Iris Gardens [2000] QBCCMCmr 568 (7 November 2000)

P G DanielsREFERENCE: 0606-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16954
Name of Scheme:	Iris Gardens
Address of Scheme:	9 Dora Street MOOROOKA QLD 4105

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

Ben Charles Swan the owner of lot 9



P G DanielsI hereby order that the application for an interim order:

To restrain the committee or body corporate from carrying into effect, or purporting to carry into effect, the resolution made on 5 August 2000 pending the final determination of this dispute, or from passing such further or amended resolution in relation to same.

is dismissed.


I further order that the application for a final order:

Declaring void a resolution of the committee or body corporate made on 5 August 2000, which resolution purported to approve the removal of certain trees from the common property and/or approved the seeking of quotations for work to be done in relation to same.

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0606-2000

“Iris Gardens” CTS 16954

The applicant, Ben Charles Swan, the owner of lot 9, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

Declaring void a resolution of the committee or body corporate made on 5 August 2000, which resolution purported to approve the removal of certain trees from the common property and/or approved the seeking of quotations fro work to be done in relation to same.

In addition, the applicant has sought the following interim order:

To restrain the committee or body corporate from carrying into effect, or purporting to carry into effect, the resolution made on 5 August 2000 pending the final determination of this dispute, or from passing such further or amended resolution in relation to same.

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)).

The Body Corporate for Iris Gardens (Iris Gardens) held its annual general meeting on 5 August 2000. The body corporate manager, Strata Solutions states in its submission that at the meeting, “the newly elected Committee members (the same people for the past 5 years) discussed the removal of trees in the common area at the rear of the complex. It was decided to seek quotes (there was no resolution) for removal as the maintenance of the grounds had become beyond their capacity, undertaking the work themselves, as they have operated on minimal levy contributions to remain affordable.
2. Quotes were obtained and a Flying Minute was sent to the committee for approval but, as approval to transport any debris through neighbouring properties did not eventuate, no further steps have been taken as the quotes were no longer relative. It is considered that new quotes may be beyond the spending limit of the Committee due to the nature of disposal of debris.”

It is the intention of the Committee to have the trees removed. The Committee will approve a quote within their spending limit and inform owners at that time.

The applicant objects to the removal of the trees on the grounds that they give his lot privacy and enhance the value of his unit from a personal and economic sense due to their beauty.

Strata Solutions indicates in its submission that there is a maintenance problem with the trees. It is relevantly stated in the submission, “complaints have been directed to a past chairperson from a neighbour concerning the leaves and nuts dropping into their yard...”

At this stage, there is no dispute in respect of which I can make an order. The quotes that have been obtained have lapsed. The matter can be progressed at a future meeting of the Committee or Body Corporate.

I strongly suggest to the Committee and Strata Solutions that they keep the applicant informed of any progress to remove the trees. The applicant can then reapply for orders if the matter is to be considered by the Committee or the Body Corporate in general meeting. I draw to the attention of the Committee section 37 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) which provides as follows:

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.

(5) If there is a body corporate manager, and powers of the committee

have been delegated to the manager, the references in this section to a

resolution of the committee extend to a decision of the manager made under

the delegated powers, other than a decision to pay an account—

(a) of a routine, administrative nature; or

(b) on the basis of an authorisation given by the body corporate in a

general meeting.

(6) In a proceeding involving a challenge to the right of the committee to

carry out a resolution, or a body corporate manager to carry out a decision

made in the exercise of delegated powers, the burden of proving that action

required to be taken under subsection (1) was in fact taken lies on the

person asserting the right of the committee or body corporate manager to

carry out the resolution or the decision.

(7) Subsections (1) to (6) do not apply to a resolution passed at a meeting

of the committee authorising a committee member to carry out a stated

function of the body corporate if—

(a) the cost of acting under the resolution, including the amount of

any commitment incurred, is not more than the greater of—

(i) $200; or

(ii) $5 multiplied by the number of lots included in the scheme;

or

(b) the function involves a decision of a routine, administrative

nature.

The Committee should also consider its obligations under section 28 of the Regulation in respect of notice to owners of Committee meetings to be held.

I have decided to consider the entire application at this stage rather than consider only the application for an interim order and at a later stage consider the application for the final order. I have done this as it is clear to me that there is no basis to make the orders sought at this stage (as stated above) and the matter is not complicated.

I dismiss the application for interim and final orders.