Palm Lodge Apartments Fourteen Building Units [2000] QBCCMCmr 466 (14 September 2000)

P J HANLYREFERENCE: 0478-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1324
Name of Scheme:	Palm Lodge Apartments Fourteen Building Units
Address of Scheme:	80-84 Queens Road HERMIT PARK QLD 4812

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

David Alan Chadwick, the owner of lot 9



I hereby order that the application for an interim order that motion 10 passed by ordinary resolution of the body corporate at the extraordinary general meeting held on 27 July 2000 be put on hold, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0478-2000

“Palm Lodge Apartments Fourteen Building Units” CMS 1324

The applicant, David Alan Chadwick, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote–

I wish to lodge an appeal realting to motion 10 (carried 7 votes to 2) from the extraordinary general meeting held on 27 July 2000.


The Applicant, has also sought the following interim order of an adjudicator-

An interim order that motion 10 passed by ordinary resolution of the body corporate at the extraordinary general meeting held on 27 July 2000 be put on hold

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. 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 the body corporate resolved to remove the palm tree in question to prevent further liability posed by the danger to property/person. The applicant considers that he is being discriminated against, as there are at least a dozen palm trees which he considers are closer to the building than the palm tree in his exclusive use area. The applicant is also concerned that owners voted “yes” to an amended version of motion 10, which proposed that all trees be assessed by a damage assessor before any trees were deemed dangerous and consequently removed, but the minutes do not reflect the amendment.

The body corporate committee was invited to respond to the application. Responses were received from the body corporate manager and from Shirley Wall, a committee member, and the owner of the lot adjacent to the applicant’s lot.

The body corporate manager stated that the offending palm has caused damage to the building, and has the potential to put the body corporate at risk of a liability claim. The body corporate manager denied that the applicant is being discriminated against, and stated that if the body corporate fails to act upon the resolution there could be serious implications should a claim be made against the public liability insurance or even the building insurance, as the insurer may decline to accept the claim. The body corporate manager further stated that there was no amendment moved to motion 10, but agreed that there was further general discussion in relation to the removal of the stump of the palm tree, and in relation to the status of other trees on the property. The body corporate manager stated that the assessment of the other trees was to be undertaken to demonstrate to the applicant that the other owners were willing to act should any other tree also require removal. The body corporate manager confirmed that, since the meeting, a report has been obtained from the gardener as to the status of palms and plant growth, and any trimming or removal has been carried out.

Mrs Wall, who lives in lot 8, stated that “for some time now I have had large palm fronds from unit 9 falling over into my courtyard and onto my awning......The palm tree in question is a huge royal palm. We do have numerous palms, which are mostly Alexander palms, which are nowhere near as large or dangerous. In the past the fronds that have fallen have been very large and in one instance one frond covered my entire courtyard. There is no warning, they fall quietly but very heavily. This is frightening and anyone in the courtyard could in fact be very seriously injured or even killed.”

I note that the by-laws recorded for this scheme on 15 August 1989 include a number of by-laws giving exclusive use of common property to each of the lots. By-law 30 applies to the applicant’s lot. However, in each instance, the by-laws specifically provide that the owners of the lots are not to be responsible for the duty of the body corporate under section 38(1)(b)(i) of the Building Units and Group Titles Act 1980 (BUGTA). Since the commencement of the Body Corporate and Community Management Act 1997 (the Act) the body corporate’s responsibilities in respect of common property are governed by section 114 of the Act and section 109 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). It is incumbent upon the body corporate to ensure that common property is maintained in good condition, and if this entails, as in this case, the removal of a palm tree which has become dangerous to person and property, then the body corporate would be derelict in its duty if it failed to do so. Indeed, an insurer would be well within its rights to deny liability under the body corporate insurance if damage were to be sustained after the body corporate became aware of the potential for damage but failed to act.

The applicant has not alleged any irregularity in the calling of the meeting, but has based his claim upon his perception that he is being discriminated against. The discrimination is said to exist because the meeting agreed all other trees were to be assessed prior to the applicant’s palm tree being removed. I am not satisfied that this is the case. Mrs Wall and the body corporate manager have stated that the general discussion which took place concerning the assessment of all trees occurred after the vote on motion 10 had been taken. The minutes of the meeting confirm this to be the case. The applicant has not persuaded me that the palm tree is integral to his enjoyment of his lot. There would appear to be no reason for another type of palm not to be planted in place of the palm tree which is to be removed. Mrs Wall has confirmed that there are numerous palms already planted around the scheme.

I therefore propose to dismiss the application.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then he should appeal the interim order.