Caulfield Court [2008] QBCCMCmr 73 (3 March 2008)

Number of Scheme:	3184
Name of Scheme:	Caulfield Court
Address of Scheme:	81 Kitchener Street COORPAROO QLD 4151

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

I hereby order that Gary Taylor and/or Body Corporates Australia Pty Ltd shall, at his own cost and within seven (7) days of that date of this order, deliver to Carla Sernia (of 3/81 Kitchener Street, Coorparoo), Secretary of the Body Corporate for Caulfield Court, all paper and electronic records and any other property or assets of the Body Corporate for Caulfield Court 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.

Caulfield Court community titles scheme (Caulfield Court) consists of eight lots and common property. The community management statement (CMS) for Caulfield Court 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 as Building Units Plan 12435.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Caulfield Court (applicant) on 1 February 2008. The lodging of an application in regard to the dispute was authorised at a general meeting on 22 January 2008.

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

Return of all files, accounts and documents relating to Caulfield Court CTS 3184, from Gary Taylor-Body Corporates Australia Pty Ltd.

In January 2008 the applicant lodged an application for conciliation. However, following discussions with an officer from the Commissioner’s Office that application was withdrawn and this adjudication application was submitted.

Under section 243 of the Act, a copy of the application was provided to the respondent with an invitation to respond to the matters raised by the application. No submission was received.

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

In the absence of a submission I asked a member of the Commissioner’s staff to contact the respondent to confirm he had received the notice inviting submissions. Although he advised that the address the notice was sent to was correct, he indicated he had been in hospital and had not received it. He faxed a brief submission later that day.

The application relates to the return of Body Corporate records. The facts of the dispute, as outlined in the application and submission can be summarised as follows.

The application says that at a general meeting on 25 October 2007 the Body Corporate resolved rescind a previous motion to renew the respondent’s contact as body corporate manager (BCM) for the scheme and consequently agreed to seek a new BCM. The meeting also resolved to write to the respondent to request the return of all Body Corporate letters. This letter was sent on 31 October 2007 by registered mail and was signed by six owners. It advised of the general meeting resolutions and requested the return of all files and accounts within 14 days.

An email exchange between the respondent and the Secretary on 26 November 2007 indicated that the respondent was working on collating the records and expected them to be finished in two days. On 29 November he said he needed to reconcile a payment and to do so he needed to collect the cheque book which he had left with the bank when he closed the account, and that he pick that up the next day.

Emails between owners indicate several different owners tried calling and visiting the respondent, who repeatedly promised to finalise the paperwork and return it – each time a few days after the time of contact. One mentioned the respondent had said he had been in hospital.

The material provided in the application indicates that owners had experienced difficulties with the respondent failing to respond to email and telephone contacts, not issuing contribution notices, failing to call and attend an annual general meeting and failing to pay maintenance accounts.

On 3 March 2008 the respondent advised this Office that the delay in returning the records has been caused by his ill health. He said he was endeavouring to have the records ready by the end of this week or early next week.

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:

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

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

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

(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—

(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.

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

(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.

(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.

(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

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

I am satisfied that the Committee has given more than adequate notice to the respondent to return the Body Corporate’s records pursuant to these sections. It would seem that the Committee have been very patient in frustrating circumstances.

The respondent has not disputed his responsibility to return the Body Corporate’s property. While it may be he has been unwell, he has not adequately explained why this has caused a four month delay in compiling the records when three months ago he indicated they would be available in a few days. The failure of the respondent or his company to adequately communicate any difficulties or delays with the Committee has compounded the problem.

I do not consider that the respondent has provided sufficient basis for failing to return the Body Corporate records despite numerous requests. Accordingly it is appropriate that a make an order requiring the 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.

I will require this to be done within seven days, which accords with the timeframe the respondent has promised in his submission. The records must be delivered to the Secretary at the respondent’s cost.

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).

[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

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Caulfield Court [2008] QBCCMCmr 73 (3 March 2008)