Centre Court [2001] QBCCMCmr 429 (6 August 2001)

C G YOUNGREFERENCE: 0173-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12171
Name of Scheme:	Centre Court
Address of Scheme:	32 Musgrave Street KIRRA QLD 4225

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

John JACK and Kathleen Adele JACK, as the co-owners of Lot 23,



C G YOUNGI hereby order that the application for an order that -1y

(a) The motions submitted by them but not dealt with at the annual general meeting held on 28 November 2000 before the meeting was closed, should be dealt with at a further general meeting.

(b) The body corporate inform them of the authorisation for the installation of the swimming pool cleaning and evacuation system.

(c) That the body corporate refusal to allow them to erect an enclosure on their allocated car space, Space 29, be overturned and an enclosure similar to others already installed, be approved.

(d) That the body corporate takes steps to obtain the outstanding contributions from Con and May Kyprios,

is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0173-2001

“Centre Court” CTS 12171

The applicants, John and Kathleen Jack of Lot 23, have submitted an application in narrative form from which it is difficult to ascertain exactly what orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), are being sought. I note that on 21 March 2001 the office wrote to the applicants advising them of this difficulty and asking them to specify the orders they are seeking. The response did not add greatly to the clarity of the application, however I also note that Mr Jack has recently suffered a heart attack and therefore I will attempt to determine the appropriate orders from the material submitted. I consider the orders sought can be put as follows -

1. The motions submitted by them but not dealt with at the annual general meeting held on 28 November 2000 before the meeting was closed, should be dealt with at a further general meeting.

2. The body corporate inform them of the authorisation for the installation of the swimming pool cleaning and evacuation system.

3. That the body corporate refusal to allow them to erect an enclosure on their allocated car space, Space 29, be overturned and an enclosure similar to others already installed, be approved.

4. That the body corporate takes steps to obtain the outstanding contributions from Con and May Kyprios.

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)).

I note that the body corporate committee, through its secretary Mrs E Armitage, has made a submission to the issues raised in the application. I also note that the applicants obtained a copy of that submission and have made a response to it. I will take both documents into account in determining this application.

I shall deal with each of the orders in the most convenient order.


4. That the body corporate takes steps to obtain the outstanding contributions from Con and May Kyprios.

Since making his application in March 2001, the secretary reports that all of the outstanding contributions were recovered from Kyprios on 25 May 2001 out of the proceeds of the sale of his lots.


2. 1y The body corporate inform them of the authorisation for the installation of the swimming pool cleaning and evacuation system.

The secretary has submitted a copy of the minutes of the committee meeting held on 7 August 2000. The secretary says that the filter system was old and unable to be repaired. With the chlorinator system inoperative, the chairperson (K Hawton) considered it essential for repairs to be carried out quickly and personally. The work was carried out at a cost of $1,723.

The minutes show that the treasurer objected to the chairperson’s action. It seems that the committee then resolved that, for non-urgent repairs, quotes would be tabled for the committee’s decision, while for urgent repairs, it allows they “still be arranged by and at the discretion of the Committee members responsible to arrange for repairs, without the need to seek two (2) quotes or consult with the Committee.” It seems, from the wording in the non-urgent situation, that the committee will be receiving quotes rather than initiating the process themselves. Then in the urgent situation it seems that one member will be able to select a repairer.

These are not matters the committee has any discretion in – the legislation sets out the procedures a committee must follow in making decisions, including repair decisions, in both urgent and non-urgent situations. Section 103 of the Standard Module regulations provides that the committee’s expenditure limit is $100 times the number of lots, that is, $3,000 in any one instance for “Centre Court” with 30 lots. Section 104 of the Standard Module then additionally requires that at least two quotes must be obtained where the expenditure is $200 times the number of lots ($6,000).

The regulations sets out the procedures which committees must follow for determining all matters – by simple majority decision of its members in meeting (or by flying minute) and not upon the decision and unilateral action of any member. Section 35(2) sets out more relaxed procedures (verbal contact and consent of committee members) where the matter is urgent so matters can be decided and acted upon quickly.

In this instance the chairperson acted wrongly in obtaining and selecting a repairer without reference to the committee – particularly so in the case of a chairperson whose duties begin and end during the conduct of a committee or general body corporate meeting. The urgent provisions should have been followed. However, I do not intend to disturb the action taken as the committee, by its later decision, has ratified the action taken. The committee should follow correct procedure in the future.


1. The motions submitted by them but not dealt with at the annual general meeting held on 28 November 2000 before the meeting was closed, should be dealt with at a further general meeting.

The applicants say that the three motions were hand delivered to Angel Garcia by Mrs Jack within days of receiving the notice of meeting. The committee has responded saying that it has never seen the three motions. The applicants say that Mr Jack spoke to the current Body Corporate Manager, Strata Title Management (Tweed Heads) Pty Ltd, about the unpresented motions and was informed that the records had been in a “shambles” when taken over from Garcia.

I have examined the three motions and make the following comments. One concerns the Kyprios arrears, which have since been paid, and therefore this motion is now irrelevant. One of the other motions asks the same question regarding the installation of the swimming pool filter and cleaning equipment as set out in (2) above, which the committee has addressed in its submission to this application, and which I have already examined and commented on. Accordingly, this motion is also now irrelevant.

The remaining motion actually concerns three matters – the installation of storage structures on car spaces, the need for the committee to act uniformly by rejecting an application to erect a structure on a car space as it had done in their case, and lastly, that the applicant’s car space is not where “we were advised to park our car” and that the “error be rectified”. This motion is not acceptable for the following reasons-

• It deals with more than one subject and therefore cannot be voted upon by a single yes or no as is necessary. Each subject area must be the subject of a separate motion.

• The motion does not give sufficient details for voters to make an informed decision. For example, what is the applicant’s car space? Which alternative car space are they claiming? Who advised them to park elsewhere? Where is the documentary and/or other evidence in support of the claim?

• The motion is in narrative and not motion form. A motion must clearly set out an action, for example, “that the body corporate restrict the installation of storage structures on car spaces to metal cages to be attached to the rear wall of the space, being of a type, size, colour and detail that the committee must first approve in each case”, or similar. The wording of the applicant’s motions are not in this format and do not permit of a yes/no answers as they must.

In summary, for the reasons given above, none of the motions are suitable for inclusion on the agenda of a general meeting. I therefore make no order that the body corporate should consider them at a future meeting as, I assume, the applicants require.


3. That the body corporate refusal to allow them to erect an enclosure on their allocated car space, Space 29, be overturned and an enclosure similar to others already installed, be approved.

The committee forwarded a copy of the minutes of its meeting held on 28 March 2000. It shows that the committee resolved that to avoid further dispute, all applications for the installation of structures in car spaces should be put to the annual general meeting. This was in response to Mr Jack’s correspondence regarding such enclosures. The committee states it told Mr Jack that he needed to put his application to the annual general for a decision by voting owners. He failed to do so. The committee also says that permission was given by owners at the meeting to another owner’s application – whether the one the applicants are referring to or not, is uncertain, though irrelevant.

The applicant’s contention that they were refused permission is therefore incorrect; they were informed that they should put their application to a general meeting. The committee is entitled to refer any matters in which it has discretion to the body corporate in general meeting for consideration and decision, rather than deal with the matter itself. I do not intend to interfere with that decision – the applicants should now put their application in proper motion form and submit it to the secretary for consideration at the next general meeting of the body corporate.

SUMMARY:

In discussing the space structures, the applicants have also briefly mentioned that their car space is not the space which their solicitor indicated was theirs. Their space is numbered 15 while they claim they were shown space 23, which corresponds with their lot number, by their solicitor. The applicants have expanded on this matter in their response, however, I do not intend to make an order in this matter because, (1) the matter was not properly put in issue in the application, (2) no evidence of the claim was submitted with the application (a plan copy was only submitted with the response allowing no other party to comment), and (3) because of (1) and (2), the owner using the claimed space has not had the opportunity to respond to the allegation. Accordingly, I do not intend to pursue this matter further here – if the applicants wish to put the matter for determination then they should make a further and separate application with full details of the matter.

For the forgoing reasons, I do not intend to make any orders in respect of the four matters raised by the applicants. I have therefore dismissed the application.