Lissner Grove [2007] QBCCMCmr 28 (28 June 2007)

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

I hereby order that the Body Corporate for Lissner Grove, through its body corporate manager, Strata Care Australia Pty Ltd, shall give Violet Turley a copy of all voting papers and voting tally sheets from the Annual General Meeting of 19 December 2006 within seven (7) days of the date of this order, at no charge to the Owner of Lot 15.

I further order that the Body Corporate for Lissner Grove shall reimburse Violet Turley in the amount of $18 paid by her in January 2007 within seven (7) days of the date of the receipt of a written request for reimbursement.

I further order that the Body Corporate for Lissner Grove shall give a copy of this order and the statement of reasons to all lot owners within seven (7) days of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0124-2007

"Lissner Grove" CTS 24637

Lissner Grove community titles scheme (Lissner Grove) consists of 41 lots and common property. The community management statement (CMS) for Lissner Grove indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 106800.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Violet Torbey, owner of Lot 15 (applicant) on 9 February 2007. The applicant sought an order against the Body Corporate for Lissner Grove (respondent) in the following terms:

I seek to receive information from the body corporate records which I requested on 15 January 2007, namely the voting papers and tally sheet from the AGM held 19 December 2006.

PROCEDURAL MATTERS

In February 2007 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately conciliation did not proceed.

Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to the committee, all owners, and the body corporate manager (BCM), Michael Hurley of Strata Care Australia Pty Ltd, to respond to the matters raised in the application. A submission was made by one owner. No submission was received from the Committee or the BCM. The applicant inspected the submission received and made a written reply.^[1]

An issue arose with the distribution of the notice of the application and the invitation to make submissions. On 1 March 2007 the notice was sent to the Body Corporate care of the BCM. This notice required the Body Corporate, through the secretary or delegate as appropriate, to distribute specified material within two working days of receipt. The notice also required the Body Corporate to provide written confirmation as soon as possible that the notice had been sent, to whom and when.^[2] On 16 March 2007 a member of the Commissioner’s staff contacted the BCM seeking confirmation of distribution. The BCM advised that he had been on leave and he was not aware that the correspondence had been received. On 16 March 2007 a revised notice was issued (giving new timeframes for the lodgement of submissions). On 27 March 2007 Hurley verbally advised that the notice had been received, but no confirmation of distribution was received.

The notice was then forwarded to the Secretary, who is also the applicant, requesting that she distribute the notice. The applicant advised that she was Secretary in name only, and that the BCM refused to provide her with any information, including current contact details for owners, and so she was unable to distribute the notice. On 13 April 2007 the BCM advised that the Secretary had been provided with a copy of the roll but that he would distribute the notice. Given the lapse of time a fourth notice was issued on 16 April 2007 giving further revised dates for submissions. Finally on 26 April 2007 the Commissioner received written confirmation that the notice of application was issued to all owners on 20 April 2007, some seven weeks after the original request.

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to the applicant’s request for access to body corporate records. The facts of the dispute are as follows.

On 15 January 2007 the applicant wrote to the BCM requesting a copy of six voting papers and a tally sheet from the Annual General Meeting (AGM) held on 19 December 2006. It seems the applicant is seeking these documents in relation to her concerns about the AGM, which are the subject of another dispute resolution application lodged by the applicant with this Office.^[3]

The letter included a money order for $18 to cover the 36 pages requested. An Australia Post receipt confirming delivery of the letter on 16 January 2007 is provided with the application. At the time of lodging the application the applicant had not received the requested documents. On 27 June 2007 the applicant verbally confirmed that she had still not received the documents.

The only submission agrees the applicant should be entitled to receive the requested information.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[4]

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)).

DETERMINATION

The only issue here are whether the applicant is entitled a copy of the voting papers and tally sheet from the 2006 AGM.

Access to records

Section 205 of the Act provides as follows in regard to access to records:

(1) This section provides for the giving of information by the body corporate for a community titles scheme from the body corporate’s records.

(2) Within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation module applying to the scheme, the body corporate must--

(3) However, the body corporate is not required to allow a person to inspect or obtain a copy of a part of a record under subsection (2) if the body corporate reasonably believes the part contains defamatory material.

(4) The body corporate must, within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation module applying to the scheme, issue a certificate (a body corporate information certificate) in the approved form giving financial and other information about the lot.

(5) A person who obtains a certificate under subsection (4) may rely on the certificate against the body corporate as conclusive evidence of matters stated in the certificate, other than to the extent to which the certificate contains an error that is reasonably apparent.

(c) another person who satisfies the body corporate of a proper interest in the information sought; or

(d) the agent of a person mentioned in paragraph (a), (b) or (c).

Section 150 of the Accommodation Module prescribes the relevant fees for inspecting ($11 for lot owners) and obtaining copies of records (50 cents per page supplied). These sections make it clear that all owners are entitled to obtain copies of any Body Corporate, within seven days of receiving written request and a fee.

Moreover, the applicant is a committee member. Section 149 of the Accommodation Module provides as follows that committee members are entitled to ‘reasonable access’ to records without payment of a fee.

(1) The body corporate must allow all members of its committee reasonable access (without payment of a fee) to the body corporate’s records.

(2) However, the body corporate is not required to allow a person access to records under this section if a legal proceeding between the body corporate and the person has started or is threatened and the records are privileged from disclosure.

(3) Also, the body corporate is not required to allow a person access to a part of a record under this section if the body corporate reasonably believes the part contains defamatory material.

Neither the Committee nor the BCM have given any explanation why the applicant’s request was not responded to. It is certain that the BCM received the request. Even if he or his staff had misplaced it or otherwise inadvertently failed to action it at the time, there is no explanation why he did not rectify this when notified of this application. There can be nothing in the voting papers or tally sheet that could be defamatory or could be viewed as privileged, and so it should be a matter of course that the information should be provided to the applicant immediately on request.

Administration of this scheme

I am concerned about the apparent conduct of the BCM in regard to this matter. Although a BCM should only act under the direction of the Body Corporate and its Committee, there is some indication in this application that the BCM is acting unilaterally (and as such, beyond his authority) and withholding information from Committee members. In the absence of any submission or other explanation from the BCM, the only conclusion I can draw in relation to the specific issues arising in this dispute is that the BCM has repeatedly and blatantly ignored the Body Corporate’s legislative obligations regarding access to records and the distribution of dispute resolution application notices. At best this is unprofessional.

However I am also concerned that there is some indication that the Committee are expecting the BCM to take responsibility for all administration in the scheme. The day-to-day administration of the scheme is the responsibility of the Committee, with the BCM acting only on the Committee’s direction. The Committee should be meeting regularly and giving direction to the BCM on what action they want the BCM to take on any issues that arise in the scheme. I will address these issues further in the related application lodged in regard to this scheme.

Conclusion

It is clear that the applicant is entitled to access Body Corporate records. I have been given no basis why the particular documents requested in this case should be withheld. Accordingly I have ordered the information be provided to the applicant immediately. As it appears that the BCM holds these records, and the BCM has not refuted this, I have ordered that the BCM provided the documents.

As the applicant is a committee member she was not required to pay a fee for the records. Accordingly, if the applicant would like the $18 she has paid to be reimbursed, I have ordered that the Body Corporate must reimburse this amount on receipt of her written request.

I am concerned that owners may not be aware of their rights, or the course of events, in regard to this application. For this reason I have also ordered that a copy of this order and my statement of reasons be distributed to all owners.

^[2] This requirement is specifically provided for in sections 243(4) and (5) of the Act.
^[3] Application reference 0094-2007
^[4] See sections 227, 228, 276 and Schedule 5 of the Act

Number of Scheme:	24637
Name of Scheme:	Lissner Grove
Address of Scheme:	Cnr Lissner and Bennett Street TOOWONG QLD 4066

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Lissner Grove [2007] QBCCMCmr 28 (28 June 2007)