Whispering Springs [2004] QBCCMCmr 462 (30 September 2004)

Last Updated: 30 September 2005

REFERENCE: 0271-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25106
Name of Scheme:	Whispering Springs
Address of Scheme:	10 Price Lane BUDERIM QLD 4556

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

Elizabeth Emily Shaw, the owner of lot 12

I hereby order that the application for a declaratory order as to whether a committee can overrule a decision made by the body corporate, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0271-2004

"Whispering Springs" CTS 25106

ORDER SOUGHT

The applicant, Elizabeth Emily Shaw, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

Determination as to whether a committee can overrule a decision made by the body corporate.

JURISDICTION

The application evidences a dispute on the basis that an owner of a lot in a community titles scheme is seeking a declaratory order about the operation of the Act (section 227(2) of 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

(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)).

SCHEME DETAILS

The Whispering Springs Community Titles Scheme 25106 (Whispering Springs) is a 25 lot scheme registered as a building format plan of subdivision, which is regulated by the Body Corporate and Community Management (Standard Module) Regulations 1997 (Standard Module).

BACKGROUND

The material reveals that there is a small one room building in the centre of the scheme which is used by owners for meetings and functions. The room was initially opened by the caretaker in the morning and closed again in the afternoon, but after certain items were stolen from the room in early 2002, and outsiders were observed in the room in mid 2003, the practice was changed, and the room was locked at all times, except when actually in use.

However in February 2004 during a particularly hot period of weather the refrigerator in the room overheated and failed. Body corporate advice was that this was probably brought about by the extreme heat and the lack of ventilation in the room.

In late 2003 the body corporate considered a motion to fit fly screen doors to the four doors of the room, but the motion was defeated, with several owners expressing the view that it would be a waste of money, particularly as the doors would be flimsy and be likely to require constant repairs. On 6 April 2004 the committee resolved to install two security doors which would achieve the purpose of securing the room, but allow it to be ventilated. After the applicant objected to this decision, on the basis that the committee was purporting to overturn the earlier decision of owners at the annual general meeting the committee delayed implementing its decision until after the committee meeting held in May 2004, and invited all owners who were interested in discussing the matter to attend the May committee meeting. The applicant did not attend the meeting, but five other owners did so. Those five owners allegedly supported the committee’s decision concerning the security doors, with some of them adding that they had opposed the installation of the four fly screen doors on the basis that they would have been flimsy and were for a different purpose (i.e. to keep out flies and mosquitoes as opposed to securing the room).

The committee once again resolved to install the security doors.

The applicant then lodged this application, and the body corporate committee and all owners were invited to respond to it.

The overwhelming response of owners was that the committee’s decision in relation to the security doors was distinguishable from the body corporate decision in relation to the fly screen doors because the security doors were for an entirely different purpose. Many of the owners also made the point that they had only voted against the fly screen doors because they were flimsy and would most likely require constant repair.

The committee submission stated that the committee had at no stage considered or discussed overturning any decision made by the body corporate in general meeting, nor would it consider doing so. The committee pointed out that the cost of installing the two security doors was within the committee spending limit and had received overwhelming support of owners. The committee also expressed the view that its resolution did not contravene or overrule the decision made at the annual general meeting not to install fly screen doors.

DETERMINATION

I consider that the decision made by the owners at the annual general meeting held in November 2003 not to install four fly screen doors is quite different from the committee’s decision to install two security doors. I accept that the doors would provide different outcomes. The four fly screen doors would keep out mosquitoes and flies, but would not secure the room. The two security doors would not keep out mosquitoes and flies (since it is not intended to have fly screening material fitted over them) but would secure the room at the same time as allowing ventilation.

The applicant correctly asserts that a committee cannot overrule a decision made by owners in general meeting. However, the difference here is that this committee has not purported to do so, does not assert that it can do so, and strenuously denies the applicant’s assertions that it has done so.

I am satisfied that the cost of installing the security doors is within the committee’s spending limit, and that the committee has since received the support of the majority of owners for its decision. I am most surprised that the applicant did not avail herself of the opportunity to attend the May committee meeting, because had she done so this application may not have been necessary.

I have dismissed the application. I have not made an order as to costs, as requested by the committee, as I have only have power to do so in limited circumstances, which do not apply here.