Barbarella Gardens [2000] QBCCMCmr 95 (22 February 2000)

P G DanielsREFERENCE: 0678-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7134
Name of Scheme:	Barbarella Gardens
Address of Scheme:	111 Barbarella Drive SPRINGWOOD QLD 4127

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

Mrs Maureen Kent the owner of lot 8

P G DanielsI hereby order that the application for orders:

1.	For reimbursement of fund amounts as per application;

2.	To move my front gate as per application

is dismissed.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0678-1999

“Barbarella Gardens” CTS 7134

The applicant, Mrs Maureen Kent, the owner of lot 8, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	For reimbursement of fund amounts as per application;

2.	To move my front gate as per application.

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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The applicant has applied for two unrelated orders. I will deal with each separately.

1.	Speed bumps

From the information provided to me, the Committee resolved at a meeting on 4 September 1999 to expend $2000 to lower the speed bumps on scheme land.

The applicant forwarded a notice of opposition to the resolution. She states in the notice that a motion in respect of this matter was defeated at the Body Corporate’s Annual General Meeting on 18 August 1998. Subsequently, it was decided at an AGM on 20 March 1999 that the Committee would have a speed bump replaced as a trial and obtain a response from residents. I am uncertain as to whether this trial occurred.

The decision of the Body Corporate through its Committee to expend the money was within its powers. The Body Corporate has power to maintain and make improvements to the common property: sections 109 and 113 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation). The Committee can authorise spending up to the number of lots times $100: section 103 of the Regulation and definition of “relevant limit for committee spending” in the dictionary/schedule of the Regulation. The Committee limit for this scheme of 50 lots is $5000.

The decision was lawful.

I draw to the attention of the applicant that a Committee is prevented from carrying out a resolution where a notice of opposition is signed by or for at least half the lots included in the scheme: section 37 of the Regulation. The notice she forwarded, on its own, would not prevent implementation of the resolution.

2.

Gate

The applicant seeks an order that allows her front gate to be moved.

The applicant has provided few details in respect of this matter. A submission was made on this application by the body corporate manager on behalf of the manager and the Committee. It is stated in that submission that the applicant has been “...advised that if she wished to make changes to her courtyard entry, she would have to put a proposal and plan to the committee who would advise her from there.” The only information before me is that the applicant has not sought Body Corporate approval for the new gate.

The courtyard is part of the common property. The applicant has been assigned exclusive use of the courtyard in the by-laws for the scheme.

Section 124(3) and (4) of the Regulation provide under what circumstances an improvement may be made to an exclusive use area:

(3) If the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made.

(4) However, if the value of the improvement mentioned in subsection (3) is more than $200, the making of the improvement must be authorised by a special resolution of the body corporate.

The applicant will note that she requires the approval of the Body Corporate to construct a new gate on the courtyard. The Committee can grant the approval if the value of the gate is up to $200. If the value is greater than $200, a special resolution of the Body Corporate in general meeting is required.

I suggest that the applicant pursue the process provided by section 124(3) and (4) of the Regulation.

Conclusion

The applicant has provided documents that address many issues unrelated to the orders she seeks. I am not considering those unrelated issues in my reasons.

I dismiss the application.