Telopea Gardens [2001] QBCCMCmr 154 (15 March 2001)

RA MeekREFERENCE: 0016-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21003
Name of Scheme:	Telopea Gardens
Address of Scheme:	16 Telopea Street LABRADOR QLD 4215

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

Dennis Philip Risdon, the owner of lot 17



RA MeekI hereby order that the application by Dennis Philip Risdon, the owner of lot 17, for an order that the imposition of interim gardens & maintenance surcharge levies be abolished and that all be restored rightly within one only annual general levy, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0016-2001

“Telopea Gardens” CTS 21003

The applicant Dennis Philip Risdon, the owner of lot 17, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the imposition of interim gardens & maintenance surcharge levies be abolished and all be restored rightly within one only annual general levy, as always before.

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)).

In the supporting grounds, the applicant states that “at ... AGM, the following proposal was addressed, followed soon after by an unspecified invoice demand for additional levy payment named “Special Consideration””.

The proposal in question was as follows –

Gardens and Maintenance

A proposal to prepare a general works programme each year. The cost of each project to be met by a special contribution per unit per job. The special contribution shall not be more frequent than once per 3 months.

This proposal was minuted to have been “passed unanimously”.

The applicant claims that such provision is “considered to be entirely unnecessary, irregular and a repetitive burden upon members, especially of lesser income resource. ... Over the past two years, considerable and unaffordable over expenditure has been suffered already from supposed garden upgrading”.

The applicant did not mention that the proposal which he seeks to invalidate was carried at the AGM of 29 November 1999. The applicant did not attend this meeting, however 10 of the 18 owners were personally in attendance, and two others were represented by proxy.

There is a time limitation of three months on any application to invalidate a resolution carried either at a committee or general meeting of the body corporate (see section 193 of the Act). The application was not made until some 13 months after the resolution in question was passed. An adjudicator may for good reason waive the non-compliance with the 3 month time limitation.

In the circumstances, I intend to waive such non-compliance. My reason for this is that I am concerned that the resolution in question was carried in circumstances where its intended consideration was not notified to owners prior to the meeting. It is a requirement of the legislation that owners be given 21 days notice in writing of the meeting. The notice must include the agenda of the meeting. The agenda is a listing of the full text of all motions proposed to be considered at the meeting. The parties should refer to section 45 of the Standard Module for the requirements of the “Agenda for general meeting”.

Given that the issue of gardens and maintenance was raised under the heading “General Discussion”, then it seems to me that all owners were not notified in advance of the intention to consider this aspect at the meeting, and to pass a resolution regarding it. This is not in accordance with required procedures, as I have sought to explain above.

In considering what to do regarding this dispute, I have had regard to the several submissions made in respect of the application. The secretary / treasurer has responded in part that –

At the 1999 AGM was also gave consideration as to how we might meet further costs of any major project(s) that might be required. We were aware of the need to have several trees removed where roots were posing a threat to nearby units and one large palm also had to be removed. ... As our banking and expenditure on ongoing expenses was considered to be under control, it was decided that one-off expenditure be met by special contribution as par section 95(2) of the legislation. We did not want to further increase half yearly fees on an ongoing basis as there was no foreseen need for this level of income. We have had one special consideration of $20 and no further levies have been set at this time. ...

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Section 95(2) provides as follows -

95.( 2) If a liability arises for which no provision, or inadequate provision, has been made in the budget, the body corporate must, by ordinary resolution—
(a) fix a special contribution to be levied on the owner of each lot towards the liability; and
(b) decide whether the contribution is to be paid in a single amount or in installments and, if in installments, the number of installments; and
(c) fix the date on or before which payment of the single amount or each installment is required.

On the basis of the explanation provides by the secretary / treasurer, and corroborated by other owners who have made submissions opposing the application, I am satisfied that this body corporate has acted in reasonable compliance with the legislation. I further consider that the one off amount raised from each owner of $20 is not unreasonable, and that the same was raised to undertake required garden maintenance.

The approach the body corporate appears to be adopting is to not increase half yearly contributions generally, but rather to issue a special levy for specific projects as and when it is considered necessary to do so. This is a somewhat unusual approach, but is not in my view an unreasonable one. What the body corporate is saying is that it wants to keep regular contributions at their current level, and to deal with special circumstances by raising a one off contribution.

The evidence suggests, and the applicant’s statement at the conclusion of his grounds would seem to confirm, that the applicant is opposed to monies being expended on “supposed garden upgrading”. Contrary to this though, it is the clear view of a significant majority of owners that the maintenance undertaken in respect of the gardens has been both reasonable and necessary.

In the circumstances, I am not prepared to invalidate the resolution in question. However it should be considered as a statement of intent only. That is, it does not authorise the body corporate to raise any further special contributions in accordance with section 95(2), unless the specific requirements of that section have been complied with. In particular, the body corporate should resolve in general meeting, by ordinary resolution, to raise a special contribution to undertake a project specifically proposed.




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