Comara [2009] QBCCMCmr 429 (30 October 2009)

Number of Scheme:	7456
Name of Scheme:	Comara
Address of Scheme:	31 Telopea Street LABRADOR QLD 4215

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

I hereby declare that the owner of lot 2, Andrew Theodore, owes a debt of $309.14 to the body corporate.

I hereby order that the owner of lot 2, Andrew Theodore, must reimburse the owner of Lot 1, Charles McDowell, for his share of the body corporate insurance premium, being $309.14, within 14 days of the date of this order.

The Comara community titles scheme (“Comara”) consists of 2 lots and common property. The community management statement (“CMS”) for Comara indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (”Standard Module”) applies to the scheme. The Department of Environment and Resource Management records show the scheme is registered as Building Units Plan 7810.

Pursuant to the Body Corporate and Community Management Act 1997 (“Act”), this application was made by Charles McDowell, the owner of Lot 1 (“the applicant”) on 18 August 2009. The applicant sought orders against Andrew Theodore, the owner of Lot 2 (“the respondent”) in the following terms:

In August 2009 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately conciliation did not proceed as one or more parties were unable to attend. Subsequently, this application was lodged.

Under section 243 of the Act, a copy of the application was posted to the respondent per the address of the lot, with an invitation to the respondent to respond to the matters raised by the application. No submissions were received by the respondent. Consequently, the applicant did not inspect any submissions or make a written reply.[1]

On 17 September 2009, a member of our Office attempted to contact the respondent to enquire whether he would like to make a submission on this matter. However, other than the address pertaining to the respondent’s lot, our Office was provided with no other contact details for the respondent. The file note indicates that the applicant had previously advised our Office that he did not have a telephone contact number for the respondent and that the respondent resides at the scheme. I am satisfied that our Office has made a reasonable attempt to contact the respondent in this matter.

On 18 September 2009, a dispute resolution recommendation was made referring the dispute to departmental adjudication.

The application relates to the applicant’s request to be reimbursed by the respondent for his share of the insurance premium for the building. The facts of the dispute, as outlined in the application, can be summarised as follows.

The applicant is a co-owner of half of a residential duplex. The respondent is the sole owner of the other half. For the period ending 19 May 2010 the applicant has paid the whole of the public insurance premium for the building. The amount came to a total of $566.76.

On 3 June 2009 and 30 June 2009 the applicant wrote to the respondent requesting reimbursement for his share of the insurance premium. To date the applicant has received no reimbursement from the respondent.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2]

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; or

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

The first issue for consideration in this matter is whether the respondent should reimburse the applicant for his share of the insurance premium for the body corporate. The second issue for determination is whether the respondent should pay for the costs of the application.

Section 182(1)(a) of the Standard Module states that the owner of each lot that is covered by reinstatement insurance is liable to pay a contribution levied by the body corporate that is a proportionate amount of the premium. In schemes created under a building format plan of subdivision, this ‘proportionate amount of the premium’ is worked out pursuant to the interest schedule lot entitlement of the lot.

Pursuant to the CMS for the scheme, Lot 1 has an interest schedule lot entitlement of ‘5’ and Lot 2 has an interest schedule lot entitlement of ‘6’ while the aggregate number of interest schedule lot entitlements is ‘11’. These are the numbers from which the ‘proportionate amount of the premium’ is derived. Therefore, the applicant (the owner of Lot 1) is required to pay 45.4545% of the insurance premium ($257.62) and the respondent (the owner of Lot 2) is required to pay 54.5454% of the insurance premium ($309.14).

I understand that the applicant has paid the total amount of the insurance premium, namely $566.76, and that the building is now insured until 19 May 2010. Pursuant to the Act, the applicant and the respondent should have paid their levies into the Administrative and Sinking Funds and the insurance premiums should have been paid out of these funds. However, notwithstanding these issues, I have ordered that the respondent reimburse the applicant for his share of the body corporate insurance premium, being $309.14, within 14 days of the date of this order.

I urge the parties to attend to the establishment of the required body corporate structures as a matter of urgency. In this regard, the parties are directed to two publications by the Commissioner, entitled Insurance and Owning a Duplex. These publications contain general information regarding insurance and owning a duplex. The publications can be obtained from the information service provided by the Commissioner by calling 1800 060 119 or from the website: www.justice.qld.gov.au/bccm.

Further, I put the parties on notice that this order may be enforced in the Magistrates Court if it is not followed by the parties.

Section 280 of the Act, sets out the requirements for an order requiring the payment of application fees. This section is set out below.

(a) the applicant for an adjudication application made a conciliation application for the same dispute; and

(b) the respondent to the adjudication application was the respondent to the conciliation application; and

(c) the commissioner ended the conciliation application under section 252K because the respondent failed, without reasonable excuse, to participate in the department conciliation.

(2) If asked by the applicant, the adjudicator may order the respondent to pay to the applicant the amount paid by the applicant under section 239(1)(c) as fees for the conciliation application and adjudication application.

Although, the applicant has made an adjudication application against the respondent in the same terms as their conciliation application, the Conciliation Certificate does not confirm that the conciliation application ended because the respondent did not make a reasonable attempt to participate in the conciliation session. Rather, the Conciliation Certificate states that the conciliation application ended because ‘one or more parties were unable to attend’. Therefore, despite the applicant’s request for the costs of the application, I am of the opinion that this matter does not fall within the ambit of section 280 of the Act. Consequently, I am unable to make the order sought.

Pursuant to section 182(1)(a) of the Standard Module, all lot owners must contribute towards the body corporate’s insurance premium in accordance with their interest schedule lot entitlement. This renders the respondent liable for the sum of $309.14. As the applicant has already paid this amount on behalf of the respondent, I am ordering that the respondent reimburse the applicant for this amount within 14 days of the date of this order.

[1] See sections 246 and 244 of the Act respectively.
[2] See sections 227, 228, 276 and Schedule 5 of the Act.
[3] Section 276(2) of the Act.
[4] Section 284(1) of the Act.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Comara [2009] QBCCMCmr 429 (30 October 2009)