Banyandah Towers [2000] QBCCMCmr 265 (6 June 2000)

P J HANLYREFERENCE: 0242-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10295
Name of Scheme:	Banyandah Towers
Address of Scheme:	150 Duporth Avenue MAROOCHYDORE QLD 4558

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

James Gerard Callaghan, the co-owner of lot 106; Colin Edward David and Kim Maree Davis the owners of lots 27 and 38; Michael Gregory Clark, Roberta Lynn Clark, Daniel Joseph Ryan, James Phillip Clark, Peter Grant Clark, Kathleen Mary Clark the owners of lots 13, 34, 72 and 103; and Peter Gerald Penrose the co-trustee of lot 46



I hereby order that the application for an interim order that the resolution of the committee on 24 March 2000 giving Ruth Stephan approval for alterations to her lot be declared void, is dismissed.

I further order that the proposal by Ruth Stephan for modifications to lot 117 has been properly authorised in writing by the body corporate committee as required by by-laws 3(b) and 4(e).2y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0242-2000

“Banyandah Towers” CMS 10295

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the resolution of the committee giving Ruth Stephan approval for alterations to her lot be declared void. Refer item 5.12 of committee minutes of the meeting 24 March 2000 (attached).

2. That all body corporate members be given a copy of the tabled details of modifications referred to in item 5.12 of committee minutes of the meeting 24 March 2000.

3. That the cost of supplying body corporate members a copy of the tabled details of modifications referred to in item 5.12 of committee minutes of the meeting 24 March 2000 be on account of Ruth Stephan.

4. That the body corporate are to be fully informed of any costs associated with the improvement that may be charged to the body corporate, rather than the lot owner.

5. That copies of all resolutions of the committee made outside committee meetings, inclusive of delegated decisions of the body corporate manager, for the period 1 Nov 1996 to 27 April 2000 be supplied to all unit owners.

6. That the body corporate are to hold an extraordinary general meeting to:

• Discuss resolution 5.12 of committee minutes of the meeting 24 March 2000 where the committee in breach of section 113 (accommodation module) approved alterations to a unit owned by the chairperson.

• Resolve the appointment of a body corporate manager for after 20 May 2000, at which date the current body corporate manager’s contract expires.

• To discuss the failure of the committee to hold regular meetings, as well as the attendance record of committee members at these meetings.

• The body corporate manager’s failure to properly advise the committee regards compliance with the Act, and therefore protect the interests of the body corporate members.

7. That the cost of any extraordinary general meeting is to be on account of Ruth Stephan should she wish to proceed with motions regards the renovations she is proposing for her lot.

8. That Tom Stone has a penalty applied for breach of section 68 of the Act.

9. That there be an inspection of the body corporate records to ensure there have been no false or misleading entries entered into it’s (sic) records to show Ruth Stephan has the approval of the body corporate for renovations and or alterations to her lot.

The applicants have also sought the following interim order of an adjudicator, quote -

1. That the resolution of the committee giving Ruth Stephan approval for alterations to her lot be declared void. Refer item 5.12 of committee minutes of the meeting 24 March 2000 (attached).

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicants state that the committee cannot approve alterations by a lot owner that effect common property or the external appearance of the property, as such approval has to be given at a general meeting, which has not been done. The applicants further state that the proposed improvements are not of a minor nature. In addition, the applicants state that there is no record to indicate whether or not some of the alterations are to be paid out of body corporate funds, or that the whole of the cost will be on account of the lot owner, Ruth Stephan. The applicants further state that Ruth Stephan was aware that there was to be an extraordinary general meeting following the committee meeting on 24 March 2000, at which appropriate motions to approve the improvements could have been considered.

The committee was invited to respond to the application in relation to the interim order only. The committee response was to the following effect:

• Under section 113 of the Accommodation Module the committee does have authority to approve improvements to the common property by a lot owner if the works are considered to be of a minor nature, and do not detract from the appearance of any lot or common property for the scheme.

• In any event, the alterations involving the moving of the bedroom glass doors outward on the balcony area involved Ruth Stephan’s lot, and not common property.

• The committee asked Ruth Stephan to check if the alterations required Council approval, which was subsequently obtained.

• There was a quorum at the committee meeting at which Ruth Stephan’s request was considered, and no committee member objected to the proposal.

• All expenses associated with Ruth Stephan’s request were to be paid by Ruth Stephan.

A new community management statement for this scheme was recorded on 13 March 1998. By-law 3(b) provides that an owner shall seek permission in writing from the body corporate committee prior to the commencement of any structural maintenance or decoration involving structural changes of his/her lot. By-law 4(e) provides that no lot owner or occupier of a lot may in any way alter or vary the external appearance, structure, layout, wall format or texture or colour of any lot without the prior written consent of the body corporate committee.

I have perused the plans detailing the works to be carried out in Ms Stephan’s lot. I note that the existing bedroom wall is to be moved out a distance of 2 metres, all within Ms Stephan’s lot. I have also noted that a development permit for building work has been issued by Nick Schofield & Associates, on behalf of the Maroochy Shire Council. I spoke with Nick Schofield on 5 June 2000, at which time I was informed that the wall which is to be moved will be affixed on either side to a depth of 70mm in each of the side walls, which each have a depth of 400mm. In addition, I was informed that there is an existing concrete pergola on the balcony area, which will simply have a roof added to it to seal the area created by moving the wall out. I was also informed that the core penetration through the roof parapet was a drill hole to allow roof water to be channelled to the existing stormwater drainage on the roof. I was further informed that this additional roof water will not burden the existing drainage system.

The definition of boundaries of lots is to be found in the “Directions for the Preparation of Plans” (Version 2 – 8 August 1997) issued by the Registrar of Titles, and reads as follows:

“A lot, or part of a lot adjoining other lots and/or common property and within a structure, shall be bounded by the centre of the floors, walls and ceilings, unless otherwise permitted by these Directions.”

I am satisfied that the works proposed by Ms Stephan are wholly within her lot, on the basis that the wall to be moved is being affixed on either side to a depth which penetrates less than the centre of the side wall. Accordingly, the process of fixing the wall does not encroach into the adjoining owner’s lot, or into common property. Similarly, the roof covering is to be taken from the existing ceiling line, supported by the existing concrete pergola beam, and is also within Ms Stephan’s lot (see the notation on the registered building units plan that “the area of uncovered balcony on level Q extends to the ceiling height of the unit only.”). On this basis, therefore, section 113 of the Accommodation Module is not relevant, since the works are wholly within Ms Stephan’s lot, and not on common property.

The only remaining issue to be considered is whether the committee has approved the works proposed by Ms Stephan, under by-laws 3(b) and 4(e). The members of the committee are Ruth Stephan (chairperson), Kim Jordan (secretary – non-voting), Russell Hercus (treasurer), Peter Braithwaite, Kevin Leadbetter, John Steinhardt and Tom Stone. At the meeting held on 24 March 2000, Ruth Stephan, Tom Stone, Kevin Leadbetter and Kim Jordan were present in person. Peter Braithwaite gave his proxy for that meeting to Ruth Stephan, and the proxy form was given to the secretary before the start of the meeting. Similarly, Russell Hercus gave his proxy for that meeting to Tom Stone, and the proxy form was given to the secretary before the start of the meeting. I have been provided with copies of both proxy forms.

The applicants allege that Tom Stone was not entitled to act as the proxy for Russell Hercus, as the committee had not approved the giving of the proxy. The applicants further allege that Tom Stone has committed an offence under section 68 of the Accommodation Module, since he exercised a proxy at a committee meeting knowing that he did not have the right to exercise it. I disagree on both counts. Section 65 of the Accommodation Module sets out restrictions on the appointment of a proxy by the secretary or the treasurer, stating that these persons may appoint a proxy only with the committee’s approval. I am satisfied that the committee did in fact approve the proxy appointed by Russell Hercus, even though the specific approval is not noted in the minutes. The minutes do, however, reveal that Russell Hercus tendered an apology for that meeting. The minutes further reveal that Russell Hercus appointed Tom Stone as his proxy for that meeting. The minutes further reveal, as the first item of business conducted at the meeting, that the committee agreed to give Russell Hercus (and others) leave of absence. I therefore consider that the committee’s approval of Russell Hercus’ proxy to Tom Stone can be implied on the basis that Russell Hercus was given leave of absence by the committee, after his apology was noted, and after his proxy was noted.

I recommend to the committee that, in future, the minutes clearly record when approval is given to a proxy for either the secretary or the treasurer, so that it is abundantly clear to persons who may be turning their minds to such matters that approval has in fact been given under section 65(2)(a) of the Accommodation Module.

In view of my finding on the validity of the proxies, the attendance at the meeting on 24 March 2000 was, therefore, Ruth Stephan, Tom Stone, Kevin Leadbetter, Kim Jordan, Peter Braithwaite by his proxy Ruth Stephan, and Russell Hercus by his proxy Tom Stone. The required quorum for this meeting was 3, since there are 6 voting members of the committee. Accordingly, there was a quorum at the meeting.


The final issue is whether there was a proper vote on Ruth Stephan’s proposal. Although there is no record of the actual vote on this proposal, the minutes reveal that the meeting had no objections to the proposal, provided the appropriate Council approvals were sought. Accordingly, I have taken it that there were no votes against the proposal. I am confident that Ruth Stephan would not have voted on the proposal, since it would have been abundantly clear that she had a direct interest in the matter. Similarly, Ruth Stephan would not have been permitted to exercise Peter Braithwaite’s proxy vote on the proposal under the provisions of section 32(3) of the Accommodation Module. After excluding those two votes, there were still three eligible votes available. Since the minutes state that “the meeting had no objections”, I find that the vote in favour of Ruth Stephan’s proposal was 3. Under section 31(2) of the Accommodation Module, such a decision, being supported by all allowable votes, with no votes against, is deemed to be a decision of the committee, and this results in a finding that the proposal by Ruth Stephan has been approved in writing by the committee, as required by by-laws 3(b and 4(e).

I therefore propose to dismiss the application in respect of the interim order. I have previously invited the committee to respond to the application only in relation to the interim order. I shall now allow the committee the opportunity to put in a submission in relation to the final orders sought. In light of my order dismissing the interim order, I shall not be required to make orders on numbers 2, 3, 4, 6.1, 6.4, 7, 8 and 9 of the application. The committee response will therefore be limited to the orders sought on numbers 5, 6.2, and 6.3. A final order regarding the application will be made in due course.