, perhaps reluctantly, has the conduct of the scheme paperwork, alleges that the Respondent has failed to provide to the body corporate details of a leasehold interest in a lot created by lease or sub-lease for a term of 6 months or more, in accordance with section 140(1)(b) Standard Module. By virtue of section 203 Act, the body corporate may give written notice to a person to require such information within a 28 day period. There is a penalty provision of 20 penalty points ( ie a maximum fine of $1500 in the Magistrates Court) for a failure to provide such information in accordance with the legislation.

Forms BCCM 8 and 9 are "office forms" drawn up by this Office to assist bodies corporate. They are not prescribed forms, and as long as the details required under the legislation are given to the body corporate, they do not have to be given on those forms or in that format.

Section 140(3)(b)(ii) Standard Module states which details of a leasehold interest ( which is not a term defined in the legislation) are required. They are the name, residential or business address, and address for service ( if different from the residential address given) of the lessee or sublessee, and the term of the lease or sublease.

The Applicant has in his possession a copy a tenancy agreement (he does not state whether the tenancy agreement was provided by the Respondent) in respect of Lot 2, although the address given is merely " 197 Tor Street" between "Ros-Lyn Co Pty Ltd" and "Roslyn Hanlon" as lessor and "Vikki Muir" as tenant for a period of two years commencing 11^th November 2006 until 11^th November 2008. In my view, if a tenancy agreement is covered by the term " leasehold interest", such that it requires the owner of a lot to give details to the body corporate, then this document is sufficient notice for the body corporate and fulfils the requirements of Section 140(1)(b) Standard Module.

The Applicant has reserves about the tenancy agreement which he describes as "a disgrace" and "deceitful" but gives no reason for that conclusion. He does not say in what way he has been "deceived" by it. There is no allegation by the Applicant that the failure of the Respondent to supply information is causing any detriment to him or the scheme. For example, he does not allege that he does not know who the tenant is, or that there is a difficulty in contacting the tenant.

The specification of the lessor as another entity as well as the Respondent is a matter for the Respondent. That is the entity to which the lessee pays rent and it may have something to do with the tax affairs of the Respondent with which I am not concerned.

For this reason, I dismiss this application.

However, the tenancy agreement does raise one item at Item 15 and that is that there are scheme by-laws in existence which should concern the tenant. I note from the reference to matter 0612-2002 by the Applicant that the scheme by-laws are those as set out in Schedule 3 to the Building and Group Titles Act 1980 (BUGTA). Item 15.2 of the tenancy agreement states that the tenant has been given a copy of relevant by-laws even though the answer to Item 15 was "No." It may be prudent for the Respondent to make sure that this is the case. However, I make no order against the Respondent in this regard.

I note that the Applicant feels impelled by his own admission to seek response "relentlessly" from the Respondent who is the only other member of the body corporate. Whilst it must be very frustrating to have no communication with the only other lot owner, there is no duty on a lot owner to attend meetings, or to vote, or to play any active part in the management of the body corporate. The legislation is in fact designed to ensure that votes may be made by post to cater for the number of interstate owners. In is unfortunately a fact that many unit owners do not exercise their rights to vote or to have any active say in the running of their body corporate. However, that is a choice they may make.

There is however a duty on all members to maintain their own units, and to pay contributions for the maintenance of common property, and for insurance of the scheme property. In a duplex, both members must contribute. What the budget should be and how contributions are to be made, eg. quarterly, six monthly etc. is to be set each year at the annual general meeting. Provided the Respondent has had notice of the AGM containing the budget and contributions, she will be liable to pay those contributions if they are approved by the (remaining voter of) the body corporate but she has abstained from voting.

In a duplex, a quorum for a general meeting is taken to be one person who is present personally (Section 48(2)(b) Standard Module. ) The Applicant’s one vote will therefore carry any motions put to the general meeting if the Respondent fails to vote, and such motions, if reasonable, may be enforced by this Office as motions of the body corporate.

The parties to this application may be interested to acquire a copy of a new BCCM Fact Sheet "Owning a Duplex" from the information service of this Office on free-phone [phone] or available on-line at www.bccm.qld.gov.au The Schedule 3 BUGTA by-laws are also available from the information service.