Glenrowan [2000] QBCCMCmr 649 (12 December 2000)

P G DanielsREFERENCE: 0440-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	51
Name of Scheme:	Glenrowan
Address of Scheme:	271 Esplanade CAIRNS QLD 4870

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

Desmond Patrick Crowe the owner of lot 1

P G DanielsI hereby order that the following resolution of the Body Corporate for Glenrowan community titles scheme 51 passed at an extraordinary general meeting on 10 July 1998 and that is recorded in the minutes of the meeting as follows is invalid and of no effect, “Intercom Unit 1 The meeting noted that Affordable Touches did not carry out work to connect unit 1 to the intercom system. Affordable Touches have now advised the Body Corporate that the Warranty is now void, therefore, the owner of unit 1 is to be advised to rectify and pay costs in accordance with the precedent set, with an inspection of the installation to be carried out by Affordable Touches at the owners expense.”

I further order that the following resolution of the Body Corporate for Glenrowan community titles scheme 51 passed at an annual general meeting on 25 June 1999 and that is recorded in the minutes of the meeting as follows is invalid and of no effect, “Unit 1 Intercom – Ordinary Resolution (Proposed by the committee) RESOLVED THAT the owner of Unit 1 pays the amount of $482.00 for the installation of his intercom, this amount being the same as already paid by the other eight unit owners. The amount to be paid direct to Affordable Touches, the contractor who installed in the intercom in units 2-9 inclusive and has the ongoing responsibility for service and maintenance of the system.”

I further order that the owner of lot 1, Desmond Patrick Crowe, must within 28 days of the date of this order pay to the Body Corporate for Glenrowan community titles scheme 51 $160.00.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0440-2000

“Glenrowan” CTS 51

The applicant, Desmond Patrick Crowe, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

That motion (11) at AGM 25/6/99 and minutes regarding the same at extra special AGM 10/07/98 be withdrawn.

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)).

This application relates to the installation of an intercom system for the benefit of all lots. The applicant was the last owner to connect to the system. The cost of his connection was lower than other owners. The background is as follows.

The chairperson, M.J. Storrs and Secretary, R.H. Stone, have made a joint submission in which they relevantly state:

“In late 1996, in order to enhance security & with the concurrence of the owners at the previous Annual General Meeting (AGM), a fence with sliding vehicular gate & locked pedestrian gate was erected along the front boundary of the GLENROWN property at a cost of around $9500. At the time, there were insufficient funds in the sinking fund to install an intercom at the gate. The lack of an intercom caused problems, particularly for those units furtherest from the gate & accordingly, at the 1997 GLENROWAN AGM, a motion proposing the installation of an intercom system was tabled. However, although five owners voted for the motion, it was defeated with Mr Des Crowe of unit 1 the only 1 voting against.

.........

The majority of owners saw the installation of an intercom system as a high priority & the owners of units 2, 3, 4, 5, 6, & 8 then decided to go ahead at their own expense to install a system to their units with the owner of units 7 & 9, although happy for the installation to proceed, declining the offer ...Six quotes were received with the one from Affordable Touches at $482 per unit by fax the cheapest & the only one to fulfil the requirement that all wiring be run internally. The quote was accepted & system installed in July 1997 with units 7 & 9 subsequently being connected by the end of that year at the same cost as those six units already connected. This left Mr Crowe’s unit 1 as the only unit not connected to the intercom system.”

The Body Corporate passed the following three resolutions at its annual general meeting on 22 May 1998:

“Intercom

(Proposed as a motion for an Ordinary Resolution by M Storrs Unit 2)

RESOLVED THAT the Body Corporate retrospectively approve the installation of intercom systems to units 2, 3, 4, 5, 6, 7, 8 & 9 and give approval to any subsequent installation”

Intercom

(Proposed as a motion for an Ordinary Resolution by M Storrs Unit 2)

RESOLVED THAT proprietors of units 2-9 inclusive donate these intercom systems to the Body Corporate which then agrees to assume responsibility for same

Intercom

(Proposed as a motion for a Special Resolution by D Crowe Unit 1) RESOLVED THAT unit 1 connect to intercom system with switch to open gate. Unit 1 will pay cost. Equipment to become property of Body Corporate.”

The Body Corporate resolved to assume responsibility for the intercom system and provided for the applicant to connect to the system.

The applicant subsequently connected to the intercom system. Starr Electrics performed the work for $322. All other owners were connected to the intercom system by Affordable Touches at a cost $482 each.

The minutes of an extraordinary general meeting on 10 July 1998 state as follows under the heading Business Arising:

“Intercom Unit 1

The meeting noted that Affordable Touches did not carry out work to connect unit 1 to the intercom system. Affordable Touches have now advised the Body Corporate that the Warranty is now void, therefore, the owner of unit 1 is to be advised to rectify and pay costs in accordance with the precedent set, with an inspection of the installation to be carried out by Affordable Touches at the owners expense.”

The next development occurred at an annual general meeting on 25 June 1999. The Body Corporate resolved as follows:

“Unit 1 Intercom – Ordinary Resolution

(Proposed by the committee) RESOLVED THAT the owner of Unit 1 pays the amount of $482.00 for the installation of his intercom, this amount being the same as already paid by the other eight unit owners. The amount to be paid direct to Affordable Touches, the contractor who installed in the intercom in units 2-9 inclusive and has the ongoing responsibility for service and maintenance of the system.”

The following resolution lapsed as a result of the above resolution passing:

“Unit 1 Intercom – Ordinary Resolution

(Proposed by the Committee) THAT the owner of unit 1 pays the amount of $231.25 in accordance with section 119 of the Body Corporate and Community Management (Standard Module) for the installation of his intercom this amount being for the cost for call station, trenches, wiring and exit button shared amongst all nine units and already paid by units 2-9 inclusive. The amount to be paid direct to Body Corporate for Glenrowan for reimbursement to Affordable Touches, the contractor who installed the intercom in units 2-9 inclusive and has the ongoing responsibility for service and maintenance of the system.

MOTION LAPSED”

The applicant has received an invoice from the body corporate manager, Cairns Body Corporate Management Pty Ltd (CBCM), requiring payment of the $482. He has also received a letter from CBCM dated 14 July 2000 in which it is indicated that legal action would be commenced if payment is not made.

The submission of the Chairperson and Secretary relevantly state the following about the Body Corporate’s resolutions, “Starr Electrics would of course have been able to connect Mr Crowe’s unit cheaper than Affordable Touches as the infrastructure already in place (call station at gate with Perspex weather shield, digging of trenches to run wiring, running wiring throughout building via existing conduit & provision of an “Exit” button at the main building’s main entrance) had been allowed for in the original quote and had to be shared by all the units whether originally or subsequently connected. These costs were reflected in the cost of installation per unit based on the assumption that all nine units would eventually be connected to the system & this was borne out by units 7 & 9 paying the same as the original six units when they were connected subsequent to the original installation.
...
... the Body Corporate committee proposed a motion at the 1999 AGM that Mr Crowe pay the amount of $482 towards the intercom with an alternative motion that he pay the sum of $231.25 for the communal infrastructure costs as advised by Affordable Touches. The former motion was the committee’s preferred option as the precedent for the cost of subsequent connections had already been established by units 7 & 9. The committee’s preferred option was passed with five owners voting for it & one owner voting for the second motion. The owner of units 7 & 9 supported the motions (copy of letter attached) but didn’t attend the AGM or furnish a voting paper. In other words, all the other seven owners were in agreement that Mr Crowe should make some contribution towards the intercom.”

The Chairperson and Secretary indicate that the Body Corporate has paid Affordable Touches a further $482. The Body Corporate seeks reimbursement of that amount from the applicant.

The above sets out the background to this matter. I will progress to my adjudication.

The first matter that needs to be addressed is whether I should waive the requirement that this application be brought within 3 months of the meetings on 10 July 1998 and 25 June 1999. The application was not made until 11 August 2000. The 3 month rule is provided by section 193 of the Act as follows:

Time limit on certain applications

193.(1) This section applies to an application for an order declaring

void—

(a) a meeting of the committee for the body corporate, or a general

meeting of the body corporate; or

(b) a resolution of the committee or body corporate; or

(c) the election of an executive or other member of the committee.

(2) The application must be made within 3 months after—

(a) if subsection (1)(a) applies—the meeting; or

(b) if subsection (1)(b) applies—the meeting at which the resolution

was passed or purported to be passed; or

(c) if subsection (1)(c) applies—the meeting at which the executive or

other member was elected.

(3) However, if the making of the application does not comply with

subsection (2)—

(a) the commissioner must deal with the application (including

making a case management recommendation for the application)

as if the making of the application complied with subsection (2);

and

(b) an adjudicator to whom the application is referred for specialist or

department adjudication may, for good reason, waive the

non-compliance.

It will be observed that an adjudicator can waive compliance with the 3 month rule for good reason.

In the appeal of Weeks v. Commissioner for Body Corporate (Maroochydore District Court Appeal 13/99) Judge Dodds made the following statement about section 193 at pages 4 and 5 of the judgment:

“... the objects of the Act, for instance section 5(a) and (h) militate against too strict or legalistic a view about good reason for waiving non-compliance with the time limit. What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought. The applicant, being the person seeking a waiver, will have the task overall of satisfying the adjudicator that the time limit should be waived in all the circumstances.”

I will apply the reasoning of Weeks to this matter.

The delay has been substantial. Over a year since the 1999 AGM and over two years since the 1998 EGM. The applicant states a reason for the delay. The applicant has been addressing allegations of discrimination with the Body Corporate. The applicant states he was unable to attend the 1999 AGM and 1998 EGM as the venues chosen were not wheelchair accessible. The effect of the delay on others will be minimal. As will be discussed below, I find that the applicant is entitled to relief.

In all the circumstances, I find that good reason exists to waive compliance with section 193.

I will consider the merits of the matter.

In my view it was unreasonable of the Body Corporate to resolve that the applicant pay $482. The Body Corporate has contravened sections 87 and 114 of the Act. The applicant has already paid $322. The applicant was not obliged to use Affordable Touches. That was not a requirement of the resolution passed at the AGM in 1998 that provided for the applicant to connect to the intercom system.

I will invalidate the relevant resolutions made at the 1998 EGM and the 1999 AGM.

However, I am of the view that the applicant should make payment toward the infrastructure that was already in place at the time he connected. The chairperson and secretary state that the cost of the communal infrastructure as advised by Affordable Touches is $231.25. I am required to make an order that is just and equitable: section 223 of the Act. I have decided to require the applicant to pay the difference between the amount he paid, $322, and the amount paid by other owners, $482. That is an amount of $160. I will give the applicant 28 days to pay the amount. In my view, the applicant can be required to pay that amount pursuant to section 119(3) of the Regulation. I will set out section 119 in full:

Supply of services by body corporate—Act, s 120

119.(1) The body corporate may supply, or engage another person to

supply, utility services and other services for the benefit of owners and

occupiers of lots, if the services consist of 1 or more of the following—

(a) maintenance services, which may include cleaning, repairing,

painting, pest prevention or extermination or mowing;

(b) communication services, which may include the installation and

supply of telephone, intercom, computer data or television;

(c) domestic services, which may include electricity, gas, water,

garbage removal, airconditioning or heating.

Example—

The body corporate might engage a corporation to supply PABX services for the

benefit of the owners and occupiers of lots.

(2) The body corporate may, by agreement with a person for whom

services are supplied, charge for the services (including for the installation

of, and the maintenance and other operating costs associated with, utility

infrastructure for the services), but only to the extent necessary for

reimbursing the body corporate for supplying the services.25

(3) In acting under subsections (1) and (2), the body corporate must, to

the greatest practicable extent, ensure the total cost to the body corporate

(other than body corporate administrative costs) for supplying a service,

including the cost of a commercial service, and the cost of purchasing,

operating, maintaining and replacing any equipment, is recovered from the

users of the service.

I have ordered accordingly.