Fig Tree Grove [2003] QBCCMCmr 586 (20 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0789-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15805
Name of Scheme:	Fig Tree Grove
Address of Scheme:	18 Murphy Street, SCARBOROUGH QLD 4020

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

Irene Chitty, the owner of lot 4


I hereby order that the application by Irene Chitty, the owner of lot 4 for orders that -

1. Rescindment to keep a cat invalidated due to committee giving permission, then changing their mind (excluding the chairman);

2. I also confirm that I am seeking back from the Fig Tree Grove Body Corporate the amount of $191.90 being the expenses I incurred when the Fig Tree Grove Body Corporate gave me permission to have a cat, then rescinded it;

3. That the FTGBC pay the costs over and above $45 – I will incur for "Pest Control" spraying on my unit;

4. I believe that Mr Tabb and Mr Caslick should be notified that neither are now empowered to arrange or call meetings. To liaise with the Secretary;

is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0789-2002

"Fig Tree Grove" CTS 15805

The applicant, Irene Chitty, the owner of lot 4 has sought orders of an Adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

5. Rescindment to keep a cat invalidated due to committee giving permission, then changing their mind (excluding the chairman).

6. I also confirm that I am seeking back from the Fig Tree Grove Body Corporate the amount of $191.90 being the expenses I incurred when the Fig Tree Grove Body Corporate gave me permission to have a cat, then rescinded it.

7. That the FTGBC pay the costs over and above $45 – I will incur for "Pest Control" spraying on my unit.

8. I believe that Mr Tabb and Mr Caslick should be notified that neither are now empowered to arrange or call meetings. To liaise with the Secretary.

(the numbering adopted is my own for the benefit of reference)

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

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

I see no benefit in restating the applicant’s grounds. Suffice to say the issues in dispute are not admitted. In the second page of those grounds, the applicant restates in somewhat different terms, five orders she seeks. I only intend to address one set of requested orders; namely the ones set out above. There needs to be some clarity on the part of the applicant as to the relief they are seeking. The whole application cannot become a request for relief on a multitude of issues.

I have significant difficulties in determining this application. As the primary means of investigating any dispute, this office sought submissions from the body corporate committee and all other owners, of which there are five. In reply, this office received a submission from Strata-Link.Com. This company is the appointed body corporate manager. There is no evidence on the face of that submission that the manager was authorised by the committee to make a submission on its behalf. It appears to be simply a submission from the manager in that capacity. Whilst the application clearly discloses an ongoing dispute between the applicant and the manager, I am not really interested in hearing from the manager, given that the submission was not authorised by the committee.

In terms of determining the accuracy or otherwise of many, if not most, of the allegations made, I really required a response from individual owners, all of whom have chosen for whatever reason not to reply to the application.

The whole issue of the keeping of the cat is impossible to determine in my view. For example, at the meeting the applicant could not attend on 8 October, 2002, a motion was purportedly carried unanimously that no animals be allowed in any unit. Given this, how can I reconcile this the applicant’s claim that the very same owners gave express or implied permission for the application to keep an animal at the applicant’s purported meeting held on 24 October, 2002, and then less than one month later, are voting at another meeting for the applicant to remove the cat. As I pointed out, I have no submissions from any other owner or the body corporate on this issue.

Furthermore, the issue of the spraying of the applicant’s lot. The applicant states that it was dealt with at the meeting on 8 October, 2002, which I note that the minutes confirm. However, the applicant then says it was discussed at the AGM nine days later and she agreed to be included in the "programme". I can find no reference to this in the AGM minutes. Those minutes simply refer to a "perimeter treatment". This is not the same issue. Thereafter, I can find no reference to this issue in the material provided, excepting what is alleged in the application, which inturn is completely contradicted in the manager’s submission.

I conclude that I have no means available to me of reconciling such widely divergent allegations. In most applications, the lack of submissions from other parties is not critical. However, in the circumstances of this particular application, I consider the lack of submissions from relevant parties (ie. all other owners) to be fatal to the application. An applicant bears the onus of proving, on the balance of probabilities, the truth or accuracy of their allegations. Whilst I have no reason to believe that the applicant is not telling the truth, or what she believes to be an accurate version of events, I nevertheless cannot be satisfied, on the evidence available, that the applicant’s allegations are correct on the basis of the balance of probability test. I have simply been provided to two significantly different versions of the same events; either of which might be entirely or partly correct. For this reason, I intend to dismiss the first three orders sought by the applicant.

By way of observation, two of the three orders seek payments from the body corporate by way of compensation. Firstly, the costs associated with the cat ($191.90) and secondly, the alleged additional cost of pest control spraying of the applicant’s lot ($87). Section 281 of the Act is the only section dealing specifically with the question of the payment of costs by way of compensation. That section is restricted to compensation in very specific circumstances; namely where the applicant has suffered damage to property due to a contravention of the Act. The applicant’s claim is not within the terms of this section in that the applicant has not suffered damage to property. Rather she alleges she has suffered financial loss. I suggest that the claim for compensation in respect of the cat is tenuous at best, even if the applicant’s allegations were substantiated. Further, at least so far as the second claim is concerned, it is difficult to see how the body corporate could be responsible. The pest control of individual lots in a responsibility of individual owners. As sometimes occurs, owners might band together to get a better deal, but this is essentially an arrangement between individual owners, not involving the body corporate.

The final order sought is that Mr Tabb and Mr Caslick should be notified that neither are now empowered to arrange or call meetings (and to) liaise with the Secretary. This is I sense more the underlying dispute the subject of the application. The AGM minutes record that the applicant became the secretary at the meeting held on 17 October 2002. It should be noted that the manager is not a member of the committee.

From the correspondence provided, it seems that a power struggle then commenced between the applicant and the manager for the right to control proceedings, particularly the calling of meetings. The applicant purported to withdraw delegated powers of the manager, and the manager denied that the applicant could do so in the absence of an authorising resolution, presumably from the body corporate in general meeting. Thereafter, relations between these two parties deteriorated with allegations of bias (allegedly by the manager against the applicant) and defamation (allegedly by the applicant of the manager) and threats of legal action, and more significantly for the body corporate, neither party acknowledging the authority of the other to convene committee meetings, and conversely denying the validity of meetings convened by the other. Again, there is no indication of how other owners have responded to all this.

The applicant seeks that the manager, and an owner who was the former secretary and is now the treasurer of the body corporate, should be notified that neither are now empowered to arrange or call meetings (and to) liaise with the Secretary. On this issue, I consider there is sufficient information in the material to make some reasonable conclusions and to give certain directions. I conclude that both parties are to some extent correct in their statements, and in other respects not so.

In respect of the role of the secretary, there is clear legislative authority for the right of a secretary to convene the committee and general meetings of the body corporate (see section 27 of the standard module). However this is not an absolute or unfettered right in my view. In another order (0179 of 2000) in respect of a secretary seeking to unilaterally convene committee meetings, I reasoned as follows –

This section (27) does give the secretary, or in that persons absence, the chairperson, the authority to call a meeting of the committee. However, the section must be interpreted in the context of the role and purpose of the committee, and the role and power of the secretary within the committee.

The committee is the group of individuals entrusted with the day to day operation and management of the body corporate. Although there are certain specified roles within the committee, the committee is not a hierarchal structure, with the secretary at the apex. Rather it is intended to have an egalitarian or democratic structure where the vote of each member of the committee is of equal value. Whilst there are three executive positions within the committee, these positions are not intended to denote power or authority within the committee, but rather, are intended to provide for the functioning of the committee, and the wider operation of the body corporate.

In this context, it is not intended that the secretary have the power or authority to unilaterally declare when meetings of the committee are to be held. Often, the timing of the next committee meeting is discussed at the preceding committee meeting, and members are able to indicate their availability. Alternatively, before calling a meeting of the committee, the secretary should approach fellow committee members to seek consensus as to when a meeting should be held, and if in fact a meeting need be held at all. Additionally, the secretary should seek the submission of agenda items (if any) from other committee members.

Moreover, this position extends to directions which a secretary might give to a service contractor or body corporate manager. A secretary, or other member of the committee, has no power to give to such a person any significant direction which has not first been resolved by either the committee at a committee meeting or the body corporate in general meeting. I say "significant" direction, since a secretary does have power to direct a manager to undertake certain tasks without a committee direction. For example, call a meeting where it is clear that generally committee members require a meeting, or process an administrative request of the secretary (eg. for the manager to provide a list of body corporate debtors, or copies of correspondence on an issue).

Essentially this rule should not be interpreted by a manager to disrupt or frustrate a body corporate. However, there are certain matters which a secretary should not undertake without confirmation of the body corporate in general meeting or the committee. These include any matter which requires general meeting or committee approval. It also includes any decision to withdraw delegated powers of a manager. It will be a question of fact and degree in each case.

In respect of the role of the manager, the requirement is for the manager to undertake the requirements as per its contract with the body corporate, and in addition, as lawfully directed by members of the body corporate. In the current scenario, the manager had no authority to convene the committee meeting which it did for 19 November 2002. The manager has not provided an evidence of authority by the committee to convene this meeting. On this basis alone, I suggest that this meeting is invalid.

What I consider is now required is that both the applicant and the manager take the time to appreciate both their role, and the limitations of that role, within the body corporate. Nothing will be achieved if these two parties continue to be in dispute. Rather than a struggle for power as has occurred to date, the approach should be a co-operative one with both parties have different areas of responsibility. However, both parties have an obligation in their respective roles to place the interests of the body corporate ahead of any personal interests.