La Porte D'Or [2000] QBCCMCmr 448 (7 September 2000)

RA MeekREFERENCE: 0267-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Ronald Albert Duniam and Yvonne Laraine Duniam, the owners of lot 165


RA MeekI hereby order that the committee of the body corporate of La Porte D’or must include on the agenda of the next general meeting a motion seeking ratification of the committee resolution of 10 April 2000 to install security cameras in the lifts of the building.

I further order that the motion to be submitted by the committee must include –

• A full copy of the quote provided by the successful tenderer; and

• Evidence of the final / all up cost of the installation of the security cameras.

I further order that the motion requires an ordinary resolution in order to be valid, and that if the motion is not carried in general meeting, then the committee resolution of 10 April 2000 to install the security cameras is deemed to have been invalid.

I further order that a copy of this order and statement of reasons must be sent to all owners together with the notice and agenda of the next general meeting of the body corporate. n



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0267-2000

“La Porte D'or” CTS 12681

The applicants Ronald Albert Duniam and Yvonne Laraine Duniam, the owners of lot 165, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the decision of the committee to install security cameras was not made public to the members of the body corporate until after the work had commenced therefore effectively negating any chance to oppose that committee decision. Pursuant to section 37 of the standard module regulations notice was not received until after work had commenced and therefore all work should cease giving owners time to oppose the committee decision if they so wish.

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 applicants state that –

At the EGM on 17^th February 2000, Motion 11 “Installation of security cameras” was put to the vote of the owners and was defeated ... . The agenda for a body corporate committee meeting to be held 10^th April 2000, at item 7 “quotations – security cameras – lifts” ... . The work commenced in early May on the installation of the security cameras. Minutes of the body corporate committee meeting held 10^th April 2000 were not received by owners until 12^th May 2000 ... . A notice to owners was also enclosed with the minutes.

The applicants conclude –

At no time did the owners have the required 7 days notice under the Act to vote against the body corporate committee meeting decision.

Section 37 of the standard module relevantly provides –

Carrying out resolutions of committee meetings
37.(1) A copy of a resolution passed at a meeting of the committee must
be given to the owner of each lot included in the scheme (other than a lot
owner who has instructed the secretary that the lot owner no longer wishes
to be given copies of committee resolutions and who has not withdrawn the
instruction), whether separately or as a part of a copy of minutes of the
meeting at which the resolution was passed, in 1 of the following ways—
(a) giving it to the lot owner personally;
(b) sending it by mail;
(c) sending it by facsimile.
(2) A notice (a “notice of opposition”), signed by or for the owners of
at least half the lots included in the scheme, may be given to the secretary,
opposing the carrying out of the resolution.
(3) A notice of opposition must be given to the secretary within 7 days
after action taken under subsection (1) is completed (the “required
period”).
(4) The committee may carry out the resolution only if—
(a) no notice of opposition is received by the secretary within the
required period; or
(b) the resolution is necessary to deal with an emergency, and—
(i) the amount required to put the resolution into effect is within
the relevant limit for committee spending for the scheme; or
(ii) an adjudicator acting under the dispute resolution provisions
authorises the committee to carry out the resolution; or
(c) the resolution is ratified by ordinary resolution of the body
corporate.

I have received a submission in response to the application from AM Strata Administration and Queensland Unit Administration Pty Ltd (AMSA), the appointed body corporate manager, which indicates that the committee has authorised the manager to make the submission on its behalf.

The manager provides a curious explanation of why the committee proposed a motion for inclusion on the agenda of the EGM held in February 2000; apparently the committee took a vote “purely to seek the opinion of owners”. One wonders why then, when owners voted against the proposal to install security cameras, the committee subsequently proceeded in any event, albeit approving an amount within the committee’s expenditure limit, although even this is disputed by the applicants.

However the point of the application is that the committee did not give the requisite notice to owners of the resolution carried at the committee meeting of 10 April 2000 regarding the installation of security cameras. In this regard, AMSA responds that –

Following the distribution of the committee minutes, the cameras were not installed until approximately 10 days after the minutes had been sent out to the owners. During this period only one written complaint had been received out of 182 owners.

AMSA is vague in its response. The submission does not provide a date when the installation was commenced, nor reference to a date when the minutes were sent to owners. AMSA simply asserts that owners were given approximately 10 days notice before the installation was commenced.

This assertion is contrary to the objective evidence, including that the –

• The notice to owners is dated 10^th May, 2000 (and this notice included a copy of the minutes of the relevant committee meeting);

• This application was dated 17^th May 2000, and received by this office by facsimile on 18^th May, 2000;

• The applicants detail in the application that the installation of the security cameras had commenced.

Where then is the period of notice required by section 37? I accept the evidence provided by the applicants regarding this matter in preference to the assertion of AMSA. There is a growing awareness on my part as an adjudicator that information provided by AMSA is not always reliable, and nor is compliance with relevant requirements of the legislation to be assumed. Recent records of this office indicate that AMSA have for the most part simply adopted the practice of not dealing with or attending to requirements of this office in respect of the processing of dispute applications; of unnecessarily delaying those applications; or of simply not responding to allegations made regarding their competence or performance. Further, I consider that it is now incumbent on adjudicators to begin expressing views on the performance of body corporate managers given the many complaints which are received by this office regarding their competence and / or performance, and further, the complete lack of any legislation regulating their activities. Whilst adjudicators have been very reluctant in the past to adopt this approach, the expression of such views in orders is really the only way unit owners might be informed if body corporate managers do not comply with legislative requirements.

Given that I find that the requirements of section 37 were not complied with in respect of the committee resolution to install security cameras, in circumstances where I consider that the committee had been put on notice by the “no” vote to the installation of the same at the previous EGM, then I consider that the failing of the committee is more serious then it might otherwise be considered. However, the applicants have not in fact sought an order, other than perhaps a declaration that the committee has failed to comply with section 37. I have found this to be the case. I have then turned my mind to what further order is appropriate.

I find that the resolution of the committee is contrary to a former resolution of the body corporate in general meeting, and whilst the proposal is within the committee’s expenditure limit, I consider that the committee had an absolute obligation to comply with the requirements of notice in section 37. It is not sufficient for AMSA to now express to me that there had been an increase in “serious incidents” in the building, or that had circumstances at the EGM been different, the outcome of the motion at the EGM regarding the installation of security cameras might have been different.

In the circumstances, I intend to order that the resolution of the committee to install the security cameras must be ratified by ordinary resolution in general meeting in order to be valid. I require the committee to include a motion on the agenda of the next general meeting of the body corporate (incorporating full evidence of the costing of the installation of the security cameras) seeking ratification of the committee resolution. If this motion is not carried by ordinary resolution of the body corporate in general meeting, then the issue of personal liability of committee members, or professional liability of professional advisers, for failing to comply with the requirements of the legislation, might arise. If this scenario does eventuate, then a further motion or motions would need to be considered to ascertain whether the body corporate wishes to undertake recovery action. However it should be noted that for a body corporate to commence such a proceeding, the provisions of section 259 of the Act, requiring a special resolution, would appear to be applicable.
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