Villa Estoril [2004] QBCCMCmr 87 (12 February 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Donald Robert Richards, the owner of lot 4 and Bronwyn Richards, a committee member

I hereby order that motions 33 and 34 resolved by the body corporate of Villa Estoril at the AGM held on 22 December 2003 shall not be implemented or otherwise acted upon until a final order to this application is made.

I further order that the application by Donald Robert Richards, the owner of lot 4 and Bronwyn Richards, a committee member seeking an interim order in respect of motion 35, is dismissed.

I further order that the application by Donald Robert Richards, the owner of lot 4 and Bronwyn Richards, a committee member seeking an interim order that all BSA files are made available to Don Richards and Keith Leong, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0018-2004

"Villa Estoril" CTS 16553

The applicants, Donald Robert Richards, the owner of lot 4 and Bronwyn Richards, a committee member, have sought the following interim orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Section 279 of the Act provides -

279 Interim orders in context of adjudication
(1) The adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates.
Examples--
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.
(2) An interim order--
(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and
(c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when--
(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred. ...

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)).

This order is an interim order and deals only with the requested interim relief. It will not consider the final orders sought in respect of the application.

The Scheme

The scheme is a subdivision of 5 lots recorded under a building format plan of subdivision.

The application and submission

The application seeks that resolutions carried in respect of three motions at the recent AGM not be implemented. These resolutions are 33, 34 and 35. The applicants seek that the body corporate defer the implementation of these motions "until the body corporate determine the level of responsibility of the original builder and the BSA". The three resolutions were as follows –

The applicants content that the subject of the motions were the subject of "the repair work ordered by the BSA and completed in 2001". The applicants state that such work automatically carries a 6 year warranty. The applicants then provide their version of the background to these matters, or at least, events occurring since 2001.

The body corporate committee has responded via their solicitor, Robert Herd of Herd Law. Whilst the submission covers all aspects of the application, at this stage I am only concerned with the comments in response to the requested interim orders.

The submission makes a technical objection to the orders sought; that they do not seek to invalidate, but merely delay the undertaking of repair work. Whilst I note this is correct, I am not required to order in terms only as sought by an applicant. I can determine the terms of an order that I consider is appropriate to the circumstances.

Specifically, the committee responds in respect of motion 33 that "the statement by the applicant regarding the nature of works ordered to be performed by the BSA is clearly false and misleading. The pathway which the body corporate has resolved to repair was not the subject of the order as can be seen from the attachment". Unfortunately, this point is not clear to me from the attachment. I have no way of knowing at this stage if it is the same path or not.

The submission continues –

Again this might be so, but this would appear to have been the position for the past 2 or more years, so some further delay until this matter can be investigated is required.

In the circumstances, on its face I consider that I must accept the applicants’ submission that this is work which may very well be the subject of a further order of the BSA, and given this, that owners or the body corporate should not proceed to undertake the work as per the motion.

I consider that the above conclusion applies equally in respect of motion 34. In the circumstances, I intend to order that motions 33 and 34 shall not be implemented or otherwise acted upon until a final order to this application is made. I do not intend to extend such order to the terms of motion 35. The applicants have not provided a reason why this motion should not be implemented. Their comments about being the subject of previous work cannot apply to this motion, which is simply a reimbursement. The applicants have not provided any basis why Fitzgerald should not be reimbursed, and based on the limited amount I know of the matter in dispute, I consider that the expenses were incurred by Fitzgerald in pursuing a matter which the body corporate should in fact have pursued. I therefore intend to dismiss the application for an interim order in respect of motion 35.

In respect of motions 33 and 34, I further note that both propose spending above the limit for major spending for the scheme (5 lots by $250 per lot or $1250). Given this, I am concerned that the body corporate has not complied with the requirements of section 104 of the standard module regarding these two motions, in particular by obtaining two quotes. This I consider is a further, and reasonably compelling reason why these two motions should not be implemented immediately. If section 104 does apply, and I consider that is no reason why it wouldn’t, then the body corporate is at liberty in the intervening period to obtain the necessary quotes, and even to take those quotes to a meeting in the form of motions, subject however to the terms of the final order to this application.

The further interim order sought is that Messrs. Richards and Leong "be given access to all the BSA files relating to this issue". I am not agreeable to this request. Mr Richards was a long term member of the committee during which time it is alleged he sought to stall or frustrate all repair efforts. From dealing with a previous application, I am aware that these allegations have some validity. I conclude that Mr Richards former actions and conduct do not entitled him to the benefit of this particular order. He should make his own enquiries.

I will point out that it is difficult in the context of an interim order to undertake a full investigation of a matter. In making the interim order which I have, I have proceeded on the basis that the assertions put to me, particularly by the applicants, are accurate. If I find in my subsequent investigation that certain allegations or claims were inaccurate and without substance, and that these claims were made to obtain the relief sought, and were in fact relied upon by me in making this interim order, then I will consider the imposition of a costs order under section 270 of the Act against the party found to have made such claims. I say this to put all parties on notice, since I consider that there is some likelihood that parts of the material put to me is not completely accurate.

All parties should note that it is an offence to state anything to an adjudicator which the person knows if false or misleading in a material particular (see section 297 of the Act).

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Donald Robert Richards, the owner of lot 4

I hereby order that the implementation of the order made in this application by Adjudicator R.A. Meek on 13 May 2004 is stayed on the conditions set out below until such time as the appeal by Donald Robert Richards and others against the order is decided or withdrawn.

I further order that the conditions of the stay are as follows:

1) That the body corporate may continue to implement motion 34 and permit the builder to continue working until the new roofing membrane has been installed and the tiles over that roofing membrane have been laid.
2) That the body corporate shall ensure that the builder ceases work after the tiling and the membrane have been completed, so that any work required on the area from the open grate gutter to underneath the roof area covering lot 3, including the soffits, is suspended until the appeal is decided or withdrawn.
3) That any or all of Donald Robert Richards, Bronwyn Richards, Keith Leong or any of their servants or agents shall not prevent access to the scheme by parking in the visitor parking spaces or by any other means.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0018-2004A

"Villa Estoril" CTS 16553

The applicant, Donald Robert Richards, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) staying the final order made in this application by Mr R A Meek on 13 May 2004.

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)).

Mr Meek’s order of 13 May 2004 was in the following terms:

I hereby order that the validity of motion 10 headed Appointment of Herdlaw is strictly limited to the terms of the original committee approval which it purports to ratify, and to the extent to which it purports to authorise Herdlaw to provide continuing advice, is invalid and of no effect.

I further order that the application by Donald Richards, the owner of lot 4 and Bronwyn Richards, the occupier of lot 4 for various orders invalidating or overruling motions 11, 16, 33, 34 and 40, is dismissed.

I further order that the body corporate of Villa Estoril is entitled to proceed immediately with the implementation of motions 33 and 34 carried at the AGM of the body corporate held on 22 December 2003.

I further order that within one month of the date of this order, the body corporate Secretary shall provide to the owner of lot 4, Donald Richards an up to date statement of the current position regarding contributions of all owners in the scheme including lot 4.

An appeal was lodged by Mr Richards and others against this order on 24 June 2004. A copy of the Notice of Appeal was forwarded by the Deputy Registrar of the District Court to the Commissioner for Body Corporate and Community Management under cover of a letter of the same date.

On 25 June 2004 the appellants’ solicitors, Bakers Lawyers, wrote to the Commissioner requesting that the adjudicator’s order be stayed pending the resolution of the appeal.

Section 291 of the Act provides as follows:

(1) The adjudicator or District Court may stay the order appealed against

(3) The starting of an appeal affects an order of the adjudicator, or the

carrying out of an order of the adjudicator, only if the order is stayed.

On 29 June 2004 the secretary of the body corporate wrote to the Commissioner noting that an appeal had been lodged but also observing that there had been no order issued by the Court to stop work. The secretary advised that as the work had commenced, and was at a stage that left the building vulnerable to the weather, it needed to be completed promptly. To facilitate that completion, the secretary requested that an order in relation to another related application (Application 0089-2004) be made as soon as possible. Application 0089-2004 dealt, amongst other things, with Mr Richards’ use of visitor parking spaces at the scheme. It had been alleged that Mr Richards’ use of the visitor parking spaces impeded access to the area where the work involved in motion 34 was being carried out. On 30 June 2004 another adjudicator made an order in Application 0089-2004.

On 30 June 2004 I conducted a teleconference with Mr Richards and with Mr Douglas, the secretary of the body corporate. Mr Douglas advised that the old roofing membrane had already been removed and disposed of, and to the best of his knowledge the new roofing membrane had been commenced, but he was unaware if it had been completed. Mr Richards stated that he thought the new roofing membrane might have been completed, but in any event, he agreed that it should be completed so that the building was protected.

A discussion then took place about the remainder of the work to be carried out. Mr Richards stated that his principal concern in seeking the stay was to preserve evidence of what he alleges is the defective work carried out by the original builder, who is the same builder currently engaged by the body corporate to carry out the work approved by motion 34. Mr Richards explained that if the builder is permitted to complete all of the current work then the Building Services Authority (assuming his appeal is successful) will not be able to make any finding on the old work as it will have been removed or modified to such an extent that the nature of the work will be unidentifiable. At the same time, Mr Richards stated that since the old roofing membrane had been removed and the new one installed then it would be prudent for the tiles to be laid as that would provide additional protection for the membrane. He further stated that the area of most importance in terms of the existing work was from the open grate gutter to underneath the roof area covering lot 3, including the soffits. In Mr Richards’ view, if this area were to be left intact pending resolution of the appeal then the allegedly defective work would still be discernible.

Mr Douglas stated that the body corporate was anxious to have the work completed as it had been two years since the problem first manifested, and the area in question is a major balcony area for lot 5. Additionally, and most importantly, the area also covers lot 3, which has sustained significant damage from water penetration. However he conceded that if the work were to be completed then it would be impossible to determine if any defects had existed in the old work. Mr Douglas also acknowledged that if the membrane and tiling were completed, then the problem of water penetration into lot 3 should be resolved. Mr Douglas raised the question of access to the scheme, noting that a crane was required to be on site on 1 July 2004, and observing that in January 2004 Mr Richards had prevented the crane from entering the scheme, incurring a fee from the builder. Mr Richards responded that he had not prevented the crane from entering the scheme earlier in the week, and would not prevent it from entering the scheme on 1 July 2004.

I observed that if I were to grant the stay, the body corporate might incur some additional expense as a result of the work being suspended, however in this jurisdiction I have limited power to make a costs order (and only in certain circumstances, which do not apply here), or to require that the applicant give security for costs. I noted however that if the appeal were to be dismissed, the respondent body corporate’s submission in relation to costs would most likely include any additional expense that might have been incurred as a result of the stay order.

I have therefore decided to grant the request for a stay, upon certain conditions set out in my order.

Number of Scheme:	16553
Name of Scheme:	Villa Estoril
Address of Scheme:	102 Indooroopilly Road TARINGA QLD 4068

Number of Scheme:	16553
Name of Scheme:	Villa Estoril
Address of Scheme:	102 Indooroopilly Road TARINGA QLD 4068

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Villa Estoril [2004] QBCCMCmr 87 (12 February 2004)