Abraxas [2001] QBCCMCmr 56 (7 February 2001)

P J HanlyREFERENCE: 0624-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20279
Name of Scheme:	Abraxas
Address of Scheme:	Policemans Spur Road, CONONDALE QLD 4552

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

Anthony Neil Cannon and Dianne Maree Cannon, the co-owners of Lot 6



I hereby order that the application by Anthony Neil Cannon and Dianne Maree Cannon, the co-owners of Lot 6, for an order that the body corporate install speed bumps as agreed to at the Annual General Meeting held on 21 February 2000, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0624-2000

“Abraxas” CTS 20279

The applicants, Anthony Neil Cannon and Dianne Maree Cannon, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the body corporate install speed bumps as agreed to at the Annual General Meeting held in February 2000.

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 applicants state that the body corporate has not installed speed bumps as agreed at the annual general meeting. The applicants have included in the application a copy of the minutes of the annual general meeting (“AGM”) dated 21 February 2000. The minutes indicate the following:

Other Business

1.	Ongoing dissatisfaction was expressed very heatedly over the conduct of the tenants of Lot 7 concerning their behaviour regarding the use of the Common Area i.e. the road. Monitoring of cars is constant, as the speed limit is continually being broken, despite several signs having been erected. It was proposed that three speed bumps be placed to rectify the problem. Carried by the meeting.
2.	Because of the cost of the speed bumps and other outgoings for the year, the bank account will be in the red from March. It was decided that all lot holders deposit $200.00 each as this year’s contribution to the Sinking Fund.

A copy of the application was forwarded to the secretary for distribution to all members of the committee.

The Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") is the applicable regulation module for this scheme. The regulation module makes provision for elements of body corporate administration such as the committee, general meetings, financial management and insurance. The AGM to which the applicants have referred must be called and held in accordance with the Standard Module. The owners present at the AGM considered the issue of the speed bumps under “Other Business”. The secretary/treasurer, Mr Hindle has submitted that this matter was raised at the meeting but was not included in the agenda for the meeting. Section 52(5) of the Standard Module provides:
“A general meeting may pass a resolution on a motion only if the motion is—
(a) included as an item of business on the general meeting’s agenda;

and

(b) stated in the voting papers accompanying the notice of the meeting.”

It is clear that the matter concerning the speed bumps was not included on the agenda for the AGN, but was simply raised at the end of the meeting in general discussion. Therefore, any decision arrived at in this fashion cannot be subsequently relied on by an owner against the body corporate. Further, this decision does not authorise any specific work to be performed and is nothing more than a direction to be taken to rectify the speeding problem. For this reason, the application has been dismissed.

However, the body corporate (which consists of each owner of a lot in the scheme) has an obligation under the Act to control, manage and administer the common property reasonably and for the benefit of the lot owners. If there is a problem with the speed at which vehicles travel on common property, then the body corporate has an obligation to make proper decisions to ensure that the problem is eliminated or minimised. The installation of speed bumps on common property is an obvious measure to reduce speed. A decision concerning such an installation lies with the body corporate at a properly convened meeting with relevant motions on the agenda and, if necessary quotations to complete the work. Further, if the body corporate has not budgeted for this type of expenditure, then the body corporate will also have to consider fixing a special contribution to be levied on each lot owner to cover the approved cost.

The body corporate could also consider adding to or amending its by-laws to make provision for the use and enjoyment of common property. Any alterations to the by-laws must be made in accordance with the Act, and generally requires the adoption of a new Community Management Statement, which must be lodged with, and recorded by the Registrar of Titles. At present there is no evidence that the body corporate has added any by-laws in accordance with the Act.

If the body corporate or lot owners are uncertain of the management and administration requirements of the legislation, then I suggest that consideration be given to contacting the Information Service provided by the Commissioner on Freecall 1800 060 119.
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