Kestrel Court [2000] QBCCMCmr 622 (29 November 2000)

P G DanielsREFERENCE: 0463-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19013
Name of Scheme:	Kestrel Court
Address of Scheme:	236 German Street NORTH ROCKHAMPTON QLD 4701

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

Neville Reginald Willams the owner of lot 6



P G DanielsI hereby order that the application for orders:

The following amounts be reimbursed to Body Corporate

1	Removal of 3 trees $380.00
2	Upgrading of lights $975.00
3	Parking bay painting $396.00
4	Erection of Fence $150.00

And fence removed at no cost to Body Corporate.

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0463-2000

“Kestrel Court” CTS 19013

The applicant, Neville Reginald Williams, the owner of lot 6, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

The following amounts be reimbursed to Body Corporate

5	Removal of 3 trees $380.00
6	Upgrading of lights $975.00
7	Parking bay painting $396.00
8	Erection of Fence $150.00

And fence removed at no cost to Body Corporate.

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 applicant seeks orders that money be reimbursed back to the Body Corporate and that a fence be removed. The order sought details the four items of expenditure.

The applicant states that the money involved was spent without a resolution of the Committee or the Body Corporate in general meeting. However, he indicates “The chairman also confirmed that he only had discussion with a select few committee members regarding the upgrading of lights and the erection of the Fence.”

I will consider the details provided in the application and submissions about the various items of expenditure.

Lighting

In respect of the expenditure on the lights, the applicant states that the Body Corporate twice rejected the upgrading of lights at extraordinary general meetings on 14 June 1996 and 19 April 1997. He has attached minutes of these meetings.

L J Hooker Gladstone, the body corporate manager, has made a submission in respect of the application. Mr Mark Spearing on behalf of the manager relevantly states in respect of the lighting issue, “The lighting of the common property was upgraded as the existing lighting was causing continual problems and over sixty light bulbs had blown during a twelve month period prior to the necessary work being carried out.”

D and M Silingardi have given further details about the matter in their submission, “Referring to the Lights were NOT UPGRADED as stated. There was a problem, like the old saying, just a matter of time before someone gets electrocuted. A committee member rang the manager, discussed the dangerous problem, in which Carol came to our place and some Committee members discussed the problem, which was agreed to attend the matter urgently. In which the manager got quotes. ? electricians came to inspect the complex, was amazed our Residents lived in such a dangerous conditions, wiring all rusted through and water pouring in the lights. He lights were rewired and changed to fluorescence light bulbs, in which there have been no more problems.”

The applicant has replied to the submission of D and M Silingardi as follows, “I will not dispute however that the condition of the preexisting lights may have been a cause of real concern, but wonder why no other submission from committee members did not attest this to be the case... My concern is that the safety condition of the lights was not determined until after the decision was taken to upgrade them.”

I note a submission from Mr Smith on application 460-2000 wherein he states, “Alterations to gardens, replacement of lights, line marking of parking bays, etc, have all been proceeded with, only, after being approved at a meeting of the Body Corporate. All projects that have been implemented since I became Chairman have been within the financial limits of the Committee under the Body Corporate Regulations.” Minutes of these meetings have not been produced by Mr Williams or anyone else. I accept the applicant’s position that the expenditures detailed in the order sought were made without resolutions of the Committee or the Body Corporate in general meeting. However, I do accept that Mr Smith consulted with other Committee members about some of the expenditures. The expenditures are all within the relevant limit for Committee spending: see section 103 and the definition of relevant limit for committee spending in the Schedule Dictionary of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation).

Fencing

In respect of the expenditure on fencing, the applicant states, “The mode of construction of the fence reduces the security of my lot but does not significantly increase security to the common property and therefore should be removed. In addition the fence prevents ready access to council property behind my lot, causing considerable impediment when I need to clean up the fence line behind my lot.”

Mr Spearing states the following in his submission about the matter, “The Committee also decided to erect 1.8 metres of fencing as school children were using the hole in the fence a ‘short cut’ and were skateboarding and riding bicycles through the complex each school day.” The applicant replies to the submission by stating, “During the last 6 to 8 years, children may have used the ‘shortcut’ maybe 3 or 4 times a year, rode bicycles maybe 2 or three times a year and skateboarded maybe twice over the eight years. To my knowledge no damage was done, and none reported. The ‘hole in the fence’ was not a hole but a deliberate opening designed to allow proprietors access to council parkland.”

D & M Silingardi state in their submission, “As for the erection of the fence, Residents living on the complex had no security and lived in fear of Vandals, going through the complex on skateboards. With the back of the common area closed, We now have security and a little peace of mind. I believe The complainant has better security than before.”

The applicant replies to the submission of D & M Silingardi by stating that vandalism has not been a problem for the scheme and stating, “The fence does pose reduced security to my property as intruder can now more easily gain entrance to my unit by climbing this fence. It cannot provide more security to common property, as access is readily available via the front driveway.”

Trees

The applicant states that the Body Corporate had rejected a proposal to remove trees on common property at a general meeting held prior to June 1996.

Mr Spearing states in his submission, “The trees were removed as they were obstructing mail boxes and growing near powerlines. This work was completed nearly two years ago.”

The applicant states in his reply, “One tree, which existed before the mailboxes and power lines were installed, was at least two meters removed from the mail boxes and caused no obstruction to the mailman or proprietors. Other trees were more than two metres removed.”

Parking bay painting

No specific details are given about this matter in the application. The matter has not been addressed in the submissions or reply.

I will proceed to give my views about the issues raised in this application.

The evidence shows that Body Corporate funds have been expended without resolutions from the Committee or the Body Corporate in general meeting. This constitutes a contravention of the Act and Regulation. However, there is no evidence that funds have been expended in bad faith or for purposes unrelated to the operations of the Body Corporate. One of the problems in proceeding without appropriate authority is that the decision is not documented in minutes and published to owners. If it is a Committee decision owners lose rights they have pursuant to section 37 of the Regulation that 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 Body Corporate must in future properly authorise the expenditure of funds.

I do not intend to make any orders that the amounts of money expended as stated in the order sought have to be reimbursed. I am satisfied that the funds were expended in good faith and for Body Corporate purposes. In these circumstances, it would not be appropriate to make an order that they be repaid.




In respect of the fencing, it is necessary for me to weigh up the competing considerations and determine if the Body Corporate has acted unreasonably in erecting the fencing and consequently contravened sections 87 and 114 of the Act. The applicant has provided the following factors: 1. reduction in security as an intruder can stand on the fence and gain entrance to his unit; 2. loss of access to Council land; 3. difficulty in cleaning the fence line. I consider the reduction in security as the main factor. The main factor that would favour the retention of the fence is that it stops children and others from entering scheme land and causing a nuisance. However, I note the applicant indicates that this has not been a substantial problem. On balance, I am unable to find a contravention of the Act. I consider it was reasonable to erect the fence for the security of the entire scheme land.

I dismiss the application.