Eastpoint [2004] QBCCMCmr 445 (17 September 2004)

Number of Scheme:	19570
Name of Scheme:	Eastpoint
Address of Scheme:	9 - 15 Harrier Drive BURLEIGH WATERS 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
Stuart Kapper, the Owner(s) of lot 41

I hereby order that the application for an order to the effect that the body corporate give owners the opportunity to vote on whether to paint the garage doors, facia boards, gutters and downpipes is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0134-2004

"Eastpoint" CTS 19570

Eastpoint Community Titles Scheme (Eastpoint) is a 44 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

Lot boundaries are designated under a group titles plan (now known as a standard format plan).

This application is by Stuart Kapper, the owner of lot 41 (applicant) seeking orders against the body corporate for Eastpoint (respondent). The applicant is seeking an order to the effect that the body corporate give owners the opportunity to vote on whether to paint the garage doors, facia boards, gutters and downpipes.

Eastpoint is registered under a group titles plan (or standard format plan). Relevant legislation includes:

Eastpoint has a by-law that prevents an owner altering the external appearance of their lot without the prior consent of the body corporate (By-law 18).

The body corporate committee initially offered owners the choice of either painting their own units with paint of the colour approved by the committee or paying their share of the costs of the painter nominated by the body corporate committee. As part of this proposal the body corporate committee accepted a quotation from the painter under which guttering and downpipes would not be painted but would simply be pressure cleaned. This proposal was challenged by the applicant and, as there were serious questions about whether this service had been validity approved and offered to owners, an interim order was granted preventing the body corporate continuing with that proposal.

However, this interim order did not prevent the body corporate committee from making subsequent decisions about how it was to meet the body corporate’s maintenance obligations or how it was to proceed to ensure owners met their own painting obligations. In particular, the committee can make decisions about maintenance of common property utility infrastructure such as pipes and gutters where spending is within the relevant limit for committee spending (Act 100, Standard Module 26). The committee is also entitled to give each owner the opportunity to pay for a painter engaged by the body corporate, although individual owners can refuse to paint if their existing paint is still in good condition. Individual owners can also choose to paint themselves or use a different contractor provided the final result meets the requirement that their lot be maintained in good condition.

Minutes of a committee meeting dated 16 April 2004, subsequent to the interim order obtained by the applicant, indicate that the committee resolved on that date that the body corporate pressure clean the gutters and downpipes of all units in the complex. This was a resolution to perform maintenance work on items that the body corporate is required to maintain and did not involve spending in excess of the relevant limit for committee spending. The applicant has not been able to satisfy me that there is any legal basis on which to overturn this resolution.

The minutes also indicate that the committee resolved to offer a service to owners of arranging for a contractor to re-paint all painted services of their units, excluding gutters, downpipes and garage doors. This was an offer that each owner was free to either accept or reject. The applicant has not satisfied me that there is any basis on which to overturn this resolution or to require the committee to offer an alternative service that would include the painting of gutters and downpipes.

The gutters and downpipes for the scheme comprise utility infrastructure that services multiple lots. Therefore, even where gutters and downpipes are located within individual lots it is the responsibility of the body corporate to maintain these items (Act 20, Standard Module 109). It was within the capacity of the committee to make its decision regarding how these items were to be maintained. In fact, if the applicant was to damage or alter these items then the body corporate could have a claim against him for the costs of returning these items to their original state. It would also contravene the by-laws for the applicant to alter the appearance of his lot without the permission of the body corporate (By-law 18).

In summary, the applicant holds a minority view and has not provided any grounds that satisfy me there is a legal basis to grant him the relief sought. The committee was entitled to make the decision in the meeting of 16 April 2004 and the applicant would have required the support of the majority of votes of owners in the scheme to overturn this decision. The majority of owners chose to accept the committee’s decision. The application is therefore dismissed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Eastpoint [2004] QBCCMCmr 445 (17 September 2004)