Oasis [2002] QBCCMCmr 291 (10 May 2002)

P J HANLYREFERENCE: 0715-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Morala Avenue RUNAWAY BAY QLD 4126

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

Grahame Douglas Mackelmann, the co-owner of lot 36



I hereby order that motion 2, dealing with the construction of security fencing on the southern boundary of “Oasis”, considered by the body corporate at the extraordinary general meeting held on 17 August 2001 was at all times void.

I further order that the application for orders to the current Oasis body corporate to deliver in writing the items listed from nos. 1 to 7 in exhibit (f) being:

1. Copy of all quotes (containing names of contractors and full tender price) as obtained by committee for supply and erection of the new fence.

2. Copy of all quotes (containing names of contractors and full tender price) as obtained by committee for removal of the old fence.

3. Copy of all agreements for sale of the old fence.

4. Copy of all agreements for the construction of the new fence.

5. Names of person/persons responsible for such agreements if signatures are not on the agreements at (3) and (4).

6. Names of persons responsible for the supervision of construction of the new fence, by the accepted tenderer.

7. Copy of all accounts for monies already spent at date of this application, on –

a) Removal of old fence

b) Purchase of new fence materials – posts and panels

c) Any further expenses associated with the removal and new construction to this date

of application.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0715-2001

“Oasis” CTS 20870

The applicant, Grahame Douglas Mackelmann, the co-owner of lot 36, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -
I request that the adjudicator rule on the validity and conduct of the extraordinary general meeting of 17-08-01 and that he issue orders to the current Oasis body corporate to deliver in writing the items listed from nos. 1 to 7 in exhibit (f) being:

8. Copy of all quotes (containing names of contractors and full tender price) as obtained by committee for supply and erection of the new fence.

9. Copy of all quotes (containing names of contractors and full tender price) as obtained by committee for removal of the old fence.

10. Copy of all agreements for sale of the old fence.

11. Copy of all agreements for the construction of the new fence.

12. Names of person/persons responsible for such agreements if signatures are not on the agreements at (3) and (4).

13. Names of persons responsible for the supervision of construction of the new fence, by the accepted tenderer.

14. Copy of all accounts for monies already spent at date of this application, on –

a) Removal of old fence

b) Purchase of new fence materials – posts and panels

c) Any further expenses associated with the removal and new construction to this date

of application.

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 expresses his concerns in relation to the recent construction of a fence at the scheme, and details various attempts by him to obtain further information in that regard. The applicant also provides copies of various supporting documents to better illustrate his concerns.

The body corporate committee was invited to respond to the application. A submission was received from the body corporate manager, which was accompanied by copies of relevant documents relating to the construction of the fence. The body corporate manager confirmed that there was no other documentation in relation to the new fence and the alleged sale of the old fence.

The applicant also provided further material, which contained additional information not disclosed in his application. The applicant circulated this material to the committee, as directed by the Commissioner. However, although the applicant referred to a myriad of issues, he did not seek specific orders in respect of any of them. I do not take his “suggestions” on the final page of his letter dated 15 January 2002 as an application for orders. If the applicant were to seek orders in respect of those matters, a fresh application would be required. Accordingly, I have confined my deliberations to the orders sought in the original application.

The committee provided a submission, through the body corporate’s solicitors, which essentially dealt with the additional information provided by the applicant. As I do not intend to deal with the matters raised in that application, it is not necessary for me to address the contents of the submission.

The applicant’s principal concern is in relation to the meeting held on 17 August 2001, and in particular, in relation to motion 2 carried at that meeting. The motion purports to authorise the committee to have security fencing erected on the southern boundary of the scheme at a cost not to exceed $27,000.00. The committee provided an explanatory note to the motion, advising owners that in the event that the motion was carried, it was likely that an increase in levies or a special levy would be required at some point before the end of 2002.

Section 104 of the Body Corporate and Community Management (Standard Module) Regulation 1997 provides as follows:

Quotes for major spending

104.(1) This section applies if—

(a) a motion to be moved at a general meeting of the body corporate

proposes the carrying out of work or the acquisition of personal

property or services, including the engagement of a body

corporate manager or service contractor, but not including the

engagement of a service contractor who also is, or is to be, a

letting agent; and

(b) the cost of carrying the proposal into effect is more than the

relevant limit for major spending for the scheme.

(2) The lot owners must be given copies of at least 2 quotations for

carrying out the work or supplying the personal property or services.

(3) If the motion is proposed by the committee, the committee must

obtain the quotations.

(4) If the motion is not proposed by the committee, the person proposing

the motion must obtain the quotations and give them to the secretary.

(5) Copies of the quotations or, if voluminous, summaries of the

quotations and advice about where the complete documents may be

inspected, must accompany the notice of the meeting at which the motion is

to be considered.

(6) If, for exceptional reasons, it is not practicable to obtain 2 quotations,

a single quotation must be obtained and must accompany the notice of

meeting.

Example—

If goods to be acquired by the body corporate are obtainable from only 1 source, a

quotation for supplying the goods must be obtained from the source and circulated

with the notice of meeting. The fact that goods with the necessary characteristics

are only obtainable from a single source would be an exceptional reason for not

obtaining 2 quotations for the supply of the goods.

(7) Each quotation obtained under this section must be retained as an

attachment to the minutes of the meeting at which the quotation is

considered.

The limit for major spending for this scheme is $15,200.00 (76 lots x $200.00). The cost of the fencing contemplated by motion 2 is significantly in excess of this sum. Accordingly, the committee should have proposed two alternative motions, each containing a quote for the work involved. As it transpired, owners were not even provided with one quote. In fact, the quote from Barry Milne Fencing (which was part of the overall cost ultimately accepted by the body corporate) was obtained after the meeting held on 17 August 2001.

In the circumstances, I propose to order that motion 2 in relation to construction of security fencing on the southern boundary of the scheme, considered by the body corporate at the meeting held on 17 August 2001, was at all times void. I appreciate that the body corporate has already had the work performed, although there are unresolved questions as to the standard of workmanship, with which I am not concerned in this application. In these circumstances, the committee should take steps to have the work ratified by the body corporate at the next appropriate general meeting.

In future, the committee must ensure that it complies with section 104 of the standard module if the cost of a proposed project exceeds the limit for major spending. The committee should also ensure that it complies with the requirements of section 95(2) of the standard module, which provides as follows:
ÿ

Contributions to be levied on owners

95.(1) ...

(2) If a liability arises for which no provision, or inadequate provision,

has been made in the budget, the body corporate must, by ordinary

resolution—

(a) fix a special contribution to be levied on the owner of each lot

towards the liability; and

(b) decide whether the contribution is to be paid in a single amount or

in instalments and, if in instalments, the number of instalments;

and

(c) fix the date on or before which payment of the single amount or

each instalment is required.

As to the remaining issues raised by the applicant, namely the provision of certain documentation relating to the construction of the new fencing and the (alleged) sale of the old fencing, I cannot order the body corporate to produce documents which do not exist. The documents which do exist, have been provided by the body corporate manager in her submission. The applicant has now obtained copies of those documents. I therefore propose to dismiss that part of the application.