Belle Maison [2000] QBCCMCmr 87 (18 February 2000)

P J HANLYREFERENCE: 0769-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3862
Name of Scheme:	Belle Maison
Address of Scheme:	129 Surf Parade BROADBEACH QLD 4218

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

Dr Hugh Philip Avey, Mary Colbran, Frank Cassidy, Don Hamilton, William Geoffrey Allen, Veronica Ethel Allen, John Kelly, John Ryan, Rex Hogarth, Verner Mertens and Rhonda Hargans, the onwers or co-owners of lots 21, 22, 67, 95, 43, 79, 4 and 23 respectively

P J HANLYI hereby order that the application for an interim order that the body corporate be restrained from proceeding with the painting of all foyer walls in Belle maison levels 2 to 32 inclusive, until further order, is dismissed.

I further order that the application for an order declaring void a resolution purportedly passed at a meeting of the body corporate committee held on 6 December 1999 for the painting of all foyer walls in Belle Maison level 2 to 32 inclusive, being resolution reputed to have been adopted at a meeting of the body corporate committee held on 27 September 1999, is dismissed.2y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0769-1999

“Belle Maison” CMS 3862

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

An order declaring void a resolution purportedly passed at a meeting of the body corporate committee held on 6 December 1999 for the painting of all foyer walls in Belle Maison level 2 to 32 inclusive, being resolution reputed to have been adopted at a meeting of the body corporate committee held on 27 September 1999

The Applicants, have also sought the following interim order of an adjudicator, quote –

An order that the body corporate be restrained from proceeding with the painting of all foyer walls in Belle maison levels 2 to 32 inclusive, until further order

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 applicants provide an historical background to the application, and conclude by stating that they are concerned that those members of the committee (other than the dissenting members) who attended the committee meeting held on 6 December 1999 have allowed the residential (unit) manager to disregard the requirement of lot owners that foyer walls of which the overwhelming majority are in pristine condition, be not painted over, and secondarily that wasteful expense be not incurred.

The body corporate committee was invited to respond to the application. Responses were received from the chairperson and two other committee members, as well as from the resident manager. The two committee members stated that they believed the painting should proceed. The chairperson stated that, although he and another committee member had opposed the painting, they both believed that the committee process should be allowed to operate, and, on that basis, that the painting should proceed.

I note that the foyer painting was on the agenda of the Annual General Meeting held on 30 August 1999, but that the chairperson ruled the motion out of order as there were no supporting quotes for the owners to consider, and the matter was referred to the incoming committee. The matter was further considered at the committee meeting held on 27 September 1999, when it was further noted that only one quote had been received, and revised quotes on the basis of two coats of paint were required. It was further noted that, if the quotes were within the limit for committee spending, the matter could then be dealt with as a flying minute. At the committee meeting held on 6 December 1999 two quotes were available, and one of those quotes was within the limit for committee spending ($100.00 times the number of lots in the scheme i.e. $12,900.00). Accordingly, the committee resolved that the foyer painting should proceed, with Opat being the successful tenderer, at $12,400.00.

Although two committee members voted against this course of action, there were three committee members who voted for it. In the material which has now come to me, the chairperson, who was a dissenting voter, stated as follows:

As the chairman (and having discussed this with another committee member– Ms Franca Montegano) and as a member of the committee, we recognize that a committee process takes place at meetings– this includes voting on issues. As part of the committee we endorse this process. Personally, our two votes were not to proceed with the painting- having different opinions as to the scope of works. The committee as a group did vote in favour of the painting and as previously noted we endorse this process.

The committee is the administrative arm of the body corporate. The Act and the Standard Module specifically provide for the committee to make certain decisions on behalf of the body corporate. In this instance, the level of spending did not exceed the limit for committee spending. No-one has suggested that the committee meeting was not properly convened. The question of painting was one which the committee was entitled to consider. The committee had been provided with two quotes, and the lower quote was within the limits for committee spending. The vote on the painting was properly taken.

I note that the painting of the foyers has commenced, and is in fact almost completed. Even if this had not occurred, I would not have ordered that the foyers not be painted, and I do not propose to order that the remaining foyers not be painted. I also do not propose to order that the resolution passed at the committee meeting on 6 December 1999 is void, as I am satisfied that due process has been followed. The fact that there are a small number of owners who opposed the painting is not sufficient reason to overturn the committee decision, particularly as I have not been provided with evidence of any irregularity in that process.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision has disposed not only of the interim order as sought by the applicants, but also the final order.