Rogoona Palms [2009] QBCCMCmr 81 (3 March 2009)

Number of Scheme:	31317
Name of Scheme:	Rogoona Palms
Address of Scheme:	12 Rogoona Street MORNINGSIDE QLD 4170

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Rogoona Palms

I hereby order that Premium Property Group and its principals shall, at its own cost and within seven (7) days of that date of this order, deliver to Kym Day of Eagle Real Estate (964 Logan Road Holland Park), all financial records of the Body Corporate for Rogoona Palms and any other records, property or assets of the Body Corporate for Rogoona Palms that are in the custody or possession of Premium Property Group or its principals, employees, associates or agents, in accordance with sections 206 and 207 of the Body Corporate and Community Management (Standard Module) Regulation 2008.

Rogoona Palms community titles scheme 31317 (Rogoona Palms) consists of eight lots and common property. The community management statement (CMS) for Rogoona Palms indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Survey Plan 153282.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Rogoona Palms (applicant) on 22 December 2008. The lodging of an application in regard to the dispute was authorised at a general meeting on 27 January 2009.

The applicant sought orders against the former body corporate manager (BCM) for the scheme, Premium Property Group (respondent) in the following terms:

We are wanting all financial statements, full transaction lists, levy details for Ragoona Palms Body Corporate from Premium Property Group.

The applicant initially lodged an application for conciliation on 3 December 2008. On 5 December 2008 the current BCM, Eagle Real Estate, was advised that the most expeditious course of action would be to lodge an application for adjudication and that a committee resolution would be required authorising the application.

This adjudication application was subsequently lodged. However additional information was required pursuant to section 240 of the Act and evidence of a resolution authorising the application was not received until 6 February 2009.

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. No submission was received. On 25 and 26 February a member of the Commissioner’s Office attempted to contact the respondent at the mobile and land line phone numbers supplied on the application[1]. Messages were left on the voice mail services for both numbers but no response has been received to date.

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 application says that when the new BCM was appointed and the books and records for the scheme were handed over, the material provided did not include current financial statements, transaction history, or recent levy information. In addition, they have ascertained that the tax returns for 2005 and 2006 have not been completed. The application says this has made the change over very difficult.

Several attempts have apparently been made to access the information but the applicant says it has not received any response to its calls, letters or emails. A letter was sent on 31 October 2008 and another on 19 January 2009 requested that the records be supplied to the new BCM immediately. An email on 20 November 2008 indicates that the new BCM had called the respondent a couple of times a week without success.

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

(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).

In the absence of any defence submitted by the respondent or any evidence or argument to the contrary, I can only accept that the respondent has failed to return all financial records and that the Body Corporate has given adequate notice to the respondent to return these records. No excuse has been provided as to why this information cannot be provided.

On that basis I consider that it is appropriate that a make an order requiring the return of all financial records and any other Body Corporate records or property which are held by Premium Property Group. I will require this to be done within seven days. The records must be delivered to the new BCM at the respondent’s cost.

I caution the respondent that if its does not comply with the order within the specified timeframe, then it can be enforced against him in the Magistrates Court.[3] 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 January 1 2009 are set at $100 per unit, meaning that a breach of an order can attract a fine of up to $40,000.

[1] The mobile phone number provided is the same as listed for Mark Heinrich on the respondent’s website www.premiumproperty.com.au
[2] See sections 227, 228, 276 and Schedule 5 of the Act

[3] 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

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Rogoona Palms [2009] QBCCMCmr 81 (3 March 2009)