La Lagon [2006] QBCCMCmr 597 (15 November 2006)

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

Mr Alex Somogyi & Mr Hans Meyer, the owner and occupier respectively of lots 3 and 2 in the scheme

I hereby order as follows –

1. The body corporate purchases four trees, two being umbrella trees between 10ft – 12ft in height

in pots, and two being the type of tree specified by Mr Somogyi provided that such tree is no

taller than 12ft high.

2. The trees are to be purchased by the Applicants who will provide receipts to the body corporate

chairman or secretary or body corporate manager.

3. Within 2 weeks of the submission of the receipts by the Applicants, the body corporate must

reimburse the Applicants in full for the cost of the trees from body corporate funds.

4. The purchased trees are to be placed on or in, and remain on or in, the common property

adjacent to Unit 2 and Unit 3.

5. Trees in tubs may be planted out in the common property in the manner recommended by an

experienced gardener and in such positions adjacent to Units 2 and 3 respectively, as decided

by resolution at a general meeting.

6. The trees shall remain the property of the body corporate. Maintenance of the trees remains the

responsibility of the body corporate.

I further order that this order replaces an interim order made on 20^th September 2006.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0662-2006

"La Lagon" CTS 22150

APPLICATION

This is an application dated 15^th and 16^th August 2006 and amended on 31^st August 2006, by Alex Somogyi , owner of Lot 3 in the scheme and Hans Meyer, occupier of Lot 2 in the scheme (the Applicants) against the body corporate for the scheme (the body corporate) for an order that trees which have been cut down are replaced.

On 20^th September 2006, I made an interim order that the body corporate shall not cut down, nor authorise the cutting down, of any trees on the common property, nor make nor authorise any changes to the grounds, shrubs or garden beds on the common property, regular maintenance and mowing excepted, until further order.

Further, that the body corporate secretary should find out whether an insurance claim can be made on any insurance cover held by Ian Clayton (Mr Clayton) for cutting down trees in error which belonged to the body corporate, and put the outcome of such investigation in any submission in respect of the final order outcome.

JURISDICTION

"La (Le) Lagon" Community Titles Scheme 22150 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management ( Standard Module) Regulation 1997 (Standard Module). There are five lots in the scheme created under a Group Title Plan of subdivision.

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)).

It is acknowledged by Strata and Body Corporate Services (the body corporate manager) and chairman Stewart Nicoll (Mr Nicoll) , that the trees were cut down by mistake.

The Applicants would like to see the trees which were mistakenly cut down replaced, and that "some form of consultation takes place prior to the replacement." The trees should be paid for by the person who made the mistake, and not out of body corporate funds. If it was the contractor at fault, then it can be paid for out of his insurance.
They further seek an order that " no quotes or works of a substantial nature be undertaken by the body corporate, the committee or their agents without prior written advices and subsequent consultation."

I invited the body corporate on the occasion of the final order submissions to make proposals for the replacement of the trees.

The Applicant, Mr Meyer lost 2 umbrella trees outside Lot 2 where he lives. Two umbrella trees were also cut down outside Lot 3, owned by Applicant Mr Somogyi. Both applicants have lost their shade trees.

Mr Clayton advises that the removed tree was too close to the building and eventually would cause structural damage. He advises that "the remaining tree is also too close to the building and will eventually have to be removed."

In accordance with section 243(2)(b) Act, all owners were invited to make submissions about the matter and the replacement of trees.

The body corporate manager advised on 6th October 2006 that Mr Clayton had written to Mr Meyer to arrange a convenient time to discuss the replacement of the trees.

There were no other submissions save a letter from secretary Mrs V. Nicoll (Mrs Nicoll) who sought a review of the interim order, on the misunderstanding that it ordered a " blanket decision to hold all garden work for a further 12 months." In that letter, if it was intended to be a submission in respect of the final order, Mrs Nicoll mentioned " a significant increase in the cracks beginning in the concrete work" although she does not say where that concrete work is.

The Applicants exercised their right of reply on 31^st October 2006. Mr Meyer wrote three letters in reply, enclosing a copy of a letter dated 17th October 2006 sent to the body corporate manager, and two photographs. The Applicant Mr Meyer also wrote to this Office on 27^th September 2006 following the interim order. Mr Meyer alone wrote on 1^st November 2006 to the body corporate manager and forwarded a copy to this Office.

In the Reply to submissions the Applicants address the letter from Mrs Nicoll. They say that they are unaware of ‘problem areas’ or unsafe areas in the gardens as referred to by Mrs. Nicoll and they would like to be involved in any consultations about the gardens which they have not been. They deny that there are any cracks in the concrete work or the retaining wall which belongs to Mr Meyer’s unit. The Applicants say that " this forum is as good as any to air any of (Mrs Nicoll’s) specific grievances." The Reply concerns other matters such as missing retaining logs, dead tree stumps, garbage bins and issues of parking which are not part of the original application. The Applicants also remark upon the fact that the chairman and secretary do not live at the scheme, and that their poor performance is poor. The Reply also raises a concern about the insurance for the scheme not being paid.

In the letter dated 27^th September 2006, Mr Meyer addressed the original issue and stated that he wanted to see three advanced 10 – 12ft umbrella trees in tubs to replace the trees which were cut down. These would be placed within the grounds of his unit. Subsequently, when climatic conditions improve, the three trees could be planted in the garden beds " sometime next winter" and at the body corporate’s expense. He does not feel that to replace the original 20ft trees would be practical. He advises that the soil type is of a sand foundation, and that there is no general care for common property gardens and that unit owners beside the common property may or may not look after "their" bit of garden.

He said that Mr Somogyi might choose something else. There has been no reply from Mr Somogyi on this point which was the subject of the original application.

The Reply also comments on the general remarks made in the interim order about the management of the body corporate. Mr Meyer says he has no interest in using his powers as a lot owner but wants a "manager" to do whatever is necessary, but refuses to sit in the same room as the body corporate manager or the Nicolls. He advises that no annual general meeting has been called this year. It asks this Office to take the Nicolls and the body corporate manager to task, inform them of their responsibilities, and censure them for dereliction of duty.

DETERMINATION

This matter concerns the cutting down of trees by the body corporate. These trees were four umbrella trees on common property but gave a benefit to the Applicants Mr Meyer and Mr Somogyi. The body corporate says the cutting down was a mistake, and that whilst the chairman and secretary wanted these trees removed, they only asked the body corporate manager to obtain a quotation for the work, and they intended to discuss the issue with the Applicants after that. The gardener employed admits that the mistake was entirely his but says that the trees would have become invasive in due course since they were too close to the building.

This is disputed by the Applicant Mr Meyer who says that there is no structural damage to his wall, but he feels it would not be practical to replace a 20ft tree.

In the interim order, I asked the body corporate to investigate the possibility of a claim on the insurance of the gardener Mr Clayton, and to include that in their submissions. There has been no further information about this. I note that Mr Clayton was going to discuss replacement trees with Mr Meyer. I have no further information about this either. I also advised in the interim order that the cost of replacement trees should be investigated. I have not been provided any information about this aspect. I said a plan of the grounds and the trees concerned would also be helpful. This was not provided.

In fact, since granting the interim order to the Applicants on the question of the removed trees, the goalposts have moved in this dispute to include wide–ranging allegations of failures by the chairman and secretary on the part of the Applicants and by the Applicants on the part of the Secretary. It appears that all parties have taken this application as an opportunity to air grievances, some of them very vague and of long-standing. Neither the Applicants nor the chairman or secretary have addressed me carefully on an acceptable solution for replacement trees. I am aware that Mr Meyer alone would like three umbrella trees in tubs. I do not know what would be acceptable to Mr Somogyi. I have an idea that Mr Nicholl does not want umbrella trees in the ground if they are in a position to become invasive. That would seem to be a point of consensus.

I do not concur with Mr Meyer’s view that this forum is as good a place as any to air old or existing grievances. This particular forum exists only to try to resolve a dispute following an application by the Applicants about cutting down trees. I understand that four trees were removed from the common property – two from the rear of Unit 2, and 2 from near Mr Somogyi’s unit (Unit 3).

I therefore make an order that the body corporate purchases four trees, two being umbrella trees between 10ft – 12ft in height in tubs, and two being the type of tree specified by Mr Somogyi provided that such tree is no taller than 12ft high. The trees are to be purchased by the Applicants who will provide receipts to the body corporate chairman or secretary or the body corporate manager. Within 2 weeks of the provision of such receipts, the body corporate must reimburse the Applicants in full for the cost of the trees from body corporate funds. This of course will include funds already provided by the Applicants, that is, the Applicants as members of the body corporate share in the purchase of these trees. If a special levy is required to pay for the trees, the Applicants will share in that levy.

The body corporate (via its secretary or the body corporate manager) may like to pursue the option of being recompensed through an insurance claim against any cover held by Mr Clayton.

The purchased trees are to be placed on and remain on the common property adjacent to Unit 2 and Unit 3. Trees in pots may be planted out in the common property in the manner recommended by an experienced gardener and in positions decided upon following resolution at a general meeting.

These trees remain the property of the body corporate. If the Applicants, or either of them, wish to tend the trees, that is a matter for them. Maintenance of the trees remains the responsibility of the body corporate.

Garden maintenance should be an item budgeted for at each annual general meeting. The committee may organise general maintenance within its spending budget but where any decision affects the rights or privileges of lot owners, such decision may only be made at a general meeting of lot owners. (Section 26 Standard Module) In any event the committee is required to provide a copy of its agenda for any committee meeting to all lot owners and the committee, and must not act on a committee decision for at least 7 days after the committee meeting minutes have been circulated to all lot owners. (Section 37 Standard Module.)

By operating in accordance with the legislation, all lot owners should be kept informed of gardening and landscaping proposals. Any lot owner may of course propose their own motions for gardening or landscaping to the committee or to a general meeting.

During the dispute it became evident that this scheme is not a happy one. Whilst there are only five lot owners, the Applicants clearly feel that since the chairman and the secretary wield too much power, and ignore them as lot owners, and that the body corporate manager does not "manage" the scheme. There is another dispute lodged by Mr Meyer in this Office.

In the interim order, I made certain general remarks about scheme management. This Office offers a dispute resolution service and an information service. It does not police bodies corporate. It has no regulatory function. It does not reprimand lot owners or body corporate managers.

Under the Act, a body corporate is established as a self-governing entity with certain powers and duties. For example, the body corporate is required to maintain the common property. The body corporate means all the lot owners. A lot owner cannot opt out of being a member of the body corporate. A claim against the body corporate is a claim for which all lot owners are ultimately responsible. The Act and Regulations provide a framework whereby a body corporate must manage the complex for the benefit of the owners. This framework requires that a committee is appointed annually, and enables the body corporate to engage a body corporate manager if it wishes to do so. The body corporate manager is usually engaged to organise paperwork, and send out notices of meetings or send notices about financial contributions. The body corporate manager is not the supervisor of the scheme and has no power at all other than given in the contract of engagement. The body corporate manager can be hired and fired. Any body corporate manager takes its instructions only from the body corporate and it would be quite wrong for the body corporate manager to instigate any action on its own initiative without instructions from the committee or the body corporate at a general meeting.

It is apparent that the Applicants do not want to take an active role, but want someone else to manage the scheme for them, although in consultation with them. The legislation provides for committee meetings and general meetings, and as I detailed in the interim order, since the Applicants live on site and are likely to be on the Committee (the maximum number on the committee being 5 in a scheme of 5) then they could have quite a say in how the gardens are maintained. They could also require a general meeting to be convened (Section 61 Standard Module requires only 25% lot owners in writing to request a general meeting) for resolution of any motions proposed by them.

Since this order replaces the interim order, the interim order is now at an end.

Number of Scheme:	22150
Name of Scheme:	La Lagon
Address of Scheme:	6 Aquila Court MERMAID WATERS QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

La Lagon [2006] QBCCMCmr 597 (15 November 2006)