Mahoneys secured another victory for caretakers in Queensland recently when the Queensland Civil and Administrative Tribunal handed down its decision in Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential Community Titles Scheme 33550.
The body corporate issued three separate remedial action notices which complained of 44, 32 and 39 alleged breaches respectively. Ultimately the body corporate only pressed 19 total breaches (out of 115 across all the three remedial action notices).
Bodies corporate cannot mandate how a breach must be remedied
The tribunal criticised the way the remedial action notices were set out, saying that it was a “dangerous formula” for the body corporate to tell the caretaker it would terminate the agreement if specified remedial works were not carried out and that “how the caretaker remedies the breach is a matter for the caretaker”.
The body corporate is solely responsibility for by-law enforcement
The tribunal criticised a number of recurring issues that we often see in remedial action notices, including a general duty to monitor compliance with by laws. The tribunal found that this duty was not a duty to issue by-law contravention notices. The body corporate’s demand that the caretaker provide contravention notices to it was “inappropriate given the body corporate, not the caretaker, is responsible for enforcement, as opposed to identification, of breaches of by-laws.”
The tribunal also expressed some scepticism about the body corporate’s intention in requiring that contravention notices be provided, in circumstances where it was observed that “there appears to have been no reasonable intention of acting on them”.
Unreasonable use of the power to give reasonable directions
When considering a duty to “keep a log of all relevant matters … and produce the log to the body corporate”, the determination of what is a “relevant matter” will “vary depending on the circumstances. Matters such as recording when fire extinguishers were last serviced or when a lift service contractor last attended or is next due, or tracking service contractors who maintain motors or pumps and perhaps recording the currency of insurances … and lot owners or visitors who continuously flaunt car parking by-laws, might be considered relevant matters that should be noted. But not recording the minutiae and plethora of a caretaker’s daily or weekly activities of no great significance or consequence other than it might be utilised as a tool to monitor the behaviour of the caretaker”.
A reasonable period to remedy: 21 days not enough
The tribunal also found that it was unreasonable for the body corporate to demand that the caretaker produce logs within 21 days in circumstances where:
- It had apparently not made a similar demand of any previous caretaker, given that no logs were handed over to the caretaker when the management rights were assigned to it;
- The body corporate had accepted, by execution of the deed of assignment, that the previous caretaker had performed all its duties under the caretaking agreement and the agreement had in no way become void or voidable; and
- The evidence was that it would take between 40 and 60 hours to produce just a maintenance log (not including a cleaning log as the body corporate requested or any other logs).
As a general observation, we often see bodies corporate try to use duties that they otherwise have never enforced as a means to punish caretakers with whom they have personal enmity. The tribunal has effectively given us another way to fight against unreasonable body corporate requirements.