Raby Bay Gardens [2008] QBCCMCmr 149 (1 May 2008)

Last Updated: 19 May 2008

REFERENCE: 0363-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24485
Name of Scheme:	Raby Bay Gardens
Address of Scheme:	8 Channel Street CLEVELAND QLD 4163

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

Samuel Wallace, the owner of lot 9

I hereby order that within seven (7) days of that date of this order, Gary Taylor and Body Corporates Australia Pty. Ltd. shall, at their own cost, deliver to the Chairman of the Body Corporate, Ms. Samuel Wallace of 9/8 Channel Street Cleveland, all paper and electronic records and any other property or assets of the Body Corporate for Raby Bay Gardens that are in the possession of Gary Taylor and/or Body Corporates Australia Pty Ltd, in accordance with sections 152 and 153 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0363-2008

“Raby Bay Gardens” CTS 24485

Raby Bay Gardens community titles scheme consists of 23 lots and common property. The community management statement (CMS) for Raby Bay Gardens indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered on a Group Title Plan, now known as a Standard Format Plan.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made on behalf of the Body Corporate for on 29 April 2008.

The applicant seeks orders against the former body corporate manager for the scheme, Gary Taylor of Body Corporates Australia Pty. Ltd. (the respondents) in the following terms:

An order that Body Corporate Australia deliver up the records of Raby Bay Gardens immediately to the Chairperson or the proposed new body corporate manager.

BACKGROUND

The application relates to the return of body corporate records. The Body Corporate previously engaged Body Corporates Australia Pty. Ltd., operated by Mr. Garry Taylor, as Body Corporate Manager but on 18 February 2008, Body Corporates Australia Pty. Ltd. was advised that its contract of engagement would not be renewed and that the proposed new body corporate manager would soon convene the AGM for the body corporate.

As is usual for a body corporate manager, Body Corporates Australia Pty. Ltd. was to perform the following functions:

(a) prepare annual statements of account, balance sheets and budgets;
(b) prepare and issue notices of meetings and maintenance contributions;
(c) pay approved accounts and outgoings;
(d) receipt, bank and account for maintenance contributions.

However, it would appear that very little of this work has been done. Notices of contribution have not been issued and financial statements have not been prepared.

In response to inquiries by the body corporate, Mr. Taylor has offered an array of excuses for failure to attend to this work including illness, computer problems and staff problems. The body corporate has offered to send a courier to collect the body corporate records but has received no reply from Mr. Taylor and to date, none of books, records or other body corporate property have been returned.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[1]

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 CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; 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

The applicant body corporate is now seeking the following:

An order that Body Corporate Australia deliver up the records of Raby Bay Gardens immediately to the Chairperson or the proposed new body corporate manager.

I have a number of serious concerns regarding the body corporate manager’s lack of communication with the body corporate. The failure of the body corporate manager to provide information regarding the application of body corporate funds is an obvious cause for concern, but also, the retention of body corporate records is preventing the body corporate from meeting its statutory obligations.

Pursuant to sections 152 and 153 Mr. Taylor and Body Corporates Australia Pty. Ltd. are obliged to return the Body Corporate’s assets, books and records to the body corporate.

In regard to this dispute, section 152 of the Standard Module provides as follows:

152 Return of body corporate property – Act s 322

(1) This section applies if—

(a) a person has possession or control of any of the following property (the specified property)—

(i) a body corporate asset for a community titles scheme;

(ii) a record or other document of a body corporate;

(iii) a body corporate seal; and

(b) the person took possession or control of the specified property in the person’s capacity, or purportedly in the person’s capacity, as—

(i) a member, or an associate of a member, of the body corporate or of the committee; or

(ii) a body corporate manager or service contractor, or an associate of a body corporate manager or service contractor; and

(c) the person is served with a prescribed notice requiring the person to give, within 14 days after the person is served with the notice, the specified property to—

(i) a member of the committee who is named in the notice; or

(ii) if a body corporate manager is acting under a part 3, division 10 engagement—a member of the body corporate who is named in the notice.

(2) The person must comply with the notice.

Maximum penalty—20 penalty units.

(3) The person may not claim a lien on specified property mentioned in subsection (1)(a)(ii) or (iii).

(4) In this section—

prescribed notice means—

(a) a notice of a resolution of the committee; or

(b) if a body corporate manager is acting under a part 3, division 10 engagement—a notice signed by or for the owners of at least one-half of the lots included in the scheme.

Section 153 of the Standard Module further provides:

153 Documents in custody of body corporate manager – Act s 322

(1) This section applies if—

(a) a person (the person) engaged as a body corporate manager for a community titles scheme has custody of a document of the body corporate; and

(b) the person holds the document in photographic or electronic image form; and

(c) the person’s engagement as body corporate manager expires and is not renewed, or is otherwise brought to an end.

(2) The body corporate may require the person—

(a) to give to the body corporate the document in the form of a disc, tape or other article or any material from which writings or messages are capable of being produced or reproduced (with or without the aid of another article or device), if the form is immediately accessible by the body corporate; or

(b) to reproduce, and give to the body corporate, the document in paper form.

(3) The person must, at the person’s own expense, comply with a requirement of the body corporate under subsection (2).

Maximum penalty for subsection (3)—20 penalty units.

I am satisfied that the body corporate has given more than adequate notice to the respondent to return the Body Corporate’s assets, books and records. The failure of the respondent or his company to adequately communicate any difficulties or delays with the body corporate committee has compounded the difficulties faced by the body corporate. In the circumstances it is appropriate that I make an order requiring Gary Taylor and Body Corporate Australia Pty. Ltd. to return of all records and any other property that belongs to the Body Corporate which is held by Gary Taylor or Body Corporate Australia Pty Ltd within seven days.

I caution the respondent that if he does not comply with the order within the specified timeframe, then it can be enforced against him in the Magistrates Court.[2] Under section 288 of the Act a breach of an order is an offence attracting a fine of up to 400 penalty points (currently $30,000).

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[1] See sections 227, 228, 276 and Schedule 5 of the Act

[2] See sections 286 and 287 of the Act. See also the factsheet “Enforcement of adjudicators’ orders and penalties” available at www.bccm.qld.gov.au