Parkview Apartments [2001] QBCCMCmr 49 (2 February 2001)

P J HANLYREFERENCE: 0607-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8543
Name of Scheme:	Parkview Apartments
Address of Scheme:	17- 19 Munna Crescent NOOSA SOUND QLD 4567

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

Ian Costin, the owner of lot 3



I hereby order that the application for an order that the resolution passed at the annual general meeting on Monday the 4^th September 2000, to the effect that:-
“The body corporate consented to the owners of lot 4 erecting a fence and gate at the rear of their lot as a continuation of the existing garden fence extending to the rear of the building as indicated on the annexed plan “A” and that all costs associated with the erection of the fence and ongoing maintenance will be at the respective owners expense” be rescinded
is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0607-2000

“Parkview Apartments” CTS 8543

The applicant, Ian Costin, the owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the resolution passed at the annual general meeting on Monday the 4^th September 2000, to the effect that:-

“The body corporate consented to the owners of lot 4 erecting a fence and gate at the rear of their lot as a continuation of the existing garden fence extending to the rear of the building as indicated on the annexed plan “A” and that all costs associated with the erection of the fence and ongoing maintenance will be at the respective owners expense.”

be rescinded.

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)).

In the supporting grounds, the applicant states that the improvement was not minor, and should therefore have been decided by special resolution. The applicant further states that the plan was not in fact annexed to the meeting material, and therefore owners could not have made an informed decision in relation to the matter. The applicant expresses concern that if the resolution is allowed to stand, the gate will intrude into his exclusive use area; may damage cars; may devalue his lot and may cause problems with access to his exclusive use area.

The body corporate manager and all owners were invited to respond to the application.

The body corporate manager conceded that the plan was not annexed to the meeting material, and otherwise provided some historical background and a copy of the plan of exclusive use for the scheme.

The owner of lot 4 also responded to the application and provided photographs of the completed fence and the gate within that fence, noting that the gate now swings inwards towards lot 4 and not outwards as was originally intended. He also advised, amongst other things, that the cost of labour and materials for the fence and gate amounted to $550.00.

I have also been provided with the minutes of the annual general meeting held on 4 September 2000. I note that the owners of 4 of the 6 lots were present at the meeting, and the owners of the other 2 lots lodged voting papers. I also note that the applicant voted against the motion to consent to the erection of a fence and a gate at the rear of lot 4.

Section 114 of the Standard Module provides as follows:

ú

Improvements to common property by lot owner—Act, s 121

114.(1) The body corporate may, if asked by the owner of a lot, authorise

the owner to make an improvement to the common property for the benefit

of the owner’s lot.

(2) The improvement must be authorised by special resolution of the

body corporate unless—

(a) the improvement is a minor improvement; and

(b) the improvement does not detract from the appearance of any lot

included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the

authorised improvement is not likely to promote a breach of the

owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the

body corporate considers appropriate.

(4) The owner of a lot who is given an authority under this section 24 —

(a) must comply with conditions of the authority; and

(b) must maintain the improvement made under the authority in good

condition, unless excused by the body corporate.

A minor improvement is defined in the Schedule of the Standard Module as an improvement with an installed value of $200 or less.

Accordingly, the fence and gate were not minor improvements, and required authorisation by special resolution of the body corporate. However, although the motion may have been designated as an ordinary resolution, the voting was in fact sufficient to pass by special resolution, in accordance with section 98(3) of the Act, which provides as follows:

(3) The motion is passed by special resolution only if—

(a) the votes counted for the motion are more than the votes counted

against the motion; and

(b) the number of votes counted against the motion are not more than

25% of the number of lots included in the scheme; and

(c) the total of the contribution schedule lot entitlements for the lots

for which votes are counted against the motion is not more than

25% of the total of the contribution schedule lot entitlements for

all lots included in the scheme.

I am therefore satisfied that the motion was passed by special resolution as required by section 114.

I do not consider that the applicant has suffered any detriment by virtue of the plan not being annexed to the meeting material. He was present in person at the meeting, where considerable discussion took place concerning the proposed work, and two coloured photographs of the location of the proposed fence were shown to those present. The owner of lot 3 states that the applicant questioned several aspects of the proposal, but at no time did he state that he was unaware of any aspect of the proposal or that he did not understand any aspect of it.

Apart from the applicant’s concerns about the fence and gate not being minor improvements, with which I have already dealt, the remaining concerns expressed by the applicant relate to the gate swinging outwards from the fence. As the gate was ultimately constructed to swing inwards towards lot 4, these concerns are obviously no longer valid.

I have therefore dismissed the application.