Sylvan Beach Court [2003] QBCCMCmr 334 (20 January 2003)

Last Updated: 7 September 2007

REFERENCE: 0413-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9937
Name of Scheme:	Sylvan Beach Court
Address of Scheme:	87 Sylvan Beach Esplanade BELLARA QLD 4507

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

Sandra D'Alterio, the Representative of David D’Alterio, the Owner of Lot 9


I hereby order that motion 16(a) carried by the "Sylvan Beach Court" Body Corporate at an annual general meeting held on 22 February 2002, is invalid and of no effect.

I further order that the Body Corporate for "Sylvan Beach Court" shall not proceed to carry out, or engage a person to carry out motion 16(a), including painting of the building, until such time as the Body Corporate authorises the work described in the motion, in accordance with the comments made in the statement of reasons accompanying this order.

I further order that the Body Corporate shall convene and hold its annual general meeting in accordance with the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"), and by 28 February 2003.

I further order that:

1. Within 3 months of the date of this order, the Body Corporate shall convene and hold an extraordinary general meeting ("the meeting") for the purposes of making decisions regarding painting the building.

2. The notice of the meeting shall not be distributed until at least 4 weeks after the date of this order.

3. The agenda for the meeting shall include any motions submitted by owners to the Body Corporate Manager and received by the Body Corporate Manager within 4 weeks of the date of this order.

4. The Body Corporate Committee may include any motions on the agenda for the meeting, provided those motions are included with the notice of the meeting.

I further order that within 7 days of the date of this order, the Body Corporate Manager shall provide a copy of this order and the accompanying statement of reasons to the owners of each lot included in the "Sylvan Beach Court" community titles scheme.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0413-2002

"Sylvan Beach Court" CTS 9937

1. Orders sought

The Applicant, the Representative of the Owner of Lot 9, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"Advise or direct the Body Corp to convene a meeting to address the items listed in item 13 of this application."

The Applicant also sought the following interim order of an adjudicator-

"The committee is going ahead with painting of flats approx $8800 without all owners being informed. We would like an interim order to stop everything so we can get owners together to discuss."

Section 223(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 –

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 the Act or the community management statement; or
c)	a claimed or anticipated contravention of the terms of, 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)).

The "Sylvan Beach Court" community titles scheme consists of 9 lots and common property, and was originally created under a building units plan of subdivision (now known as a building format plan of subdivision) registered on 16 November 1982. The community management statement for "Sylvan Beach Court" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

I understand that the financial year for the "Sylvan Beach Court" Body Corporate runs from 1 December to 30 November each year. Therefore, in accordance with section 60 of the Standard Module, the annual general meeting of the Body Corporate for 2003, should be held by the end of February 2003.

2. Application, interim order and submissions

This dispute resolution application was made on 15 July 2002. On 17 July 2002, I issued the following interim order in respect of the application-

"I hereby order that the Body Corporate for Sylvan Beach Court community titles scheme 9937, must refrain from carrying out, or engaging a person to carry out, painting to aspects of the building forming part of the common property for the scheme, pending determination of this application by final order."

On 18 July 2002, the Commissioner for Body Corporate and Community Management ("the Commissioner"), invited the Committee, the Body Corporate Manager, and all owners of a lot included in the scheme to make a written submission about the application.

The Committee for the Body Corporate, the Body Corporate Manager, and Owners of Lots 5, 7, and 8 have made written submissions about the application.

In accordance with section 196 of the Act, the Applicant requested and was provided with copies of the submissions made about the application. The Applicant has provided a written reply to the submissions.

On 27 August 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

On 16 January 2003, I conducted an inspection of the scheme land, and met with the Applicant, the Applicant’s representative, the Body Corporate Manager for the Body Corporate and a member of his staff, and the Owner of Lot 3.

3. Matters in dispute

From the material before me, and my inspection and meeting of 16 January 2003, I understand that there are two main issues raised in this application, those being, the proposed painting of various aspects of the building, and concreting and edging work that has been carried out on the common property. I will consider each of these aspects of the application separately.

I am also aware, particularly from the meeting of 16 January 2003, that the Applicant has a number of more general concerns regarding the operation of the Body Corporate in terms of the requirements set down in the legislation. I do not propose to generally review the operation of the Body Corporate to address the Applicant’s broader concerns. If the Applicant has concerns about the operation of the Committee, the Body Corporate Manager or the Body Corporate, she is entitled to submit specific motions on behalf of the Owner of Lot 9, proposing a particular course of action, which would then be considered by the Body Corporate. If the Applicant was dissatisfied with the response of the Body Corporate, she may be entitled to make a further dispute resolution application seeking specific orders on those points. Any such application should be supported by clear and specific particulars.

3.1 Painting

Briefly, I understand the history of the painting issue as follows. At an informal meeting held on 19 January 2002, a number of owners discussed painting, and other repair and maintenance matters.

These matters were purportedly included as agenda items for the annual general meeting of the Body Corporate held on 22 February 2002. The minutes of the 22 February 2002 annual general meeting record the following resolutions (resolutions 16(a) and 16(b)):

"16(a) That consideration be given to the spending up to $16,180-00 on the complex to bring completely up to a quality standard in one hit as detailed in the sinking fund budget for 2002 year & as agreed at pre owners meeting held on site 19/01/2002 and as subject to detailed pre quote estimates tabled. Other quotes welcome for consideration prior to work start.

As to the selection of colours for painting of the building, it was unanimously agreed that Lynette Palmen (Unit 3), Jeanette Castle (Unit 4), Nicole Robinson (Unit 5) & Rhonda Cybulski (Unit 7) act as a sub committee to carry out paint selection, taking into account durability and ascetics.

Nominator: Lynette Palmen

Seconded: Jeff Hausler

Resolved that motion be carried.

Votes: Yes = 7, No = Nil, Abstain = Nil"

"16(b) That consideration be given to the spread of spending over the next few years especially in relation to painting as per recommendation in budget for the removal of existing broken and uneven concrete tiles which presently represent a possible Public Liability Risk in there present state and be replaced with concrete.

Nominator: Jeff Hausler

Seconded: George Cybulski

Resolved that motion be carried.

Votes: Yes = 7, No = Nil, Abstain = Nil".

The sinking fund budget included with the notice of annual general meeting of 22 February 2002, included a component of $9,000 for "Painting of complex including stairs with non slip paint & Side boundary fence – (See Quote)". The notice of meeting also included 2 quotations for painting work, one from L & DM Jenkins for $10,500 and one from John McKinless for $8,833.

It is unclear to me how motions 16(a) and 16(b), which were both carried by the Body Corporate, are intended to interact in that motion 16(a) appears to authorise the immediate expenditure of $16,180 (which includes a component for painting) whereas motion 16(b) appears to authorise the expenditure of the cost of painting over an extended period of time. However, in light of my comments below, it is not necessary for me to resolve this question at this time.

From the material before me, I understand that the "paint selections sub committee" met on 14 April 2002, and 2 June 2002. I understand that the quotation from John McKinless is the preferred quotation, and the sub-committee (with some consultation with owners) chose a colour scheme for the painting.

In my view, the main issue raised by the application is the question of whether the resolution of the Body Corporate in relation to motion 16 is sufficient to authorise the acceptance of a painting quotation, and commencement of the painting without further reference back to the Body Corporate.

Firstly, in my view, motion 16(a) is not specific enough to authorise the acceptance of a particular quotation. The quotations for the painting work are well above the relevant limit for major spending of the "Sylvan Beach Court" Body Corporate of $1800 (refer to the schedule of the Standard Module). I consider that for work above the relevant limit for major spending for the Body Corporate, owners should be presented with separate, alternate motions seeking authority to accept each of the quotations. In addition, I do not consider that it is appropriate to include a number of large items of expenditure in one broad, general motion. Rather, the question of painting should be addressed it a particular series of motions, the plumbing should be dealt with in a separate motion or motions, the installation of the trap door should be dealt with in a separate motion or motions and so on. In this way owners have the opportunity to consider, assess and decide on each item separately. I consider that this is particularly important when considering major items of expenditure.

For these reasons, I consider that the resolution made by the Body Corporate relating to motion 16(a) is invalid and of no effect. I intend to order accordingly.

The second issue that strikes me as significant is the question of the colour scheme. I note that motion 16(a) as described in the notice of meeting, makes no reference to how a colour scheme is to be chosen, however the minutes record that a sub-committee was formed to address the issue. While the Act does not prohibit the forming of sub-committees to carry out particular functions on behalf of the Body Corporate, generally I do not consider that the Body Corporate may authorise such a committee to make significant decisions on its behalf. Leaving aside the question of the amendment of motion 16(a) at the meeting, in my view, it is acceptable for the Body Corporate to authorise a group of owners to investigate and assess particular colour schemes, with the proviso that any recommendations of the group regarding colours are referred back to the Body Corporate for consideration.

However, in this case, it seems to me that the proposal to form a sub-committee to investigate colour schemes is a matter that should have been included on the agenda for the meeting. In the absence of evidence of a motion to amend motion 16(a), I consider that the motion is also invalid on the basis that the substance of the motion was not included in the agenda for the meeting.

The third issue I will consider is the Applicant’s request that professional advice be obtained regarding the colour scheme. Generally, I do not consider that it would be appropriate for an adjudicator to require a body corporate to obtain professional advice regarding potential colour schemes for a building. It is my view that such a matter should be for owners to consider and decide as members of the body corporate. However, this is not to say that a body corporate cannot decide to obtain professional advice on this sort of issue, or that an individual owner cannot seek their own advice and present the recommendations made in the advice to the body corporate for consideration at a general meeting.

In the circumstances, I consider that motion 16(a) carried by the Body Corporate at the annual general meeting of 22 February 2002 is invalid and of no effect, and therefore is not proper authorisation of the Body Corporate to carry out the painting.

Given that the time for submitting motions for the approaching annual general meeting has passed, I consider that the Body Corporate should resolve the question of painting at an extraordinary general meeting. It seems to me that both the Committee and individual owners should have an opportunity to present motions regarding painting, and potential colour schemes to the Body Corporate for consideration. I intend to order that the Body Corporate convene and hold an extraordinary general meeting for the purpose of resolving the question of painting, with a prior opportunity for owners to submit motions for consideration at the meeting.


3.2 Concreting

In the supporting grounds to the application, the Applicant indicates that she considers that concreting work recently carried out for the Body Corporate is of poor quality and workmanship. From the inspection and meeting, I understand that the Applicant is primarily concerned with concrete edging, (including concreting around gardens) on the southern aspects of the scheme land, and to the east of Lot 1. At the meeting, the Applicant also stated that the height of some of the concreting was contrary to local authority requirements, and could facilitate water penetration, or damage to the building by pests such as white ants. However, I do wish to note that the Applicant has not provided any professional reports, or written documentation from the local authority substantiating her concerns regarding this issue.

After inspecting the concreting that the Applicant has raised concerns about, I would agree that some aspects of it are not particularly even or straight, and in parts could be seen as untidy.

However, while the Applicant has raised these concerns in the material relating to this application, the Applicant has not specified an order that she is seeking to address the concerns. Rather, the Applicant has simply requested that the Body Corporate be directed to convene a meeting to address the issues.

In the circumstances, I do not intend to make any orders concerning the concreting. In my view, before an adjudicator interferes with issues surrounding the concreting, the Body Corporate should be given the opportunity to consider its position regarding the concreting, and to make any decisions that it considers are appropriate. I consider that this position is entirely consistent with the objects of the Act, particularly the secondary object of the Act set out in section 5(a), which is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

As such, while I do not intend to make an order about the concreting at this time, it is open for any owner to submit motions regarding the concreting for consideration by the Body Corporate at its next general meeting. Owners should ensure that any motions are clear, specific, and in a form such that other owners can simply vote "yes" or "no" on the motion. Of course, the Body Corporate is free to discuss this or any other matters at a general meeting, however, the Body Corporate may only make decisions on motions proposed and included with the notice of meeting forwarded to owners.

If any owner is dissatisfied with a decision that the Body Corporate makes about the concreting, the owner is entitled to make a dispute resolution application to this Office, specifying what they consider should be done to resolve the matter, supported by full particulars, including where appropriate, copies of relevant reports and correspondence.