Q1 [2009] QBCCMCmr 153 (20 April 2009)

Number of Scheme:	34498
Name of Scheme:	Q1
Address of Scheme:	9 Hamilton Avenue SURFERS PARADISE QLD 4217

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

I hereby order that the body corporate for Q1 is to forthwith provide to Mr. Assey as agent for Mrs. Assey, the owner of lot 603, a copy of the Caretaking and Letting Agreement entered into between the Q1 Body Corporate and Sunleisure Hotels and Resorts Pty. Ltd.
I hereby order that the body corporate is entitled to payment of the fees prescribed by section 20b of the Accommodation Module for photocopying of the above document.

This application was submitted by Mr. Ladislaus Assey as an owner of a lot in the scheme. However searches conducted by this office revealed that Mrs. Carmeline Assey is the Owner of lot 603 and Mr. Assey is not recorded on Titles Office records as the owner of a lot in the scheme. Accordingly, this office obtained written confirmation from Mrs. Carmeline Assey that Mr. Assey is authorised to act on her behalf.

The applicant is seeking an interim order that they be provided with a copy of the Caretaking Service Contract as well as any other agreements between SSKB and the Stella Group pertaining to Q1.

The applicant states that these documents are urgently required for the purposes of a hearing regarding a disputed trademark currently under consideration by IP Australia.

Q1 Community Title scheme is a large residential tower on a Building Format Plan, regulated by the Body Corporate and Community Management (Accommodation Module) Regulation.

The applicant states that he has sent various email communications to the body corporate manager, Stewart, Silver, king and Burns (SSKB) requesting certain documents including a copy of the Caretaking Service Agreement and “Any other Agreements between SSKB and Stella Group, but his requests have been ignored. The applicant further states that SSKB have provided him with “everything other than the requested information”.

Attached to the application were numerous pages of email communications between the applicant and SSKB, including the following:

7/3/09 request for Caretaking Agreement & agreements between Ernst Body Corporate (the previous body corporate manager) & the Stella Group;

8/3/09 email from SSKB to applicant stating that owners are able to conduct a search of body corporate records and pay photocopying charges or otherwise could contact the committee Chairperson to obtain the subject information.

8/3/09 request to SSKB for copy of Caretaking Agreement & agreements between Ernst Body Corporate SSKB & Stella group;

13/3/09- communication with Ms Howard of SSKB advising that documents requested were not made available to him when he conducted a search of the body corporate records;

7/4/09 – request to SSKB for copies of Caretaking Agreement & agreements between SSKB & Stella group including an undertaking to pay reasonable costs associated with production of the documents. ;

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 authorization 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)).

At this point in time I am considering the application for the following interim order:

that the applicant be provided with a copy of the Caretaking Service Contract as well as any other agreements between SSKB and the Stella Group pertaining to Q1.

While it is not possible to exhaustively define what matters might be the subject of an interim order, an applicant does need to establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency relates to an applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order.

Sub-sections 279(1) & (2) provide that -
(1) The 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.
Examples
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.

(2) An interim order
(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; (c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when
(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred. ...

Further, section 247 of the Act provides as follows

(1) This section applies if the commissioner reasonably considers that an application for an interim order should be referred to a conciliator or an adjudicator because of the nature or urgency of the circumstances to which the application relates.
(2) The commissioner may refer the application to

(b) an adjudicator for adjudication under this chapter.
(3) The referral may be made even though

(b) all persons entitled, under that section, to make submissions about the application have not had an opportunity to make submissions.

While I am permitted to make Interim orders on an ex parte basis, an interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates[1] and any order granted must be just and equitable in the circumstances.[2]

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.

Under section 205 of the Act, a lot owner is entitled to be provided with copies of any body corporate records within 7 days of making a written request accompanied by the prescribed fee.

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 203 of the Accommodation Module Regulation relevantly 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 $12.00; or
(ii) if the person inspecting the records is not a lot owner $24.00; and
(b) the prescribed fee for obtaining a copy of a record kept by the body corporate is 50c for each page supplied.

I note that the applicant, acting on behalf of his wife Mrs. Carmeline Assey, has requested production of certain body corporate records on 7 April 2009 and offered to pay the statutory fee for such production. However as at the date of the application, 17 April 2009, theequested documents had not been provided to the applicant.

Given the apparent urgency of this matter I propose to order that the body corporate for Q1 is to forthwith provide to Mr. Assey as agent for Mrs. Assey, the owner of lot 603, a copy of the Caretaking and Letting Agreement entered into between the Body Corporate and the Letting Agent, Sunleisure Hotels and Resorts Pty. Ltd.
The body corporate is entitled to payment of the fees prescribed by section 203 of the Accommodation Module for production of the above document.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Q1 [2009] QBCCMCmr 153 (20 April 2009)