Problems with the CCT

The CCT (Commercial and Consumer Tribunal) has jurisdiction to deal with the following in relation to Body Corporate matters:

• Lot Entitlement Adjustments
• Complex matters.
• Appeals of adjudicators' orders

I have had recent experience with two applications and I have to say that I am left with the impression that the CCT has serious administrative problems that reflect very badly indeed on the organisation.

I was amazed and disappointed to find today that important correspondence for two applications has been misfiled and ignored. The CCT consequently sent orders of a hearing to an unauthorised recipient and it was only by luck that the order eventually found its way to the correct recipient. I have not received an explanation despite promises of a written response today. This is bureaucratic bungling at its best. Watch this space for further developments.

A major concern is that the CCT appears to me to defy and ignore the BCCM Act both in making orders and in giving instructions to respondents.

The CCT requires that the applicant deliver copies of the application to the respondent. This seems to me to be likely to create problems in itself. Leaving that aside, the "Respondents Kit" has a cover sheet with instructions on how to deal with the Application.

The two kits I have received state:

You MUST (the word MUST is in bold letters and underlined for emphasis) complete the Defence (Form 3) and deliver a copy within 14 days of the application to the CCT.

This is misleading and deceptive bearing in mind that the person receiving the "kit" is often a committee member who, in many cases, would be intimidated into thinking that they have to rush out and file a defence for the Body Corporate.

The fact that the CCT is ruling on matters relating to the Act surely means that they should not suggest that respondents breach the Act.

In many cases the respondent does NOT and should not need to complete the Defence within 14 days but there is no mention of this whatsoever on the cover sheet.

There are cases where The Body Corporate is the respondent. Applications are usually a restricted issue for one person. Anyone who responds to an application must comply first with the BCCM Act. The CCT knows this but makes no attempt to point this out on their instructions.

The following are some considerations when dealing with applications to the CCT.

1. The Committee does not need to arbitrarily make a decision on how to respond to these applications bearing in mind that the respondent is often "The Body Corporate". If the respondent is The Body Corporate, the Committee may decide to first call a meeting to discuss the matter and decide on how best to respond.

2. The Committee may also decide that the owners should be notified of the application and be given an opportunity to provide their input on how best to respond to the application. This could result in a general meeting.

3. The Committee is entitled to request legal representation but they may decide to seek the approval of owners at a general meeting as to whether or not to take legal representation.

The CCT are (hopefully) well aware of the requirements of the Act in calling committee meetings and general meetings. It could realistically take 6 weeks before the Body Corporate can even decide on how to deal with such an application and they are then entitled to make separate application for legal application.

Committees are usually made up by volunteers and they should not be subjected to unrealistic demands by the CCT.
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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. http://www.moviemem.com/I also present a radio programme on Jazz Radio 94.1fm Monday - Friday afternoons on the Gold Coast.

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.

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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. http://www.moviemem.com/I also present a radio programme on Jazz Radio 94.1fm Monday - Friday afternoons on the Gold Coast.

To Pay or not to Pay ....

One of the basic fundamentals of Community living is that the owners usually control and manage the Body Corporate. They do this through an elected committee who make decisions on expenditure and policy. The problem with all of this is that many owners who buy into Body Corporate communities never have even the remotest intention of ever contributing in any way, let alone serve as committee members.

The bottom line is that a great many owners expect someone else to do the work - in fact, anyone but themselves.

Some owners have reasons why they cannot nominate for the committee. These reasons can include the fact that they are elderly, live interstate or overseas, have work committments, etc etc. The reality is that everyone can come up with a reason why they should not nominate.

It could be argued that owners actually have a responsibility to serve as a committee member at some point during their ownership of the property - if not a legal responsibility there is certainly a moral responsibility.

Body Corporate Committees are finding that they have an increasingly higher workload as the various regulations become more complex. The workload can be extroadinarily high for a voluntary position, particularly if the committee members take their role seriously.

Of course there are some Bodies Corporate Committees who do very little. I know of one that has not had a committee meeting at all in the last year and will probably just wait for the AGM to resolve anything. They are really a committee in name only. However, these committees can often lead a Body Corporate into a potential minefield where important issues like insurance coverage, fire regulations and other requirements can be neglected to the point where the Body Corporate and the Committee can be exposed to liability.

The position of committee member is voluntary and often unpaid. Many long serving committee members are now saying that they are sick and tired of representing other owners who have no intention of ever making a contribution. It is a little ironic that some of the owners who will never nominate as committee members often have the gall to criticize those who do serve on the committee.

Three of the properties I am involved with are certain to have problems forming a committee at the upcoming AGM. At one unit complex, no one is prepared to nominate as Chairman. If a Chairman is not elected an EGM will need to be called to try and coerce, cajole or coax someone into nominating.

Of course the position of Chairman always carries an additional responsibility because the Chairman should be familiar with the Act and his/her repsonsibilities. In fact the Act actually requires that committee members are familiar with the regulations and lack of knowledge is not seen as an excuse. The end result is that this discourages owners even more from nominating as Chairman. Why expose yourself to the potential aggravation when there is no reward and little thanks. It is far easier to pass the buck to someone else.

The end result is that more and more committee members are deciding that they will not serve unless they are paid. The Act allows for remuneration either for expenses or a set payment. Owners must declare that they will be seeking remuneration at the time written nominations are submitted and owners either approve or reject the payment.

I have received payment at one Body Corporate. A number of owners said that they were happy to pay to save having to be involved themselves. However, other Bodies Corporate look at anyone seeking payment with shock and horror as if work as a Committee member should be a noble deed on a purely voluntary basis. There is a strange sort of moral stigma associated with anyone seeking payment.

I have been told that there are some Bodies Corporate where committee members are paid what amounts to a significant wage. As long as the amount is approved at an AGM then the payments are in order but, of course, there are some Bodies Corporate where very few vote at the AGM. Apathy rules and payments to committee members are often passed without the majority of owners reading the agenda let alone voting.

If Committee members are paid, there is always the possibility that there may be some additional scrutiny of their performance, particularly when one committee member is paid and another is not.

However, many Bodies Corporate are having to face the fact that if they do not pay Committee members they will not have a Committee. They have to weigh up the overall cost of payments to Committee members against payments to an adminstrator.

The end result, either way, is that Body Corporate levies will rise. I believe that it is inevitable that more and more committee members will seek payment as the role becomes more time consuming and complex.

Body Corporate committees are not charities set up to look after the interests of those who cannot or will not contribute.

My view is that anyone who nominates as a Committee member has a right to seek whatever remuneration he or she sees fit and those owners who make no contribution should be thankful that someone is prepared to take on the role.

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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. http://www.moviemem.com/I also present a radio programme on Jazz Radio 94.1fm Monday - Friday afternoons on the Gold Coast.

New Fire Regulations for Bodies Corporate

From 1st July 2009 Bodies Corporate will be required to comply with new Fire Regulations depending on the classification of their building.

I believe that many Bodies Corporate have no idea of what their requirements are and many will not even be aware that new regulations exist.

There has been considerable concern about many buildings in Qld which are classified as Class 2 buildings but operate as Class 3. Fire regulations for Class 3 buildings are generally more stringent and, consequently, more costly. The problem is that the interpretations of the classifications can be blurred and enforcement of the regulations is less than it should be with various authorities preferring to pass the buck.

There have already been some tragic incidents in buildings which have had less than adequate fire systems in place.

It is time that the goverment actually enforced the regulations before another tragedy occurs. Unfortunately, I doubt that this will happen because there are clearly many buildings that do not comply and many others that prefer to bend the rules or interpretation of their building classification.

If you are a member of a Body Corporate committee you should contact http://www.dip.qld.gov.au/for more details.

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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. http://www.moviemem.com/I also present a radio programme on Jazz Radio 94.1fm Monday - Friday afternoons on the Gold Coast.