Kokoda [2009] QBCCMCmr 509 (18 December 2009)

Last Updated: 2 March 2010

REFERENCE: 1051-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	35745
Name of Scheme:	Kokoda
Address of Scheme:	61 Country Road CANNONVALE QLD 4802

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Phillip Evans, the owner of Lot 1

I hereby order that Chris Beavan formerly of Airlie Body Corporate Services must, within seven days of the date of this order and at his own expense, give any asset, record, document, and any other property of the body corporate for Kokoda community titles scheme 35745 in his possession or control to the Body Corporate care of Phillip Evans at PO Box 1198, Airlie Beach Q 4802.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1051-2009

“Kokoda” CTS 35745

The scheme
“Kokoda community titles scheme 35745 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 (Small Schemes Module).

Application
This application made on 9 November 2009 is by Phillip Evans, the owner of Lot 1 (Applicant) against Christopher Beavan formerly of Airlie Body Corporate Services, the former body corporate manager, seeking an outcome that all Body Corporate documents be returned.

The Applicant submits Mr Beavan will not return Body Corporate documents and does not respond to letters requesting their return. The Applicant states it is urgent that the Body Corporate arrange a new manager and insurance. The Applicant provided a copy of two letters dated 16 September and 12 October 2009 to Jocinson Property Group to the attention of Christopher Beavan requesting that all paperwork relating to the Body Corporate be forwarded to the Body Corporate care of the Applicant. The Applicant says there have been numerous phone calls to Airlie Body Corporate Services and to Mr Beavan.

Submissions to the Commissioner
On 17 November, the Commissioner provided a copy of the application to Mr Beavan care of Jocinson Property Group with an invitation to respond to the matters raised in the application (s 243, Act). Mr Beavan did not make any submissions.

Adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
An adjudicator may make an order to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act). An order may require a person to act in a way stated in the order (s 276(2), Act).

Decision
Airlie Body Corporate Services is the former body corporate manager for the scheme. A dispute may be between a body corporate and a former body corporate manager about the return, by the former body corporate manager to the body corporate, of body corporate property (s 227(1)(i), Act). Ordinarily, a dispute resolution application made by a body corporate requires prior authorisation either in general meeting or by the committee. Under the Small Schemes Module, the committee consists only of a secretary and treasurer; one person may hold both positions (s 10, Small Schemes Module). There is nothing to suggest a committee for this Body Corporate has been chosen. However, as there are two lots included in the scheme the committee may consist of the two owners and they both may hold the positions of secretary and treasurer jointly (s 12(4)(a), Small Schemes Module).

Where the committee consists of both owners, a motion is decided by the two persons acting in agreement (s 20(b), Small Schemes Module). The Applicant has informed the Commissioner that he has contacted the owner of Lot 2 who has agreed with the application. There is nothing to suggest the Applicant is not acting in good faith with respect to this matter. The Applicant is merely seeking the return of Body Corporate property. The absence of Body Corporate records affects the ability of the Body Corporate to be managed effectively.

Section 139 of the Small Schemes Module makes provision for the return of Body Corporate property. It applies in the circumstance where a person has possession or control of a body corporate asset, record, other document or seal, and the person took possession or control of the property as a body corporate manager or an associate of a body corporate manager (s 139(1)(a) and (b), Small Schemes Module). The person may be given notice to give specified body corporate property to the secretary or treasurer named in the notice (s 139(2), Small Schemes Module). Section 140 of the Small Schemes Module makes provision for giving documents to the body corporate that are in the custody of a body corporate manager. I am satisfied Mr Beavan was given notice requiring the return of Body Corporate property and that in giving the notice, the Applicant had the capacity to act for the Body Corporate. There is no evidence Mr Beavan has disputed he has possession or control of Body Corporate property.

The Applicant has made this application because Mr Beavan did not return Body Corporate property. It is not certain Mr Beavan received the Commissioner’s invitation to make submissions. Recent information given to the Commissioner by Jocinson Property Group indicates Mr Beavan is no longer employed by this organisation. While Mr Beavan may not have received the Commissioner’s invitation, there is no reason to suggest he did not receive the September and October letters from the Applicant. Further, there have been applications made recently by other bodies corporate in the vicinity of Airlie Beach seeking an outcome that Mr Beavan return body corporate property. On occasions, this Office has experienced difficulties contacting Mr Beavan about the matter in dispute. I do not consider there is any reason to delay the determination of this application any longer to provide Mr Beavan another opportunity to respond. It would be illogical for the Applicant to pursue Mr Beavan if he did not believe Mr Beavan had possession or control of Body Corporate property.

I consider it is appropriate to require Mr Beavan to return all Body Corporate property in his possession or control to the Body Corporate care of the Applicant. The order can be enforced against Mr Beavan in the Magistrates Court if he does not comply with its terms (s 286 and 287, Act). Under section 288, 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.