Brooklodge [2002] QBCCMCmr 72 (12 February 2002)

REFERENCE: 0579-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13137
Name of Scheme:	Brooklodge
Address of Scheme:	15 Jones Street HIGHGATE HILL QLD 4101

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

Mr Derek John Webb, the Owner of lot 1



I hereby order that the application for an order cancelling the painting quote be dismissed.




















STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0579-2001

“Brooklodge” CTS 13137

The applicant Mr Derek John Webb, the Owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“The cancellation of a resolution accepting quote of $ 1364 for the painting of external railings plus a levy on unit owners of $ 172 passed at an Annual General Meeting held on 9^th September 2001, and the calling of new quotes for the painting of the external railings”.

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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states that:

1. At AGM on 9/9/01, quotes were accepted by the secretary from 3 firms to paint this property railings, the lowest quote $ 1364 was accepted by the body corporate although a levy of $ 172 would be made to pay for it.

2. No quotes had been asked for from members of the B.C. to save this levy and up to $ 1000 of this easy but costly job.

3. If the secretary was going to impose a special levy on us we had the right to consider ways of avoiding it by painting it single or as a group.

4. At the AGM, quotes were in and votes were in and although I put in Argument for the B.C. to do this ourselves the secretary said the quote $ 1364 and levy were approved.

5. This quote of $ 1364 did not include the front balcony railings therefore was incorrect, I asked the that the motion be cancelled and resubmitted later when a correct quote was obtained, the secretary would not agree and talked the other 3 members at the AGM into accepting.

6. The secretary has raised the maintenance $ 40 and a levy of $ 172 to pay railings painting when it appears to me the funds the secretary are $ 3500 and an income of funds $5120 by 1/2/02 giving no valid reason to raise a levy.

7. I have been an owner here for nine years and consider that I have paid by contributions to maintain the normal paint and service of this property this way without special levy for a normal maintenance such as railing painting. I strongly feel that a levy should only be made in an emergency where there is no other money available.

8. I require this unsatisfactory $ 1364 quote be cancelled and a new quote be found correctly financed from funds available by 1/2/02.

I have read the submissions provide by the other unit owners and the response by the applicant. I do not intend to recite the contents of that material in full as it is sufficient to say that I have give due weight to the contents.

In summary, I consider that the AGM was properly conducted with 75% of unit owners present who were entitled to attend and vote. One unit owner chose not to attend with the applicant unable to vote because he was not “financial”. The resolution in question was unanimously passed by those present who were entitled to vote.

While it is true to say that the quotes did not cover the entire scope of works, the discrepancy is not significant and furthermore it appears all quotes were prepared on that basis, namely omitting that part of the works. As a result, I do not consider that new quotes should be called.

The other issues to which the applicant refers in his application were the subject of lengthy discussion at the AGM with the outcome being the passing of the resolutions referred to above.

Moreover, I do not consider that the decision impose a levy was incorrect and rather was a decision made unanimously. With respect to the decision to pay for this work by levy instead of payment from the sinking fund, such a decision is consistent with sound financial practice when the sinking fund balance is less than the $5,000 - $10,000 nominated by the Secretary of the Body Corporate. It should be borne in mind that the applicant was not entitled to vote at the AGM because he had not paid up to date his administration and sinking fund levies and thus any decision to use the sinking fund as the source of payment would not be fair to the other unit owners who had paid up to date.

In such circumstances, such a decision should only be overturned when very strong reasons to do so are shown. Such circumstances are certainly not present in this case..

In the result, I can find no basis to support the grounds raised by the applicant and accordingly dismiss the application.