Melaleuca [2002] QBCCMCmr 279 (9 May 2002)

DP GardinerREFERENCE: 0106-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12169
Name of Scheme:	Melaleuca
Address of Scheme:	25 Pacific Street MAIN BEACH QLD 4217

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

Mr Kevin Keeble, the Owner(s) of lot 5



DP GardinerI hereby order that the application for an order to stay the motion to remove the present awning is dismissed2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0106-2002

“Melaleuca” CTS 12169

The applicant Mr Kevin Keeble, the Owner(s) of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“ to stay the motion to remove my present awning’

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 states:

“Resolve. To have provided the same weather and sun shade protection afforded by the present awning that covers our westerly exposed windows, this would be a much better outcome. As presently prescribed ‘new’ coverings do not provide adequate shade from heat and weather protection by absence of angle from roof.

We bought our unit in January 1998 for our retirement, our lounge room window has a very good condition awning attached to it which keeps out the afternoon heat and weather. After a $ 30,000 renovation the awning was always taken into consideration with our design.

Our lounge, main bedroom, dining room area face directly west and the afternoon heat is unbearable so the awning is a very important part of our unit. The west facing wall is 3 stories of brick with no overhang for protection. The so-called slat screens proposed for the western wall will do nothing for heat or weather on this 34 year old building. We need our awning.’

The decision to replace existing awnings was made at an emergency general meeting held on 14^th November 2001 with the relevant motion being passed by five votes to one. Whilst this motion was advanced as a resolution when it should have been a special resolution, nothing turns on this point as the voting figures demonstrate that the voting requirements for a special resolution as set out in section 98 of the Body Corporate and Community Management Act 1997 have been met.

I have thoroughly read the submissions and information that has been provided by the applicant and other lot owners, including photographs of the existing awning and the slats.




Whilst I appreciate the remarks made by the applicant concerning the effect of the western sun, the decision taken at the emergency general meeting was a decision taken by 5 of the 8 lot owners with one lot owner who was away at the time of the emergency general meeting having said she agrees with the new proposal to remove existing awnings.

In the circumstances, I do not consider that a basis has been established which justifies granting the relief sought.

I dismiss the application.




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