Pacific Breeze Apartments [2009] QBCCMCmr 75 (2 March 2009)

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

I hereby order that, pending a final determination, the body corporate for Pacific Breeze Apartments must not take any further action to seek recovery of contributions or recovery costs from Larry Sutton, owner of lot 6 (applicant) apart from seeking enforcement of Magistrates Court of Queensland Enforcement Warrants No 2848 of 2008 and M12733 of 2008.

This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

Pacific Breeze Apartments Community Titles Scheme (Pacific Breeze) is a 7 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application for interim orders. It arises out of an application by Larry Sutton, owner of lot 6 (applicant) against the body corporate for Pacific Breeze (respondent).

The applicant says that the body corporate is acting unreasonably and without authority in taking action against him to recover contributions and legal costs.

The applicant seeks an interim order to stop the body corporate taking any further action against him pending a final determination of this dispute.

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

In determining whether it is just and equitable to grant interim relief it is relevant to briefly consider whether the application raises any serious questions for final determination.

It is also relevant to consider whether any inconvenience likely to result from the interim order is outweighed by the potential detriment alleged in the application. Any evidence that an interim order is necessary to prevent serious or irreparable harm will be significant.

The applicant says that the body corporate first obtained judgement for approximately $1,800 but that the body corporate, through Collect Success, then requested over $4,000 to prevent action. Further, that there are no minutes indicating that members of the body corporate have been made aware of the type of action taking place and that the body corporate is unreasonably refusing to accept an instalment plan. It is submitted that the action being taken seeking an enforced sale of the applicant’s unit is only ‘lining the pockets’ of Collect Success and making it more difficult for the applicant to pay the debt due. In particular, that every time the applicant gets close to raising the full amount due, the amount increases because of further action taken by Collect Success. The applicant submits that if the amount due continues to increase because of legal action then the applicant will not be able to raise the funds to pay the amount due.

Submissions from the committee on behalf of the body corporate were to the effect that:

Having viewed these submissions, I am not satisfied that the applicant has raised any serious question about his liability under Magistrates Court of Queensland Enforcement Warrants No 2848 of 2008 and M12733 of 2008. I have reviewed titles office records that show these writs for $1,865.02 and $6,132.72 registered against the applicant’s lot. It is implicit in the judgement for which these writs were provided that the applicant owed the relevant amounts to the body corporate and that the action by the body corporate was properly authorised. I cannot see any merit in the applicant’s argument that the body corporate is acting unreasonably in refusing to accept payment by instalments in circumstances where these amounts have been owing for a substantial period of time.

However, the applicant has raised serious questions for determination about other amounts and recovery costs sought in contribution notices and statements sent by the body corporate to the applicant since August last year. In particular, the recent decision of Body Corporate for Liberty CTS 27241 v Alotier Pty Ltd & Steward Silver King and Burns[1] raises questions regarding whether the contribution notices have included amounts not allowed by section 142 of the Standard Module and whether the recovery costs sought by the body corporate should be sought separately and not included in the financial records of the body corporate until a judgment for those costs is obtained. In respect of these recovery costs that the body corporate has claimed but has not substantiated by way of judgement, the applicant has raised serious questions about the reasonableness of the body corporate in refusing to consider an offer by the applicant that may settle any proposed legal action and in continuing to incur additional costs without giving the applicant reasonable notice of an amount the applicant can pay to fully satisfy his debts.

In the circumstances, it seems appropriate to grant an interim order preventing the body corporate from taking any further action to seek recovery of contributions or recovery costs from the applicant in circumstances where contribution notices and statements may not comply with the legislation.

However, I am not satisfied that the applicant has raised any grounds that would make it appropriate to prevent the body corporate from seeking enforcement of Magistrates Court of Queensland Enforcement Warrants No 2848 of 2008 and M12733 of 2008. In respect of those warrants the applicant has failed to give any reason why he cannot contact the Court and obtain details of the exact amounts that he needs to pay the enforcement officer to prevent the enforcement officer selling his property.[2] Conversely, the long history of the applicant’s failure to pay the amounts owing indicates that the body corporate may be subject to significant inconvenience if an interim order was made preventing the body corporate from pursuing a forced sale of the property. Such inconvenience may include the writs expiring and the body corporate being put to additional enforcement expenses that may or may not ultimately be recoverable from the applicant.

For these reasons, I make the interim order above. If necessary, a final order will be made in due course.

Number of Scheme:	3504
Name of Scheme:	Pacific Breeze Apartments
Address of Scheme:	6 / 62 Albert Street

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Pacific Breeze Apartments [2009] QBCCMCmr 75 (2 March 2009)