Pintari [2000] QBCCMCmr 60 (10 February 2000)

P J HANLYREFERENCE: 0027-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6231
Name of Scheme:	Pintari
Address of Scheme:	3 Cunningham Avenue MAIN BEACH QLD 4217

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

William Freestone, the director of W. Freestone Holdings Pty Ltd, the owner of lot 66



P J HANLYI hereby order that motion 11 considered by the body corporate at the Annual General Meeting held on 19 July 1999 shall be deemed invalid.
I further order that the body corporate shall not proceed further with the proposed foyer refurbishment until at least two quotations have been obtained in respect of each component of the refurbishment and such quotations have been incorporated into individual motions to be considered by the body corporate in general meeting.2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0027-2000

“Pintari ” CMS 6231

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

That an order be sought to declare motion No. 11 of the Annual General Meeting of Pintari CTS 6231 on Monday 19 July 1999 invalid and that the body corporate be ordered to defer the refurbishment of the foyer immediately pending further quotes being considered by the owners.

The applicant has also sought an interim order of an adjudicator in similar terms.

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 motion 11 did not comply with the requirements of section 104 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module), in that two quotes were not submitted to owners for their consideration. In addition, the applicant states that the amended motion 11 was invalid under section 57 of the Standard Module, as the voting was counted incorrectly. In conclusion, the applicant states that whilst he is not averse to the refurbishment of the foyer, he feels that owners should have been presented with at least two submissions and a choice of contractors.

The committee was invited to respond to the application. A response was received from the body corporate manager and from one other owner. The manager provided copies of various documentation relating to the refurbishment. It seems from this material that the committee has endeavoured to keep owners informed, and that steps have been taken to give owners some say in the final decision. I do not propose to set out in detail all of the material provided, as it has already been circulated to owners, and forms part of the records of the body corporate.

There are a number of issues for determination. Firstly, the application was made more than 3 months after the meeting at which motion 11 was decided by the body corporate. I do not consider that I have been provided with a satisfactory explanation for the delay, although I note that the issue was the subject of much on-going discussion, culminating in a committee decision made on 6 December 1999 to present three design selections to owners. On this basis, therefore, I have decided to waive the non-compliance with section 193(2) of the Act.

Secondly, I must decide whether the matter is urgent. I note from the manager’s submission that in January 2000 the building manager is stated to have obtained quotes “for approval of committee prior to setting up individual sub-contracts.” I am satisfied that there is a degree of urgency, in order to avoid the body corporate entering into contracts before proper consideration is given to the project.

Thirdly, the manager has acknowledged that she did not count the votes for motion 11 correctly. On that basis, the amendment to motion 11 should not have been allowed. It follows that the amended motion should not have even been put to the meeting, and that the declared result is therefore incorrect.

Finally, there has not been compliance with section 104 of the Act. It is clear that the cost of the refurbishment greatly exceeds the relevant limit for major spending for this scheme. Accordingly, there should have been at least two quotes obtained for each component of the project i.e. building works, lift fitout, painting/repair to walls and carpet, and then each of those quotes should have been incorporated into individual motions, so that the body corporate could consider them. I note from the summary of quotations included in the manager’s reply as Attachment F that there was only one quotation obtained for building works and for lift fitout. Both of these items exceeded the limit of spending on their own. I would certainly have expected that owners would want to have at least two quotations for such large items of expenditure, even apart from the legislative requirements.

I am of the view that motion 11 should be deemed invalid for both of these reasons, and I have so ordered. I have further ordered that the body corporate shall not proceed further with the refurbishment until there has been proper compliance with section 104 of the Act. I have been informed by the body corporate manager that there is an Extraordinary General Meeting to be held within the next month or so, and she understands that two quotes have now been obtained for all components of the project.

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 it should appeal the interim order.