Body Corporate Dispute withdrawn 4 months after ruling

The Commissioner for Body Corporate recently ruled that an owner was able to withdraw a Body Corporate Dispute Application - four months after a ruling had been made!


The Application was originally ruled on in August 2013 but the Commissioner for Body Corporate, Robert Walker, decided that the entire Adjudication was a nullity due to distribution procedures not being correctly carried out. Some owners did not receive copies of the original Application 0394-2013 (See my article on the Commissioners ruling).

 Suggestions have been made that the Commissioner exceeded his authority in quashing the ruling, considering that there was only very debatable support for his actions from the Act. However, the Commissioner decided to reopen the Body Corporate Dispute Application from the start and seek input from all owners.

Bearing in mind that the Body Corporate had already acted on the orders that were made, the Applicant saw little point in reopening the matter and having another ruling made.

As a result the Applicant advised the Commissioner that she wanted to withdraw the Body Corporate Dispute Application albeit that a ruling had been made four months earlier.

The Commissioner confirmed that the Application had been withdrawn on 16th Dec. Despite this, the original orders in Application Number 0394-2013 remain published on the Government website (as at the date of publication of this article) for all to see with no mention of the more recent developments.
The Commissioner stated that he relied on Section 254 (4) in allowing the Applicant to withdraw the Application. That section states: "The Application may be withdrawn by the Applicant at any time before it is disposed of under this Chapter".

Well, despite the fact that Mr Walker feels that the original adjudication was a nullity, it still remains as a published record. The only place you can find details of what transpired after the Adjudication is right here on www.BodyCorporateNews.com I wonder if there are any other similar instances where the Commissioner may have intervened in an Adjudication.

My feeling is that whilst Mr Walker may feel that there were valid grounds for ruling the original Adjudication a nullity, he did not have the authority to overturn the decision. In my opinion that should have been dealt with by an appeal to QCat.

 As to the "procedural irregularities" where copies of the application were not properly distributed, it should be entirely the responsibility of the Office of the Commissioner for Body Corporate to verify correct distribution. The policy of asking a Body Corporate representative to confirm that every owner has received copies of an Application is probably designed to save the Commissioner's Office money but is no guarantee that all owners see the Application.

I wonder if there have been distribution irregularities in any other Body Corporate Dispute Applications. Maybe there are other Adjudications that could be ruled a nullity. I'm guessing that there would be many applicants who would like to withdraw their Application after an Order has been made. Is there a time limit in addressing this? Not according to anything used by the Commissioner in making his ruling. 

Watch this space for more Body Corporate News.

________________________________________________
The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues. For more visit my AboutMe page If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

COMMISSIONER FOR BODY CORPORATE OVERTURNS ADJUDICATORS DECISION

The Commissioner for Body Corporate, Robert Walker, has made an extraordinary decision in quashing orders made by an Adjudicator nearly four months ago.


On August 7th 2013, Mr Peter Dowling, made orders in Application Number 0394-2013
This Application was the subject of an article on this website a few months ago. The Applicant advised the Commissioners office prior to the ruling that copies of the dispute had not been circulated to owners. She thought she was doing the right thing in providing the Commissioner's office with a "heads up".

It now seems that four months after the orders have been made, the Commissioner has decided to quash Mr Dowlings orders and reopen the Application from the beginning.

On 2nd Dec, the Commissioner for Body Corporate wrote to the Applicant stating that "distribution requirements" were not met as required by Section 243 of the Act.

He then went on to say that it "appears" that the orders of 7th August 2013 are a nullity with no legal effect. He quotes the case of Minister for Immigration and Multi Cultural Affairs v. Bhardwaj (2002) to support his claim that the orders are a nullity.

Despite the fact that it just "appears" that  the orders are a nullity, he has decided to reopen the Application and invite submissions from all owners. The Commissioner's Office has circulated copies of the Application directly to owners rather than get someone else to do it (eg The Secretary or Body Corporate Manager.)

He has given owners until 20th Dec to lodge their submissions.

I have my doubts as to whether the Commissioner for Body Corporate actually has the authority to overturn or quash an Adjudicator's decision. I can understand why people might think that Mr Walker has exceeded his authority.

The Commissioner for Body Corporate may well have a reasonable argument but I think that the Applicant correctly points out that she cannot accept that the orders are a nullity unless she sees a court order proving that.

The cover sheet of the orders very clearly state that an appeal should be made through QCAT within 60 days. Surely Mr Walker could have referred the matter to QCAT or a court to decide on whether the order should stand or not.

This does seem to make a complete mockery of the Adjudication system. The fact is that the Body Corporate in question has already acted on the orders months ago and owners are now confused and shocked to see the dispute reopened.

I have been advised that Mr Walker addressed a meeting this year stating that it would be inappropriate for him to interfere with an adjudication in any way. Well, he certainly seems to have done an about face on that.

Her position is that the original orders stand until the Commissioner can prove that he has the authority to reopen the Application.

The Clayton's Body Corporate Dispute - owners kept in the dark!

In a recent Body Corporate Dispute owners were never provided with copies of the Application. Consequently, orders were made without a single submission from any owner.

The Applicant in Body Corporate Dispute Number 0394-2013 (yet to be published), contacted me to express her concern.

The Commissioner had asked that the Application be circulated to all owners but the person they asked to do this was the subject of part of the dispute.

The fact that there were no responses or submissions should have at least raised questions about whether owners had actually seen the Application.

In fact, the Applicant phoned the Commissioner's Office to alert them of the problem.
The Applicant told me "When I contacted the Commissioner's Office to let them know that owners had not received copies of the dispute, they said that they take the word of the person they sent them to. If he says he has sent them then that is good enough."

The Applicant went on to say "The Commissioner's Office said that I should provide stat decs to prove that owners did not receive the dispute. I did not feel that it was my responsibility to do the work of the Commissioner so left it up to them to decide whether to pursue the matter or not."

The Adjudicator ruled on the Application in due course. "The orders were basically what I had sought but I did think it was strange that an Application like this could be lodged and ruled upon without owners knowing about it. I'm sure that they would have made submissions had they known."

When the orders were made, it was the Applicant who actually distributed copies to owners.
This does raise some questions about the procedures of the Commissioner. Not all Bodies Corporate employ a Body Corporate Manager. I don't think it is good enough that they send a hard copy to someone who they think might be responsible and then expect that person to distribute copies to owners.

When the Applicant in this Body Corporate Dispute took the trouble to phone the Commissioners office to alert them to the problem the Commissioner's staff should have taken the time to verify the claim rather than expect the Applicant to do the work.

Footnote: The reference to the "Claytons Body Corporate Dispute" comes from a very popular advertising campaign. In the 1970s a company produced a non alcoholic drink that was marketed as a good alternative to drinking alcohol. The brand name was Claytons and the slogan "Claytons - the drink you have when you are not having a drink!" In this case, the Dispute you have when you are not having a Dispute!

Full and accurate minutes of Meetings? Don’t worry about it.

The BCCM Act requires that full and accurate minutes be kept of Body Corporate meetings. However, an Adjudicator has cast some doubt on the definition of the words full and accurate minutes in a recent decision.

In Coomera on the Park [2013] QBCCMCmr 204 (14 May 2013), the Adjudicator ordered that the Application be dismissed. In Point 1 of the Outcomes Sought the Applicant had asked:
“That all committee meetings as well as AGM meetings held by the committee be recorded to ensure that the final minutes actually reflect the decisions and points made by committee members...”
To the layman, it follows that by dismissing the Application, the Adjudicator appears to be saying that there is no need to “ensure that the final minutes actually reflect the decisions and points made by committee members”.

From the Adjudicator’s comments, it appears that the minutes of one of the meetings in question were certainly short on substance.

He quotes a couple of examples:
“There are a number of instances where “...” appear.
Item q) “Pest control quotations for Common Property” is followed by “????”.
“BUILDING AND GROUNDS MAINTENANCE AND CARETAKER’S REPORT” is similarly followed by “????”.”
Although the Adjudicator states that “I would encourage the minute taker to refrain from using “...”, he goes on to say “they are not inaccurate in any significant way in the areas they are required to be accurate by the legislation.”

He points out that, in the legislation, full and accurate means minutes including each of the following:
(a) the date, time and place of the meeting;
(b) the names of persons present and details of the capacity in which they attended the meeting;
(c) details of proxies tabled;
(d) for each motion voted on at the meeting—
(i) the words of the motion; and
(ii) the number of votes for and against the motion;
(e) details of correspondence, reports, notices or other documents tabled;
(f) the time the meeting closed;
(g) details of the next scheduled meeting;
(h) the secretary’s name and contact address.

I disagree with the Adjudicator's comments in this case. He appears to be saying that the minutes only need to include points a – h to be considered accurate. I feel that he is misinterpreting the definition of the word “including” as in “minutes including each of the following”. My reading of this is that the phrase means that the minutes should include all of those points from a – h but “including” does not mean that the minutes should include ONLY those points.

The definition of include means "Comprise or contain as part of a whole". In other words Full and Accurate minutes should certainly include points a – h, but that is just a part of what forms an accurate representation of what was determined at the meeting. To suggest otherwise is just playing with semantics.

In this case, the Applicant also wanted to be able to voice record the meetings. He raised the fact that threats had been made at the meetings but that there was no record of that in the minutes. The Adjudicator also dismissed that part of the Application and suggested that he could take his own notes of the meeting but that would not be of much help if they differed significantly from the “official” minutes.

I am not aware of any legislation that prevents anyone from making a personal record a meeting albeit that the recording may not be able to be used for any purpose.

In looking at the Dispute in its entirety, it seems to me that the Applicant in this case was not being unreasonable in asking that “full and accurate” minutes be taken for all meetings. I think that it is a pity that his Application was not upheld, at least in part. The penalty to the Body Corporate would have been minimal and an order might have ensured that future communication was improved.
I feel that this ruling gives Committees the opportunity to keep minutes to the absolute minimum as long as they include points a – h.

Despte that, an honest Committee will always try to keep owners informed by providing full and accurate minutes. Part of that role is to ensure the minutes of all meetings that are sent to owners are accurate and detailed to the point where nothing can be considered to be hidden.
___________________________________________
The opinions expressed in this blog are personal and not intended in to be advice in any way. 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. www.moviemem.com

New Ways for Body Corporate Managers to make money

Body Corporate Managers are always looking for new ways to make money. In recent years many have started offering additional services to clients but there is growing concern that the promotion of some of these services may constitute a conflict of interest.

In an ideal world, Bodies Corporate should take steps to ensure that they are compliant with all legislation and general rules and regulations. Some Body Corporate Managers have seized the opportunity to exploit this and make money.

The way it works is quite simple. They point out to Committees that  that the Body Corporate needs to get reports on various areas of compliance. They often give veiled threats of potential liability or Committee responsibilities if the reports are not obtained.

They then recommend their own in house services to provide the reports which can include things like:

• Sinking Fund Forecasts
• Workplace Health and Safety Reports
• Fire Risk assessment reports
• Asbestos reports
• Insurance assessments

and many more.

They don't stop there. They also provide services to "assist" owners with Dispute resolution, Levy Equalisation claims and one BC Manager even has a separate department that completes insurance claims at an additional cost of course.

There are often times when BC Managers do everything they can to promote these offshoot services in an attempt to generate more income for themselves. However, the problem that I have with all of this is that I don't see them always offering alternatives.

In one case, the Chairman of a Body Corporate was convinced that he needed to get three reports done urgently on Fire Safety, Workplace Health and Safety and an Asbestos assessment. He was pressured into thinking that he might even be liable if the reports were not done.

The Body Corporate Manager then proceeded to convince him that he should use the services of companies that were subsidiaries of the BC Manager. No alternatives were offerred.

When the reports were completed, they highlighted various issues that needed to be addressed and they offerred yet more "in house" services to rectify the faults.

It is inevitable that Body Corporate Managers will be creative in developing other services for their clients but they need to be very careful indeed to offer alternatives rather than try and convince Committees to go with their own offshoot companies.

An example of the potential problems that can occurr was highlighted in the comments of a QCAT adjudication  .....

“The adoption of the practice of body corporate managers purporting to act both as “experts” and “representatives” in the same case is not one which should be encouraged.”
This case referred to a claim to equalise the levies. The Body Corporate Manager offerred the services of one of their own consultants to represent the Body Corporate.

There is nothing wrong with Body Corporate Managers developing their business and providing additional services to their clients providing that they act ethically and offer alternatives to Committees.
___________________________________________
The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues.
If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

Adjudicator Decides! ONE CENT UNDERPAYMENT OF Body Corporate LEVIES

Natalie Green unwittingly paid her levies one cent short. As a result, she was denied voting rights at an EGM. A dispute was lodged and an Adjudicator was required to rule on a one cent underpayment of Body Corporate levies.

Yes, it is hard to believe but I suppose that rules are rules. In his findings the BCCM Adjudicator, D.Toohey stated "It seems harsh for someone to be deprived of their vote just because they unwittingly underpaid their levies by a tiny amount. However, there is no discretion for a returning officer or an adjudicator to allow a vote to be counted when a body corporate debt is owing." (see decision here)

Well, I guess that must be right. The Act has to be followed to the letter of the law. The Adjudicator's hands are tied. After all the law is the law and there cannot be any flexibility.

But wait!

Wasn't there a ruling recently that dealt with how the Act should be interpreted? I'm sure I heard something about that. Ah yes, the QCAT decision in the appeal of Application Number APL 157-12 (29th January 2013).

Dr J.R.Forbes said that the Act could be taken "liberally" which means that the Act should not be taken "strictly". In other words, some flexibility should be shown.

He states that “if the legislation were at all times and in all circumstances applied with utmost rigour and most precious attention to detail, its objects and policy would be retarded by endemic disputation, rather than advanced.”

You really could be excused for thinking that D.Toohey, in ruling on this dispute has applied "utmost rigour and most precious attention to detail".  All over a One Cent underpayment of Body Corporate levies!

Well, I guess the Adjudicators will attempt to rationalise all of this. I know all of the arguments that they will use (like whether there was a material loss or gain at stake) but the fact is that one ruling says that the Act should be interpreted liberally while another says that it must be followed to the letter of the law.

Ultimately, I would actually prefer to see that the Act is interpreted to the letter of the Law. That way, everyone knows where they stand.

If you think this is an isolated case of a seemingly contradictory ruling then I'm afraid you are mistaken. I will look at more contradictions in Adjudicator's rulings in future articles.

The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues.

If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

Body Corporate Levies Merry Go Round

First published Dec 6, 2012

I see that the Queensland Parliament Legal Affairs and Community Safety Committee has recommended yet another major change in the way that Body Corporate levies are set. The Body Corporate Levies Merry go Round continues. 

Rather than go into great detail about how these changes may be achieved, let me sum up the situation as it has unfolded over the years.

Traditionally, the developer has set the levies for Body Corporate buildings. The levies were often based and calculated on factors like floor space and the value of the units.

It is important to understand that owners were aware of the levies at the time of purchase and it follows that they accepted them to be fair and reasonable. After all, if they thought the levies were unfair why would they go ahead and make the purchase?

QCAT DECISION: BCCM Act should be read liberally!

A recent decision from QCAT is yet another indication that the BCCM Act, which regulates Body Corporate Communities, is becoming more irrelevant than ever. The QCAT member who ruled on the matter stated that BCCM Act should be read liberally - ie not taken strictly.

In his decision for the appeal of Application Number APL 157-12 (29th January 2013), Dr J.R.Forbes made a number of comments that only serve to weaken the Act and and the enforcement of regulations.

Dr Forbes describes the BCCM Act as a "lengthy, technical and complex instrument" and goes on to say that committee members cannot be expected to be experts in understanding and determining the rules and regulations. He fails to mention that Committees can rely on Body Corporate Managers to provide advice as required and that the Commissioner for Body Corporate has a help line to assist owners who have questions concerning the Act.

He states that "if the legislation were at all times and in all circumstances applied with utmost rigour and most precious attention to detail, its objects and policy would be retarded by endemic disputation, rather than advanced." 
In other words, a loose interpretation of the Act will result in less disputes.

He continues by comparing the BCCM Act with the Corporation Act 2001 noting that some sections of the Act could be construed "liberally" using the example that the invalid appointment of a director or the failure to assemble a quorum could be excused if there is no substantial injustice.

He argues that the BCCM Act should also be interpreted "liberally" and similar irregulaties or breaches could also be excused.

The reality is that many Bodies Corporate do not take the BCCM Act seriously at all. In fact, many Committees ignore it altogether.

The Commissioner for Body Corporate and the BCCM Act itself are reactionary instruments rather than being proactive. The Commissioner only acts when disputes are lodged. The process of lodging disputes is so time consuming and daunting that the majority of owners will reluctantly just accept breaches of the Act.

There are a huge number of Body Corporate Communites in Queensland. Many have issues that should be addressed but the actual amount of disputes that are lodged is miniscule in relation to the number of Body Corporate Communities.

The fact is that the Office of the Commissioner for Body Corporate is not logistically capable of handling "endemic disputation" irrespective of whether the disputes are justified or not. They do not have the staff to handle huge numbers of disputes.

One way of discouraging disputes is to interpret the legislation "liberally" which would inevitably result in many applications being dismissed.

Dr Forbes also affirmed that it is acceptable for committees to retrospectively resolve and ratify past irregular conduct (see my article on the original Application). This opens up a huge can of worms. It alows committees to bend and manipulate the rules at will secure in the knowledge that a dispute is unlikely anyway.

The BCCM Act is rapidly becoming a dinosaur - close to extinction. Dr Forbes is correct in saying that it is a complex document but there is no point in having legislation if it is rarely enforced and largely ignored by many.
________________________________________________
The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues. For more visit my AboutMe page If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to conta

Body Corporate Records Access Denied!

As a general principle owners should be able to expect to access Body Corporate records after paying a prescribed fee. However, some rulings by Adjudicators indicate that it is not that simple.


If a Body Corporate believes that certain records are subject to "legal privilege" then they have the right to refuse access to any owner who may be involved in either actual or threatened legal action against the Body Corporate or presumably anyone who claims to be affected by the records.

There are times when it might be prudent to withhold certain documents from an owner on the basis of legal privilege but anyone with an ounce of imagination should be able to see how this ruling could be abused.

It would be very easy for a Committee to deny access to Body Corporate records based on "legal privilege". The owner would then have to decide whether to lodge a dispute. If the records were needed urgently, the process of waiting for the dispute to be heard could prove costly for the owner.
An Adjudicator recently ruled that a dispute with QCAT constitutes legal action. Presumably any dispute that has been initiated or implied also comes under the banner of "legal privilege".

There are other considerations that could lead to abuse of this process. Who decides whether records are subject to legal privilege or not? What if the person who is actually seeking the records is the Chairman, Secretary or another Committee member?

There have been disputes between the Body Corporate and the Body Corporate Manager in the past. The Body Corporate Manager is the custodian of the records. What would happen if the Body Corporate decided that the Body Corporate Manager could not access records because of legal privilege?

I feel that all Body Corporate records should be available for access by owners irrespective of any implied or actual legal privilege.
_______________________________________
The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner's perspective on Body Corporate issues.

If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

I am the owner of http://www.moviemem.com/