Les Beaches [2003] QBCCMCmr 79 (22 August 2003)

Last Updated: 17 May 2005

REFERENCE: 0046-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16411
Name of Scheme:	Les Beaches
Address of Scheme:	44 Beach Parade MAROOCHYDORE QLD 4558

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

Lloyd Harold Hinckfuss, the owner of lot 7

I hereby order that the application by Lloyd Harold Hinckfuss, the owner of lot 7, for an order that the "Les Beaches" Body Corporate implement without further delay the actions required in motions 13 to 17 inclusive passed at the AGM on 14 May 2002, is dismissed for the reason only that the (then) committee have belatedly implemented the resolutions. I further order that the then committee did unreasonably delay in the implementation of the relevant resolutions, and that that delay was due to self interest, and was contrary to the interests of the body corporate which members of the committee are expected to uphold.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0046-2003

"Les Beaches" CTS 16411

The applicant, Lloyd Harold Hinckfuss, the owner of lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking that the "Les Beaches" Body Corporate implement without further delay the actions required in motions 13 to 17 inclusive passed at the AGM on 14 May 2002.

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)).

The application concerns the use of visitor parking spaces in the scheme. Specifically the applicant states –

Of the nine visitor carparks, only two outside spaces carry signage. The three basement Visitor Carparks are virtually permanently occupied by vehicles and personal property placed there by three members of the body corporate committee or their families, to the exclusion of visitors of other unit owners or residents.

The above matters were covered by five motions proposed by me at the last AGM held on 14 May 2002. ...

The five relevant motions carried by the body corporate at the AGM held on 14 May 2002 were –

13. Visitor carparking signage. Resolved by ordinary resolution that the body corporate installs signage to clearly identify visitor carparking both internal and external.
14. Notification of by-laws 19.1 and 19.2. Resolved by ordinary resolution that the body corporate notify all owners and occupiers directly and by notice board of the provisions of by-laws 19.1 and 19.2 relating to visitor car parking.
15. Clearing of visitors carparks. Resolved by ordinary resolution that the body corporate ensure that all visitor carparks are cleared of all property owned by existing or past residents.
16. Enforcement of visitors carparking by-laws. Resolved by ordinary resolution that the body corporate be requested to take any appropriate action to enforce the relevant by-laws, eg. by use of authorised notifications attached to windscreens.
17. Implementation of motions 13 to 16. Resolved by ordinary resolution that the body corporate be requested to implement motions 13 to 16 if resolved by the AGM forthwith.

The clear implication in the application is that the above motions have either not been implemented, or implemented fully for the reason that the "three underground carparks are still occupied virtually permanently by vehicles parked their by three members of the body corporate committee or members of their families" and "no action has been taken to clear the underground visitors carparks of personal property. Eg. one body corporate committee member still operates a large deep freeze unit in one of these carparks".

This office sought submissions regarding the application from all owners and the body corporate committee. 7 of 19 owners have responded to the application, and all excepting one owner (who appears concerned with security of the underground carpark) are supportive of the application.

The committee submission is dated 10 February 2002. The submission is limited only to the specific issue of implementation of the resolutions, and in this regard, gives a limited statement as to the (then) position. It does not respond to what I consider to by the central point of the application, namely the alleged delay in the implementation of the resolutions, and the allegation that this delay was due to the fact that it was committee members themselves that directly benefited from the failure of the committee to implement the relevant resolutions. I consider that this was clearly an issue raised in the material, and should have been address in the committee submission.

Given the delay by this office in it ability to deal with this application, a matter which is due to the substantial number of applications awaiting adjudication, and the increasing complexity of such applications generally, I requested from the applicant an update of the position. He has responded in the following terms.

Motion 13. Suitable signs were erected in all nine spaces approximately eight weeks ago.
Motion 14. Appropriate notices were sent to all unit owners by the body corporate managers, but the notices were only put on the notice boards of one of the three towers.
Motion 15. This also was mainly resolved about a month ago, but a panel of fencing still remains in one of the underground carparks.
Motion 16. Until two weeks ago one vehicles belonging permanently to the family of the ex Secretary / Treasurer was parked more or less permanently in one of the underground visitor carspace. It is now mainly parked in one of the outer visitor spaces.
Motion 17. This was certainly not done forthwith, and was the reason for this dispute to be lodged ... The main problem was the reluctance on behalf of the then committee and chairman to carry out the resolutions passed at the 2002 AGM.

... I am afraid that if a direction is not made to the present committee and chairman, things could revert to the old problem of committee members and others disregarding the by-laws to their own advantage. There is already evidence of this happening due partly, I feel to the long delay of consideration of the help sought of your Department in settling these matters.

Clearly from this response, the actual implementation of the resolutions has been attended to. However, I intend to consider the delay, and the associated allegation of self interest on the part of certain committee members in ensuring such delay. I have already noted that the committee submission does not address this aspect. I consider that the aspect of alleged delay should have been addressed. For example, why has it taken in excess of 9 months for signage to be erected. I cannot see why the implement of this resolution should have taken any more than say three months.

Section 101 of the Act (formerly section 93) provides that "... the committee must put into effect the lawful decisions of the body corporate". It is not disputed by any party that the resolutions were validly carried. It is implicit in this that the committee will implement the resolutions without unnecessary or undue delay.

In all the circumstances, including the failure of the committee to address this and associated issues in its submission, the comments in support of the application containing in other submissions, and the objective facts that for example, it took the committee in excess of 9 months to erect a few signs, to take steps to enforce by-laws regarding parking in common property and to arrange for certain person to remove items stored on common property without permission, I conclude that the committee were compromised by their self interest in maintaining the status quo. In other words, that it was not in the interests of certain committee members to implement the resolutions promptly, and given this, the committee chose to deliberately delay their implementation. I consider that these actions do no credit to the then members of the committee. This is an abuse of a position of responsibility. Committee members have a duty to act in the interests of the body corporate, not their own interests. If committee members cannot rise above self interest, then I recommend to the owners that active steps be taken to remove such persons from the committee. The position of a committee members can be declared vacant on the majority vote of members of the body corporate in general meeting. This is how a body corporate should deal with such conduct.