Treetops Port Douglas [2009] QBCCMCmr 269 (30 July 2009)

Last Updated: 1 September 2009

REFERENCE: 0409-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15598
Name of Scheme:	Treetops Port Douglas
Address of Scheme:	316 Port Douglas Road PORT DOUGLAS QLD 4877

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

The Body Corporate for Treetops Port Douglas

I hereby order that the application for an order that Waywootoon Pty Ltd, trading as BodyCorp 101, deliver all records, physical and electronic, relating to Treetops Port Douglas Community Titles Scheme 15598, specifically: Quickbooks accounting software data file; and Any physical copies of accounts or financials. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0409-2009

“Treetops Port Douglas” CTS 15598

APPLICATION

This is an application by the body corporate for Treetops Port Douglas (Applicant), against its former body corporate manager, BodyCorp 101 (Respondent), seeking an order that the Respondent deliver all records, physical and electronic, relating to Treetops Port Douglas Community Titles Scheme 15598, specifically:

100. Quickbooks accounting software data file; and

4. Any physical copies of accounts or financials.
   

The grounds to the application are to the following effect:

• The body corporate terminated the Respondent as body corporate manager on February 5, 2009. Since then, repeated attempts to access the records of the body corporate have been blocked by the Respondent.
• Tony Angelides (on behalf of the body corporate) met with Fiona Stephenson of the Respondent at the Coffee Club in Stockland Shopping Centre, Cairns, to hand over the body corporate records. Subsequent examination of the records identified numerous records were missing or incomplete. Further attempts to recover the remaining records have been unsuccessful.
• Graeme Souster, secretary/treasurer of the body corporate, requested a copy of the electronic Quickbooks data file from Lawrence and Reed (accountants). Lawrence and Reed performed audits for the Respondent. Lawrence and Reed requested permission of the Respondent to release the file, however, Susan Way via email instructed Lawrence and Reed not to release the file.
  

JURISDICTION

Treetops Port Douglas Community Titles Scheme 15598 was registered as a building units plan (now known as building format plan) of subdivision on 20 March 1997 comprising 301 lots and common property.

The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) 2008 (the Accommodation Module).

This is a dispute between a body corporate and a former body corporate manager about the return, by the former manager to the body corporate, of body corporate property, and comes within the dispute resolution provisions of the Act (see ss.226, 227(1)(i) & 228).

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)).

SUBMISSIONS

In accordance with section 243 of the Act, a copy of the application was provided to Ms Susan Way of the Respondent, the former body corporate manager, with an invitation to respond to the matters raised in the application. Farrellys Lawyers made submission on behalf of the Respondent, to the following effect:

• All physical copies of all records were hand delivered by Ms Fiona Stephenson of the Respondent to Mr Angelides at Earlville Shopping Centre on 11 February 2009. An acknowledgement of receipt was signed. These materials comprised all of the paper records that had been held by the Respondent.
• The body corporate is not entitled, as of right, to obtain both paper and digital records. Not only is the wording of section 205(2) of the Accommodation Module plain that the body corporate may require one or the other, but that interpretation has been approved in the decision, Cairns Village Resort [2001] QBCCMCmr 162.
• Notwithstanding that the Respondent is clearly not obliged to provide the documentation in both formats, the Respondent has authorised Lawrence and Reed, auditors, to release to the Applicant body corporate the Quickbooks data file.
  

FURTHER INVESTIGATION

A copy of this submission was provided to the body corporate via the current body corporate manager on 29 May 2009 with an invitation to reply to the submission made. By letter dated 18 June 2009, the body corporate was specifically asked to advise this office whether the submission resolved the dispute. If it did not, the body corporate was required to provide particulars of any further information it was seeking the return of and that it believed to be in the possession of the Respondent.

The body corporate committee responded on 2 July 2009 as follows:

“... we have received the quickbooks data files but still outstanding is all supplier and expenses paid source documents ie supplier invoices and expense receipts to support all payments made on behalf of Body Corporate for Treetops Port Douglas for the period 1 July 2008 to February 5th 2009 being the date that the Body Corporate terminated the services of Body Corporate 101 as the body corporate manager.”

By letter dated 14 July 2009, the Respondent was required to advise, in writing by statutory declaration, whether the records referred to in the email of 2 July 2009 were in their possession and if not, where they believed those records to be.

By facsimile dated 28 July 2009, Farrellys Lawyers sent a Statutory Declaration by Susan Way of the Respondent which declared, amongst other things, the following:

“3. I state that BodyCorp 101 has already provided to the Body Corporate for Treetops CTS 15598 ‘all supply and expense paid source documents ie supplier invoices and expense receipts to support all payments made on behalf of the Body Corporate for Treetops Port Douglas for the period July 1, 2008 to February 5, 2009.’

4. Attached hereto and marked SJW1 is a true and correct copy of a signed Acknowledgement of Receipt for sundry documentation (including the documentation requested) which was provided by Fiona Stephenson on behalf of BodyCorp 101 to Mr Angelides on 11 February 2009.
   
5. The documentation in total comprised four (4) archive boxes of material, and the invoices and bank statements were enclosed in seven (7) manila folders inside those archive boxes.
   
6. To the extent relevant, any of those documents that were scanned by BodyCorp 101 were included in the QuickBooks data file, which was authorised by me to be released to the Body Corporate for Treetops CTS 15598 by our letter of 22 May 2009, a further copy of which is attached.
   
7. For the sake of completeness, BodyCorp 101 handed over all such documents and has not retained a paper copy of any, the originals having been provided to the Body Corporate previously as appears above.”
   

DETERMINATION

The legislation provides that a person who took possession of body corporate property in their capacity as a body corporate manager must comply with a prescribed notice requiring return of that property (Accommodation Module, 204). The legislation also provides that the body corporate can accept electronic copies of documents a former body corporate manager holds in a photograph or electronic image form or require the person to provide those documents in paper form (Accommodation Module, 205).

On 30 April 2009 the body corporate lodged the present application requesting that the respondent deliver all records, physical and electronic, relating to Treetops Port Douglas CTS 15598, specifically, the Quickbooks accounting software data file and any physical copies of accounts or financials. However, in response, the Respondent provided a document purportedly signed by Mr Angelides, a representative of the Applicant body corporate, which indicated the Respondent had handed over certain listed documentation as far back as 11 February 2009.

Following further enquiries, and based on the signed record dated 11 February 2009 and the Statutory Declaration by Susan Way of the Respondent dated 28 July 2009, I am satisfied that the respondent has handed over all relevant documents, and electronic records in its possession.

I am not satisfied that there is any basis for the orders sought and the application is therefore dismissed.