Jilgar Court [2003] QBCCMCmr 187 (29 October 2003)

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

Glenn Andrew WILKS, as owner of Lots 4 and 8, and Marie BURNETT, as the owner of Lot 7,

I hereby order that the application for the following interim orders –

1. An order for a Special Levy of –

01/11/03 - 31/01/04 $1,100

01/02/04 – 30/04/04 $1,100

01/05/04 – 31/07/04 $1,100

01/08/04 – 31/10/04 $1,100,

per lot holder for the immediate undertaking of all the required jobs encompassed in the Engineering Report.

2. A Special Levy of –

01/11/03 – 31/01/01 $180

01/02/04 – 30/04/04 $180,

per lot holder for the immediate undertaking of the repair of the asbestos fibro cement damaged garage wall of 6, 7 & 8 by Roof & Building Services.

3. That the Body Corporate Manager undertake the election of committee in accordance with s.12(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997,

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0598-2003

"Jilgar Court" CTS 14461

The applicants: Glenn Wilks and Marie Burnett of Lots 4 & 8, and 7 respectively, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

per lot holder for the immediate undertaking of all the required jobs encompassed in the Engineering Report.

per lot holder for the immediate undertaking of the repair of the asbestos fibro cement damaged garage wall of 6, 7 & 8 by Roof & Building Services.

The applicants have not specified what interim order they are seeking, accordingly I will proceed on the basis that the application for an interim order also refers to the final orders set out above.

JURISDICTION:
This is a dispute between two owners (the applicants Wilks and Burnett) and the body corporate (the respondent), concerning the implementation of recommendations in an engineering report by Solutions in Engineering Pty Ltd dated 20 November 2002 for certain repairs to the common property; repairs to the garage walls of three lots; and that the election of committee members at the annual general meeting held on 28 August 2003 be put aside and a further election held. These are matters that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

Section 279 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 284 of the Act).

APPLICATION:
Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (committee), the Body Corporate Manager, Body Corporate Services Pty Limited, and all other owners, with an invitation to each to respond to the matters of dispute raised in the application. Submissions were received from the owners of Lot 1 (Kandis), Lot 2 (Maddern), Lot 3 (Manwaring) and Lot 6 (Parsons). No submission was received from either the committee or the Body Corporate Manager on behalf of the respondent body corporate. As part of the dispute concerns the conduct of the committee election, either or both should make a submission before a final order is made in the matter. The applicant Wilks viewed the submissions made and subsequently lodged a reply (see sections 244 and 246 of the Act).

All of the owners are aware of the facts that relate to the orders sought, as they have been the subject of motions and discussion in meetings, and expert reports obtained by the body corporate.

DETERMINATION:
At this time I am only concerned with the application for interim orders in the matter. A final order in determination of the application will be made after the submission and investigation processes have been finalised.

I have read through the applications supporting grounds, not without some difficulty because of the indefinite nature of references and the wording, and the only matter that might be sufficiently urgent to warrant an interim order within the meaning of section 279 is signalled by the request for an "immediate undertaking" of work recommended in the engineering report (Order 1) and to the fibro-asbestos walls of the garages of Lots 6, 7 and 8 (Order 2). In regard to Order 1, the applicants have not made any authoritative reference to where urgent work is required that might warrant an interim order. From my reading of the report I have not noted any "urgent" work sufficient to require an interim order the applicants might be referring too.

In regard to Order 2, again the applicants have not made a specific authoritative reference to where this work has been held to be urgently required, and my perusal of the Workplace Health & Safety Inspection report submitted by the applicants does not disclose anything of this sort. Nor is there any reference to the service provider and the cost involved. Again, my perusal of the WH & SD report and the applicant’s narrative do not disclose any reference to either. However, Michael Manwaring has in his submission enclosed a copy of an Asbestos Material Report for October 2002. The report appears to only relate to common property; it states that no asbestos materials were evident. I can find no reference to the areas the applicants complain of (garage walls), nor to a tender by Roof & Building Service (Qld) Pty Ltd for rectifying that work, though there is a reference to that company tendering for other work (balustrading). There is no reference to any asbestos work of an urgent nature.

In regard to both matters, the application is inadequate in properly identifying and putting forward evidence in support of the first two orders sought as interim orders.

In regard to the special levies sought for the first two orders, the applicant appears to be seeking the work to be done now ("immediately") but for the costs to be levied over the next year (to October 2004). That either means borrowing funds or alternatively, using moneys from the sinking fund earmarked for other project purposes. Loans are regulated by section 102 of the Standard Module, and if the borrowed amount exceeds $2,000 (8 lots x $250), as is the case with both orders sought, then a "resolution without dissent" is required. That is, every owner has the power of veto over loans for such amounts. Accordingly, an adjudicator would only make such an order against a body corporate after the body corporate had considered and rejected such a motion, and where there was a clear case for urgent work supported by expert or other persuasive evidence. In regard to the alternative source of funds, it would be improper to use funds accumulated and earmarked for other specific purposes.

In the case of Wilks not being provided with either a notice to nominate or a ballot paper for the election of committee, I regard this as a serious matter and one that needs an explanation by the party (whether the elected secretary or Body Corporate Manager) who distributed the meeting documentation. However, I note that Wilks (and Burnett) is an ordinary committee member with, of course, the same voting power as an executive member. The application does not reveal what position Wilks aspired too, though it must have been one or more of the executive positions. I note also that he was allowed to nominate from the floor of the meeting (though I have no information as to what legislative provision was followed in doing this) and there was a tied vote. However it may have been that had Wilks the opportunity of nominating for an executive position in the correct manner, that the vote may have been different.

However I also note from the grounds to the application (page 2 of the amendment) that Wilks was aware that Burnett had received ballot papers some weeks before the meeting, but he had evidently not sought papers for himself (or at least not from a reading of the grounds submitted).

In the circumstances, I do not intend to intervene, at least at this stage, in the membership of the committee but shall make a decision in the matter after I have better information on which to make a decision.

In summary, I have not been directed to by the applicants, or myself found, any matter that falls within the ambit of section 279 warranting the issue of an interim order. I have therefore dismissed the application so far as it has sought interim orders in the matters of dispute..

I intend to again invite submissions from the same parties, which the applicants may again inspect and make a written reply to if they so choose. The matter will then be investigated in accordance with the usual processes undertaken by this office, and a final order to the application made in due course.

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

Glen Andrew WILKS, as the owner of Lots 4 and 8, and Marie BURNETT, as the owner of Lot 7,

1. I hereby order that the body corporate committee must obtain from Solutions in Engineering Pty Ltd a written opinion as to the priority of all remedial work necessary and also a timetable for when each work task needs to be carried out, and that a copy of the opinion must be forwarded to owners with the notice of meeting for the meeting required to be held under Order 3 following.

2. I further order that the committee election conducted at the annual general meeting held on 28 August 2003 is void and the committee is therefore as constituted prior to the purported election.

3. I further order that the body corporate must call and hold an extraordinary general meeting of the body corporate within eight (8) weeks of the date of this order for the following purposes –

(a) owners to consider motions for work to be carried out as specified by Solutions in Engineering Pty Ltd in its written opinion, and motions for the levying of special contributions as are necessary for funding that work; and

(b) the election of a committee using the statutory process for elections at annual general meetings but with owners being given at least three (3) weeks to nominate for positions after a notice inviting nominations is given,

and that the body corporate must forward me a copy of the minutes of that meeting promptly as soon after the meeting is held as is reasonably possible.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0598-2003A

"Jilgar Court" CTS 14461

This is a further interim order to the application of Glenn Wilks and Marie Burnett of Lots 4 & 8, and 7 respectively, who have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

per lot holder for the immediate undertaking of all the required jobs encompassed in the Engineering Report.

per lot holder for the immediate undertaking of the repair of the asbestos fibro cement damaged garage wall of 6, 7 & 8 by Roof & Building Services.

The applicant also made application for interim orders in the same terms, and on 29 October 2003 I issued the following Interim Order 598-2003 dismissing that application.

JURISDICTION:
In my "Statement of Reasons" (hereafter "Reasons") to the interim order I found jurisdiction existed to proceed to a determination, in the following terms -

Section 279 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 284 of the Act).

General powers of an Adjudicator in making an order:
Section 276(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-

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2) of the Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:
Submissions were sought from interested parties to the initial interim order in the following terms -

Submissions were again sought from the same parties for the final order. The need for further submissions was outlined in the Reasons, and I repeat the relevant passages here.

Committee elections - For the Respondent Body Corporate: The first passages refer to alleged errors and omissions by the body corporate in the distribution of meeting documentation and the conduct of the election -

Firstly, at page 3 under "Determination" -

At page 2 under "Application" I made the following comment concerning the failure of the body corporate, that is the committee through the elected secretary and Body Corporate Services Pty Limited ("BCS"), to make a submission in response to the allegations –

Rectification work - For the Applicants: At page 2 of the Reasons I adversely commented on the adequacy and clarity of the application a number of time, including in the following terms –

I also commented that, having read the reports of: Solutions in Engineering Pty Ltd ("Solutions") dated 20 November 2002; the Workplace Health & Safety Inspection; and that relating to Asbestos Material (October 2002), I found no recommendation for any urgent rectification work. It was on the absence of any such finding that I declined to make an interim order.

Perhaps as a result of my rejecting the application for an interim order, the applicant Wilks contacted Solutions. This is clear from a copy of a letter addressed to BCS by Solutions (Mr L Stanley) dated 14 November 2003 forwarded to this office by the other applicant, Burnett. The letter from Solutions includes the following statement –

DETERMINATION:
"Jilgar Court" was registered as a building units plan (now termed a building format plan) in September 1971 and comprises 8 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

I shall deal with each of the two items separately.

Committee Elections:
The applicant Wilks states that he did not receive a notice to nominate for election or a ballot paper. He wanted to nominate for one or more committee positions and claims he was denied that opportunity. This is not a unique event and often it is explained by the Body Corporate Manager or body corporate committee as appropriate, as having been sent to an old or the wrong address, or that it was sent but evidently lost in the post.

However, though I gave notice that this was a matter "that needs an explanation by the party (whether the elected secretary or Body Corporate Manager) who distributed the meeting documentation" and later in my Reasons said "No submission was received from either the committee or the Body Corporate Manager on behalf of the respondent body corporate. As part of the dispute concerns the conduct of the committee election, either or both should make a submission before a final order is made in the matter" neither BCS nor the committee made a response to the second invitation to make a submission. From the submissions it is evident that the meeting material was distributed by BCS and normal practice amongst professional Body Corporate Managers would be to make a response, either alone or in conjunction with the committee.

The other concern I have in regard to this matter is that the claims by Wilks that "Ms McKenzie (of BCS) was questioned a number of times by myself via telephone conversation regarding my ballot papers. It was only at attendance at the AGM for "Jilgar Court" that I discovered that the nominations were closed." I have no submission before me from BCS that rebuts this assertion.

The third and last concern I have over the elections is the decision at the meeting, reportedly by BCS, that the situation with Wilks was addressed by allowing him to nominate from the floor of the meeting, evidently for the positions of secretary, treasurer and ordinary member. As there was already a candidate for the position of secretary and treasurer (Manwaring), then that candidate should have been declared elected unopposed as provided for in the legislation (see section 21(1) of the Standard Module). Also, it appears that his nomination as ordinary member must also have been from the floor and this may also have been in contravention of the legislation, however I will only proceed on the basis of the contravention regarding his no9minations as secretary and treasurer.

I would also mention here that in his submission, M Manwaring, who generally opposes the application, states that he did not consider Wilks should have been able to nominate from the floor, though it was done to given him "a chance".

In the circumstances, I have made an order voiding the committee election. Under section 25(1) of the Standard Module, the committee comprises those persons who were members immediately before the void election at the annual general meeting (ie the previous committee). In consideration that these were contraventions under the stewardship of BCS when the body corporate was relying on its advice, it may consider bearing the cost of this component of the general meeting that must be called for both a fresh election and for consideration of the matters that follow.

The rectification work:
My reported review of the three reports (Solutions, WH&S, Asbestos) was that there was nothing urgent in the recommendations of the authors, and that is still my view of those reports. Obviously the recommended work had to be carries out at some time in the near future and all owners acknowledge that. What they disputed was that it all needed to be done promptly at a cost that some owners would find difficult to meet.

Now, Solutions is saying that the rectification work needs to be done now as by its reporting of the remedial works the body corporate’s insurance may be void leaving owners liable; the committee members may be personally liable, and users of the problem areas face possible injury. Perhaps, since Wilks has again brought the matter to the attention of Solutions, it may have concerns as to its own liability in the matter.

In the circumstances, I consider the best course is for a general meeting to be called to reconsider the reports in the light of Solutions letter of 14 November 2003. It would be advantageous if beforehand the committee sought from Solutions a prioritisation of the remedial work tasks and also a timetable for each task. This meeting must be called promptly; I have allowed 8 weeks (5 weeks obtaining opinions from Solutions and 3 weeks notice of meeting), which also allows 3 weeks for nominations for committee positions (allowing 2 weeks to ready the documentation).

I suggest that owners take notice of the opinion of Solutions (and/or any other engineer the body corporate may wish to obtain a second opinion from) in voting on the work (and contributions to be levied) motions at the meeting ordered to be held.

Though this is not my final order in the matter, I do not intend to seek further submissions but to await the outcome of the meeting to determine what shall be the most appropriate final order. If the matter has been resolved by decisions taken at the meeting, then the final order may be a dismissal of the application or, if necessary, a confirmation of the matters decided. I shall require a copy of the minutes of the meeting as soon after the meeting as possible and perhaps the applicants can monitor that I receive these promptly.

Number of Scheme:	14461
Name of Scheme:	Jilgar Court
Address of Scheme:	70 Liverpool Road CLAYFIELD QLD 4011

Number of Scheme:	14461
Name of Scheme:	Jilgar Court
Address of Scheme:	70 Liverpool Road CLAYFIELD QLD 4011

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Jilgar Court [2003] QBCCMCmr 187 (29 October 2003)