Jilgar Court [2004] QBCCMCmr 52 (28 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0598-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14461
Name of Scheme:	Jilgar Court
Address of Scheme:	70 Liverpool Road CLAYFIELD QLD 4011

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

Glen Andrew WILKS, as the owner of Lots 4 and 8, and Marie BURNETT, as the owner of Lot 7,

I hereby order that the body corporate must implement the decisions made at the extraordinary general meeting held on 21 January 2004 in accordance with Interim Order 598-2003A of 25 November 2003, regarding the rectification work to the scheme building as contained in the report of Solutions in Engineering Pty Ltd dated 22 December 2003 with reference to the particular work set out in its previous report of 20 November 2002.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0598-2003

"Jilgar Court" CTS 14461

This is the final order to the application of Glenn Wilks and Marie Burnett of Lots 4 & 8, and 7 respectively, who have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

1.	An order for a Special Levy of –

01/11/03 - 31/01/04 $1,100

01/02/04 – 30/04/04 $1,100

01/05/04 – 31/07/04 $1,100

01/08/04 – 31/10/04 $1,100,

per lot holder for the immediate undertaking of all the required jobs encompassed in the Engineering Report.

2.	A Special Levy of –

01/11/03 – 31/01/01 $180

01/02/04 – 30/04/04 $180,

per lot holder for the immediate undertaking of the repair of the asbestos fibro cement damaged garage wall of 6, 7 & 8 by Roof & Building Services.

3.	That the Body Corporate Manager undertake the election of committee in accordance with s.12(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997.

The applicant also made application for interim orders in the same terms, and on 29 October 2003 I issued Interim Order 598-2003 dismissing that application.

Following the receipt of submissions (see under heading "Application and Submissions" later), I issued the following further interim order on 25 November 2003, Interim Order 598-2003A –

1. I hereby order that the body corporate committee must obtain from Solutions in Engineering Pty Ltd a written opinion as to the priority of all remedial work necessary and also a timetable for when each work task needs to be carried out, and that a copy of the opinion must be forwarded to owners with the notice of meeting for the meeting required to be held under Order 3 following.

2. I further order that the committee election conducted at the annual general meeting held on 28 August 2003 is void and the committee is therefore as constituted prior to the purported election.

3. I further order that the body corporate must call and hold an extraordinary general meeting of the body corporate within eight (8) weeks of the date of this order for the following purposes –

(a)	owners to consider motions for work to be carried out as specified by Solutions in Engineering Pty Ltd in its written opinion, and motions for the levying of special contributions as are necessary for funding that work; and

(b)	the election of a committee using the statutory process for elections at annual general meetings but with owners being given at least three (3) weeks to nominate for positions after a notice inviting nominations is given,

and that the body corporate must forward me a copy of the minutes of that meeting promptly as soon after the meeting is held as is reasonably possible.

JURISDICTION:
In my "Statement of Reasons" (hereafter "Reasons") to the initial interim order, I found jurisdiction existed to proceed to a determination, in the following terms -

This is a dispute between two owners (the applicants Wilks and Burnett) and the body corporate (the respondent), concerning the implementation of recommendations in an engineering report by Solutions in Engineering Pty Ltd dated 20 November 2002 for certain repairs to the common property; repairs to the garage walls of three lots; and that the election of committee members at the annual general meeting held on 28 August 2003 be put aside and a further election held. These are matters that falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:
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) of the Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
Submissions were sought from interested parties to the initial interim order in the following terms -

Under section 243 of the Act, a copy of the application was provided to the respondent body corporate (committee), the Body Corporate Manager, Body Corporate Services Pty Limited, and all other owners, with an invitation to each to respond to the matters of dispute raised in the application. Submissions were received from the owners of Lot 1 (Kandis), Lot 2 (Maddern), Lot 3 (Manwaring) and Lot 6 (Parsons). No submission was received from either the committee or the Body Corporate Manager on behalf of the respondent body corporate. As part of the dispute concerns the conduct of the committee election, either or both should make a submission before a final order is made in the matter. The applicant Wilks viewed the submissions made and subsequently lodged a reply (see sections 244 and 246 of the Act).

All of the owners are aware of the facts that relate to the orders sought, as they have been the subject of motions and discussion in meetings, and expert reports obtained by the body corporate.

Submissions were again sought from the same parties after issuing the initial interim order. The need for further submissions was outlined in the Statement of Reasons. There was no need for any further submissions following the further (second) interim order as the final order would be largely determined upon the outcome of the meeting ordered to be held in that order.


DETERMINATION:
"Jilgar Court" was registered as a building units plan (now termed a building format plan) in September 1971 and comprises 8 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

In response to the second interim order, the body corporate obtained from Solutions in Engineering Pty Ltd ("Solutions") a report dated 22 December 2003 meeting the terms of part 1 of that order regarding remedial work.

An extraordinary general meeting was convened for 21 January 2004 with the agenda containing motions relevant to the opinion of Solutions as reported and accompanied by its report as also required by part 1 of the order. That meeting was held and these particular motions, and a committee election, were resolved at the meeting. The minutes of that meeting show that the rectification motions were passed and these works can now proceed; a committee was also chosen.

On 28 January 2004 I conducted a teleconference with a co-applicant Glenn Wilks and Craig Brennan of Body Corporate Services Pty Limited. It was agreed that the dispute was now resolved by the decisions made at that meeting. Accordingly, I have now made a final order to the application in view of the meeting outcomes.