Federation Court [2005] QBCCMCmr 554 (7 October 2005)

Last Updated: 19 July 2006

REFERENCE: 0643-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19618
Name of Scheme:	Federation Court
Address of Scheme:	32 Government Road LABRADOR QLD 4215

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

George and Stephanie Miller, the Owners of lot 6.

I hereby order that the resolution based on motion 11 is a valid resolution of the meeting and may be given effect to by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0643-2005

"Federation Court" CTS 19618

THE APPLICATION

The co-owners of Lot 6 in this scheme, (the Applicants) made a dispute resolution application to the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act)seeking interim and final orders in respect of Motions 10, 11 and 12 on the agenda for the AGM held on 20 September 2005.

Motion 10 read as follows:
Fence Repairs
That the damaged dividing fence from unit 4 towards unit 6, be repaired, and that the following quotations be considered and one quote accepted:
(A) Glen Harvey $415
(B) MINC Services $911

Motion 11 reads as follows:
Quarterly Garden Maintenance
That the gardens be cleaned, pruned, trimmed and weeded quarterly and that Glen Harvey be engaged at a cost of $245 per visit.

Motion 12 reads as follows:
Unit 2 Fences – Termite Inspection & Treatment
That the dividing fences for unit 2 be inspected and treated for termites and the common areas be inspected and the quote from First Choice Pest Control of $330 be accepted.

In respect of motions 10 & 12 regarding replacement of termite damaged fences, it was claimed that

• the fence between units 2 & 3 is the responsibility of the respective owners;
• it is unclear what a "regular inspection" of the common areas would involve;
• there is no mention in the quote from First Choice Pest Control of whether the "electricity lead in pole" requires treatment;
• Neither quote includes replacement of the termite damaged posts as this was not known at the time of the committee resolution;
• Harvey’s quote does not include replacement of any posts, refers to "Body Corporate Area Only" and did not include the section along the side of the rear courtyard of unit 6;
• Motion 10 does not make it clear whether the two quotes represent the full cost of repairs or only the body corporate’s contribution to the repairs as required by the Dividing Fences Act.
• It is therefore submitted that motions 10 & 12 should be declared void.

In respect of Motion 11, the applicants sought orders that the secretary obtain a written quote from Mr Glen Harvey for quarterly garden maintenance for consideration at the AGM on 20 September 2005 and the written quote be distributed prior to the AGM. The grounds for seeking these orders were that no written quotation had been provided to the committee or distributed to members and the amount of $245 per quarter ($980 per annum) is above the level for committee spending and must be determined in a general meeting.

THE "FEDERATION COURT" COMMUNITY TITLES SCHEME

The "Federation Court" community titles scheme was originally created under a group titles plan of subdivision (now known as a standard format plan) registered on 14 May 1993. The scheme land consists of six lots and common property and is primarily used for residential purposes.

JURISDICTION

Section 227(1)(b) of the Body Corporate and Community Management Act 1997 (the Act) provides that a dispute between an owner or occupier of a lot and the body corporate, is a dispute which may be resolved under the dispute resolution provisions of the Act.

Further Section 227(1)(g) of the Act provides that a dispute between a committee member and the body corporate, is a dispute which may be resolved under the dispute resolution provisions 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.

DETERMINATION

On 12 September 2005 I made the following interim orders:

•	That the AGM scheduled for 20 September may proceed;
•	Motions 10,11 and 12 (including amended versions of those motions) may be voted upon; and
•	However, owing to the possibility that resolutions based upon motions 10,11, and 12 could be invalid, the Body Corporate is to refrain from carrying out resolutions based on these motions until a final order has been issued.

The AGM was convened on 20 September where motions 10, 11, and 12 were duly considered.

It was resolved that motions 10 and 12 be defeated. Consequently there is no need for me to make further orders regarding motions 10 & 12.

Motion 11 was amended to read as follows:

"That the gardens be cleaned, pruned, trimmed and weeded quarterly and that Glen Harvey be engaged at a cost of $220 per visit as per the quote provided at the meeting."

This motion was carried.

Orders

The resolution based on motion 11 is a valid resolution of the meeting and may be given effect to by the body corporate.