Centrepoint [2004] QBCCMCmr 46 (23 January 2004)

Number of Scheme:	7779
Name of Scheme:	Centrepoint
Address of Scheme:	69 Leichhardt Street SPRING HILL QLD 4000

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

I hereby order that the application for an order

1. That an order be given to the committee of the body corporate for Centrepoint to desist from expenditure on conversion of common property to special purpose functions unless it is a resolution of the body corporate.
2. That an order be given to Mr Warren Fischer, Mr Mark Stegman and Mr Graeme Lamb to censure each one’s vote as a committee member during the currency of the present committee for the body corporate of Centrepoint

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0374-2003

"Centrepoint" CTS 7779

The applicant, Robert Leonard Doherty, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

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

(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)).

On 26 June 2003 an interim order was made in the following terms:

I hereby order that pending a final determination of this application, the Body Corporate shall not carry out or otherwise implement a resolution passed outside a committee meeting on 4 June 2003 concerning the creation of a gymnasium on common property.

Since that date, this application has essentially been overtaken by events.

On 9 October 2003, at an extraordinary general meeting, several motions dealing with the enclosure of the kitchenette and the purchase of gym equipment were considered by owners, and soundly defeated. I consider that such a result was hardly surprising given the volume of material which was filed in relation to this application, and the depth of feeling which was generated by what owners clearly perceived to be the cavalier attitude of the committee to the rights of all owners in the first place.

I note that the then chairperson, Mr Fischer, obtained a quote for the enclosure of the kitchenette from Brisbane Mirror Company (BMC) on 15 May 2003. Notwithstanding the body corporate committee’s assertion, in its submission dated 18 June 2003, that the resolution to proceed with the enclosure had been "properly made in accordance with the Act" BMC’s quote was accepted on 28 May 2003, before the body corporate committee had voted on the proposal. Later in the submission, which opposed the application, the committee further observed that "the improvements have been fabricated and the cancellation cost would be close to equal the construction cost". The committee also asserted that its initial discussion of the project was subsequent to receiving "numerous requests from members of the body corporate". One of the owners who made a submission in support of the application pointed out that no evidence has ever been provided as to the identities of the members of the body corporate by whom such requests were allegedly made.

Additional costs of $864.00 were unnecessarily incurred when BMC attended on two separate occasions (19 June 2003 and 23 June 2003) to install the improvements, three days after the date on which the body corporate committee had been notified of this application, and at a time when it was apparent from the number of communications forwarded to the body corporate manager that many owners were opposed to the project. I consider that the body corporate committee should have mitigated the body corporate’s potential loss by advising BMC that the installation was not to proceed until the interim order application had been considered.

I note that Mr Fischer authorised payment of BMC’s invoice dated 25 June 2003 in the sum of $4,525.40, which included the sum of $864.00 referred to above, on 2 July 2003.

What remains for me to now consider is whether to make an order as sought by the applicant in order 1, above. The issue has already been considered by the body corporate, and therefore any order as sought would now be superfluous.

As to the second order sought, I note that at the same extraordinary general meeting, the body corporate resolved to remove Mr Fischer and Mr Stegman from their committee positions, with Mr Lamb having already resigned from his position some months before. I regard such an outcome as demonstrable of the body corporate’s censure of Mr Fischer and Mr Stegman, which in my view effectively disposes of the second of the orders sought above

I have therefore dismissed the application for final orders in its entirety. However, I wish to place on record that I have done so, not because the application had no merit, but because, as I have said, it has been overtaken by events. In its submission dated 18 June 2003, the committee stated that it was "a matter of record with (this) office that Mr Doherty has previously lodged vexatious and misconceived applications without substance against both Mr Warren Fischer and Mr Mark Stegman, which were dismissed." I note that neither of the previous orders and associated statements of reasons for decision made any reference to Mr Doherty’s applications as having been vexatious or misconceived. I also do not consider the present application to have been vexatious or misconceived. On the contrary, I consider that the application highlighted the genuine and justifiable concerns, not only of the applicant, but also of the many owners who lodged submissions in support of the application.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Centrepoint [2004] QBCCMCmr 46 (23 January 2004)