Gibson Lodge [2000] QBCCMCmr 299 (23 June 2000)

P J HANLYREFERENCE: 0696-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11003
Name of Scheme:	Gibson Lodge
Address of Scheme:	C/- Strata Title Management PO Box 134 TWEED HEADS NSW 2485

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

Dasha Gostevsky, the owner of lot 3

I hereby order that the application for various orders relating to:

• the right to speak at meetings

• replacement of carpet

• repair of a ceiling

• replacement of garage doors

• gardening services

• sprinkler system

• removal of certain trees

is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0696-1999

“Gibson Lodge” CTS 11003

The applicant Dasha Gostevsky, the owner of lot 3, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) in relation to her right to speak at meetings; replacement of carpet within the scheme; repair of a ceiling within the scheme; replacement of garage doors within the scheme; gardening services within the scheme; the sprinkler system within the scheme and the removal of certain trees within the scheme.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that:

• She has been told that unless she is an elected member of the committee she cannot speak on matters which need to be addressed

• Certain carpet which was repaired/replaced by the secretary for the cost of $200.00 was worthless and the secretary should therefore be ordered to refund the sum of $200.00

• Certain repairs were carried out to the roof by the chairperson, but the damaged ceiling was not repaired, which should now be carried out by the chairperson

• Two garage doors were painted by the chairperson, rather than being replaced as the applicant had requested. The chairperson should refund the money paid to him for the painting of the doors.

• Certain monies were paid to the chairperson’s son-in-law even though he did not carry out the services for which he was paid. Those monies should be refunded to the body corporate.

• A new sprinkler system was installed, which was damaged by children in the units. The chairperson should be ordered to do the job properly.

• Certain trees were removed by the chairperson’s son-in-law, but he did not kill the tree roots properly. The chairperson’s son-in-law should be ordered to finish the job properly.

The body corporate committee and all owners were invited to respond to the application.

Responses were received from the chairperson and the secretary. Their responses are to the following effect:

• The applicant has not been prevented from speaking at meetings, but has been advised that unless a matter is on the agenda for a meeting, it cannot be discussed. However, at the annual general meeting held on 4 November 1999 the applicant was allowed to speak freely and air any grievances that she had.

• The applicant did not nominate for the committee in 1998-99, but was elected to the committee at the 1999 annual general meeting.

• The carpet replacement was carried out after quotes were sought, and the contract was let by the body corporate manager. A portion of the existing carpet was used, as it still had some life left in it, although the carpet on the step treads was worn. Since this time, three quotes have been obtained for replacement of all carpet with new carpet, but the final decision has not yet been made. (As at 22 June 2000 I was advised by the secretary that the applicant is currently obtaining a further quote.)

• The ceiling repair was delayed as it was not considered to be economical to have a small area repaired. The repair will be carried out when complete internal painting is done.

• The painting of the two garage doors was done in an effort to minimise costs to body corporate, but when it was found to be ineffectual, it was decided to replace the doors. The contract has been let.

• The chairperson’s son-in-law never supplied the gardening services. The previous gardener’s services have now been terminated, and a new gardener engaged.

• The chairperson, with no labour charge, and only reimbursement by the body corporate of properly invoiced materials, installed the irrigation system.

• The trees which were lopped/poisoned were done by outside contractors, and further attention is being given to the poisoning of the tree roots.

• Neither the chairperson nor any relative of his has ever received and financial benefit from Gibson Lodge. Any monies paid have been reimbursement for outlays only.

I have perused the minutes of the annual general meetings held on 29 October 1998 and 4 November 1999. I note that at the first of those meetings, a casual vacancy was recorded on the committee. However, at the second of the meetings, the applicant is shown as having been elected to the committee. I also note that at both meetings, at which the applicant was present on each occasion, the financial statements were approved. The applicant voted in favour of the resolutions on each occasion.

It is possible that the applicant does not understand that the procedure for an annual general meeting is set out in the Act and the Standard Module. For a motion to be included on the agenda of an annual general meeting it must be received by the secretary before the end of the body corporate’s financial year immediately preceding the meeting (section 41(2) of the Standard Module). I accept the chairperson’s explanation as to the events at the annual general meeting held on 4 November 1999, as set out in his submission dated 24 February 2000. The applicant should be aware that she is not entitled to raise other issues at an annual general meeting, and must follow the proper process if she wishes to have a motion placed on the agenda of a meeting.

In view of the fact that the applicant is also a current member of the body corporate committee, she should be able to raise any matter about which she has concerns at committee meetings, and then place a motion or motions on the agenda for a general meeting if necessary. It is important for the applicant to realise, however, that she is but one owner out of seven, and the democratic process should be observed, as well as the processes required under the Act and the Standard Module.

There is no evidence before me of any improper action on the part of the secretary or the chairperson, as alleged by the applicant. The explanations provided by the secretary and the chairperson as to the various matters relating to the trees, the garage doors, the carpet, the sprinkler system, the ceiling and the garden satisfy me that these persons have at all times discharged their duties appropriately, and in the best interests of the body corporate.

In all of the circumstances, I have dismissed the application.