Monday, July 6, 2009

Caretaker Termination - The Palm Springs decision

On July 3rd Specialist Adjudicator Kiernan Dorney handed down a ruling that is likely to send shock waves to Caretakers throughout Queensland.

The Body Corporate for Palm Springs Residences voted at an EGM in 2007 to terminate the Caretaking agreement. The Caretakers lodged application numbers 0135-2007 & 0309-2007 to the Commissioner in an attempt to rule the termination invalid. Specialist Adjudicator, Gary Bugden ruled in favour of the Caretakers. However, his decision was appealed by the Body Corporate for Palm Springs.

Judge McGill referred the matter back to the Commissioner to be re heard and Kiernan Dorney Q.C, the Specialist Adjudicator, dismissed the Application on Friday 3rd July 2009. Mr Dorney's orders were accompanied by 42 pages of "reasons for final decision in specalist adjudication".

The entire process has taken more than two years to reach its current stage.

One of my impressions of the decision was that Mr Dorney's ruling reinforced the Yedway findings that Caretakers are obligated to maintain reasonable communication with elected Committee representatives.

Another aspect of the ruling that I found interesting was that it appears that the Caretakers were deemed to have a responsibility for the general maintenance of unit entry doors and frames. Palm Springs Residences is a unit complex on the beach comprising owner/residents, long term tenants and holiday rentals. The door frames had begun to show signs of rust which was probably caused by a buildup of salt residue. Regular maintenance and cleaning of the frames is likely to prevent rusting.

The problem is that the Caretakers would need to regularly enter owners' units to gain access to clean the door frames. They would not be able to rely on owners to clean the frames themselves because of the potential liability in the event of rusting. The logistics of arranging to enter individual owners units on a regular basis would be difficult to organise and probably impractical. Some owners would be likely to find this an unwelcome intrusion, particularly in the case where owners did not have a good relationship with the Caretaker.

As always, the decision is subject to possible appeal.

I have spent many years participating on a number of different Body Corporate Committees. I am a dealer in Vintage Movie Memorabilia specialising in original movie posters and movie art. also present a radio programme on Jazz Radio 94.1fm Monday - Friday afternoons on the Gold Coast.

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