Burswood Village [2004] QBCCMCmr 399 (18 August 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ms Patricia Ayton, the Owner(s) of lot 12

I hereby declare that there has not been any resolution of the body corporate authorising the installation of a pool ioniser.

I further order that, at the next general meeting at which it is practicable, the body corporate is to include motions to give owners the choice of either authorising the retention of the pool ioniser or, alternatively, requiring the removal of the pool ioniser and a return to the former methods of cleaning the pool. Motions are to comply with legislative requirements, for example, requirements regarding spending limits and appointment of service contractors.

I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0020-2004

"Burswood Village" CTS 20035

Burswood Village Community Titles Scheme (Burswood Village) is a 45 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Patricia Ayton, the owner of lot 12 (applicant) seeking orders against the body corporate (respondent). The applicant is seeking orders overturning committee decisions regarding the pool and the range of approved colours for the scheme. She is also requesting an audit of body corporate expenditure and a re-election of the committee.

The applicant says that a new committee was elected for Burswood Village. She says that this committee immediately engaged in a lot of expenditure, both positive and negative. While the applicant opposes some of these decisions, her main concern appears to be her impression that this present committee is not as open to owners regarding decisions and expenditure as previous committees have been.

The committee provided submissions on behalf of the body corporate. These submissions dispute a number of the applicant’s claims and state that the pool ioniser is working quite well and that it is appropriate to give lot owners a wider choice of colours. The committee also makes submissions to the effect that the orders sought regarding auditing and committee elections are unnecessary as these are democratic decisions of the body corporate and the applicant can call a meeting and pass the necessary resolutions if there is sufficient support amongst owners for those decisions.

Owners elect committee representatives to make decisions on their behalf. The committee cannot make decisions on all matters affecting the body corporate. For example, the committee cannot authorise any project with a total cost exceeding $125 per lot so decisions on spending above that amount normally need to be made in general meeting (Standard Module 26, 103). However, where the committee does have authority to make decisions, those decisions take effect as decisions of the body corporate (Act 100, Standard Module 26).

Where committee decisions are properly made they cannot be overturned by a single owner. However, the legislation contains safeguards giving owners the opportunity to receive notice of committee resolutions and potentially vote to overturn those resolutions.

If a committee meeting is held then notice of the meeting must be given (Standard Module, 28), owners can request the right to attend the meeting (Standard Module, 32B) and, within 21 days, minutes must be provided to lot owners giving details of each committee resolution (Standard Module, 36). Most committee resolutions cannot be acted upon for 7 days after notice of the resolution is given to owners, and owners can overturn those committee resolutions by providing the committee with a notice of opposition within that 7 day period (Standard Module, 37). Even if there is no opportunity to give a notice of opposition, owners of at least 25% of lots in the scheme can require the calling of an extraordinary general meeting seeking to pass resolutions to reverse the committee decision (Standard Module, 61).

The applicant has alleged that the chairperson unilaterally terminated the pool cleaner’s services and that the committee then purchased a pool ioniser without any proper resolution to that effect. The implication is that the committee made this decision at a dinner party at the chairperson’s unit.

The committee has been unable to provide any notice of meeting or minutes of meeting containing a resolution to terminate the pool cleaner’s services. I am therefore prepared to make a declaration that there is no body corporate resolution authorising the installation of an ioniser.

However, I am not prepared to order that the body corporate remove the ioniser and return to engaging a pool cleaner. It is for the body corporate rather than an individual owner to determine if it wants to reverse work performed without authority. Further, if the body corporate suffers loss due to unauthorised spending of its funds then liability for the loss would need to be determined between the body corporate and the individuals who spent the money. This liability cannot be determined on an application by an individual aggrieved owner against the body corporate.

By-law 20 provides that the exterior of buildings and structures on lots that are visible from the common property or outside the scheme must be painted in colours approved by the body corporate committee.

The minutes of committee meeting of 24 November 2003 show that the committee resolved to extend the approved colour scheme. The applicant opposes these changes to the colour scheme and says that the previous colour scheme was decided by the previous committee with the assistance of a professional colour coordinator.

While I accept that the applicant’s concern is genuine, I do not consider she has provided any grounds that show the current committee decision is contrary to the legislation. If owners as a whole oppose this decision then they are entitled to require the calling of a general meeting at which they could vote to overturn this decision or modify the by-law.

The applicant has also requested an audit of body corporate expenditure and a re-election of the committee. However, she has not satisfied me that there are any grounds justifying orders to this effect. These are matters that can be put before all owners in general meeting if necessary.

The applicant has enclosed a copy of a letter dated 25 September 2003 addressed to the body corporate committee and an email of 20 October 2003 addressed to the body corporate manager. She has also enclosed a copy of a response dated 23 October 2003 from Toby Mertz who is the body corporate chairperson. This response is embarrassing in its tone and fails to genuinely attempt to address the concerns raised by the applicant in her letter.

The body corporate committee has submitted that Toby Mertz’s letter expressed his personal views and should not be construed as views expressed on behalf of the committee. However, the letter purports to be a response to the applicant’s earlier letters to the committee and could easily be construed as a response by the committee.

I am concerned about the personal comments being made by both the applicant and the chairperson against each other. Further, the actions of the applicant in distributing copies of the letter could be construed as a deliberate attempt to aggravate the situation. It is often the case that different personalities within a scheme may have opposing views on certain matters. However, harmonious relations can best be preserved if there is a degree of tolerance and understanding between owners.

I am not satisfied that there has been any resolution of the body corporate authorising the installation of the pool ioniser. I will therefore make a declaration to that effect.

Further, owners should be given an opportunity to vote on a motion giving them the choice of either authorising the retention of the pool ioniser or, alternatively, requiring the removal of the pool ioniser and a return to the former methods of cleaning the pool. I will therefore make an order that will require the committee to include a motion giving this choice at the next general meeting of the body corporate. The committee should take care that this motion complies with all legislative requirements. For example, the motion should specifically authorise the amount of any necessary spending (Standard Module, 103(1)(a)). If the authorised spending is above the improvements limit then the motion must be by special resolution (Standard Module, 113). If the authorised spending exceeds the relevant limit for major spending then an alternative motion must also be included to give owners the choice between at least two different quotes (Standard Module, 104). Further, any engagement of a pool cleaner must be in accordance with legislative requirements (Standard Module 78, 87).

Finally, the applicant seeks to protect the existing colour scheme, require an audit, and require the re-election of committee members. The applicant has not satisfied me that she is entitled to these orders and the remainder of the application is therefore dismissed.

Number of Scheme:	20035
Name of Scheme:	Burswood Village
Address of Scheme:	1596 Wynnum Road TINGALPA QLD 4173

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Burswood Village [2004] QBCCMCmr 399 (18 August 2004)