Grand Mariner Cleveland [2009] QBCCMCmr 321 (28 August 2009)

Last Updated: 28 September 2009

REFERENCE: 0401-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26590
Name of Scheme:	Grand Mariner Cleveland
Address of Scheme:	23-25 North Street CLEVELAND QLD 4163

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

Valerie Purdon, the Owner(s) of lot 9

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0401-2009

“Grand Mariner Cleveland” CTS 26590

Application

Grand Mariner Cleveland Community Titles Scheme (GMC) is an 11 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module).

This application is by Valerie Purdon, former owner of lot 9 (applicant) seeking orders against the body corporate for GMC (respondent). A titles search shows that a transfer of title from the applicant was recorded on 26 May 2009.

The applicant says that she paid for an independent building inspector to report on the condition of a driveway in the scheme. She seeks orders reimbursing her for her costs as agreed in a conciliation agreement and seeking to require the body corporate to accept the building inspector’s recommendations.

A number of submissions from owners and the body corporate were received to the effect that the applicant did not comply with the conciliation agreement and that she no longer owns a lot at the scheme so has no right to insist that any particular work be carried out.

Decision

The applicant has provided a copy of an agreement reached pursuant to a department conciliation session. This agreement states, among other things, "At the end of the 7 day period the parties agree to meet and identify a mutually acceptable professional to compile the report...The parties agree to divide the costs evenly for the cost of the professional report".

The applicant alleges that she paid for the report and the body corporate failed to reimburse her for half of the costs. I note that evidence of anything said or done about a dispute in a department conciliation session is inadmissible in a proceeding (Act, 252E(5)). This raises a number of questions regarding:

• Whether a conciliation agreement is something "done" in a conciliation session?
• Whether an adjudication is a "proceeding" for the purposes of 252E(5)?
• Whether evidence of any committee resolution authorising entry into the conciliation agreement is admissible?
• Whether the agreement is admissible despite section 252E(5) in the absence of any objection to its admissibility?
• Whether, even if admissible, the parties entering into the conciliation agreement had an intention to be legally bound or if it was simply a ‘goodwill agreement’?
  

In any event, I accept submissions to the effect that the applicant engaged her own building inspector instead of identifying mutually acceptable professional in conjunction with the body corporate. On this basis alone the applicant’s claim for reimbursement must fail.

Further, I note that the body corporate has the right and obligation to administer the common property and body corporate assets (Act 94, 152). The applicant has failed to satisfy me that the building inspector’s recommendations for bitumen are suitable in light submissions from other parties regarding the adjacent fig tree. In any event, I consider the applicant has no continuing interest in the scheme as she has sold her lot.

It would not be just and equitable in the circumstances to make either of the orders sought. The application is therefore dismissed.