Heath Court [2004] QBCCMCmr 203 (20 April 2004)

Last Updated: 30 September 2005

REFERENCE: 0185-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5886
Name of Scheme:	Heath Court
Address of Scheme:	3 Heath Street EAST BRISBANE QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by June Blanche Porter, the owner of lots 7, 12 and 15

I hereby order that motions 4 (Tiling of walkways) and 8 (Replace front doors) considered by the body corporate of Heath Court at the EGM held on 20 March 2004 shall not be implemented or otherwise acted upon pending the making of a final order regarding this application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0185-2004

"Heath Court" CTS 5886

The applicant, June Blanche Porter, the owner of lots 7, 12 and 15, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

That the chairperson (Mr Sean Ryan) be removed from all positions on the body corporate committees and that all work, maintenance etc go through Management. Also, that all proprietors are given opportunity to submit quotations for work to be carried out. That approval be given to repair / replace kitchen fly screens to unit 7 and weather strips to doors in unit 7 and 15.

The applicant has also sought the following interim order, quote –

To stop all work being carried out / passed at EGM on 20/3/04 due to breaches of conduct concerning meeting protocol, altering of worded motions prior to being tabled for the attendees to vote on, method of obtaining quotes for meetings, quotation differences and overly inflated prices by chairperson’s tradespersons.

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 scheme

The scheme is a subdivision of 18 lots registered under a building unit plan (now a building format plan). The regulation module applying to the scheme is the standard module.

The application and submissions

This office sought submissions in respect of the application for interim orders from the body corporate committee and Mr Sean Ryan, the owner of several lots and chairperson of the body corporate.

This is an interim order. As such, it will deal with the relief sought by way of interim order. It will not seek to finally determine the dispute. This aspect will be the subject of a further order, which will be made after further submissions have been sought, this time from all owners, and further, the undertaking of any other investigations I consider necessary.

The interim order application seeks that all work being carried out / passed at EGM on 20/3/04 due to

• breaches of conduct concerning meeting protocol,
• altering of worded motions prior to being tabled for the attendees to vote on,
• method of obtaining quotes for meetings,
• quotation differences, and
• overly inflated prices by chairperson’s tradespersons.

I have not been provided with a copy of the minutes of the relevant meeting, and as such have no way of knowing which of the motions considered at the EGM held on Saturday 20 March, 2004 (the meeting) were carried.

On the whole I have concerns with the sufficiency of the evidence provided by the applicant in support of the above conclusions. Whilst the above allegations are quite specific, the evidence in support of them appears to me to be far less so. For example, the applicant alleges "overly inflated prices by chairperson’s tradespersons". However, there is no further information provided in the grounds to support a conclusion of "overly inflated prices". What is the evidence to support this statement. Moreover, the applicant suggests that "quotations seem to come from his own tradesmen that he employs himself". The applicant needs to better explain the basis of this belief. A person who makes an application bears the onus of proving, on the balance of probabilities, that their allegations are correct. In the circumstances, I am not prepared to grant the interim relief sought based on the relative insufficiency of the evidence provided. Perhaps it will become more clear on receipt of submissions from other owners, and perhaps a site inspection and meeting of the parties. However at this stage, I intend to consider each motion rather than stop all work from proceeding.

Notwithstanding my above comments, I do have concerns regarding certain of the motions, for the following reasons –

Motion 4 – Tiling of walkways

The cost of implementing this motion is stated to be $7507.50. This appears to be a labour cost, as the costs of the tiles is deal with in motion 5. It appears from the motion that no second quote for the tiling of the walkways was obtained. The cost of implementing the motion exceeds the cost of major spending ($250 per lot x 18). Spending in excess of the limit for major spending requires the submission of competing quotes (at least 2). As no second quote for the tiling was provided, and as the cost exceeds the limit for major spending, I intend to order that this motion not be implemented or otherwise acted upon pending the making of a final order regarding this application.

Motion 8 – Replace front doors

The above comments apply similarly to this motion. As well, the applicant is suggesting I think that perhaps not all doors need replacing, or alternatively, that had the maintenance been implemented earlier, then total replacement would not have been necessary. These are not aspects I can deal with in the context of an interim order.

Motion 9 – Special levy

Whilst the outcome of the above two motions might have implications for the amount to be raised by way of special levy, I see no point at this stage of also placing this motion on hold.


I assume that the applicant does not object to her own motions (numbered 10 to 17) being implemented assuming that these motions were in fact carried at the meeting. Consequently I have not considered them specifically.