Aarons [2004] QBCCMCmr 92 (13 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0632-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11476
Name of Scheme:	Aarons
Address of Scheme:	3355 Gold Coast Highway SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Robert Charles James and Kathryn Margaret James, the owners of lot 1 and the caretaking service contractors for the building

I hereby order that the application by Robert Charles James and Kathryn Margaret James, the owners of lot 1 and the caretaking service contractors for the building for orders that - 1. the body corporate to replace the roof tiles and sisilation (sic); 2. the body corporate to make safe balcony balustrades, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0632-2003

"Aarons" CTS 11476

The applicants, Robert Charles James and Kathryn Margaret James, the owners of lot 1 and the caretaking service contractors for the building, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

3.	The commissioner order the body corporate to replace the roof tiles and sisilation (sic);
4.	The commissioner order the body corporate to make safe balcony balustrades.

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)).

The scheme

The scheme is a subdivision of 41 lots recorded under a building format plan of subdivision.

The application and submissions

The application seeks that the body corporate undertake maintenance of two aspects of common property; the roof and the balustrade railings.

This office sought submissions from all owners and the body corporate committee regarding the application. The committee and two owners have responded to the notice inviting submission. Of the owners submissions, one is supportive of the application and the other opposes the application.

This is the third application by this applicant since 2001. The applications are similar. Each seeks that this office implement the applicant’s preferred method of, or proposals for, maintenance of common property. The first application, 606 of 2001 was a complex application, which I adjudicated. In that order, I reasoned in my statement of reasons for decision as follows –

The alternatives I am faced with in determining this dispute are at opposite ends of the spectrum. If the application is dismissed, and the body corporate is allowed to proceed to implement motion 22, then it seems to me that, notwithstanding that the motion was carried by 25 votes in favour to 9 against, the members of the body corporate will be required to accept a proposed solution to the problems which currently afflict this building, which on its face appears to me to be the low cost fix, thus avoiding the necessity to raise funds of $580,000 as the acceptance of the applicant’s alternative approach would require. Moreover, it is clear from the body corporate’s submission that in fact, all the members of the body corporate are being asked to do in voting in favour of motion 22 is to ratify certain decisions of the body corporate’s committee previously taken regarding rectification work to the building.

Alternatively, if I find that the applicants are entitled to succeed in the application, then really what is being proposed by them is that due to the urgency of the circumstances, I should not order that the motions ruled out of order be re-considered by the body corporate in general meeting (as I contemplated in my reasons for the interim order) but rather that I should bypass the meeting process and instead order the body corporate to implement repairs or maintenance works in the vicinity of $580,000. This approach was proposed to me by the applicant’s solicitor during the course of a teleconference on 8 November 2001.

These two alternatives are stark in contrast, In addition to the application, I now have the benefit of a submission in response from the body corporate, and further, a reply to that submission on behalf of the applicants. I conclude that the position of neither party’s is particularly meritorious, and I consider that the submissions of both are flawed in significant respects.

Both parties, but the applicant’s more so, seek that I accept their proposed solutions to the problems currently afflicting this building. I’m not prepared to enter into the debate of the right or wrong way to undertake the maintenance which this building undoubtedly requires. I reiterate my comments from my interim order, quote -

It is not the role of an adjudicator to require a body corporate to adopt a particular approach to any matter including rectification work, which would be a consequence of the making of such an order. Rather, it is for a body corporate in general meeting, following correct procedure, to determine how, for example, building rectification work should be undertaken, and by whom.

...

In the circumstances, I consider the position of both parties to the application to be biased towards a preferred outcome in respect of the rectification work. The position of neither party serves to benefit the wider body corporate (ie. all owners). I am not prepared to endorse the position of either party, and the only option open to me is to order a new general meeting be convened to consider all motions which might be submitted relating to the issue of rectification work to the building. Whilst I appreciate the urgency associated with rectification, I conclude that the interests of all owners are best served by a further meeting at which the owners, with the benefit of all available options based on the motions submitted by all owners, determine the preferred method of rectification of the building.

In the second, more recent application, (351-2003) the issue in dispute was more discrete; namely whether to order the body corporate to rectify the flooding in the basement of the scheme. In that application, the Adjudicator determined to order that the body corporate take necessary steps to reduce or overcome the flooding in the basement.

Determination

This third application seeks that the body corporate undertake maintenance of two aspects of common property; the roof and the balustrade railings. I conclude that a pattern is emerging in respect of applications by this applicant, and I have concerns with the approach taken. In three applications now, the applicants have sought orders of this office to compel the body corporate to either undertake maintenance of common property, or alternatively to adopt a particular method of maintenance or rectification of common property.

I have previously indicated my general view regarding such matters, quote –

It is not the role of an adjudicator to require a body corporate to adopt a particular approach to any matter including rectification work, which would be a consequence of the making of such an order. Rather, it is for a body corporate in general meeting, following correct procedure, to determine how, for example, building rectification work should be undertaken, and by whom.

I reaffirm my support for this view. I have serious concerns regarding an approach with avoids referring the matter to owners in the context of a general meeting, particularly when it is the owners collectively who will bear the cost of the proposal, if ordered to be implemented. Further, I am concerned that the orders sought reflect only the wishes of one owner. There are 41 owners in the scheme. I question the appropriateness of one owner seeking to direct the priorities of the body corporate regarding maintenance. In my view, the legislation fully intends that all owners should participate in determining what maintenance should be undertaken, how it should be undertaken and at what cost. In this context, and baring emergencies, a body corporate is able to prioritise maintenance such that the cost to owners is not prohibitive in any one year, or period, but rather is spread over the life of the building on an ongoing basis.

It is clear that there are special circumstances applying to this body corporate. In particular, it previously had a large number of statutory and local authority requisitions imposed on it. However, I am not aware that any of these are still outstanding, or that considerable maintenance has not been undertaken. I understand that in excess of half a million dollars has been spent on building repairs and maintenance in very recent times. There is evidence that the body corporate committee have sought to repair the roof, thought clearly the applicants are not satisfied with the method of repair. Moreover, there is direct evidence that the issue with the balustrade railings has now been attended to.

In the circumstances, I intend to dismiss this application. I suggest to the applicants that in respect of any future proposals for maintenance, they first approach the body corporate with their proposal or proposals in the form of motions included on the agenda of a general meeting of the body corporate. A body corporate in general meeting is in a far better position than I to determine what maintenance is required, and when necessary maintenance should be undertaken. That is the role of the body corporate; namely to administer, manage and control common property reasonably and for the benefit of owners.