Falkinder Apartments [2000] QBCCMCmr 35 (28 January 2000)

RA MeekREFERENCE: 0527-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7871
Name of Scheme:	Falkinder Apartments
Address of Scheme:	40-42 Falkinder Avenue PARADISE POINT QLD 4216

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

Nancie Catherine Govan, the owner of lot 8

RA MeekI hereby order that the application by Nancie Catherine Govan, the owner of lot 8, for an order regarding lack of consultation, financial accountability, and priority for painting of the building, is dismissed. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0527-1999

“Falkinder Apartments” CTS 7871

The applicant, Nancie Catherine Govan, the owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	My complaint is that unit 2 and 6 make all the decisions without consulting any of the other owners. I for one would like to know how my money is being expended and I have no say at present. ... I would like to be consulted about money being spent and having some input to where my money is going as the above caretaker is paid for his time;
2.	Using body corporate money unwisely without authority (ie. building has not been painted for 14 years and funds are being used for tree removal at the front of the building) ... I feel painting of the building should be given priority.

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 –

I reside in a small block of 9 units – 5 of which are tenanted, 1 holiday unit and 3 residential owners. My complaint is that unit 2 and 6 make all the decisions without consulting any of the other owners. I for one would like to know how my money is being expended and I have no say at present.

After 14 years, the building needs painting and the stairwell needs re-carpeting before the GST becomes effective.

Unfortunately the lovely tree ... was removed on 12/10/99 without consultation with any ?. It would be great if the tree could be replaced with another leafy tree as soon as possible and if the body corporate could function as a team in accordance with the Strata Titles Act.

The applicant has also provided a copy of minutes of the AGM dated August 20, 1999 wherein it is stated under the heading General Business that –

Mrs Govan raised the matter of having the facia’s painted and unsuccessfully moved a motion to the effect.

There was 4 owners represented at this meeting. I note that the financial accounts for the 12 months to June 30 1999 were tabled at the meeting. Further, I quote the following extract –

Mr Atkinson noted that the four main items of capital expenditure, coming up in the future, would be:

1.	Painting and repairs of the facia and eves (estimated $4150);
2.	Carpet replacement in stairwell (estimated $2000);
3.	Painting of stairwell (estimated $2200);
4.	Slate on front patio (estimated $2400).

Other items that may need to be looked at still include the electric pump in the garage basement and the electric garage door.

The meeting then went on to discuss and then set both the administrative fund and sinking fund contributions for the forthcoming year.

This application was made on 25 August, 1999, some 5 days after the AGM at which the applicant’s motion to have the facias painted was not carried. Whilst I note that only 4 of the 9 owners were represented at the meeting, the applicant certainly was in attendance, and presumably voted in respect of her motion. Moreover, this office cannot force owners to participate in meetings and other body corporate related matters. Provided a quorum is present at meetings, then decisions made are prima facie valid. Perhaps the owners of units 2 and 6 voted against her motion, but this they are entitled to do. This does not mean, as the applicant states, that these two owners have all the say, or that decisions are made without consultation. Rather on the face of it, it seems to me that the applicant’s motion was not carried, and in response to this the application has been made.

From submissions received from other owners and the secretary of the body corporate, it is clear that the applicant’s several allegations are universally opposed.

In the circumstances, I consider there is very little information (if any) provided by the applicant to support her allegations. I refer to my preliminary comments regarding the meeting above. It is clear from the terms of the meeting quoted that painting is a priority for the body corporate. That is, there is no evidence to suggest to me that this body corporate is ignoring its responsibility to maintain (including paint) the building. It is further clear, or at least is the view of owners who made a submission that the removal of the tree, to which the applicant has objected, was required to overcome potential root problems, and that moreover, it is intended to replace the tree, after the height of summer has passed. In my view, a body corporate is right to prioritise its maintenance responsibilities.

I conclude that the applicant simply has a different view of what should be the maintenance responsibility for this scheme. This however does not mean that the applicant is entitled to an order that the body corporate immediately paint the building.

Further I am not satisfied of the substance of the applicant’s complaint regarding lack of consultation or that all decisions are being made by two lot owners. The applicant has provided no evidence to support these allegations. If the applicant is being denied the right to participate in meetings etc, then she will need to adduce evidence of this. However at this stage, I consider that the applicant is simply aggrieved by not having her motion regarding painting accepted.

Further, the applicant has provided no evidence of lack of financial accountability. In fact, the minutes of the meeting provided to me evidence the opposite. The minutes record that financial accounts were tabled at the meeting. Does the applicant question the validity of these financial accounts.

As to the allegation that the caretaker should be more accountable, as he is paid for his time. The minutes record that Mr Atkinson is paid $17 per week. This is the equivalent of about two hours of unskilled work. From submissions received, it seems clear that Mr Atkinson provides a much greater level of work to this body corporate than the above payment would suggest.

In the circumstances, I intend to dismiss the application as being without merit. If the applicant wishes to make any further application, she should include in her application evidence which substantiates her complaints. Certainly her current application includes very little in this regard, and what is provided, is contradicted by all other information available.