Marriner Views [2003] QBCCMCmr 28 (18 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0366-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9252
Name of Scheme:	Marriner Views
Address of Scheme:	Cnr Garfield Tce & Fern Street SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Elena KING-ROACH and David Hugh KING-ROACH, as the co-owners of Lot 24,

I hereby order that the application for the following order - That the body corporate resubmit motions and quotes for both carpet and tiles to a general meeting of the owners of Marriner Views to give the owners the option of having carpet laid in the entry area for each floor, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0366-2003

"Marriner Views" CTS 9252

This is the final order to an application by Elena and David King-Roach of Lot 24 who have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That the body corporate resubmit motions and quotes for both carpet and tiles to a general meeting of the owners of Marriner Views to give the owners the option of having carpet laid in the entry area for each floor."

The applicant also made application for an interim order for work on replacement of the carpet with tiles to be halted until the application had been determined. On 13 June 2003 I issued the following Interim Order 366-2003 -

I hereby order that the body corporate must not implement or otherwise act upon the resolution passed in respect of Motion 8 at the annual general meeting held on 28 April 2003, for the tiling of the foyers, pending determination of the final order to this application.

I further order that as soon as possible but not later than three (3) weeks from the date of this order, the body corporate must –

• forward a copy of this order and the accompanying reasons to all owners; and
• include a simple canvass vote for owners to vote on whether they prefer the carpets in the foyers to be replaced with carpet or tiles, with the vote to be returned to the secretary (or a person nominated by the secretary) within two (2) weeks of it being mailed or delivered to the owners,

and must then promptly forward the results of the canvass vote to the Commissioner for Body Corporate and Community Management for my attention.

JURISDICTION:
Jurisdiction was established in the Reasons to the interim order as follows –

This is a dispute between an owner (the applicant owners of Lot 24) and the body corporate (the respondent), concerning the lack of choice in a resolution passed at a recent meeting for new floor coverings to the building lift foyers. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:

Section 276(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 contractual matter about –

(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 or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION:
In my Reasons to the interim order I provided the following information concerning the application and the dispute -

Under section 247 of the Act, the requirement to seek submissions from interested parties may be dispensed with and the application for an interim order dealt with directly by an adjudicator. That course is considered appropriate here as the nub of the dispute, namely whether owners want a choice between ceramic tiles and carpet replacement, can be promptly determined such that if no choice is found to be necessary then the tiling of the foyers can proceed as resolved at the annual general meeting. A teleconference with the parties was conducted in order to better understand the dispute (see later under heading "Determination").

The brief facts of the matter are as follows. At a committee meeting held on 10 March 2003, the committee received quotes for both the tiling and carpeting of the floor foyers. The foyers are presently carpeted. At the annual general meeting held on 28 April 2003, the only quotes put before owners by way of alternative motions were for the tiling of the foyers. The resolution to tile the foyers was passed on a vote of: 16 votes in favour; 14 votes against; and 1 abstention.

The 24^th level foyer has been tiled as a demonstration to owners.

The applicant King-Roach states that 12 owners she has contacted agree with her that owners should have been given the alternative of replacement carpeting. She states that tiles will allow unreasonable noise to travel down into the lots of the floor below, creating a nuisance that did not exist with carpeted foyers.

For the reasons set out under the heading "Determination" following, I have decided that no submissions need be sought from owners or the body corporate other than the canvass vote of owners invited under the terms of the interim order. The canvass vote by owners has provided me with sufficient information to reach a decision in the matter.


DETERMINATION:
In my Reasons to the interim order I gave the following grounds for the interim order issued -

In this order I am only concerned with the application for an interim order to stop the tiling of the foyers from proceeding until the application is resolved by final order.

To better understand the dispute, on Tuesday 10 June 2003 I conducted a teleconference with Elena King-Roach (for the applicants) and Noel Watson, secretary (for the respondent body corporate). The applicant reiterated the grounds set out under the heading above. She said that no reference had been made to owners as to whether they wanted replacement carpet or tiling. She had been to the 23^rd floor and could clearly hear persons entering and leaving the lifts on the tiled 24^th floor above.

The secretary (Watson) said that it was a committee decision to replace the present foyer carpet with tiling. This change in materials was decided on for a number of reasons, including, ease of cleaning and appearance, even though more expensive than carpets. The committee had instances of holidaying children spraying soft drink onto the foyer carpet from the lift, causing cleaning difficulties. He added that he lived on the 23^rd floor and did not notice an increase in noise because of the tiles above.

I do not intend to set out the advantages and disadvantages between carpet and ceramic tile – owners should appreciate the differences themselves sufficiently to make a decision in the matter. While it is true that the body corporate has passed a resolution to tile the foyers, which usually is determinative of the matter, in the following overall circumstances -

• the foyers are currently carpeted;
• the committee did not allow a choice between carpet and tile; and
• the closeness of the vote (16:14) with no votes being recorded in respect of 18 lots,

I have decided to require the body corporate to undertake a simple canvass of owners to determine whether they prefer carpet or tile. No meeting is necessary and owners will be merely asked to tick a box in favour of one or the other. Owners will be allowed a short period from the date of the mailing out of the canvass vote, to return their vote. The outcome of the vote must be promptly reported to me. If the outcome is in favour of tiles, then my final order in the matter will obviously be to dismiss the application and allow the body corporate to proceed to implement Resolution 8. If the outcome is in favour of carpet, then I will consider an appropriate final order to the application, which may or may not include calling for submissions in the matter.

I will now await the outcome of the canvass vote following which a final order to the application will be made.

The Body Corporate Manager, Body Corporate Services Pty Limited (representative Dianne Cervetto), has given written advice that the canvass was conducted in accordance with the terms of the interim order, with the canvass voting paper and order being mailed to owners on 30 June 2003. The voting result within the specified two week response period is as follows –

Tiles 23

Carpet 16

That is, valid votes for 39 of the 49 lots were received with a clear majority of those voting preferring tiling of the floor entry areas. The only other vote received out of time was also in favour of tiling. The vote is in accord with the majority of voters at the annual general meeting held on 28 April 2003 in favour of tiling, except that in the canvass owners had the choice between tiling and carpet not available to them at the meeting.

My order is therefore that the application is dismissed.

I might add that the applicants and seven other owners made a request in response to the interim order, asking that the canvass vote not be a simple tiling/carpet choice but that the following details be supplied for each option: Type; Colour; Cost; Box for ticking preference. I saw no good reason to alter the terms of my interim order – I think owners could reasonably assess the relative differences for these aspects themselves in making their decision. Also, had the canvass vote for carpet prevailed then I would likely have overturned the tiling resolution and had the body corporate revisit the proposal, including an option for carpeting, and it would at that time be a matter for the body corporate to consider such matters as type, colour and cost.