La Porte D'Or [2002] QBCCMCmr 589 (24 September 2002)

P J HANLYREFERENCE: 0478-2002

INTERIM 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

Neville Ritchie Gray and Andrea Jane Gray, the owners of lot 80, and Golden Gate Accommodation Pty Ltd the owner of lots 2 and 3



I hereby order that the body corporate shall not install the letterboxes, ordered by the body corporate on 31 July 2002 from the Milkcan Letterbox Co, until owners have considered the subject of their installation at a general meeting.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0478-2002

“La Porte D'Or” CMS 12681

The applicants, Neville Ritchie Gray and Andrea Jane Gray, and Golden Gate Accommodation Pty Ltd, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

We request the final order either:

•	Preferred option. Allow Golden Gate Accommodation Pty Ltd install lockable A4 size letter boxes on the external wall of reception, inside the security of the building.
•	2nd option. Allow motions be put forward for a vote at the nezxt general meeting due sometime in 2002 for a vote of owners to decide the location of leterboxes.
•	The final order we request is to make the current committee members liable to pay any costs relating to the purchase and installation of outside letterboxes until the final order is made.

The applicants have also sought the following interim order of an adjudicator, quote -

We request the interim order stop the manufacture of letterboxes by the Milkcan Letterbox Co. and the subsequent installation of the letter boxes in an external car space adjacent to our entrance.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

After the application was lodged, a large number of persons sought to be joined as applicants. The list of those persons has been forwarded to the body corporate manager. Although some of the persons are not owners, they still have the right to be joined on the basis that they are occupiers of lots within the scheme, and the orders sought impact directly upon them.

This dispute centres on the sorting and distribution of mail to owners within the scheme. The applicants are the resident managers, and have been sorting and distributing mail to owners since they took over the role of resident managers. Successive resident managers have offered that service to owners for over 20 years. On 21 April 2002 the committee resolved to purchase a bank of lockable letterboxes to be installed in a car space opposite the front entrance. Following distribution of the committee minutes, a large number of owners objected to the proposal. On 31 July 2002 the committee placed the order for the letterboxes because the requisite number of owners had not objected to the proposal within the prescribed time. Prior to that, however, the committee, by letter dated 28 May 2002 from the body corporate manager to the applicants, stated:

As the committee has not received a notice of objection which complies with the legislation it is at liberty to implement its resolution relating to the installation of letter boxes.

However, given the large number of signatures you obtained the committee will reconsider the situation at its next committee meeting. The committee will take this action in fairness to all owners in the building, notwithstanding that it has some reservations about the methods you engaged to obtain the signatures.

The body corporate committee was invited to respond to the application. In a submission prepared by the body corporate manager on the instructions of the committee, background information was provided, and the application was opposed on the following grounds:

• The applicants failed to comply with section 37 of the Standard Module

• The committee complied in all respects with section 37 of the Standard Module

• The application is frivolous vexatious and misconceived and without substance and should be dismissed

• The orders sought are contrary to the Act and established law

• Golden Gate Accommodation Pty Ltd recently reached an agreement with the body corporate which does not include mail distribution.

On 19 September 2002 I conducted a teleconference with Mr Ritchie Gray, one of the applicants, and Mr Stephen Dring, the body corporate manager. The chairperson, Mr Vito Giorgio, was present in Mr Dring’s office during the teleconference, but did not participate in the discussion. As a result of the discussions, I ascertained the following:

• Although discussions have taken place between the body corporate and the applicants in relation to a new management agreement, the final terms of that agreement have not yet been settled.

• One of the matters in contention is the sorting and distribution of mail.

• The body corporate committee ordered the letterboxes on 31 July 2002, and their manufacture has now been completed.

• The scheme’s handyman is to install the letterboxes.

• The body corporate committee did not hold a further meeting before ordering the letterboxes, in spite of the statement in the body corporate manager’s letter dated 28 May 2002 to the applicants that the committee would reconsider the situation.

Section 37 of the Body Corporate and Community Management (Standard Module) Regulation 1997, by which this scheme is regulated, provides, in subsections 1-4:

37 Carrying out resolutions of committee meetings

(1) A copy of a resolution passed at a meeting of the committee must be

given to the owner of each lot included in the scheme (other than a lot

owner who has instructed the secretary that the lot owner no longer wishes

to be given copies of committee resolutions and who has not withdrawn the

instruction), whether separately or as a part of a copy of minutes of the

meeting at which the resolution was passed, in 1 of the following ways—

(a) giving it to the lot owner personally;

(b) sending it by mail;

(c) sending it by facsimile.

(2) A notice (a “notice of opposition”), signed by or for the owners of at

least half the lots included in the scheme, may be given to the secretary,

opposing the carrying out of the resolution.

(3) A notice of opposition must be given to the secretary within 7 days

after action taken under subsection (1) is completed (the “required

period”).

(4) The committee may carry out the resolution only if—

(a) no notice of opposition is received by the secretary within the

required period; or

(b) the resolution is necessary to deal with an emergency, and—

(i) the amount required to put the resolution into effect is

within the relevant limit for committee spending for the

scheme; or

(ii) an adjudicator acting under the dispute resolution provisions

authorises the committee to carry out the resolution; or

(c) the resolution is ratified by ordinary resolution of the body

corporate.

The committee meeting held on 21 April 2002 resolved to proceed with the purchase of the letterboxes. The minutes of the meeting were posted to all owners on 9 May 2002. On 20 May 2002 the applicants handed 100 notices of objection to the secretary. The committee took the view that these objections were not lodged within the prescribed time, and, in any event, some of those who had lodged an objection were either not on the roll or were not owners, and in some cases had specifically stated on the notice that they did not in fact object.

In the course of the teleconference, I questioned the body corporate manager as to whether the committee did in fact reconsider the issue, as it had stated on 28 May 2002 that it would, before the letterboxes were ordered. The body corporate manager advised me that the committee did not hold a formal committee meeting, but discussed the issue “informally” and decided that there was no impediment to its proceeding, as section 37(3) had not been complied with. Whilst I accept that the objections were not lodged within the prescribed time, I am surprised that the committee did not carry out its stated intention of reconsidering the issue before ordering the letterboxes on 31 July 2002. The letter dated 28 May 2002 from the body corporate manager to the applicants clearly stated that, because of the large number of signatures obtained by the applicants, the committee intended to reconsider the issue “in fairness to all owners in the building.”

I have formed the view that the matter is one in respect of which owners’ views should be considered. Although the committee had authority to consider the installation of letterboxes, and the expenditure appears to have been within the committee’s spending limit, the large number of owners who objected to the proposal, and then sought to be joined as applicants in this application, persuades me that the issue is still controversial. The committee contends that owners have been subjected to much misinformation. The annual general meeting is due to be held before 31 December 2002. If appropriate motions are proposed for consideration at that meeting, then owners can be provided with full details of all relevant issues, and can vote accordingly. I do not consider that there would be any detriment to the body corporate if the installation of the letterboxes were delayed for this short period, particularly as the installation is to be carried out by the body corporate’s maintenance man, rather than by an outside contractor. I have ordered accordingly.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order, however, will not be made until after the annual general meeting has been held, as the first of the final orders sought by the applicants relates to the very issue that owners will undoubtedly be requested to consider at that meeting. It may well be that the meeting will resolve any outstanding issues on this subject.

In relation to the second of the final orders sought, the applicants should also note that section 41 of the Standard Module permits owners, at any time, to submit a motion for consideration at a general meeting of the body corporate. Section 41(2) provides that a motion may be included on the agenda of the annual general meeting only if the secretary receives the motion before the end of the body corporate’s financial year immediately preceding the meeting. I understand that the end of financial year for this scheme is 30 September 2002.




All parties should also note the provisions of section 225(2) of the Act, which provides that -
An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicants may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicants. This office will not automatically renew an interim order.

P J HANLYREFERENCE: 0478A-2002

INTERIM 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

Neville Ritchie Gray and Andrea Jane Gray, the owners of lot 80, and Golden Gate Accommodation Pty Ltd the owner of lots 2 and 3



P J HANLYI hereby order that the request by the applicants for an extension or renewal of the interim order made on 24 September 2002, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0478A-2002

“La Porte D'Or” CMS 12681

The applicants, Neville Ritchie Gray and Andrea Jane Gray, and Golden Gate Accommodation Pty Ltd, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

We request the final order either:

•	Preferred option. Allow Golden Gate Accommodation Pty Ltd install lockable A4 size letter boxes on the external wall of reception, inside the security of the building.
•	2nd option. Allow motions be put forward for a vote at the nezxt general meeting due sometime in 2002 for a vote of owners to decide the location of leterboxes.
•	The final order we request is to make the current committee members liable to pay any costs relating to the purchase and installation of outside letterboxes until the final order is made.

The applicants have requested a renewal of the interim order made on 24 September 2002 which provided –

I hereby order that the body corporate shall not install the letterboxes, ordered by the body corporate on 31 July 2002 from the Milkcan Letterbox Co, until owners have considered the subject of their installation at a general meeting.

The applicants have requested a renewal of the interim order, providing the following reason –

It appears the letterboxes purchased by the committee may not fit in the space we propose as our design was for two large banks and one small. Those purchased by the previous committee are in 4 sections. This may require us to purchase some matching boxes or modify those purchased. We intend to consult with owners regarding the method of installation and design and an overall decorating scheme may need to be considered. This could take some months getting feedback from owners hence the reason for our request to keep the application and order open until we can get the situation resolved.

Section 225(2) of the Act provides that -

An interim order -

e)	has effect for a period (not longer than 3 months) stated in the order; and
f)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
g)	may be cancelled by a later order made by the adjudicator; and
h)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

Post the interim order being made, the following motion was considered and carried by the body corporate at an AGM held on 18 December 2002, quote –

That the body corporate approves the installation of letterboxes it has already acquired to an area within lot 3 available to all residents 24 hours a day. The installation to conform to a standard recommended by Milkcan Letterbox Co. This installation to be financed by the owner of lots 2 and 3.

I consider that the body corporate has satisfied the terms of the interim order, and that the interim order should not be extended further or indefinitely. The body corporate has resolved to install the letterboxes in “an area within lot 3”. All that appears to remain is for the specifics of the installation to be considered. I consider that this aspect does not warrant the extension of the interim order. Accordingly I decline to do so. In any event, the body corporate, unless it so resolves, cannot resolve contrary to the terms of motion 31 considered at the AGM held on 18 December 2002.



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