Owners Units Plan No 259 and Ford (Civil Dispute) - [2012] ACAT 22

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OWNERS UNITS PLAN NO 259 & FORD (Civil Dispute) [2012] ACAT 22
XD 11/1434
Catchwords: CIVIL DISPUTE – liability to pay body corporate fees and levies.
List of legislation: Unit Titles Act 2001, ss 60 and 65

Tribunal: Ms J. Lennard, Senior Member

Date of Orders:           24 April 2012
Date of Reasons for Decision:       24 April 2012
AUSTRALIAN CAPITAL TERRITORY  )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 11/1434

BETWEEN:
THE OWNERS UNITS PLAN NO 259
Applicant

AND:

HUGH RUSSELL FORD

Respondent

TRIBUNAL: Ms J. Lennard, Senior Member

DATE:24 April 2012
ORDER
1.
The Respondent is to pay the Applicant an amount of $4759.72 within

21 days of the date of this order.

………………………………..
Ms J. Lennard
Senior Member

REASONS FOR DECISION

The Respondent is the owner of 10B/54 Forbes Street, Turner, ACT. Mr Ford at first refused to concede this point, but it is established by a title search of the unit which shows Mr Ford as the registered owner since 14 October 2004. Unit 10B of 54 Forbes Street in Turner is the street address of a unit that is part of Unit Plan 259.
The Applicant is the Owners Corporation for Unit Plan 259. The Applicant has determined an amount of contribution to be made by the owners to the general fund of the Owners Corporation in accordance with s 60 of the Unit Titles Act 2001(ACT). Mr Ecob represented the Owners Corporation at the hearing.
Mr Ford, who informed the Tribunal that he was a legal practitioner, stated that when he purchased the unit in 2003, he ‘had no idea that he would be liable for body corporate fees’.
Further Mr Ford stated that he had never been sent an invoice or a statement of his liability. He conceded that he had received some statement about a month before the matter commenced.
The owner’s corporation did not provide to the Tribunal a copy of every invoice said to have been sent to Mr Ford. However the Applicant did provide the following:
a.   Copies of Minutes of Special General Meetings and Annual General Meetings of the Owners Corporation held form January 2007 to July 201. The minutes of the AGMs reveal that the Owners Corporation resolved the budget amount of levies to be calculated for each owner as required by the Unit Titles Act 2001, s 60;
b.   A schedule of unit entitlements for Unit Plan 259;
c.   A table of levy information and calculation of contributions in relation to the unit owned by Mr Ford;
d.   A list of the owners of units in Unit Plan 259 – this shows that a Notice of Levies should be sent to Mr Ford at Unit 10b. There is also a label list for mail outs which shows Mr Ford’s address. Mr Ecob gave evidence that the managers of the unit plan send notices of meetings and invoices by prepaid post to all owners, including Mr Ford;
e.   A copy of the Notice of Levies due in March 2012 sent to Mr Ford;
f. A schedule listing all payments, levies, collection expenses and credits for Mr Ford. The schedule was compiled from the information held by Ray White Strata management and Ian McNamee and partners. Owners corporations are entitled pursuant to s65(2)(a) of the Unit Titles Act 2001 to recover interest at the rate of 10% pa on amounts owing, but unpaid. The schedule included such an interest component. The total amount claimed to be owed by Mr Ford at 14 September 2011 was $5,099.40. This includes an amount of interest.
Mr Ford had provided a written response to the application. In this written response Mr Ford stated:
a.   he had no idea he would be required to pay body corporate fees when he purchased the unit;
b.   in 2005 he received a letter from the body corporate, requiring the payment of $2500 as a special levy to erect garages. He states that at some time at the end of 2005 and 2006 he paid the $2500. He further states that he received no receipt;
c.   the body corporate has not erected the garages;
d.   the body corporate has not acted professionally or in a businesslike manner;
e.   he has paid some money to the Owners Corporation;
f.    he requires an itemised account before he will pay any further amount to the Owners Corporation
The Tribunal notes that Mr Ford’s written response does not assert that he is not obligated to pay body corporate fees and levies, nor does it raise any legal argument as to why he should not be liable to pay the amount claimed.
Mr Ford did not file any documents pursuant to an order made by the Tribunal’s Registrar on 31 January 2012.
In the hearing Mr Ford submitted:
a.   he had never received an invoice;
b.   he had nevertheless paid some moneys;
c.   he had paid $2,500 in cash but this had not been receipted or accounted for by the Owners Corporation;
d. that the Limitation Act prevented the Owners Corporation from pursuing their claim against him;
e.   that the accounts had not been prepared by a chartered accountant and thus were not ‘authoritative’;
f.    that the managers had not acted according to the relevant code of conduct and that ACAT should appoint an administrator.
Mr Ford conceded that as an owner he was liable for the levies, but he disputed the quantum, the manner of providing the accounts, the credibility of the representative of the applicant and ever receiving an invoice.
Where there was a conflict of evidence the Tribunal preferred that of the Applicant.
The hearing of the matter was at times heated.
The tribunal adjourned for a written decision.
On reviewing the transcript and the filed documents ACAT :
a.   has formed the view that it is more likely than not that Mr Ford received some, if not all, of the invoices sent in relation to body corporate fees;
b.   does not accept Mr Ford’s evidence that he, a legal practitioner, did not appreciate or understand that he would be liable for body corporate fees as an owner of a unit;
c.   accepts Mr Ford’s assertion that he has not been able to obtain copies of invoices previously sent. However, he has been supplied, at least during the course of this matter, with a summary of his ledger. The summary is before the Tribunal and shows levies raised and payments made since 01/01/2008. This summary was compiled from the owner’s ledgers maintained by Ray White Strata, and Ian McNamee and Partners respectively when they were body corporate managers. The Tribunal is at a loss to understand why the Applicant either refused or was unable to supply Mr Ford with copies of the invoices;
d.   cannot make a determination as to whether Mr Ford paid the amount of $2500 as asserted, but accepts that a search of the records of the body corporate managers failed to find any record of such a cash payment;
e.   accepts that the relationship between the parties has reached a low point, but is unable on the slight evidence before it to determine that the Owners Corporation or the managers have acted in a manner so unprofessional as to require the appointment of a receiver or an audit of the accounts. That matter is not properly before the tribunal, being raised by Mr Ford purely in heated and imprecise assertions. Mr Ford, as a member of the Owners Corporation, has other avenues of investigation and prosecution of these issues;
f.    finds that Mr Ford is liable to pay body corporate fees. The amount claimed is $4759.72. There is also a claim for interest: the Applicant has produced no evidence that they have ever demanded this amount or provided Mr Ford with sufficient information for him to determine the amount owed by him. Therefore no award of interest is made.

………………………………..
Ms J. Lennard
Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:

PARTIES, APPLICANT:

PARTIES, RESPONDENT:

COUNSEL APPEARING, APPLICANT

COUNSEL APPEARING, RESPONDENT

SOLICITORS FOR APPLICANT

SOLICITORS FOR RESPONDENT

TRIBUNAL MEMBERS:

DATES OF HEARING:

PLACE OF HEARING:

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: