Palm Links [2008] QBCCMCmr 38 (1 February 2008)

Number of Scheme:	193
Name of Scheme:	Palm Links
Address of Scheme:	53 Hodel Street ROSSLEA QLD 4812

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

I hereby order that within 7 days of receiving a written request from the applicant for a copy of the body corporate roll, accompanied by the prescribed fee, the body corporate manager, John Gribbin Realty Pty. Ltd., is to provide to the applicant a copy of the body corporate roll.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0973-2007

"Palm Links" CTS 193

The Scheme

"Palm Links" is registered on a building unit plan (now termed a building format plan) and comprises 5 lots and common property. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Application

An application has been made by Mr. Ian Dundurs, the owner of Lot 5, seeking the following outcome:

Owner details to be supplied by the manager so that mail, phone/ fax e-mail contact can be made between owners. This will enable issues in dispute and for discussion to be aired and efficient running of the body corporate.

Background

The applicant states that the body corporate manager will not provide him with contact details for the other 4 unit owners including name, address and telephone numbers. He wishes to contact other lot owners in order to address what he believes to be mismanagement of the scheme. He believes that a contributing cause has been the apathy of other owners who are investors living away from the scheme.

The applicant also raises certain specific concerns regarding administration of the body corporate and questions whether the body corporate and body corporate manager have complied with applicable legislation. The applicant provided certain examples including minutes of an AGM held on 31 July 2006 which recorded certain motions as being carried when voting was recorded as "0 votes for" and "0 votes against". Certain other irregularities were also alleged.

The applicant states that he wishes to bring his concerns to the attention of other lot owners and thereby ensure that there is greater accountability on the part of the body corporate manager.

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-

(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:
While the applicant has raised a number of issues regarding the administration of the body corporate, the outcome sought relates specifically to his statutory entitlement to access body corporate records.

I have been provided with a significant amount of correspondence between the applicant and the body corporate manager and note that in response to the applicant’s queries, he has been advised that information concerning other lot owners is "confidential and protected by law". However, under section 205 of the Act, a lot owner is entitled to be provided with copies of the body corporate roll and other body corporate records within 7 days of making a written request accompanied by the prescribed fee.

Section 204 of the Act provides that a body corporate must establish and keep the following records:

Section 143 provides that the body corporate must prepare and keep a roll containing a detailed list of information about each lot (unit) in a community titles scheme, as well as information about the original owner (developer). The roll must contain, among other things:

The information that appears on the roll about a particular lot must be provided by the lot owner. Within two (2) months of becoming a lot owner, the new owner must advise the body corporate of their full name and an ‘address for service’ which must be within Australia. However, the new lot owner is not obliged to provide their phone number for inclusion in the body corporate roll.

Section 205 of the Act provides as follows:

Information to be given to interested persons
(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--
(a) permit the person to inspect the body corporate’s records; or
(b) give the person a copy of a record kept by the body corporate.
Maximum penalty--20 penalty units.
(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.
Maximum penalty--20 penalty units.
(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.
(6) In this section--
interested person means--
(a) the owner, or a mortgagee, of a lot included in the scheme; or
(b) the buyer of a lot included in the scheme; or
(c) another person who satisfies the body corporate of a proper interest in the information; or
(d) the agent of a person mentioned in paragraph (a), (b) or (c).

Further, section 151 of the Standard Module Regulation provides as follows:
(1) For section 205(2) of the Act
(a) the prescribed fee for inspection of the body corporate’s records is
(i) if the person inspecting the records is a lot owner $11.40; or
(ii) if the person inspecting the records is not a lot owner $22.70; and
(b) the prescribed fee for obtaining a copy of a record kept by the body corporate is 50c for each page supplied.

A request for information from the body corporate records must be in writing and must be accompanied by the fee prescribed by section 151 of the Standard Regulation module. Committee members must be given reasonable access, without payment of a fee.

The body corporate can not impose additional charges or fees when providing information. If under their agreement, a body corporate manager requires the payment of additional fees for providing information, this is a matter between the body corporate and the manager. The interested person being provided the information is only required to pay a fee in accordance with the regulations.

It should be noted that these statutory provisions are applicable notwithstanding any concerns regarding privacy or confidentiality of material contained in the body corporate records. Principle 2.1(g) of the National Privacy Principles contained in the Privacy Act (Cth) states "An organisation must not use or disclose personal information about an individual for a purpose other than the primary purpose of collection unless the use or disclosure is required or authorised by law." Therefore, where a specific provision in the body corporate legislation authorises or requires use or disclosure of certain information, the Privacy Act cannot be relied upon as a reason for refusing the use or disclosure of the information.

Section 205 of the Act (Information to be given to interested persons) prescribes penalties for breaches of the legislation. Penalties may be imposed by a Magistrates Court, acting under powers given by Section 19 of the Justices Act 1886.

Obviously, the body corporate and its agent, the body corporate manager, are required to comply with section 205. I therefore propose to order that within 7 days after receiving a written request from the applicant for a copy of the body corporate roll, accompanied by the prescribed fee, the body corporate manager is to provide to the applicant a copy of the body corporate roll.

•	the roll;
•	registers; and
•	other documents and information (eg meeting minutes, correspondence etc).

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Palm Links [2008] QBCCMCmr 38 (1 February 2008)