Westgables [2000] QBCCMCmr 308 (28 June 2000)

RA MeekREFERENCE: 0113-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5621
Name of Scheme:	Westgables
Address of Scheme:	1/133 Hardgrave Road WEST END QLD 4101

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

Batoul Akaberian, the owner of lot 1



RA MeekI hereby order that within six (6) weeks of the date of this order, the committee of the body corporate of Westgables shall implement the terms of resolution 9 carried at the AGM of the body corporate held on 28 March 2000 by instructing the gardener / tree looper which trees are to be removed, or trimmed, and if trimmed, to what extend they should be trimmed.

I further order that, if trimmed, the trees shall be trimmed in such a way as to ensure the views from the units, and that thereafter the trees are to be maintained in such way through regular pruning, unless the body corporate should in future resolve to the contrary.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0113-2000

“Westgables” CTS 5621

The applicant Batoul Akaberian, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Immediate compliance of the body corporate with the resolution 10 of the AGM of “Westgables” proprietors dated 10.3.97 on trees in front of the building.

Section 223(1) 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 -

My request does not apply to the 4 palm trees but all other trees that have grown on their own accord. All these trees contribute to blocking of city views of the unit 1.

The applicant claims that the body corporate manager has failed to perform her duties in complying with the relevant resolution. The resolution, carried on 10 March 1997, provided that –

The trees planted in front of the building be inspected by the body corporate every six months to ensure that they are not blocking the view of the units and if so, action be taken to trim such trees or replace them with more appropriate size trees / plants.

There has been one submission received which expresses the view that the application is out of date and unnecessary, given that a further motion regarding the trees was resolved at the AGM held on 28 March 2000. That motion, motion 9, provided that the owners make a decision with regard to tree looping at the property and an owner be appointed to give instruction on this issue to the gardener / tree lopper. The motion then referred to attached correspondence. The motion was carried with 4 votes in favour with nil opposed.

I consider this latter motion to be somewhat ambiguous. It provides that the owners make a decision with regard to tree looping. I am not certain how this is proposed to occur. It is usually the case that owners make a decision by voting either for or against a motion included on the agenda of a meeting. However, it seems to be implied in the resolution that the body corporate intends to have certain trees cut or lopped, hence an owner being appointed to give instruction to the gardener / tree looper. I consider that this is sufficiently clear, and that the body corporate should now implement this resolution by its committee instructing the gardener / tree looper which trees are to be removed, or trimmed, and if trimmed, to what extend they should be trimmed.

Given that the motion is somewhat vague, and that there appears to have been no implementation of the earlier 1997 resolution regarding the trees, I intend to order the body corporate to implement the terms of resolution 9 within six weeks of the date of this order, in the way I have described above.
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