Baroona Views [2002] QBCCMCmr 467 (25 July 2002)

RA MeekREFERENCE: 0358-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15890
Name of Scheme:	Baroona Views
Address of Scheme:	200 Baroona Road PADDINGTON QLD 4064

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

Giovanni Quaglieri, the company nominee of Lake McKinnon Pty Ltd, the owner of lot 6


RA MeekI hereby order that the application by Giovanni Quaglieri, the company nominee of Lake McKinnon Pty Ltd, the owner of lot 6 –

• for an interim order to put on hold the motion 2-4-6 being carried on at the extraordinary meeting held Friday, 14 June 2002; and

• for a final order to remove the present chairman of the body corporate committee and have somebody new to deal in a quick manner, to solve this problem once and for all,

is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0358-2002

“Baroona Views” CTS 15890

The applicant, Giovanni Quaglieri, the company nominee of Lake McKinnon Pty Ltd, the owner of lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking an order to remove the present chairman of the body corporate committee and have somebody new to deal in a quick manner, to solve this problem once and for all.

The applicant nominates himself to “take the responsibility to carry out this task in a competent manner and honesty”.

The applicant also sought an interim order as follows –

Seeking an interim order to put on hold the motion 2-4-6 being carried on at the extraordinary meeting held Friday – 14 June 2002 at ADBC Pty Ltd offices situated at level 1 High Point Plaza 240 Waterworks Road, Ashgrove Qld.

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)).

On Tuesday 23 July 2002, I undertook an inspection of the parcel and met with the applicant and three other owners, Julie King, Colleen O’Brien and Brendan Moy, the chairperson. In addition, the body corporate manager was in attendance at this inspection and meeting. Originally, Mr David Reardon had been appointed the adjudicator to determine this dispute. However, due to ill health, Mr Reardon was unable to attend the inspection, and I was appointed in his place, both for the purposes of conducting the inspection and meeting of the parties, and the subsequent adjudication of the dispute.

The scheme is of six lots registered as a building unit plan. It is not disputed by any owner that there is a maintenance problem requiring rectification at the scheme. What is being disputed by the applicant is the process of arranging or organising the rectification work, largely undertaken by the chairperson and co-owner of lot 4, Brendan John Moy, which culminated in the EGM held on 14 June 2002 where certain resolutions to undertake various rectification work were carried.

The relevant resolutions were those numbered 2, 4 and 6. Each were carried by 3 votes in favour, with one against, and one abstention. Of the six lots in the scheme, it seems that the owner of lot 1 was not in attendance or otherwise represented at the meeting. In essence the rectification work proposed to be undertaken was –

1. The water proofing of a concrete beam or slab (motions 2 and 3);

2. The construction of certain drainage pits, and associated drainage works (motions 4 and 5);

3. The landscaping of the area and planting of suitable trees (motions 6 and 7).

Submissions have been sought from all owners in the scheme, and have been received from three of the 6 owners. In the circumstances, I do not propose to deal with the requested interim order separately, but rather, proceed to a final determination of this dispute, in the process, determining the application for an interim order. I understand that to date, no rectification work has been undertaken.

In essence, the applicant seeks that I invalidate, or set aside, resolutions 2, 4 and 6 carried at the meeting, and by final order, appoint him to undertake the process of arranging or organising the rectification work.

In the supporting grounds, the applicant states that the building has a “drainage problem”. The applicant complains that –

After almost 2 years of constant delays to get quotes, our chairman, Brendan Moy, came up with quotes which we owners of the units were to consider and vote for at an EGM at a date to be fixed: nothing else was decided.

I paraphrase the applicant’s concerns with the process, and the quotes obtained, as follows –

• The quotes were not for the same job. The job was divided into 2 tasks needing 2 quotes each minimum;

• The landscaping quotes were “not requested in the previous agenda and were for 2 different jobs”;

• The applicant claims that prices were “inflated and also there is a repetition of task”.

• The trees selected are “capable of causing serious damage to the walls of the building and pipes”.

• Neither of the jobs “carries a written warranty”.

• “I am very much against the drainage solution because (sic) does not solve the whole problem and there is only 1 quote for that specific job”.

In response to the application, I have received a detailed submission from Brendan Moy. I consider his position is summarised in the follow statements –

I believe that I have undertaken my duties As chairman ... in a competent and honest manner.

... I believe the appropriate steps were taken in the process namely, investigating the cause of the problem, informing all parties of the cause and extent of the problem, investigating and discussing possible solutions, obtaining quotes, coming to a group consensus on the plan of attack and putting the motions to a vote. ...

... I fee as though my reputation has been tarnished when it is clearly evident that I have done an exceptional job for all owner. I would like to think that after this matter is cleared up that a document is sent to all owners to clear my name and reinstate my reputation. ...

Two other submissions were received from owners; both supportive of the role undertaken by the chairperson, opposing the application, and requesting that the proposed works, as resolved at the meeting, proceed.

I note that one of those submissions was from Colleen O’Brien, the owner of lot 1, who apparently was not in attendance or represented at the meeting. Ms O’Brien has indicated very clearly that Mr Moy be retained as chairperson, and that the proposed rectification work proceed “as carried at the EGM of 14 June, 2002”.

At the inspection, it became clear that the applicant considered that not only had the chairperson taken an excessive period of time to get to the point where the body corporate was now at, but as well, in the opinion of the applicant the quotes obtained did not go far enough, in addition to the alleged deficiencies mentioned above. In particular, the quotes did not address what the applicant considered to be the whole of the problem. In this regard, the applicant was keen to point out an area of concrete subsidence at the end of the concrete driveway. Moreover, the applicant was concerned that the works proposed in the resolutions carried would not rectify the problem. The applicant was in part supported in this view by one other owner present at the inspection, who expressed the opinion that the building generally was in need of considerable, or at least greater maintenance.

Given that it had taken the body corporate approximately two years to get to the point it is now at, with resolutions carried, and presumably contractors ready to commence, I asked the applicant how he proposed to expedite the rectification work, recommencing the process essentially from scratch. The applicant indicated that he would approach the matter differently. In particular, he would draw up a specification which contractors would then be asked to quote on, thus eliminating any overlap or “repetition of task”. Further the applicant indicated that he would meet contractors on site and could obtain quotes within a week or thereabouts.

I consider the applicant’s proposed approach ignores some basis fundamentals. How does one write a specification if one does not know what the specific problem is, or how it is to be rectified. Clearly, the chairperson has spent a considerable period of time consulting with engineers and other experts on what exactly the nature of the problem is, and the various options for rectification. Secondly, even if one is at the point of having a specification, I don’t accept that it is as easy to get contractors and tradesmen to quote as the applicant suggests. My own (limited) experience in renovating tells me that it is not. My experience suggests that firstly you need to make contact and arrange a time. At the arranged time, some will turn up, others will not. After seeing the job, some will decline to give a quote. Others will say they will get back to you with a quote, and never do. And even those who do quote may take a considerable period of time to do so. Moreover, in the current environment, it seems to me that contractors and tradesmen can afford to be more selective about what jobs they will accept or take on, or are often so busy that it is difficult to find time to prepare a quote. Finally, even when quotes have been obtained, there is a requirement to put the quotes to a meeting, and obtain approval of the body corporate in general meeting. This body corporate has already decided not to proceed with one particular method of rectification on the basis of a cost benefit analysis. It should not be assumed that the body corporate will give its approval to proposals arranged by the applicant. There are other factors to be considered, significantly cost. In conclusion I consider the applicant’s proposal to be somewhat naïve and flawed.

In contrast, I conclude from the material available to me that the chairperson’s approach, though a slow and steady one, has been appropriate to the scenario facing this body corporate. In particular, the chairperson has sought to investigate the problem and best methods of rectification in a context where it was clear that there is a problem to be rectified, it is also clear that there was no great urgency requiring the body corporate to proceed more quickly with rectification work.

Further, I conclude the chairperson’s approach has been very democratic and consultative. Moreover, I was impressed at the inspection and meeting the chairperson’s continuing willingness to take into account the applicant’s (and others) points including, for example –

• To look into the matter of subsidence of the concrete at the end of the driveway;

• To look into the concern expressed by the owner Ms King that her laundry was subject to water ingress, which might not be remedied by the proposed rectification work, given that the concrete slab did not extend to the end of the block of units;

• To consult further on the choice of trees for the landscaping.

I further note that there is a clear acceptance by a majority of owners of the chairperson’s approach to the organisation of the rectification work. The resolutions in question were carried by a vote of 3 to 1. Additional, Ms O’Brien, who did not vote at the meeting, but did make a submission, and did attend the inspection and meeting, and at both expressed clear support for both the chairperson and the resolutions carried at the meeting.

In respect of the applicant’s specific complaints regarding the resolutions carried at the meeting, I consider that for the most part these are without real substance. I am satisfied with the way the rectification work has been broken down into essentially three parts – waterproofing, drainage, and landscaping. Further, I am satisfied that there were two quotes available for each part of the work to be undertaken. Secondly, it is irrelevant that landscaping was not requested on a previous agenda. The fact is that it was proposed as part of a rectification program, and carried by owners in general meeting. There is no requirement that a matter must be approved or initiated at one meeting, before a body corporate can then proceed to consider motions regarding that matter.

The applicant’s statement that prices were inflated is not substantiated, but is simply verbal. I do not consider it incumbent on the chairperson to obtain several more quotes, or to obtain the cheapest possible source of plants. There is no evidence whatsoever that the chairperson was acting with anything but complete bona fides in regard to this transaction. As regards tree selection, the chairperson has indicated a willingness to consult further on this aspect. I have no view on the warranty issue except to say that it is not a requirement of the legislation that a warranty be obtained in respect of work undertaken, although it may be prudent for the body corporate to endeavour to obtain such a warranty.

Finally, the applicant complains that he is “very much against the drainage solution because (sic) does not solve the whole problem and there is only 1 quote for that specific job”. The applicant’s particular concern appears to be the subsidence of the concrete at the end of the driveway. Whilst this may be connected or related to the drainage issue, I consider that this issue can be addressed separately. Moreover, I question whether the matters are in fact connected. It seems to me that the issue of subsidence may in fact be a localised issue affecting the concrete at the end of the driveway. It is not unusual in older bodies corporate to see evidence of subsidence.

This is not to say that the subsidence of the concrete is not an issue for the body corporate to address, but rather that I do not consider that it is so obviously or intrinsically connected to the proposed rectification work that it should have been address as part of the current proposed work. It seems to me to be separate, or at least capable of being dealt with separately, and in the future.

In the circumstances, I have dismissed this application. The body corporate is now at liberty to implement resolutions 2, 4 and 6 carried at the EGM held on 14 June 2002. In doing so, I recommend to the chairperson, and to the body corporate generally, that there be further consultation on the limited issues which arose at the inspection and meeting, and which I have referred to in these reasons. n