Galen House [2007] QBCCMCmr 172 (22 March 2007)

Last Updated: 2 April 2007

REFERENCE: 1026-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11646
Name of Scheme:	Galen House
Address of Scheme:	142 Queen Street SOUTHPORT QLD 4215

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

Janette Watson, the Owner(s) of lot 1 (the applicant)

I hereby order that within 7 days of this order the applicant will prepare a cheque in favour of Dr John R Watson for the amount of $2,435.90, drawn on a bank account in the name the Body Corporate for Galen House, CTS 11646 (the cheque). I further order that within 3 days of preparing the cheque the applicant must provide the cheque to Rodney M Tracey co-signatory to the body corporate bank accounts and director of Amalgamated Megadynamics Pty Ltd, the owner of Lot 2 (the respondent). I further order that within 7 days of receipt of the cheque, the respondent must sign and return the cheque to the applicant.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1026-2006

"Galen House" CTS 11646

Application

This application was made by Janette Watson, as owner and occupier of Lot 1 (the applicant) on 6 December 2006 under the Body Corporate and Community Management Act 1997 (Act). The applicant sought orders against Rodney Tracey, the director of Amalgamated Megadymanics Pty Ltd, the owner of Lot 2 (respondent) in the following terms:

With reference to "Notice of Adjudicators Order 0313A-2006 "Galen House" 25 Sept 2006.

The adjudicator ordered that Dr R.M. Tracey pay the sum of $2435.90 into the Galen House Body Corporate bank account. This order was carried out. The adjudicator further directed that the Body Corporate of Galen House reimburse John R Watson the sum of $2435.90. Dr Tracey has failed to endorse the cheque to allow payment to Dr Watson to take place. I am seeking payment be made to Dr Watson.

The Scheme

Galen House community titles scheme (Galen House) consists of two lots and common property. The community management statement for Galen House indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources Mines and Water records show the scheme is registered as Building Units Plan 3518.

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)).

Background

The order referred to above and made by the adjudicator on 25 September 2006 was worded as follows:

I hereby order that within four weeks of the date of this order, Amalgamated Megadynamics Pty Ltd, the owner of Lot 2, shall pay to the Body Corporate the amount of $2,435.90, being 50% of the cost of the variation to the building contract with All-Ways Handy Home Maintenance Services.

I further order that the application is otherwise dismissed.

Grounds

The applicant advises that the respondent deposited the sum of $2,435.90 into the Galen House body corporate bank account as ordered. However she advises that the respondent has failed to sign a body corporate cheque to allow the body corporate to pass the payment along.

Submissions

The respondent advises that he complied with the order to pay the money to the body corporate. He refers to a letter he wrote on 27 October 2006, where he advises that in order to responsibly sign a cheque on the body corporate’s behalf he needs the following:

1.	"Original contract with the builder;
2.	The original signed variation (which I have never seen);
3.	I was unaware that J R Watson had paid for the variation. Again the body corporate for record purposes will need to have all invoices with the GST and receipts again with details of the GST.
4.	Copies of all minutes should of course be made available to me.
5.	Copies of all Bank Statements".

In the letter he also suggests that the parties could make the payment referred to in the adjudicator’s decision, along with a number of other payments at a "meeting within the next few weeks".

He states that he again attempted to arrange to sign the cheque by a letter dated 8 November 2006. He says that he is not the body corporate, just a member of the body corporate. He says that by refusing to provide him with any of the relevant documentation, the applicant has successfully prevented him from making any possible appeal. He refers to section 150 of the Standard Module, which states that the body corporate must allow all members of the committee reasonable access to the body corporate’s records.

He says that the body corporate should ensure that no monies are spent by the body corporate without a clear and minuted decision agreeing to the expenditure.

The respondent’s subsequent submission goes through a number of issues that are not the subject of this application and mainly related to the previous decision.

Response to Submissions

The applicant’s response does not add anything to the grounds of this application. Much of her response is directed to the peripheral issues raised in the respondent’s submission and raises her own peripheral objections.

Determination

I must firstly point out that I have no authority to vary the orders of the adjudicator who made the original determination. Section 289(2) of the Act states that an aggrieved person may appeal to the District Court, but only on a question of law. It therefore follows that neither I nor the respondent have authority to vary the findings made by the previous adjudicator.

I note that Adjudicator Rosemann made the following findings:

I am satisfied on the evidence before me that the work that was the subject of the original contract with Cowell, and the contract variation, was necessary and the responsibility of the Body Corporate. However, it is clear that Janette Watson failed to obtain proper Body Corporate approval before authorising Cowell to proceed with the contract variation work.

Notwithstanding that, I am required by section 276 to make a decision that is just and equitable in the circumstances. The primary concern of the Body Corporate in this matter was to ensure that necessary repairs were undertaken in accordance with the Body Corporate’s legislative responsibilities and the directive of the GCCC. The work that was the subject of the contract variation has been completed and I have not received any convincing evidence that the work were not necessary, or was faulty or unprofessional. Moreover, I have not received any evidence that the cost of the variation work (comprising both the barge tile and guttering component of the work) was manifestly excessive.

While inappropriate and incorrect, the actions of the applicants have nonetheless resulted in the fulfilment of the Body Corporate’s maintenance obligations. Moreover, I am not satisfied that the Body Corporate has suffered any particular detriment as a result of these actions. Accordingly, I do not believe that it would be just and equitable for the Body Corporate to avoid paying the cost of work which is its responsibility because of irregularities in the process for approving the work.

As John Watson has paid the variation amount, I have ordered the respondent pay 50% of the cost to the Body Corporate. The Body Corporate can then reimburse the applicants in this amount.

Therefore while some of the documentation requested by the respondent may not even exist, Adjudicator Rosemann has determined that "it would (not) be just and equitable for the Body Corporate to avoid paying the cost of the work which is its responsibility because of irregularities in the process of approving the work".

Adjudicator Rosemann has determined that the amount of $2,435.90 was owed by the respondent to the body corporate and that in turn the body corporate owes the occupant of Lot 1 the same amount. The published order and reasons for decision are all the proof that the respondent requires. He does not require further proof of the liability and it is unreasonable for him to demand further proof in order to sign a cheque for the amount of $2,435.90 in favour of John R Watson.

I will order that the respondent sign the cheque.