Aarons [2001] QBCCMCmr 286 (29 May 2001)

C G YOUNGREFERENCE: 0057-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11476
Name of Scheme:	Aarons
Address of Scheme:	3355 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Neville Arthur BREITKREUTZ, the owner of Lot 43,



C G YOUNGI hereby order that the body corporate committee must submit for the consideration of owners at the next general meeting of the body corporate, alternative motions for determination of a general policy regarding the sale of lots and “For Sale” signs, including –

(a)

a motion prohibiting the fixing of “For Sale” signs on the building or common property, in favour of fixing an “Open for Inspection” sign for not more than two (2) weeks (or such other period as the committee may determine) before an inspection date, to be removed immediately after the inspection period; and

(b)	a motion prohibiting the fixing of “For Sale” signs on the building or common property, in favour of the installation of a permanent bulletin board placed discreetly on common property, near or in the building foyer, which can accommodate small uniform notices showing lots for sale in the building,

though the committee may alter the detail of either of the above two motions so long as the substance and intent of each is maintained.

I further order that these, and any other alternative motions, are to be 2nshown together on both the agenda and voting paper as either consecutive motions or as alternative sub-motions within the one motion.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0057-2001

“Aarons” CTS 11476

The applicant, Neville Breitkreutz of Lot 43, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1. “Order to proceed more rapidly with relevant repairs and other works in this building and its surrounds.

2. I wish to reverse a decision made by the committee of the body corporate. This decision was to NOT allow Ray White Real Estate to erect a sign on my unit, as a means of selling it. (I attach supporting documents giving the reasons for which we need to sell the property).”

Section 223(1) of the Act 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 two distinct orders: firstly that the body corporate proceed promptly to implement its decisions to effect necessary repairs to the building; and secondly, that the committee’s refusal be overturned and the applicant Breitkreutz be allowed to place a “For Sale” sign on common property (presumably an external wall) adjacent to his lot.

Since the lodgement of this application, there have been significant developments within the scheme which bear on the issues subject of the application. I shall deal with each order sought in turn.

Building Repairs: This application was lodged showing the body corporate as respondent when the applicant was not a part of body corporate’s administrative arm, the body corporate committee. That situation has now altered. The minutes of the annual general meeting held on 17 April 2001 show the applicant was elected as an ordinary committee member, but since then has been appointed chairperson by the committee to fill a position for which no candidate nominated.

I understand that of the three persons elected to the committee, only two remain after the resignation of one of their number. As the minimum number of a committee is three, the remaining members should consider the alternatives available under section 23(3) and (4) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the “Accommodation Module”). I note also from the minutes that the previous Body Corporate Manager, Stewart Silver King & Burns (Gold Coast) Pty Ltd, withdrew from continuing their engagement with the body corporate - this decision also left no candidate for the positions of secretary and treasurer.




It appears that the points of concern raised by the applicant regarding the unsatisfactory state of the building, are substantially true. I understand that remedial orders have been issued against the body corporate by the relevant authorities to rectify defects regarding its fire safety, the building and the building’s electrical reticulation. I further understand that the committee is in the course of determining the extent of the building repairs necessary, and that an extraordinary general meeting will be held in the near future for owners to decide on some of the more urgent repair work.

As chairperson, the applicant is in a position to ensure that the full extent of the repairs necessary are disclosed to owners, expert opinions and tenders obtained, and remedial options put to owners for decision. In these circumstances I see no point in issuing an order for the body corporate to speed up the repairs – the applicant and the new committee will be largely responsible for the carriage of the matters to be put to owners. If owners do not respond by taking the required decisions, then the applicant may consider a further application in those circumstances.

“For Sale” sign. In the support of the second order sought, the applicant states that the sale will allow he and his wife to relocate to a ground level dwelling. This is necessary as both he and his mother-in-law, who will shortly be coming to live in the unit, both suffer from severe forms of arthritis and will have increasing difficulty in climbing stairs to the unit. He states that without a “For Sale” sign prominently displayed outside his lot, the lot will be harder to sell.

The by-laws for “Aarons” include as By-law 10.4 the following restriction on the display of signs, such as a “For Sale” sign, and the like –

“Appearance of Building.

The owners of lots shall not paint, affix or display any sign, advertisement, notices, posters, placards, banners or like materials to or on any part of the building nor do anything to vary the external appearance of their lots without the prior consent of the committee.”

At its meeting on 19 July 2000, the committee considered and rejected a request by LJ Hooker, real estate agents, to “install a large “For Sale” sign to advertise Units for sale within Aarons.” It went further to set the committee’s policy in respect of advertising lots for sale within the building by stating, “Any Real Estate Agents marketing Units may advertise the hours that the unit will be open for inspection but cannot install permanent signage. The open for inspection signs can be installed just prior to the open times and removed immediately following.”

Sometime prior to 10 March 2001, the committee, or one of its members, rejected a request by the applicant’s real estate agent, Ray White Real Estate, to erect a “For Sale” sign on the lot. On that date, Mrs Yvonne Breitkreutz wrote to the committee complaining of its, or one of its member’s, decision. At a meeting on 12 March 2001, the committee rejected a written motion of the applicant to allow placement of a sign. When doing so it referred to its policy of 19 July 2000. The voting was 4 against and one in favour.

The applicant is now on the committee, its chairperson in fact, but of course it is inappropriate for him to now participate in a decision on the matter (see “Conflict of Interest” section 32 of the Accommodation Module). Also given the state of the current committee, with only one other member, it seems to me that this matter should be resolved at the forthcoming extraordinary general meeting which is being called so that some building repair decisions can be made. The policy of the previous committee has been in place for some 10 months now and perhaps other decisions on requests have also been made in that time. In any case, while the applicant may wish to put his particular request to the meeting by way of a written motion, what would be of more general benefit to owners would be for the meeting to decide on continuing or changing the present policy. While I do not wish to influence owners, the placement of visible “For Sale” signs on lots in a high-rise building does detract from the building’s appearance, especially when there are a number of signs up at the same time which may raise adverse questions in the minds of those seeing them. Equally, owners should be able to have the use of as many aids as possible for selling their lot. There is a need for a balance between the needs of selling owners and owners generally. A satisfactory resolution of the competing interests is to be found in either the type of policy now in place or in a common “For Sale” board placed discreetly on common property, near or in the building foyer, which can accommodate small uniform notices of lots for sale in the building. At least these two alternatives should be put to owners, perhaps others if the committee or interested owners believe other alternatives should also be considered.

I have made my order accordingly.



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