La Porte D'Or [2003] QBCCMCmr 385 (17 February 2003)

Last Updated: 7 September 2007

P J HANLYREFERENCE: 0478-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4207

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

Golden Gate Accommodation Pty Ltd, the owner of lots 2 and 3, and Neville Ritchie Gray and Andrea Jane Gray, the owners of lot 80



I hereby order that the application for an order to allow Golden Gate Accommodation Pty Ltd to install lockable A4 size letterboxes on the external wall of reception, inside the security of the building, is dismissed, on the basis that the carriage of motion 31 at the annual general meeting held on 18 December 2002 allows for this to occur on terms and conditions approved by the body corporate.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0478-2002

"La Porte D'Or" CTS 12681

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We request the final order either:

•	Preferred Option. Allow Golden Gate Accommodation Pty Ltd install lockable A4 size letter boxes on the external wall of reception, inside the security of the building.
•	2nd option. Allow motions to be put forward for a vote at the next general meeting due sometime in 2002 for a vote of owners to decide the location of letterboxes.

The final order we request also to make the current committee members liable to pay any costs relating to the purchase and installation of outside letterboxes until the final order is made.

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

On 24 September 2002, I made an interim order in this application, preventing the committee from installing letterboxes in a position upon which it had decided, on the basis that the issue was one in respect of which the views of all owners should be sought. The statement of reasons included the following:

I have formed the view that the matter is one in respect of which owners’ views should be considered. Although the committee had authority to consider the installation of letterboxes, and the expenditure appears to have been within the committee’s spending limit, the large number of owners who objected to the proposal, and then sought to be joined as applicants in this application, persuades me that the issue is still controversial. The committee contends that owners have been subjected to much misinformation. The annual general meeting is due to be held before 31 December 2002. If appropriate motions are proposed for consideration at that meeting, then owners can be provided with full details of all relevant issues, and can vote accordingly. I do not consider that there would be any detriment to the body corporate if the installation of the letterboxes were delayed for this short period, particularly as the installation is to be carried out by the body corporate’s maintenance man, rather than by an outside contractor. I have ordered accordingly.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order, however, will not be made until after the annual general meeting has been held, as the first of the final orders sought by the applicants relates to the very issue that owners will undoubtedly be requested to consider at that meeting. It may well be that the meeting will resolve any outstanding issues on this subject.

The annual general meeting was held on 18 December 2002. Several motions dealing with the issue of letterboxes were considered.
The committee proposed motion 17 in the following terms:

That the body corporate ratify (sic) the committee’s decision of 21 April 2002 to install a bank of lockable letterboxes in the prepared bay opposite the front entrance and to erect a roof and a light over the letterboxes for added security
The motion was defeated.

The committee also proposed motion 18 in the following terms:

That the body corporate approves the installation of letterboxes it has already acquired to an area within lot 3 available to all residents 24 hours a day. The installation must conform to a standard to be recommended by Milkcan Letterbox Co provided that the owner of lots 2 and 3 not modify, cut or otherwise damage the body corporate letterboxes and provided that the owner of lots 2 and 3 be responsible for issuing the supplied letterbox keys to the respective owners. Owners will then be responsible for maintaining the lock and keys to their respective letterboxes. The owner of lots 2 and 3 will pay for the installation.
This motion was also defeated.

The applicants proposed motion 31 in the following terms:

That the body corporate approves the installation of letterboxes it has already acquired to an area within lot 3 available to all residents 24 hours a day. The installation to conform to a standard recommended by Milkcan Letterbox Co. This installation to be financed by the owner of lots 2 and 3.
Motion 31 was carried as a special resolution, by 83 votes to 25.

On 22 December 2002, the applicants requested that the interim order issued on 24 September 2002 be extended or renewed, because in spite of motion 31 having been carried at the annual general meeting, it appeared that the letterboxes purchased by the committee might not fit in the space proposed within lot 3 by the applicants. The applicants stated that they intended to further consult with owners on the issue. The request to extend the interim order was refused.

I do not propose to make any further order in relation to this matter, as I consider the carriage of motion 31 has adequately resolved the issue. Although it may be necessary for the applicants to further consult with owners as to the method of installation and design, and an overall decorating scheme, these issues are ancillary to the principal issue, namely that the letterboxes be installed in an area within lot 3 which is accessible to owners 24 hours a day.

Furthermore, as was pointed out by the adjudicator in his order dated 24 December 2002, the body corporate must give effect to motion 31, unless it resolves to rescind that motion.






I have therefore dismissed the application, as the carriage of motion 31 effectively obtained the order sought by the applicants. I also decline to order that the committee bears responsibility for the costs of the letterboxes, as they will be utilised within lot 3. Any other costs associated with the aborted project, namely the preparation of the outside site, will be absorbed by the body corporate, as the body corporate committee was not acting outside its jurisdiction when it approved the project on 21 April 2002.
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