Vardon Point Apartments [2005] QBCCMCmr 512 (15 September 2005)

Last Updated: 19 July 2006

REFERENCE: 0333-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29516
Name of Scheme:	Vardon Point Apartments
Address of Scheme:	1 Millennium Circuit PELICAN WATERS QLD 4551

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Melvin and Sandra Clark, the co-owners of Lot 35

I hereby order that the application for an order by Melvin and Sandra Clark, the co-owners of Lot 35 that the resolution on the motion "That the committee direct the Chairman on behalf of the Apartments Committee to work with the PBC and the Body Corporate solicitor in preparing a complaint to the Commissioner regarding the continuing nuisance being caused by John Evered" by voting outside a committee meeting dated 3 May 2005 be overturned, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0333-2005

"Vardon Point Apartments" CTS 29516

APPLICATION

This application is by Melvin and Sandra Clark, the co-owners of Lot 35 (applicants) against the body corporate (respondent). The applicants have named John Evered of Unit 84 as a person who would be affected by the outcome sought (affected person). The applicants are seeking an outcome that the third motion and its explanation resolved by the committee by voting in writing dated 3 May 2005 violates section 24(1)(b) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 and the motion be ordered to be overturned.

JURISDICTION

"Vardon Point Apartments" is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

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)).

SUBMISSIONS

The applicant’s main submissions were to the effect that:

• The third motion concerns John Evered who acts as a spokesperson for a group of lot owners.
• Mr Evered has been ignored by the committee and branded as a nuisance in questioning the committee on behalf of other lot owners about issues such as the classification of the building, compliance with fire regulations, and the effect of the leasing of lots in the scheme on the insurance coverage.
• They consider the explanation to the third motion to be inappropriate, offensive and totally unnecessary as every lot owner has a right to seek answers to questions.

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicants) and to the affected person. A submission was received from the committee, the affected person and a number of lot owners. The applicants made a written reply to submissions under section 244 of the Act.

The body corporate’s main submissions were to the effect that:

• Section 24(1)(b) of the Standard Module does not prohibit the resolution on Motion 3 and the Motion is lawful. The Motion requests that the chairperson deal with a lot owner and others who monopolise the resources of the body corporate manager and the committee. The Motion seeks that the issue be resolved by the Chairperson working with the body corporate solicitor.
• The right of John Evered to question committee actions is not the question to be determined. It is submitted that as the applicant seeks to overturn the Motion, the question to be determined is whether the committee has the right to resolve to seek legal advice in relation to the avenues available to deal with what the committee has decided is a waste of body corporate resources. The committee is entitled to seek legal advice in relation to legal issues affecting the scheme and a lot owner does not have the power to prevent the committee from deciding a motion such as Motion 3.
• The explanation to Motion 3 shows the frustration of the committee who cannot work effectively in this environment.

The affected person’s main submissions were to the effect that:

• He made 4 telephone calls to the body corporate manager in March 2005 and four calls in April 2005.
• He sent 9 emails from February to March 2005, 10 emails to the body corporate manager in April 2005 and 6 emails from May to June 2005.
• His communications with the body corporate have been in connection with requesting information, following up on previous requests, internet access, and car parking. The issues regarding building classification, insurance and compliance with fire regulations required resolution.

The owners of 9 lots in the scheme expressed opposition to the application outlining concerns about the actions of the affected person and the consequences of these actions. The owners of 5 lots in the scheme supported the application submitting that the affected person has acted in the interests of lot owners and only he writes to the committee as it is not transparent and does not respond to correspondence. These owners submit that lot owners have a right to ask questions and the effect of the Motion is to prevent questions from lot owners.

The applicants made a written reply to submissions to the effect that:

• It is their understanding that Motion 3 should be overturned as section 24(1)(b) of the Accommodation Module applies so that a lot owner cannot be prevented from contacting the body corporate.
• The Motion has the effect of creating a precedent so that any lot owner could be subject to similar treatment.
• The matters raised by Mr Evered are valid and important items. The committee only acted on issues regarding the building classification and the insurance following the enquiries made by Mr Evered.

DETERMINATION

The applicants have provided a copy of the record of the resolutions of the committee on motions voted on outside a committee meeting dated 3 May 2005. The record indicates that 6 votes were received and that all six votes were recorded as being in favour of the third motion (the Motion) which is recorded as, quote:

RESOLVED THAT the committee direct the Chairman on behalf of the Apartments Committee to work with the PBC and the Body Corporate solicitor in preparing a complaint to the Commissioner regarding the continuing nuisance being caused by John Evered.

The notice of the motions provides an explanation to the third motion stating, quote:

Explanation: John Evered’s unfounded abuses continue unabated with vexatious, mischievous, divisive, costly, time wasting emails now also being supplemented by phone call barrage on Archers who will have little option but to increase their costs to the Body Corporate to cater for the "Evered factor". This nuisance cannot be permitted to continue to the detriment of all owners."

Section 100(1) of the Act provides that "A decision of the committee is a decision of the body corporate". Section 100(2) of the Act provides that "Subsection (1) does not apply to a decision that, under the regulation module, is a decision on a restricted issue for the committee". Section 24(1)(b) of the Accommodation Module provides that "A decision is a decision on a restricted issue for the committee if it is a decision to change rights, privileges or obligations of the owners of lots included in the scheme".

The applicants have relied on section 24(1)(b) of the Accommodation Module submitting that the effect of the Motion is that a lot owner is prevented from exercising a right to communicate with the body corporate. The body corporate submits that the Motion relates to the entitlement of the committee to seek advice with respect to an issue relating to the management of the scheme.

I agree with the submission from the committee in that the Motion does not prevent a lot owner from communicating with the body corporate. Rather, the Motion authorises the chairperson to be involved in the preparation of a complaint to the Commissioner (presumably meaning an application under the dispute resolution provisions of the Act) in relation to the nuisance caused by the affected person. The explanatory note to the Motion explains the reasons for the decision. The body corporate has the powers necessary to carry out its functions, which includes administering the common property and body corporate assets for the benefit of lot owners (section 94, section 95, Act). The committee is chosen to generally manage the day-to-day administration of the body corporate and is the administrative arm of the body corporate. The committee has the power to make a body corporate decision provided the decision is not for example, on a restricted issue and is not above the relevant limit for committee spending (section 24, section 101, Dictionary, Accommodation Module). The committee has made a decision relating to making a complaint to the Commissioner, a decision which the committee has the power to make. It is a matter for the committee to argue the merits of such an application at the time the application is given to the Commissioner. If a proper application is given under the dispute resolution provisions of the Act, the issues raised by the applicants and other lot owners would be more appropriately tested in that proceeding. For these reasons, the application is dismissed.