Banksia Court 1 [2009] QBCCMCmr 454 (19 November 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ken Whittaker, Owner of Lot 1, and Irene McGonnell, the Owner of Lot 2

I hereby order that within seven (7) days of that date of this order and at his own expense, Chris Beavan, formerly of Airlie Body Corporate Services, shall ensure that all financial and other records for the Body Corporate for Whitsunday Gardens and any other property or assets of the Body Corporate for Banksia Court 1 that are in the custody or possession of Chris Beavan or Airlie Body Corporate Services or their principals, employees, associates or agents, are delivered to Ken Whittaker (Lot 5, 2A Jessies Way, Cannonvale Qld 4802) in accordance with sections 206 and 207 of the Body Corporate and Community Management (Standard Module) Regulation 2008.

Banksia Court 1 community titles scheme 33233 (Banksia Court 1) consists of two lots and common property. The community management statement (CMS) for Banksia Court 1 indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the owners of both lots in the scheme, Ken Whittaker and Irene McGonnell (applicant) on 29 September 2009.

The applicant sought orders against the former body corporate manager (BCM) for the scheme, Chris Beavan, formerly of Airlie Body Corporate Management, (respondent) in the following terms:

Under section 243 of the Act, a copy of the application was provided to the respondent with an invitation to respond to the matters raised by the application. The respondent made a submission.

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

The application relates to the return of Body Corporate records. The facts of the dispute, as outlined in the application and submission can be summarised as follows.

The owners indicate that their BCM had ‘disappeared’ and that they had been unable to contact him for over four months. The owners sought the return of the records to enable them to manage the units themselves.

The application did not initially include any evidence that written notice of the request for the records had been provided to the respondent. Our Office contacted the respondent who consented to our Office forwarding his email contact details to the applicant. Our Office then forwarded these details to Mr Whittaker who emailed the respondent at the email address provided. The email, which was copied to this Office, was returned as undeliverable.

Our Office then contacted the respondent and read the email out to him, at which time he agreed to return the records to Mr Whittaker at the address nominated on the body corporate roll. After a period of two weeks had elapsed without the records being returned we contacted the respondent again who verbally advised that the records were in a garage in Brisbane and appeared to give no indication of an intention to return them.

At this point the formal notice of the application and inviting a submission was provided to the respondent. On 2 November 2009 the respondent made a submission that the records for this scheme were being packaged and would be returned by 16 November 2009.

On 17 November 2009 a member of this Office contacted the applicant who confirmed that the records had not yet been received.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[1]

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

(c) a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

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)).

In regard to this dispute, section 206 of the Standard Module provides as follows:

(a) a person has possession or control of any of the following property (the specified property)—

(b) the person took possession or control of the specified property in the person’s capacity, or purportedly in the person’s capacity, as—

(i) a member, or an associate of a member, of the body corporate or of the committee; or

(ii) a body corporate manager or service contractor, or an associate of a body corporate manager or service contractor; and

(c) the person is served with a prescribed notice requiring the person to give, within 14 days after the person is served with the notice, the specified property to—

(ii) if a body corporate manager is acting under a part 3, division 10 engagement—a member of the body corporate who is named in the notice.

(3) The person may not claim a lien on specified property mentioned in subsection (1)(a)(ii) or (iii).

(b) if a body corporate manager is acting under a part 3, division 10 engagement—a notice signed by or for the owners of at least one-half of the lots included in the scheme.

(a) a person engaged as a body corporate manager for a community titles scheme has custody of a document of the body corporate; and

(b) the person holds the document in photographic or electronic image form; and

(c) the person’s engagement as body corporate manager expires and is not renewed, or is otherwise brought to an end.

(a) to give to the body corporate the document in the form of a disc, tape or other article or any material from which writings or messages are capable of being produced or reproduced (with or without the aid of another article or device), if the form is immediately accessible by the body corporate; or

(3) The person must, at the person’s own expense, comply with a requirement of the body corporate under subsection (2).

The respondent has not disputed that he has the property sought in the application or indicated that the records could not be returned. Indeed the respondent agreed to return the records, but has failed to do so by the date he nominated. I consider that the respondent has been given adequate notice to return the records. Any subsequent employment or other commitments of the respondent are simply no justification for the respondent to withhold the legal property of the Body Corporate. Moreover, I consider it highly unprofessional and inappropriate of the respondent to apparently simply vacate his role as BCM leaving no current contact details while retaining the Body Corporate’s property.

On that basis I consider that it is appropriate that a make an order requiring the respondent to return all records and any other Body Corporate property which is held by the respondent, or his former company Airlie Body Corporate Management, or any other person associated with the respondent or that company. I will require this to be done within seven days of the date of the order, which should be more than adequate given the respondent indicated two weeks ago that the material could be returned by 16 November. The records must be delivered to Mr Whittaker at the respondent’s cost, which would include the cost of registered post or courier delivery as necessary to ensure that the property is received safely by the Body Corporate.

I caution the respondent that if he does not comply with the order within the specified timeframe, then it can be enforced against him in the Magistrates Court.[2] Under section 288 of the Act a breach of an order is an offence attracting a fine of up to 400 penalty points. Penalty units are set by section 5(1) of the Penalties and Sentences Act 1992 and as at 1 January 2009 are set at $100 per unit, meaning that a breach of an order can attract a fine of up to $40,000.

[2] See sections 286 and 287 of the Act. See also the factsheet “Enforcement of adjudicators’ orders and penalties” available at www.bccm.qld.gov.au

Number of Scheme:	33233
Name of Scheme:	Banksia Court 1
Address of Scheme:	Banksia Court CANNONVALE QLD 4802

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Banksia Court 1 [2009] QBCCMCmr 454 (19 November 2009)