Bagara Place [2000] QBCCMCmr 41 (1 February 2000)

RA MeekREFERENCE: 0617-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8914
Name of Scheme:	Bagara Place
Address of Scheme:	4 Griffith Road SCARBOROUGH QLD 4020

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

Heather Joan Milburn, the owner of lot 5

RA MeekI hereby order that the application by Heather Joan Milburn, the owner of lot 5, for orders -

1.	That the contributions payable by Milburn for the 1999/2000 year be varied from $1000 to $275 in accordance with the confirmed minutes of meeting, and
2.	That notwithstanding the variation of contribution, unit 5 be painted in October 1999 in accordance with the confirmed minutes of meeting,

is dismissed. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0617-1999

“Bagara Place” CTS 8914

The applicant Heather Joan Milburn, the owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

3.	That the contributions payable by me for the 1999/2000 year be varied from $1000 to $275 in accordance with the confirmed minutes of meeting attached.
4.	That notwithstanding the variation of contribution, my unit be painted in October 1999 in accordance with the confirmed minutes of meeting attached.

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 –

At the latest meeting of the body corporate the previously agreed terms of an increase in fees payable from $600 to $1000 per unit was reversed without notice to me or resolution. A credit to me was involved. On 13.09.99 I received an account for body corporate fees payable for $1000. I attended another meeting called for 14.09.99 where my query in “any other business” about why I had been billed for $1000 was met with the answer that I had mistaken what I had said was the condition of my vote to raise the fees this year. I was told it was not possible to raise a credit.

The only reason my unit is being repainted it that 3 of the units were painted in different paint this year on authority (purported) of the secretary, thus 2 units are now a different colour.

The applicant has attached a copy of minutes of the annual general meeting held on Sunday, 5 September 1999.

In response to the application, I have received a submission from the body corporate secretary. That submission confirms the difficulty which I had of making sense of most of the application. That submission states in part –

The body corporate fee payable by all owners 99-2000 were set at $1000 at the AGM on 5 Sept. 1999. Owners of 1, 2, 3 and 4 units paid their dues promptly. On 4 October, I received a letter enclosing a cheque for $275 from Ms Milburn for body corporate fees ... How the amount of $275 was determined theoretically, mathematically, by what formula or otherwise by Ms Milburn is a mystery. (then referring to the applicant’s third paragraph) The contents of this paragraph are also unclear. All owners were at this meeting 14/9/99. Ms Milburn query “Why she had been billed for $1000 etc. and it was a condition her vote to raise the frees. There may have been some discussion at the other end of the meeting table which I know nothing.

I agree that the applicant’s grounds do not explain how the figure of $275 has been arrived at. Further the minutes of the meeting of 5 September 1999 do not in any way support the applicant’s contention of a reduction in fees. In fact motion 8 resolved to accept recommendation of meeting April 26 1999 to increase body corporate dues from $600 to $1000 for 99-2000. Certainly, on the information provided by the applicant, I find no basis whatsoever for a reduction in her contributions. Accordingly I decline to do so, and dismiss this part of her application. The applicant should attend to payment of her full levy contribution without further delay, or risk loss of voting entitlements.

The second order sought by the applicant is that notwithstanding her reduced contributions, which based on my above determination will not be the case, that her unit be painted. The minutes of meeting record that units 4 and 5 be painted by Mr W Haack proposed start end of October 1999 Quote received in March $1450 for the 2 units to be accepted.

The body corporate submission provides an explanation of why there has been a delay in the painting of units 4 and 5, and also of the variation in colour between certain of the units. The secretary states –

It has been agreed to paint Nos. 4 and 5 when the painter is available – this was to be late October 1999 but wet weather has set his program back. The colour was not changed on my authority (purported) as quoted. It was arrived at by a professional painter applying a better class of paint not a “stain” which had proved to be a disaster not standing up to the weather etc.

In the circumstances, I accept the body corporate’s explanation of the delay in painting units 4 and 5. Clearly the body corporate has accepted responsibility for painting, and therefore I do not intend to order that it undertake this painting. This second part of the application is also dismissed. n