Aspect Caloundra [2009] QBCCMCmr 380 (6 October 2009)

Last Updated: 12 November 2009

REFERENCE: 0502-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	35499
Name of Scheme:	Aspect Caloundra
Address of Scheme:	1 Lower Gay Terrace CALOUNDRA QLD 4551

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

Alotier Pty Ltd, the Owner(s) of lot 1094

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0502-2009

“Aspect Caloundra” CTS 35499

Application

Aspect Caloundra Community Titles Scheme (Aspect) is a 101 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This application is by Alotier Pty Ltd (applicant) seeking orders against the body corporate for Aspect (respondent). The applicant is seeking orders reqring the committee to respond to a request to allow overdue levies to be paid by instalments and to amend the by-laws to remove a by-law requiring owners to pay on demand the body corporate’s costs of recovering overdue levies.

Decision

No ongoing dispute
The applicant says that the committee and body corporate manager have not acted in the best interests of the body corporate by failing to consider his fair and reasonable request to pay overdue levies by instalments. It is submitted that his request was rejected without it ever being formally considered at a committee meeting. The applicant also submits that one of the by-laws purporting to allow the body corporate to demand its costs of recovering outstanding levies is invalid as it contracts section 180(6) of the Act that states a by-law must not impose a monetary liability.

A submission from the committee indicates that events have overtaken this application in that the applicant has now paid the outstanding levies. I note also submissions to the effect that, rather then relying upon the by-law in question, the body corporate relied upon section 143 of the Accommodation Module as a basis for recovering its reasonable recovery costs from the applicant.

In the circumstances, I am not satisfied that there is any dispute for determination and the application will therefore be dismissed.[1]

General comments

I consider it appropriate to note that I am satisfied that the committee acted appropriately to the extent that it considered the applicant’s request for payment by instalments before formally resolving to continue with debt recovery action.

On the other hand, the applicant is correct in asserting that the by-law purporting to allow the body corporate to demand its debt recovery costs is invalid to the extent that it is a by-law that purports to impose a monetary liability and to the extent that it purports to provide for recovery of costs in a manner inconsistent with section 143 of the Accommodation Module. The body corporate may wish to consider removing this by-law next time it amends it community management statement.

No costs for the present application

An adjudicator has no general power to order costs for an application.[2] There is a power to award up to $2,000 in costs if an application is dismissed on the basis it is frivolous, vexatious, misconceived or without substance (Act, 270). However, as the present application is being dismissed on the basis that there is no genuine ongoing dispute, no costs can be awarded.

Order

The application is dismissed as I am satisfied that an agreed payment has been made and there is no ongoing dispute about payment by instalments or recovery costs claimed.

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[1] Tully v The Proprietors, The Nelson Body Corporate [2000] QDC 31, PD Robin QC, 10 March 2000.
[2] Woodrange Pty Ltd v Le Grande Broadwater Body Corporate [2004] QDC 215.