La Porte D'Or [2001] QBCCMCmr 635 (20 December 2001)

REFERENCE: 0008-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4207

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

Donjen Pty Ltd, the owner of Lot 141


I hereby order that the application for the following orders:

“A. A declaration that the following resolution of the Committee for the Body Corporate made on 11 November 2000 is invalid and void;

“RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final direction is received from the Commissioner or any subsequent appeal”.

Further or in the alternative:-

B. That the carrying out of the Resolution referred to in sub-paragraph A be stayed until further or other order.

Further or in the alternative:-

C. That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph A and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

D. A declaration that the following Resolution Number 3 as contained in the Flying Minutes of the Committee for the Body Corporate dated 21 November 2000 is invalid and void;

“3. MINUTES DATED 11 OCTOBER, 2000 – ELECTRICTY TO GARAGE DOORS – RESOLVED. Not to accept payment for Electricity as per Page 3 – Paragraph (B)(4) as Resolution does not conform with Section 26 of the Body Corporate and Community Management Act 1977 (sic), copy attached, and that AM Strata Administration be instructed forthwith to reimburse any $20.00’s that may be received by the Body Corporate.”

Further or in the alternative:-

E. That the carrying out of the said Resolution Number3 referred to in sub-paragraph D be stayed until further or other order.

Further or in the alternative:-

F. That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph D and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

G. That the owners of the following lots, namely:-

(i) Lot 141 (car space 11)

(ii) Lot 161 (car space 10)

(iii) Lot 177 (car space 9)

(iv)Lot 179 (car space 1)

(v) Lot 180 (car space 2)

(vi) Lot 181 (car space 5)

be permitted to retain the electric garage doors installed in the respective car parking areas over which such lots have exclusive use and that the connection of same to the electricity supply of the Body Corporate be retained on the current terms and conditions and such other reasonable terms and conditions as may be imposed by the Body Corporate form (sic) time to time.

Further or in the alternative:-

H. All lot owners be permitted to install an electric garage door to the respective car parking area over which each lot holds exclusive use and connect same to the electricity supply of the Body Corporate on such reasonable terms and conditions as may be imposed by the Body Corporate from time to time”

is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0008-2001

“La Porte D'Or” CTS 12681

The applicant Donjen Pty Ltd, the owner of lot 141, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“A. A declaration that the following resolution of the Committee for the Body Corporate made on 11 November 2000 is invalid and void;

“RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final direction is received from the Commissioner or any subsequent appeal”.

Further or in the alternative:-

B. That the carrying out of the Resolution referred to in sub-paragraph A be stayed until further or other order.

Further or in the alternative:-

C. That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph A and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

D. A declaration that the following Resolution Number 3 as contained in the Flying Minutes of the Committee for the Body Corporate dated 21 November 2000 is invalid and void;

“3. MINUTES DATED 11 OCTOBER, 2000 – ELECTRICTY TO GARAGE DOORS – RESOLVED. Not to accept payment for Electricity as per Page 3 – Paragraph (B)(4) as Resolution does not conform with Section 26 of the Body Corporate and Community Management Act 1977 (sic), copy attached, and that AM Strata Administration be instructed forthwith to reimburse any $20.00’s that may be received by the Body Corporate.”

Further or in the alternative:-

E. That the carrying out of the said Resolution Number3 referred to in sub-paragraph D be stayed until further or other order.

Further or in the alternative:-

F. That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph D and procuring and assisting any person in the carrying out of same.

Further or in the alternative:-

G. That the owners of the following lots, namely:-

(i) Lot 141 (car space 11)

(ii) Lot 161 (car space 10)

(iii) Lot 177 (car space 9)

(iv)Lot 179 (car space 1)

(v) Lot 180 (car space 2)

(vi) Lot 181 (car space 5)

be permitted to retain the electric garage doors installed in the respective car parking areas over which such lots have exclusive use and that the connection of same to the electricity supply of the Body Corporate be retained on the current terms and conditions and such other reasonable terms and conditions as may be imposed by the Body Corporate form (sic) time to time.

Further or in the alternative:-

H. All lot owners be permitted to install an electric garage door to the respective car parking area over which each lot holds exclusive use and connect same to the electricity supply of the Body Corporate on such reasonable terms and conditions as may be imposed by the Body Corporate from time to time”

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)).

Interim Orders, Submissions and Related Orders

The issues raised in this dispute resolution application are closely related to issues raised in application 0582-2000, also made by the owner of Lot 141.

I have recently made the following orders in relation to application 0582-2000;

“I hereby order that the application for the following order;

“1. A declaration that motion 18 of the extraordinary general meeting to be held on 21^st October 2000 is invalid, and an order tha (sic) the chairperson of the extraordinary general meeting rule motion 18 out of order”

is dismissed.

I further order that within 1 month of the date of this order the owner of Lot 141, is required to remove at its expense the security camera and associated fittings installed outside of Lot 141 and to disconnect the security camera from any common property utility infrastructure.

I further order that the owner of Lot 141 must keep the security camera and associated fittings removed and disconnected from common property until such time as the applicant seeks and obtains proper body corporate approval for the installation.

I further order that motion 21 considered and passed at the extraordinary general meeting of the body corporate on 21 October 2000 relating to the applicant’s connection of a remote control device for a garage door, is invalid and of no effect.

I further order that the owner of Lot 141 may continue to have the remote control device connected to the body corporate power supply (provided that the device is maintained in an efficient operating state by the owner of Lot 141), until such time as the body corporate passes an equitable resolution regarding arrangements for owner’s use of body corporate electricity.”

A departmental adjudicator made an interim order in relation to application 0008-2001 in the following terms:

“I hereby order that the Body Corporate for La Porte D’Or community titles scheme 12681 must not until after 17 January 2001 remove or interfere with security cameras and monitors on scheme land.”

The same departmental adjudicator made a further interim order in relation to application 0008-2001 on 17 January 2001 dismissing the application for interim orders sought by the applicants.

The Commissioner for Body Corporate and Community Management invited the body corporate committee and the body corporate manager to make a written submission in response to the application.

The applicant has sought a number of final orders in application 0008-2001 which I will address below.


Security camera and security system

The applicant has sought the following orders identified as “A”, “B” and “C”:

“A. A declaration that the following resolution of the Committee for the Body Corporate made on 11 November 2000 is invalid and void;

“RESOLVED by the majority that the security cameras and monitors to be removed and placed into storage until a final direction is received from the Commissioner or any subsequent appeal”

Further or in the alternative:-

B. That the carrying out of the Resolution referred to in sub-paragraph A be stayed until further or other order.

Further or in the alternative:-

C. That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph A and procuring and assisting any person in the carrying out of same.”

From the supporting material lodged with the application, it appears that the main purpose of seeking the above orders was to ensure that the body corporate did not interfere with the security system until such time as an appeal of an interim order made in relation to application 0582-2000, and final orders in relation to 0582-2000 were finalised.

I understand that the appeal of interim order 0582-2000 was dismissed by agreement of the parties on 29 January 2001.

I have recently made the following orders in relation to application 0582-2000.

I further order that within 1 month of the date of this order the owner of Lot 141, is required to remove at its expense the security camera and associated fittings installed outside of Lot 141 and to disconnect the security camera from any common property utility infrastructure.

I further order that the owner of Lot 141 must keep the security camera and associated fittings removed and disconnected from common property until such time as the applicant seeks and obtains proper body corporate approval for the installation.

I consider that these orders address the applicants concerns regarding the installation of a security camera outside of Lot 141. The body corporate is entitled to make decisions regarding the components and use of the common property security system, provided those decisions are consistent with the Act.

As a result, I do not believe that it is necessary or appropriate to make orders in the terms sought by the applicant in paragraphs A, B and C at this time. Therefore I intend to dismiss the applications for orders A, B and C.


Payment for Access to Body Corporate electricity

The applicant has sought the following orders identified as “D”, “E” and “F”:

D. A declaration that the following Resolution Number 3 as contained in the Flying Minutes of the Committee for the Body Corporate dated 21 November 2000 is invalid and void;

“3. MINUTES DATED 11 OCTOBER 2000 – ELECTRICTY TO GARAGE DOORS – RESOLVED. Not to accept payment for Electricity as per Page 3 – Paragraph (B)(4) as Resolution does not conform with Section 26 of the Body Corporate and Community Management Act 1977 (sic), copy attached, and that AM Strata Administration be instructed forthwith to reimburse any $20.00’s that may be received by the Body Corporate.”

Further or in the alternative:-

E. That the carrying out of the said Resolution Number3 referred to in sub-paragraph D be stayed until further or other order.

Further or in the alternative:-

F. That all members of the Body Corporate, members of the committee for the Body Corporate, and Mr Vito Giorgio be restrained from the carrying out of the Resolution referred to in sub-paragraph D and procuring and assisting any person in the carrying out of same.

The above committee resolution declining to accept payment for electricity appears to relate to a decision of a previous committee on 11 October 2001, the minutes of which provide:

“(4) The owners of all apartments who have electricity connected to door opening devices in their car spaces be required to pay the sum of $20 per annum (in one payment) commencing 1^st December, 2000, it being estimated that such amounts will more than cover the cost of electricity consumed by such owners in respect of such door opening devices”

As outlined in more detail in my statement of reasons regarding order 0582-2000, I consider that allowing an owner access to body corporate electricity for private purposes is a privilege within the meaning of section 26 of the Standard Module. As such, it is a restricted issue for the committee and a matter that must be considered by the body corporate at a general meeting.

Section 26 of the Standard Module provides;

26. A decision is a decision on a restricted issue for the committee if it is

a decision—

(b) to change rights, privileges or obligations of the owners of lots

included in the scheme; or

I consider that the imposition of a condition on receiving a privilege, such as the payment of a fee, is an essential aspect of granting the privilege and therefore, logically, should also be considered by the body corporate at a general meeting. Further, section 26 also makes changing obligations of owners a restricted issue for the committee. I consider that imposing a requirement on owners to pay a sum of money for a service is imposing an obligation, therefore is a matter that should properly be considered by the body corporate at a general meeting.

In conclusion I believe that the committee did not have the statutory authority to decide to impose a fee for use of body corporate electricity on 11 October 2000. Therefore I consider that the committee’s decision on 21 November 2000 not to accept further payment for access to electricity is proper. I intend to dismiss the application for orders invalidating, and staying the committees’ resolution number 3 of 21 November 2000.

I would point out to the body corporate that it may be reasonable to impose a condition on owners who have the benefit of access to body corporate electricity, including the imposition of a fee. However, any such conditions should be approved by the body corporate at a general meeting and must apply equitably to all owners who have the benefit of the privilege.


Approval for specific owners to retain connection to common property electricity

The order sought by the applicant identified as “G” is as follows:

G. That the owners of the following lots, namely:-

(i) Lot 141 (car space 11)

(ii) Lot 161 (car space 10)

(iii) Lot 177 (car space 9)

(iv)Lot 179 (car space 1)

(v) Lot 180 (car space 2)

(vi) Lot 181 (car space 5)

be permitted to retain the electric garage doors installed in the respective car parking areas over which such lots have exclusive use and that the connection of same to the electricity supply of the Body Corporate be retained on the current terms and conditions and such other reasonable terms and conditions as may be imposed by the Body Corporate from time to time.

In order 0582-2000 I made the following order in relation to the owner of Lot 141 connecting a remote control garage door device to the body corporate electricity supply;

I further order that the owner of Lot 141 may continue to have the remote control device connected to the body corporate power supply (provided that the device is maintained in an efficient operating state by the owner of Lot 141) until such time as the body corporate passes an equitable resolution regarding arrangements for owner’s use of body corporate electricity.

There is no need for me to make a further order allowing the applicant access to body corporate electricity for the purposes of operating a remote control garage door device.

In the material before me by both the applicant and the committee state that the body corporate has previously given the other five lot owners listed above, approval to use the common property electricity. There does not appear to be a dispute in this regard, therefore I decline to make an order in respect of the remaining five lot owners.

As outlined previously, the body corporate may impose reasonable conditions on the use of body corporate electricity. The body corporate should ensure that any such conditions apply equitably to all owners who take advantage of the body corporate’s approval to utilise this service.

Therefore I intend to dismiss the application for order G.


Approval for all owners to make connections to body corporate electricity supply

The order sought by the applicant identified as “H” is as follows:

H. All lot owners be permitted to install an electric garage door to the respective car parking area over which each lot holds exclusive use and connect same to the electricity supply of the Body Corporate on such reasonable terms and conditions as may be imposed by the Body Corporate from time to time.

I do not intend to make an order in these terms, as sought by the applicant. If owners wish to connect a remote controlled garage door device to the body corporate electricity supply, they must seek the approval of the body corporate at a general meeting by special resolution.

However, I would emphasise that the body corporate must act in a reasonable and equitable manner in considering any requests, particularly given the fact that five owners have been given body corporate approval, and in light of the fact that I have ordered that the applicant can retain a connection subject to certain conditions, the reasons for which are outlined in my statement of reasons for order 0582-2000.

For this reason, I intend to dismiss the application for order H.