Waimana Gardens [2003] QBCCMCmr 82 (26 August 2003)

Number of Scheme:	12195
Name of Scheme:	Waimana Gardens
Address of Scheme:	18 Tomewin Street, CURRUMBIN QLD 4223

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Julia Helen GILL and Marguerite Anne BUCKLEY, as the co-owners of Lot 9,

I hereby order that the body corporate must not implement or otherwise act upon any resolution purported to have been passed on 16 April 2003 for a proposal to render and paint the external brickwork and façade of the scheme building, pending determination of this application by final order.

I further order that this order has effect for a period of three months from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0485-2003

"Waimana Gardens" CTS 12195

The applicants have also made application for the following interim order of an adjudicator –

JURISDICTION:
This is a dispute between an owner (the applicant co-owners of Lot 9) and the body corporate (the respondent), concerning a proposal to render and paint the external brickwork of the scheme building and the validity of a purported resolution to that effect. This is a matter that falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

Section 279 of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284 of the Act).

APPLICATION:
In accordance with sections 243 and 247 of the Act, a copy of the application was provided to the respondent body corporate (committee) with an invitation to respond to the matter of dispute raised in the application. A submission was received from J and P Cockburn of Lot 4 without any identification that it represented the view of the elected committee, though I notice from the application that James Cockburn is the body corporate secretary. This submission opposes the application. A submission was also received from Jodie West and Richard Spence-Thomas as recent purchasers of Lot 5 (even though submissions have not yet been sought from owners generally), supporting the application.

In this order I am only determining the application for an interim order to stop implementation of the resolution to render and paint the building until such time as the full facts are known, all owners are invited to make a submission in the matter, after which a final order can be made.

The brief facts of the matter, so far as I know them at this stage, are that the body corporate has resolved to render and paint the building. While the applicant refers to the decision having been made by the body corporate committee, the information provided by the secretary is that it was resolved by the body corporate in general meeting. I do not at this time have the minutes of the relevant meeting (though a copy of the application was sent to the Body Corporate Manager, Strata Title Management Pty Ltd) however from the information of the applicants that they voted on the matter, this confirms a general meeting having decided the matter.

The applicants state that though they voted for the proposal, they did so in the belief that the cost would be around $700 pa for seven years rather than the account received for $979.20 for Lot 9, and $816 pa for Lot 8 (applicant Gill apparently is the owner of this lot). Cockburn explains the variations as relating to the variations in the lot entitlements, and the applicants, being long term owners, would have realised this would be the case.

DETERMINATION:
"Waimana Gardens" was registered as a building unit plan (now termed a building format plan) in July 1978, and comprises 9 lots. Under the transitional provisions of the new Act, the scheme was automatically regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") and this module still applies.

While I am not making any final determination of the dispute, and will not do so until owners have been given an opportunity to make a submission in the matter and the respondent body corporate (committee) invited to respond to the final order sought, I would make the following preliminary comments.

It may likely be that the variation in cost to the applicants does not arise out of a misrepresentation but is, as Cockburn suggests, merely the consequence of variations in lot entitlements reflected in different shares amongst owners in proportion to their lot entitlements. In that regard I note that Lot 9 has a lot entitlement (for both Contribution and Interest Schedule) of 12, the highest in the scheme.

I note in Cockburn’s submission that he states, "Quotations for this work were obtained and at a meeting dated 16 April 2003, at the office of Strata Title Management. It was resolved, by majority vote, that Motion 2(a) be accepted." Cockburn also states, "The block of nine units has a façade of dark brickwork and its appearance is dated. The owners have been considering external rendering and painting to the façade for some time."

I assume that the quotations are to enable the body corporate to comply with the Major Spending provisions of section 104 of the Standard Module. However, it also seems that the rendering is to modernise the building and is therefore an improvement within the meaning of section 113 of the Standard Module, and because the total cost (even the annual cost) is in excess of the threshold cost for an ordinary resolution ($250 times 9 lots = $2,250), then under sub-section 113(b) the proposal can only be authorised by special resolution. Accordingly, if Cockburn’s description of the resolution as a majority vote means that it was put and resolved as an ordinary resolution, there is a conflict with the legislation.

However, this is only speculation until the full facts are known, though I consider there is sufficient evidence for me to exercise the caution of issuing an interim order to prevent any implementation of the proposal, whether by collection of funds or entering into any agreement with a service provider.

I am satisfied that in the circumstances there are reasonable grounds, for the reasons set out above, that I issue an interim order to prevent the proposal proceeding any further before the dispute can be finally determined.

The matter will now be investigated in accordance with the usual processes undertaken by this office, including an invitation to owners and the body corporate committee as foreshadowed, and any other investigation considered necessary, before a final order to the application is made in due course.

Section 279(2) of the Act provides –

In my order I have provided that the interim order has effect for a period of three months. All parties should be aware of this section and its effect on the interim order. In particular, it is the responsibility of the applicants to request an extension to the interim order period should it become necessary; this office will not automatically renew an interim order.2n

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Waimana Gardens [2003] QBCCMCmr 82 (26 August 2003)