Queen High [2001] QBCCMCmr 378 (11 July 2001)

RA MeekREFERENCE: 0423-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13271
Name of Scheme:	Queen High
Address of Scheme:	91 Queen Street SOUTHPORT QLD 4215

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

Jason Campbell McGifford, the owner of lot 4


RA MeekI hereby order that the application by Jason Campbell McGifford, the owner of lot 4, for an order to stop work on unit 3 in Building, Queen High from Tuesday 10 July 2001, is dismissed.

I further order that the body corporate is authorised to proceed to implement the motion headed “Urgent Building Repairs” as resolved at the general meeting held on 6 July 2001, subject to the statements set out in the Adjudicator’s reasons for decision.

I further order that the resolutions headed “Special Levy” and “Termite Inspection” purportedly carried at the general meeting held on 6 July 2001, are invalid and of no effect.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0423-2001

“Queen High” CTS 13271

The applicant Jason Campbell McGifford, the owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Stop work on unit 3 in Building, Queen High from Tuesday 10 July 2001.

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 21 days notice of the meeting was not given and that the spending is in excess of the body corporate’s limit for major spending and requires two quotes pursuant to section 104 of the standard module. The applicant had sought an interim order to stop the work which was anticipated to commence on Tuesday 10 July 2001.

The applicant has attached a copy of the notice of meeting. It is clear that only two clear days notice of the meeting was given, and further that only one quote was provided to the meeting to support the resolution that “the work must be carried out as a priority”. There were three owners in attendance at the meeting, and a fourth apparently called following the meeting to advise that “he was fully in favour of the resolutions”.

On the face of it, the applicant is entitled to the relief sought, on both bases he has set out. However, given the urgent circumstances, surrounding the application, I was concerned that such an order, whilst technically correct, might not provide a “just and equitable” resolution of this dispute.

Given the urgency associated with the application, I contacted the secretary and body corporate manager, Kim Elliott by phone to discuss the application. I was advised by Ms Elliott that –

• The body corporate had sought to obtain 3 quotes, but that two of the contractors who came to inspect the site, refused to give a quote and were not interested in the work;

• The quote from Keith Henry P/L was the only quote which could be obtained prior to the meeting;

• The meeting was called at short notice due to the urgency of the circumstances;

• The secretary had been approached by the owner of lot 3 (the affected lot) in a distressed state. The damage had been discovered in consequence of a routine plumbing service. The damage affects the lot’s bathroom, and the owner is currently without shower facilities;

• The damage affects a load bearing boundary wall between lots 3 and 4;

• Since the meeting, a second quote for the work has been obtained. A copy of both quotes have now been provided to me, and I note that the second quote is for the amount of $4600 for the work.

The options available to me are to make an interim order preventing the work from proceeding, either absolutely, or at least until I have the benefit of a written submission from the respondent, or alternatively, to dismiss the application herein, and to allow the work to proceed. In the circumstances, I intend to allow the work to proceed. Whilst I acknowledge that clearly the secretary did not comply with the requirements of the legislation, there were compelling reasons for this. Moreover, I am satisfied that to not allow the work to proceed will cause significant hardship to the owner / occupier of lot 3, in circumstances where there is no doubt that the body corporate is responsible for the work, and will be required to undertake rectification of damage to the wall. In these circumstances, and given that the body corporate did in fact obtain two quotes, both of which have been provided to me, I intend to order that the rectification work to the wall be allowed to proceed.

I note that it is possible that the quote by Keith Henry might blow out, so to speak, depending on the level of damage requiring rectification. I consider that if this is so, then the committee are empowered to expend up to a further $800 dollars. Beyond this level of expenditure however, there will be no authority, and in the circumstances, I am not prepared to grant a general authority to the body corporate. The body corporate is therefore limited to the amount of the quote accepted, plus $800 if further expenditure is required.

I note that the meeting resolved two further motions. The first to raise a special levy and the second to undertake a complete termite inspection of the building. Whilst these resolutions might be relevant to the present circumstances, neither is so urgent that it cannot wait the calling of a meeting of which proper notice is given to owners. I therefore intend to invalidate the resolutions headed “Special Levy” and “Termite Inspection” as carried at the meeting held on 6 July 2001.



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