Quontro [2002] QBCCMCmr 17 (15 January 2002)

RA MeekREFERENCE: 0466-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26695
Name of Scheme:	Quontro
Address of Scheme:	134 Alexandra Parade ALEXANDRA HEADLANDS QLD 4572

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

John Michael O'Grady, the co-owner of lot 5


RA MeekI hereby order that the application by John Michael O'Grady, the co-owner of lot 5, for an order that all matters, except emergencies, both financial and cosmetic, be fully discussed by all interested owners preferably at a properly constituted committee meeting, is dismissed for the reasons set out in the attached Statement of Adjudicator’s reasons for decision.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0466-2001

“Quontro” CTS 26695

The applicant, John Michael O'Grady, the co-owner of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That all matters, except emergencies, both financial and cosmetic be fully discussed by all interested owners preferably at a properly constituted committee meeting. No further undiscussed and unilateral decisions by the chairman. No further improvements to common property unless approved by body corporate.

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)).

In the supporting grounds, the applicant sets out a list of “changes to common property without permission” and “Unilateral decisions by the BC chairman”. I do not propose to restate these here. The applicant concludes his grounds with the statement –

This body corporate, where all owners are on the committee, has had only one committee meeting in over two years, and that was instigated by me.

This is a difficult application to resolve. Essentially, the applicant is not seeking an order regarding a specific matter in dispute, but rather, seeks to change certain aspects of this body corporate’s interaction for the future. In the circumstances, what I propose to do is to indicate provisions of the legislation which are relevant to the points alleged by the applicant. This is not to say that I accept that such allegations have been established. Rather, I intend to point out provisions which would have an impact on such aspects.

Firstly, the applicant has referred to “changes to common property”. It is firstly necessary to explain the relationship between the body corporate and its committee. The committee is the group of persons elected to oversee the day to day operation of the body corporate. The jurisdiction of the committee is specifically limited in a number of ways by the legislation. For example, a committee cannot resolve a matter which is a restricted matter (see section 26). Further, a committee is restricted to an expenditure limit determined by multiplying the number of lots by $100; in the case of this body corporate, 6 giving an expenditure limit of $600. Expenditure above this amount must be authorised by the body corporate in general meeting.
Further, a committee cannot resolve any matter which specifically requires a particular form or resolution under the legislation. For example, a motion to appoint a body corporate manager, or service provider can only be resolved by the body corporate, in general meeting, by ordinary resolution.

In relation to the issue of changes to the common property, I assume this refers to the making of what might be termed “improvements”. Improvements to common property are specifically dealt with in section 113 of the standard module.

ÿ
Improvements to common property by body corporate—Act, s 121
113. The body corporate may make improvements to the common property if—
(a) the cost of the improvements, or, if the improvements together with associated improvements form a single project for improvement of the common property, the cost of the entire project, is not more than an amount worked out by multiplying the number of lots included in the scheme by $250; or
(b) the improvements are authorised by special resolution;23 or
(c) an adjudicator, under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements.

From the section, the type of approval required will vary depending on the cost of the improvements. Improvements up to $100 per lot (ie. $600) can be approved by the committee. Improvements costing between $100 and $250 ($600 and $1,500) can be approved by the body corporate in general meeting, by ordinary resolution, and improvements costing more than $1,500 can only be approved by the body corporate in general meeting, by special resolution.

Without details of the cost, I am unable to say which form of body corporate authorisation was required for each of the alleged improvements.

I now turn to the more nebulous list headed “unilateral decisions by the BC chairman”. Again, it is difficult to comment specifically on each of the allegations, not only for the reason that the various allegations are quite general and unsubstantiated, but as well, to some extent they reflect the opinions of the applicant. In submissions to the application, other owners have stated views or opinions regarding these matters which are not in support, or at least whole heartedly in support, of the views expressed by the applicant.

The general allegation is that the chairperson has made certain decisions unilaterally. What I can comment on is the role of the chairperson within a body corporate. That role is a limited one; essentially it is to chair meetings of the body corporate. The chairperson does not have authority to make decisions unilaterally. Rather he or she makes decisions on behalf of the body corporate as a single member of the committee, who’s vote is equal to all other (individual) members of the committee (each member of the committee has a single vote). The chairperson is responsible to chair both committee and general meetings. At generally meetings, the chairperson has the right to rule certain motions out of order (see section 47 of standard module).

I intend to comment on two other allegations by the applicant. Firstly, that he has allegedly been told that “to be involved in any discussion, will have to be in residence”. This is not correct. At committee meetings, all members of the committee have the right to be involved in committee meetings, irrespective of whether they are resident or not. Moreover, at general meetings of the body corporate, all owners have the right to participate, provided they are financial (ie. all contributions outstanding have been paid by an owner at the time of a meeting). Again, the question of whether the owner is a resident or not is immaterial.

Finally, the applicant states that there has only been one committee meeting in over two years. I firstly need to clarify that “committee meetings” must be contrasted with general meetings of the body corporate. Whilst I cannot be certain, it seems that this body corporate operates through committee meetings. I do not know whether it is actually holding general meetings. The distinction is important. The committee are responsible to manage the body corporate on a day to day basis. More important issues however are determined by the body corporate in general meeting. There are a number of criteria for determining whether a committee meeting is required or rather a general meeting. I have given examples of some of these criteria above; however these are not exhaustive.

As to the question of frequency of meetings, the legislation specifically requires that the body corporate hold one Annual General Meeting per year. At each general meeting, the committee of the body corporate for the forthcoming year is elected. Beyond this, it is the committee, at its meeting(s) which determines whether other general meetings are held in any given year. The exception to this is a requisitioned meeting. A body corporate must convene an extraordinary general meeting if the secretary receives a requisition “signed by or for the owners of at least 25% of all the lots included in the scheme” (see section 61 of the standard module).

As for committee meetings, there is no specific requirement in the legislation for the holding of a committee meeting. There is an implication that a committee meeting must be convened to organise or arrange the annual general meeting. However, beyond this the committee meets when its members consider that a meeting is necessary. For example, if an owner writes to the body corporate seeking to keep an animal. It would be unreasonable to expect that that owner would wait several months for a reply or response. Consequently, it would be incumbent on the body corporate committee to meet to determine its response to the request. Further, in respect of committee meeting, there is provision in the legislation for the committee to meeting by “flying minute” (see section 35 of the standard module).

This office administers an information service for persons in community title complexes. The service is a free call service (1800 060 119). Owners in this body corporate might utilise this service should they have further queries regarding the legislation.

As to the order sought by the applicant, I intend to decline to make such an order. In the circumstances, the terms of the order sought are too general. Rather I have attempted to outline certain parameters in which this body corporate should be operating. If further issues arise, any owner is at liberty to make an application in respect of a specific aspect with which they might disagree.

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