Galen House [2007] QBCCMCmr 372 (19 June 2007)

Last Updated: 6 July 2007

REFERENCE: 0444-2007

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 of lot 1

I hereby order that within 7 days of the date of this order the director of Megadynamics Pty Ltd, Rodney Michael Tracey, shall arrange with St George Bank to have Janette Watson added as a signatory to the body corporate account, and that thereafter all body corporate cheques shall require the signatures of both Rodney Michael Tracey and Janette Watson to validly draw against body corporate funds. I further order that the body corporate cheque book shall be held by Rodney Michael Tracey but shall be accessible to Janette Watson within 24 hours of her written request to view the cheque book. I further order that Rodney Michael Tracey and Janette Watson shall sign all body corporate cheques within 7 days of being given the cheque, a copy of the resolution authorising payment and an invoice specifying the amount payable and the person requiring payment.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0444-2007

"Galen House" CTS 11646

ORDERS SOUGHT

The applicant has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

Reversal of body corporate bank account changes made by Dr Tracey at St George Bank removing my signature from the cheque account, Galen House Body Corporate Account.

The applicant has also sought the following interim order of an adjudicator:

To put on hold the resolution of the meeting of 8 May 2007 allowing Dr Tracey to become the sole signatory on the Galen House Body Corporate Account.

JURISDICTION

The application evidences a dispute between the owner of a lot included in a community titles scheme and the owner of another lot included in the scheme (Act s227(1)(a)).

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)).

Section 279(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

SCHEME DETAILS

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. The scheme was established upon registration of the building units plan, (now described as a building format plan).

BACKGROUND

This is the fifth Dispute Resolution Application that has been lodged in relation to this scheme in the past two years. The disharmony between the parties has, however, extended for many more years than that. I find it extraordinary that two intelligent professionals should have to resort to a government department to make orders about matters that relate to the maintenance and administration of a valuable asset of which they are both owners. A third party who has featured in the material is the spouse of one of the owners.

So far, four orders have been made by four separate adjudicators, and twenty pages of detailed Reasons for Decision have been published. I do not propose to repeat those orders and the reasons for decision, however the material is included here by reference (Applications 0379-2005, 0313-2006, 1026-2006 and 1041-2006).

Obviously, the efforts of previous adjudicators have not changed the parties’ attitudes toward each other

Adjudicator Underdown observed "Whilst I agree that nothing I can do can make (the parties) like each other, this office can ensure that a body corporate is administered in accordance with the legislation. That might assist in resolving disputes between (the parties)."

In my view, these parties will probably continue to approach every matter into which they are required to have joint input with hostility and suspicion. I do not consider that this office should become an automatic component of their arsenal. It appears that the orders which have been made thus far have not, in spite of Adjudicator Underdown’s optimism, assisted in resolving disputes between the parties.

DETERMINATION

I am satisfied that both parties have contributed to the difficulties which have been experienced over the years, either through failure to communicate adequately; obstinacy or sheer obduracy.

One thing is clear.

Whilst ever the parties remain owners of the lots within this community titles scheme, as a minimum, they will have to do the following:

• Operate the body corporate bank accounts
• Approve budgets annually
• Contribute to the body corporate administration and sinking funds to meet the budgets
• Maintain the common property
• Hold an annual general meeting, and, of necessity, at least one committee meeting leading up to the annual general meeting
• Insure the property

The formalities necessary to put these matters in place can be managed by an outside entity if the parties decide to appoint a body corporate manager but the decision making is still going to be up to them. At least if they do appoint a body corporate manager the requirements of the Act and the Standard Module should be met, and the contact between the parties might be kept to a minimum.

In the meantime, I have made further orders to ensure that both parties have the input required by the legislation into the administration of this scheme. These orders dispose of the application in its entirety.