The Penthouses [2003] QBCCMCmr 34 (24 July 2003)

Number of Scheme:	11354
Name of Scheme:	The Penthouses
Address of Scheme:	20 Old Burleigh Road SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Bobbie Louise Brown, the owner of lot 28

I hereby order that the application for an order that the body corporate committee be restrained from any further expenditure on the proposed "window replacement proposal" (eg further artwork, consultations etc) pending resolution of this application, is dismissed.

I further order that the application for an order that motion 2 purported to have been carried at the EGM 20/6/03 be declared invalid in that it was proposed as an ordinary resolution and should have been a special resolution, is dismissed.

I further order that the application fro an order that the cost of the wasted meeting be borne by Body Corporate Services, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0415-2003

"The Penthouses" CTS 11354

The applicant, Bobbie Louise Brown, has sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the body corporate committee be restrained from any further expenditure on the proposed "window replacement proposal" (eg further artwork, consultations etc) pending resolution of this application.

That motion 2 purported to have been carried at the EGM 20/6/03 be declared invalid in that it was proposed as an ordinary resolution and should have been a special resolution.

That the cost of the wasted meeting be borne by Body corporate Services, whose duty it is to advise the committee on relevant Acts and the structure of meetings, in their capacity of professional body corporate managers.

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-

(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

(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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

The applicant expressed the view that the motion carried at the EGM authorising the committee to proceed with the ARUP Façade Engineering proposal for the stages of conceptual design, feasibility, budget costs report, design development, technical specification and tender processes up to the value of $79,640.00 should have been proposed as a special resolution, since it related to major expenditure on altering the face and amenity of the building. The applicant further stated that an ordinary resolution would have been sufficient if the proposals under consideration had been simply for repair and replacement of existing windows. The applicant also stated that existing windows can be replaced at their present sill height, provided that the structural strength of the building is not compromised, and that owners therefore had been misled in relation to the whole project, given that the committee had advised to the contrary.

The body corporate committee and the body corporate manager were invited to respond to the application. A submission was received from the body corporate manager, on behalf of the body corporate. The body corporate manager submitted that the motions placed on the agenda of the extraordinary general meeting relating to window replacement were correctly identified as ordinary resolutions because the work involved was all preparatory to the actual window replacement, which was likely to cost in the vicinity of $1.2 million to $1.6 million. The body corporate manager further submitted that because such a large sum of money was involved, the body corporate committee considered it had a responsibility to owners to provide them with detailed information so that they could make an informed decision when the motions to carry out the work were ultimately proposed.

I note that the proposal to obtain a conceptual design exceeded the limit for major spending for this scheme, and that, accordingly, two motions with competing quotations, were proposed for owners’ consideration. The requirements of section 104 of the Standard Module were therefore satisfied. I further note that the proposals did not entail the actual window replacement. It was therefore appropriate that the motions were proposed as ordinary resolutions. In any event, I also note that motion 2 was carried by 23 votes to 5, which would have allowed it to carry as a special resolution, had that been required.

I have also noted the applicant’s comments in respect of the sill heights, and in that regard, I observe that the chairperson wrote to the consultant on 6 July 2003 requesting that he expand his brief to include the proposal to replace the existing windows at current sill height, but with the further inclusion of a proposal to fix for the long term durability of the panels under the existing windows. It would therefore appear that when owners are ultimately requested to consider the actual window replacement they will be provided with material on all available options.

Needless to say, my finding that motion 2 was properly proposed as an ordinary resolution, renders the second of the final orders sought irrelevant.

For these reasons, I have dismissed the application in its entirety.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then she should appeal the interim order.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Penthouses [2003] QBCCMCmr 34 (24 July 2003)