Cumberland Place [2010] QBCCMCmr 23 (18 January 2010)

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

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 monies, financial and other records, and any other property or assets of the Body Corporate for Cumberland Place 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 Dale Mitchell (PO Box 960 or 5/21 Carlo Drive Cannonvale Q 4802) in accordance with sections 139 and 140 of the Body Corporate and Community Management (Small Schemes Module) Regulation 2008.

Cumberland Place community titles scheme 36225 (Cumberland Place) consists of two lots and common property. The community management statement (CMS) for Cumberland Place indicates that the Body Corporate and Community Management (Small Schemes Module) Regulation 2008 (Small Schemes Module) applies to the scheme.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Cumberland Place (applicant), represented by Dale Mitchell the Co-owner of Lot 2, on 5 November 2009.

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

Handover of documentation and funds so that body corporate can be appropriately managed.

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 response was received.

This application is one of a series lodged against Chris Beavan and Airlie Body Corporate Management by small community titles schemes who have each experienced a complete lack of communication from Mr Beavan and had no choice but to resort to this Office to seek to recover their property. In each matter this Office has also experienced difficulties contacting Mr Beavan. Mail to the address known to each scheme Airlie Body Corporate Management for has been returned to sender. Emails to addresses provided by Mr Beavan has bounced back. In October 2009 Mr Beavan provided a post office box in Brisbane in relation to another application and correspondence to that address was responded to by him in November.

In the first instance the notice inviting submissions from the respondent was sent to both the Airlie Body Corporate Management address and the post office box address provided by Mr Beavan. Both were returned to sender. We then ascertained that the post office box address and the last telephone number provided to our Office by Mr Beavan were in fact those of an employer and that he had since left that company’s employment. Mr Beavan did not return messages left on the mobile phone number which he had previously provided us.

In December we ascertained a further Brisbane address for Mr Beavan which we were advised was his home address and was current at least to November 2009. A further notice inviting submissions was sent to this address on 15 December 2009. Although no response was received, this correspondence was not returned.

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

The application relates to the return of Body Corporate records. The application indicates that the owners have made numerous attempts to contact their BCM but that calls were not returned, emails not answered and correspondence was returned. The application expresses concern that there are insurance renewals pending and urgent maintenance required, but that the BCM has their records, sinking fund account and insurance policy.

Owners met on 6 August 2009 and resolved to write to the BCM to request the return of all documentation, insurance policy information, bank account details and all funds in the sinking fund. A letter was sent the same day requesting the property be returned within 14 days. The correspondence was returned to send.

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 139 of the Small Schemes 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).

I am satisfied that the Body Corporate has given proper notice to Mr Beavan seeking the return of the Body Corporate’s property and that property has not been returned.

I am further satisfied that all reasonable attempts have been made to give Mr Beavan notice of this application and to seek his response. I have no reason to believe that the final address used by this Office is not a current address for Mr Beavan, as mail send over a month ago to that address has not been returned.

In the absence of any submission from Mr Beavan, the respondent has not disputed that he has the property sought in the application or indicated that the records could not be returned. In previous applications where a submission has been received, Mr Beavan has claimed that he had been too busy to return records but promised to do so. However, any subsequent employment or other commitments 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 and retaining the Body Corporate’s property. The fact that the property in question in this particular dispute includes sinking fund monies is particularly reprehensible.

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. The records must be delivered to Dale Mitchell 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 by the Body Corporate in the Magistrates Court.[2] In addition to the offences described in sections 139 and 140 of the Small Schemes Modules, 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.

The parties could also consider whether any criminal offence has occurred, particularly with regard to the sinking fund monies, tha warrants the involvement of the Queensland Police.

[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:	36225
Name of Scheme:	Cumberland Place
Address of Scheme:	5 Wills Court CANNONVALE QLD 4802

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Cumberland Place [2010] QBCCMCmr 23 (18 January 2010)