Dolphin 1 [2006] QBCCMCmr 351 (29 June 2006)

Number of Scheme:	356
Name of Scheme:	Dolphin 1
Address of Scheme:	18-20 Beach Road DOLPHIN HEADS QLD 4740

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

I hereby order that the resolution passed outside a Committee Meeting on 2 February 2006 to be invalid.
A copy of this decision is to be provided to each lot owner of the Dolphin 1 Community Titles Scheme.
The application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0191-2006

"Dolphin 1" CTS 356

The Application

The applicant, Justin Peel, is the tenant and occupier of lot 4 in the Dolphin 1 Community Titles Scheme (Dolphin 1). The applicant is seeking an order to:

Allow the occupier of unit 4 to connect to existing Austar dish and connection provided to unit to gain TV reception.

Section 276(1) of the Body Corporate and Community Management Act 1997 (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)).

Background

On 20 September 2004, A. Morio, a then employee of the body corporate managers for Dolphin 1, Body Corporate Services (BCS), signed a "Right of Access Agreement" (the Agreement) with Austar - providers of a satellite television service. The Agreement provides that Austar can install a satellite dish on the common property of Dolphin 1 and thence provide connections for a fee to individual lots. Austar subsequently did install a satellite dish on the building of Dolphin 1. The Agreement provides that Austar is under no obligation to remove the satellite dish. It is not clear under what conditions Austar would remove the satellite dish – presumably at its discretion only.

It is claimed that Ms Morio signed the Agreement when she did not have the authority to do so. It is claimed that the approval of the Committee was needed for the Agreement. The Agreement has a clause where the signatory – Ms Morio – warranted that she has the authority to sign the agreement on behalf of the Body Corporate. Austar has relied on the Agreement to have the satellite dish remain in situ despite an alleged request of the Body Corporate for it to remove the equipment.

On 28 September 2005, the Chair of the Body Corporate Committee for Dolphin 1, Terry Mills, wrote an e-mail to Austar informing it that no further subscriptions to its television services were to occur in future without the written approval of the Body Corporate. That same day Austar informed the Chair, also by e-mail, that "inactive addresses" at Dolphin 1 were to be made "unserviceable in its database". In effect, a lot owner at Dolphin 1 cannot obtain access the television services offered by Austar as a new subscriber unless the Body Corporate approves that access in writing. The very important information as to whether there are existing users of Austar’s services at Dolphin 1 and if so, how many has not been put before me.

The applicant does wish to access the television services offered by Austar. The applicant claims that his television reception of the ‘free-to-air’ stations is very poor. The applicant consequently approached his landlord, the owner of lot 4, through his rental agency, Mackay Rentals. The owner of lot 4 did give permission for the applicant to access Austar’s services. The rental agency in turn wrote to the Chair, by email dated 10 February 2006, seeking the Body Corporate’s approval for the access. BCS’ record states that a relevant motion on the issue was distributed to the five members of the Committee on 24 January 2006. This date is confusing. BCS’ record is that the issue was put to the Committee members 17 days before the rental agency put the request to the Chair. The owner did not give his permission until 27 January 2006. I find it curious that the Committee would be approached before the owner.

In the event, the only Committee Member who did vote on the motion was the Chair. That vote took place on 13 February 2006. The Chair then wrote to the rental agency, by e-mail dated 13 February 2006, denying the permission sought by the applicant.

The denial has prompted this application by the applicant.

Reasons for the denial

The Chair did not provide reasons for the denial of permission in his e-mail of 13 February 2006 to the rental agency. The Chair has provided a submission dated 19 April 2006 to this Office in the course of this application. The Chair has provided reasons for his objection to the applicant’s request for approval in this submission.

Curiously, the Chair states that his submission is lodged as an owner rather than as the Chair. I do not know what to make of this statement. The Chair was the sole voter on the motion concerning the request for permission. I cannot see why the reasons that he has provided "as an owner" would not be the same reasons for his vote on 13 February 2006 as the Chair. The Chair, despite ‘wearing his owner’s hat’ has proceeded in his submission to provide this Office with information and documentation specific to his ‘Chair hat’.

I consider that nothing hinges on this declaration. For the purposes of this application I have decided to treat the reasons provided on 19 April 2006 as being the same reasons for the Chair‘s vote on 13 February 2006. I have similarly decided to refer to the Chair throughout.

The Chair has stated "at the heart of the issue...is the original disregard of By-law 14..." This by-law states:

BY-LAW 14 No external blinds or aerials

14. No external blinds, wireless or television aerials shall be erected without the previous consent in writing of the committee of the body corporate.

While this By-law does not specifically mention satellite dishes, the Chair has argued that this equipment would equate to a "television aerial". For the purposes of this application and my decision on it I have accepted this argument.

Ultimately however, I consider this reason to have no relevance to this current application. I fail to see why the applicant, a tenant at Dolphin 1, should be held accountable and/or ‘punished’ for the action of Ms Morio. Certainly, the applicant has not in any way breached By-law 14.

The issue in this matter is straightforward. The Austar infrastructure exists. The physical act of accessing it requires no more than the applicant use the existing connection to his unit. However, access to the service has been previously blocked at Austar by the Chair (I will comment further on this action later in this decision) and requires nothing more involved than a letter of authorisation from the Body Corporate to Austar.

It is irrelevant to this application that the Austar connection was installed without proper authority in the first place or that one day, the satellite dish may be un-installed. At present, while the infrastructure remains in place there would not appear any detriment whatsoever for the Body Corporate to the applicant being provided access to the Austar service.

I can only presume that the Chair (at least) wishes to have Austar remove its satellite dish from the building and it would certainly not do so while at least one lot owner is accessing its services. This is in part, why the information that any other occupier at Dolphin 1 is currently accessing the services of Austar is important. Regardless, even if this is the underlying rationale behind the refusal of permission by the Chair, I do not consider that his personal view on Austar’s satellite dish is in itself a determinative factor in deciding whether or not occupiers should have access to Austar’s services.

The Chair has claimed that three years ago, the Body Corporate installed a parallel dedicated antenna system for the building. The Chair suggests that this installation – which also connects to the applicant’s unit – voids the applicant’s need for Austar. The sole basis for this suggestion is that none of the occupiers of the units connected to this system have complained of poor quality television reception.

I am not persuaded by this argument. One of those connected to the antenna system – the applicant – complained. The applicant states that he has very poor reception of the commercial network – to the point that it is "unwatchable". I would accept that the applicant is in the best position to know this. There are a myriad number of reasons why the television reception in the applicant’s unit could be poorer than other units – potential degradation of the antenna system and individual variances between units immediately come to mind.

Moreover, connection to Austar will cost the applicant. Currently, the minimum monthly subscription cost to Austar’s "Essentials" (the bottom end package) is $46.95^[1]. It would not make sense for the applicant to unnecessarily pay for a television service if he already gets a satisfactory service for free.

Notwithstanding this point, the existence of an existing television service in the building is a specious argument for denying the applicant access to another television service. The argument is in effect "why should we allow you to pay for a service when you get one for free". The obvious counter-argument to this is "it is my choice as to how I spend my money not yours".

In short, the arguments put forward by the Chair to deny the applicant access to the Austar service have more to do with his personal objection to the initial installation of the Austar satellite infrastructure and less to do with merits of the applicant’s request. It is also clear that the current dispute is between the Chair (at least) and Austar rather than the applicant. I would not consider these to be reasonable bases for the Chair’s refusal.

Actions of the Chair

The underlying principle for community titles schemes is that they self-manage. They do so through two principal mechanisms, the appointment of a Committee with executive authority and through majority vote both at the Committee and Body Corporate levels.

The obligations on a Body Corporate in its management are in part, set out in section 94 of the Act; this section states:

94 Body corporate’s general functions

(1) The body corporate for a community titles scheme must--

(2) The body corporate must act reasonably in anything it does under subsection (1).

The executive power of the Committee is set out in section 100(1) of the Act; this section states:

100 Power of committee to act for body corporate

(1) A decision of the committee is a decision of the body corporate.

Section 35(4) of the Act gives an occupier of a lot the same rights in relation to common property as that of a lot owner; this section states:

35 Ownership of common property

(4) If the occupier of a lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier.

Accordingly, the Committee, through the mechanism of majority vote, acts on behalf of the Body Corporate to administer the common property and body corporate assets for the benefit of all owners and occupiers of the scheme. Any decision the Committee makes in performing its role must be reasonable.

I am extremely concerned with the ‘resolution passed outside a committee meeting’ on 2 February 2006.

The wording of the motion distributed to the Committee was "That the Body Corporate approve to install Austar to the complex [sic]". I agree with the applicant’s submission that this motion is poorly worded. Austar is installed to the complex. More correctly, the motion should have sought Body Corporate approval for the applicant to access the services provided through the current installation. The Chair, as author of the e-mail to Austar of 28 September 2005, knew of the existing installation and the subsequent need for approval of access only. I would hope the other four members of the Committee would similarly have this knowledge and they would have discerned the true intent of the motion accordingly.

It appears that the wording of the motion was in part suggested by the rental agency. There is no information before me that the motion was put in this way for the purpose of influencing the vote on it.

Notwithstanding the above point, BCS’ record clearly shows that there was not a quorum for this Committee Meeting and that the Chair was the only person to vote on the motion. Regardless of this, the resolution was recorded as being lost. The Chair then went on to use this ‘resolution’ as the basis for informing the rental agency that permission to connect to the Austar infrastructure was denied. This is despite a clear indication in the record that the Committee needed to consider this motion at a future meeting.

I am further concerned at the disingenuous statement in the Chair’s e-mail to the rental agency of 13 February 2006 that "the motion failed to obtain the necessary support and was ‘lost’". I do not consider one nay vote and four failures to vote as indicating one way or another support for the motion. The truth is that the Chair alone decided he did not wish to give permission to the applicant and then communicated that position to the rental agency as if it were the decision of the Body Corporate.

I consider this action to be an abuse of the Committee process. While section 100(1) of the Act does permit the Committee to take action on behalf of the Body Corporate, the Committee is a collegiate body. A single Committee member cannot exercise the authority of the Committee.

Additionally, the role of a Chair of a Committee is exactly that – to chair meetings of the Committee and of the Body Corporate. The day-to-day administration of Body Corporate business falls to the position of the Secretary and for financial matters to the position of the Treasurer also. From the Chair’s singular communications and role in this issue it strongly appears that not only is the Chair exercising authority that as a lone Committee Member he does not have, he is also usurping the responsibilities of the Secretary of the Committee. Indeed, there is no information before me as to whether the other members of the Committee have had to date any significant input into the Austar issue.

The Chair’s actions in this matter call into question all the administrative actions he has undertaken under the authority of the Committee on this issue. While it is not the direct subject of this application, there is a question as to whether the Chair’s e-mail to Austar of 28 September 2005 blocking future installation of its services was in fact authorised by the Committee or was rather another unilateral act by the Chair.

Accordingly, I have no hesitation in declaring the resolution passed outside of the Committee Meeting of 2 February 2006 to be invalid. As such, the Chair had no authority to deny the applicant access to Austar’s services.

I also consider that the Chair’s unilateral actions as a Committee Member to be a legitimate issue of concern for the Body Corporate. For this reason, I have decided to bring his actions to the attention of the Body Corporate members. Accordingly, I order that a copy of this decision be provided to each lot owner in Dolphin 1.

For whatever past reason, Austar’s satellite has been installed on the building at Dolphin 1. Now that it is installed, access to the potential services it provides is a matter for the whole of the Body Corporate to consider and decide, not just one person. The submissions and information provided to me in the course of this application shows there are at least two lot owners at Dolphin 1 who are in favour of the applicant accessing the Austar services and by implication of the installation itself.

My decision

Unfortunately for the applicant, the effect of my decision invalidating the decision of the Chair is that the Committee has yet to consider his request for connection and concomitantly, has yet to make a decision on the request. Until a point when the Committee does make a decision (and in the event its decision is to decline to give its approval) the applicant has no dispute with the Committee as defined in section 227 of the Act. It follows that in the absence of a dispute, I have no power to make a determination on the request by the applicant for access to Austar’s services.

As noted above, the minute of 13 February 2006 recorded that the Committee felt that it had to hold a Committee Meeting to discuss the access to the existing installation further. There is nothing before me suggesting that this meeting has occurred. It should occur. The Committee is put on notice, from the fact of this decision alone, that its decision on the applicant’s request remains outstanding. I would urge the Committee to give that request its reasoned attention as a matter of urgency.

For the above reason, I have decided to decline to grant the order sought by the applicant.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Dolphin 1 [2006] QBCCMCmr 351 (29 June 2006)