Harrington Court [2004] QBCCMCmr 446 (17 September 2004)

Last Updated: 30 September 2005

REFERENCE: 0188-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13079
Name of Scheme:	Harrington Court
Address of Scheme:	14 Paradise Island SURFERS PARADISE QLD 4217

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

Alfred Trzymajewski and Lorraine Valmai Trzymajewski, the Owners of Lot 10

I hereby order that the application for an order that Alfred and Lorraine Valmai Trzymajewski be reimbursed the sum of $318 which they expended on openings for common property letter boxes and on soil for common property, is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0188-2004

"Harrington Court" CTS 13079

The Scheme

Harrington Court Community Titles Scheme 13079 ("Harrington Court") is registered as a building format plan of subdivision consisting of ten lots and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).


Chronology of Events

From my reading of the material on file, it appears that the following chronology of events led to the bringing of this application.

• At the Annual General Meeting on 9 August 2003, the body corporate passed the following resolution, as recorded in the minutes of that meeting:

"(b) Letterboxes – It was agreed to proceed with the removal and replacement of the letter boxes during the course of the year. As this item cost is under the $1,000 requirement for spending without an EGM the committee will attend to this as funding allows.
Moved by Lorraine Tryzmajewski Seconded by Dennis Shearer
Voting: 3 YES – 1 NO – 0 ABSTAIN CARRIED"

• At the Annual General Meeting on 9 August 2003, Ms Lorraine Trzymajewski was elected Chairperson and Mr Dennis Shearer was elected as committee member. There were no other nominations received for committee membership and it was decided to proceed with just two committee members with a body corporate manager to be appointed as secretary/treasurer as soon as possible.

• Ms Trzymajewski, it is alleged by two owners in submissions, presented the committee with a quote for $850 for letter boxes of a metal and concrete construction. Although there are no minutes of a committee meeting or any evidence of a resolution having been passed outside a committee meeting to confirm this, it appears that the committee accepted this quote.

• Ms Trzymajewski, it is alleged, advised the other committee member, Mr Shearer, that the cost had been reduced and asked for a cheque for $800 to be forwarded immediately. A cheque for $800 was forwarded to Ms Trzymajewski.

• A few days later, Mr Shearer alleges that Ms Trzymajewski asked him for a further $198 for "metal fittings etc" for the letter boxes.

• From the cheque butt submitted by the Applicants for payment in relation to the letter boxes, it appears that the letter boxes were constructed some time on or around 26 September 2003 and that the Applicants paid the further $198.

• Mr Shearer refused to sign any further cheques and requested that an Extraordinary General Meeting be called.

• From the cheque butt submitted by the Applicants, it appears that the Applicants expended $120 on 21/2 cubic metres of organic soil for use on an area of common property.

• At an Extraordinary General Meeting held on 15 December 2003, Ms Trzyajewski was removed from her position as chairperson. Mr Hoey was elected as chairperson and Mr Shearer and Ms Trzyajewski retained positions as ordinary committee members. Bob Mackay of Bob Mackay Body Corporate & Realty Services was appointed as body corporate manager. The following motion was considered, as recorded in the minutes of the meeting:

"Motion No.3
Reimbursement of Expenses L Trzymajewski $318

The voting tally sheets showed the following: Yes 2
No 3
Abstain 5
The motion for reimbursement was lost."

• At a committee meeting held on 12 January 2004, the committee passed the following resolution, as recorded in the minutes of that meeting:

"No.6 Letter Boxes

A private survey conducted by Dennis Shearer recorded that 9 owners indicated that the above should be moved & relocated to another position to be considered by the Committee. Plans of the original placing were shown & noted by the Committee.

Voting Results YES 2 AGAINST 1 ABSTAIN 0 CARRIED"


• The Applicants made application to this office on 25 March 2004 seeking reimbursement in the amount of $318 for their expenditure on the letter boxes and soil.

Determination

In determining whether the Applicants are entitled to any reimbursement from the body corporate, it is relevant to note that s.31 of the Body Corporate and Community Management Act 1997 (the Act) provides that the members of the body corporate for a community titles scheme are the owners of all lots included in the scheme. Further, the body corporate has a general duty under s.152 of the Act to administer, manage and control the common property and body corporate assets reasonably and for the benefit of owners. Specifically, s.109 of the Standard Module requires the body corporate to maintain the common property in good condition.

Ms Tzymajewski, by way of explanation for the spending of her own money on the common property and then seeking reimbursement, has claimed that "sometimes as Chairperson, one has to make an executive decision". However, the legislation does not confer any such authority on the Chairperson. The obligation for the administration, management, control and maintenance of common property rests with the body corporate, not any individual member of the body corporate or individual committee members, acting unilaterally. It is not in the interests of the body corporate for individual owners or individual committee members to unilaterally spend money for the body corporate without its approval and for the body corporate to then be compelled to reimburse.

The body corporate consists of all lot owners. There must be a committee for the body corporate (excepting where a body corporate manager is engaged to perform the functions of the committee and its executive members), consisting of at least three, but not more than seven voting members. The committee is charged with the responsibility for the day-to-day administration of the body corporate. The Act and the Standard Module prescribe the powers of the committee, including its spending limit, the procedures for convening and holding committee meetings and the information to be given to owners about committee meetings.

The person elected to the position of Chairperson is one member of the committee. The duties of the Chairperson prescribed in the Standard Module relate primarily to meetings of the body corporate. For example, the elected Chairperson must chair all committee and general meetings at which the Chairperson is present. Certainly, the Chairperson does not have any legislative authority to make unilateral decisions on behalf of the body corporate. A body corporate decision is made in accordance with the Act and the Standard Module by the committee, or by the body corporate in general meeting.

The Applicants allege that they have expended $318 ($198 on metal fittings for letter boxes and $120 on soil) of their own funds on common property, admittedly, pursuant to "an executive decision" and believe they should now be reimbursed by the body corporate. However, I am not convinced that the body corporate authorised any of this expenditure.

In relation to the $198 spent on metal fittings for the letter boxes, the material on file suggests that the committee (even though it only consisted of two members at that stage and there are no minutes of any decision on the subject) had authorised expenditure on the construction of new letter boxes at a cost of $800. There is no evidence to suggest that the additional $198 was approved by the committee or the body corporate. In the absence of any evidence from the Applicants to the contrary, I find their argument for reimbursement in this regard unconvincing. Further, I consider that the Applicants have supplied insufficient material to demonstrate that they in fact outlaid the amount of $198 for the letter boxes. I have not been supplied with any invoice, or receipt for this amount, only a cheque butt that does not disclose from whose cheque book it has been made, or to whom payment was made. I further consider the passing of the resolution at the body corporate’s extraordinary general meeting on 15 December 2003 not to reimburse the Applicants (quoted above), along with the committee resolution made on 12 January 2004 (quoted above) that the letter boxes should be relocated, indicates that owners are not in favour of authorising the expenditure and providing reimbursement. Information from the body corporate manager for the scheme, Mr Bob Mackay, indicates that the majority of owners believe that the current site for the letter boxes is a problem to pedestrians and would be a serious problem for any ambulance personnel wanting to access the building with a stretcher, for example. While residents of the building have no doubt been using the letter boxes since their construction, I consider that the decision to relocate them suggests that any benefit to the body corporate is outweighed by the expense and inconvenience involved in their relocation. Further, there has been no suggestion of any emergency in relation to the letter boxes, so there was no reason why the Applicants couldn’t have sought prior body corporate approval before spending the money.

In relation to the $120 spent on soil, I note that the Applicants have provided a copy of an invoice made out to them. However, I have not been supplied with any evidence at all that this expenditure was authorised by the committee or the body corporate. In fact, Ms Trzymajewski, admits that she took matters into her own hands in this regard. Further, there is no evidence that the body corporate has derived any benefit from the soil having been placed where it was.

In these circumstances, I am not persuaded by the Applicants’ argument that they should be reimbursed any of the $318 that they allegedly spent on common property without body corporate approval. I have dismissed the application.