MacGregor Court [2001] QBCCMCmr 434 (8 August 2001)

RA MeekREFERENCE: 0283-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20309
Name of Scheme:	Macgregor Court
Address of Scheme:	19 Delfin Drive MACGREGOR QLD 4109

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

Averil Adele Gibson, the co-owner of lot 4

RA MeekI hereby order that the application by Averil Adele Gibson, the co-owner of lot 4, for an order that the decision of the AGM 5/8/00 to install a Colorbond fence as a replacement for a brush fence be overturned, is dismissed. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0283-2001

“Macgregor Court” CTS 20309

The applicant Averil Adele Gibson, the co-owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I seek to have the decision of the AGM 5/8/00 to install a Colourbond fence as a replacement for a brush fence overturned. (The lapse in time is due to the necessity to await the decision of the commissioner as to whether the fence replacement constitutes improvement of maintenance. That decision was given on 1.3.01 and respected).

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)).

On 1 March 2001, I made the following order in respect of an application made by William James Gibson and Averil Adele Gibson, the owners of lot 4.

RA MeekI hereby order that the application by William James Gibson and Averil Adele Gibson, the owners of lot 4, for an order to invalidate a reolution carried by ordinary resolution at the AGM of the body corporate held on 5 August 1999 to the effect that the body corporate was authorised to proceed with the erection of a Colorbond fence, is dismissed

I further order that the body corporate of Macgregor Court is entitled to implement the terms of the resolution numbered 7 (headed “Boundary Fence Replacement) as carried at the AGM of the body coprorate held on 5 August 2000.

The applicants had sought an order to invalidate a reolution carried by ordinary resolution at the AGM of the body corporate held on 5 August 1999 to the effect that the body corporate was authorised to proceed with the erection of a Colorbond fence.

In my statement of reasons for decision, I concluded as follows –

The resolution in question (numbered 7 at the AGM held on 5 August 2000) is as follows –

It was resolved that the fence replacement be carried out without further delay in accordance with the decision of Motion 2, Agenda Item 4 of the EGM of 8 April 2000 subject to a variation in cost to the current time of $10373 plus GST. (Yes 7, No 5, Abstain 0)

There was a further motion considered at the meeting (motion 8) that the existing brushwood fence be replaced by one of material which complies with the building guidelines for Macgregor Court. This motion was put to the meeting and lost, with five in favour and seven against.

In a submission, the body corporate manager has sought to clarify the use of the term “improvement” in his correspondence to owners. He states that –

The letter contains an error ... it should have read “a maintenance matter”.

An argument over semantics will not be determinative of this application. The erection of a new fence is either an improvement requiring a special resolution under section 113 of the standard module, or alternatively, is maintenance required of the body corporate under section 109, which requires only an ordinary resolution, or majority vote of the owners in general meeting.

I consider there is no dispute that the existing brush fence is in need of replacement. It is rotting at the bottom, and this is causing it to drop below its former height. As well, it is becoming thin in places, and the roll at the top has now disappeared. The existing fence is of brushwood, and the proposed fence is “manufactured from Colorbond pre-painted steel or zincalume steel (with) steel lattice ... powder coated to match the colorbond colour” to quote from the brochure supplied to me at the inspection.

Owners who are opposed to the order sought by the applicants have indicated that the choice of wording in the minutes should not be construed literally. I have already indicated that the application will not be determined on semantics.

Another owner states –

... the fence we intend building is not an additional item but only a replacement for what already exists. In my opinion, it does not require a special resolution.

A number of owners have suggested that a precedent has already been established regarding the matter in question. Some time ago the body corporate apparently resolved by ordinary resolution to replace a former wooden fence with power coated metal fencing along the front entrance to the complex.

I consider that the motion to replace the existing brushwood fence with a colorbond steel fence required only an ordinary resolution. I consider that the matter is one of maintenance only, and not improvement of the common property, as alleged by the applicants. “Improvement” normally denotes something which is new, or not formerly existing. Where is it the replacement of something which is already in existence, then I suggest that the issue is most likely one of maintenance, and the onus is very much on the person alleging improvement to make out a case for this. I do not consider that applicants have evidenced such a case.

It would be an unintended restriction on the body corporate’s obligation to maintain the common property under section 109 to require the body corporate to only maintain common property in the existing or original manner, method or product. In my view, a body corporate is entitled to determine, at the point in time when maintenance is required, the preferred method of maintenance. In this case, the body corporate has elected to replace the existing fence with a different style of fencing. Notwithstanding this, the end result is a fence, which serves the same purpose.

As well, this body corporate has at least five different styles of fencing on its various boundaries. These various fencing styles are -

• Brick and concrete insert;

• Brick and timber insert;

• Chain and barbed wire;

• Tubular metal;

• Brushwood fence.

This fact also evidences to me that this is maintenance only. I suggest that there is no definite or even predominant style of fencing within this body corporate. Rather the fencing appears to be quite ad hoc. Given this, for the body corporate to now select a different style of fencing is not a departure from an existing predominant style of fencing, since I consider there is none.

I now turn to consider a secondary matter which arose at the time of the inspection. It seems that one owner, though not opposed to the proposed style of fencing per se, nevertheless considers that along the length of the tennis court adjoining the common property, the height of the fence should equal that of the timber paling fence which has been erected by the adjoining owner.

I acknowledge that this is not part of the application proper. However I want to indicate some thoughts on the issue with the view to avoiding any potential future dispute.

At the inspection, when this issue was discussed, it seems that there were two proposed solutions. The first was to increase the height of the proposed fence along the entire length of the boundary. This proposal was almost universally rejected by those present, particularly for the reason of cost. The second proposal was to “step up” the proposed fence along the length of the tennis court. Whilst it was difficult to get a clear indication, it seemed to me that of those owners available at the inspection, the clear majority did not support this proposal either.

Whilst I am not deciding this matter, since it was not raised in the application proper, I have formed the view that the detriment to the owner of the lot in question if the proposed fence were to be erected slightly lower in height than the adjoining timber paling fence is not significant. I would not consider the aesthetic impact of a small part of the adjoining fence line being visible to be so detrimental to the owner in question, that the owner might reasonably be entitled to relief by way of a favourable order of this office. Additionally, that owner would also have to consider the provisions of section 193 of the Act which impose certain time limitations on applications, should he now seek to make application regarding this aspect.

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The resolution which the applicant again seeks to invalidate as carried at the AGM held on 5.8.00. Section 193 of the Act provides that an application to invalidate a resolution must be made within 3 months of the meeting in question. The section further provides that, in respect of an out of time application, the adjudicator may, for good reason, waive the non-compliance.

The present application was received on 8 May, 2001, in excess of 9 months after the date of the relevant meeting. The applicant claims as her reason for non-compliance with section 193 that her delay was “due to the necessity to await the decision of the commissioner as to whether the fence replacement constitutes improvement of maintenance”. However that decision was made on 1 March, 2001, and the current application not made until 3 May, and received by this office on 8 May. Even if the claimed reason for delay was considered reasonable, which I consider it is not, there is still a further two month delay which the applicant does not explain. The application is some 9 months after the date of the meeting; the time limitation is 3 months.

Further, I consider that there was nothing whatsoever to prevent the applicant from raising her current allegations “in the alternative” in the original application. The applicant simply could have extended her grounds to the original application with the statement –

In the event that the replacement of the fence is deemed to be maintenance, then I further contend that the resolution is invalid for the reasons that ...

I do not consider that there is good reason for waiving the applicant’s non-compliance with section 193. I consider that the applicant is simply not willing to accept the decision of the majority of members of the body corporate on the issue of the replacement of the fence, and that this current application is simply an attempt to delay or prevent the replacement of the fence. I intend to dismiss this application.