No. 9 Port Douglas Road [2006] QBCCMCmr 674 (18 December 2006)

Last Updated: 27 March 2007

REFERENCE: 0798-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4871

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

Stainlay, Tecelec Qld Pty Ltd, Forsyth, & Ewing, the Owner(s) of lots 17, 10, 5 and 14 respectively

I hereby order that the application for orders, including to invalidate resolutions to accept quotations for various roofing works, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0798-2006

"No. 9 Port Douglas Road" CTS 24368

Application

No. 9 Port Douglas Road Community Titles Scheme (No. 9 Port Douglas Road) is an 18 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application by Maxwell Stainlay, Tecelec (Qld) Pty Ltd, Myles Forsyth, and Timothy Ewing, owners of lots 17, 10, 5 and 14 respectively (applicants).

Background

No. 9 Port Douglas Road is described as a warehouse/office/residence converted to an 18 unit complex. Lot boundaries are designated under a building units plan (now known as a building format plan). Photographs show that the front section of the top level of the building includes a large open deck area and the back section has metal roofing. It is common ground that water proofing measures in the front section of the building are lacking or have failed resulting in large quantities of water entering the building. Water also enters the building from the back section and it is common ground that the metal roofing and guttering in that section requires work.

At a general meeting on 28 April 2006 owners were given an opportunity to vote on alternative options to "repair/replace the roof". The alternatives were:

1.	To repair the roof by replacing the waterproof membrane, pouring a topping slab, retiling the whole roof area, and capping all walls;
2.	To build a roof over the front section only including capping and retiling, and repairing of the rear of the roof;
3.	To install a new roof as per drawings and specifications provided by Greg Skyring. These drawings showed a new roof covering the whole building and new block work up to the height of the roof.
4.	To install a roof over the front section only incorporating the open area of unit 16, the open area above units 7, 8, 9, and 10 plus carrying out repair works on the remaining roof section and wall capping as recommended by ARUP Engineers;
5.	To perform the rectification completely in accordance with the specifications of ARUP Engineers. These specifications covered waterproofing of the external walls, the roof deck expansion joint, the existing roof membrane, the building services roof penetrations and the tiled terrace; and
6.	To perform the rectification according to a quotation from Into Constructions for $251,406. The material provided indicates that this quotation was largely in accordance with waterproofing and membrane works proposed by ARUP Engineers but with some differences included reduced use of High Build Acrylic Membrane, an alternative wall capping, and no mineral sheet membrane or corner fillets for waterproofing of the terrace and expansion joint.

Owners voted unanimously in favour of the primary motion to "repair/replace the roof" and the most popular alternative was the fourth option, being to roof the front section, carry out repair works on the remaining roof, and perform wall capping.

Two of the applicants then lodged an application challenging this result. The main submission was that all the alternatives to repair or replace the roof should not have been combined in one motion as some were for repairs only while others were for repairs and improvements combined. This application was dismissed on grounds including that the proposals involving a metal roof over the building were genuine alternatives to the proposals involving fixing or installing waterproofing membranes and the applicants did not establish the real purpose of these proposals went significantly beyond maintenance in the form of rectifying an existing defect with the building.^[1] This decision was then appealed with the District Court recently accepting arguments that at least some of the alternatives were improvements and should have been decided by special resolution but confirming that the votes cast did in fact meet the requirements of a special resolution.^[2] In this context, Justice White was of the view that the voting paper was defective in that it specified that the motion was to be decided by ordinary resolution instead of special resolution but this was an irregularity of the most technical nature in the context of the case and it was just and equitable to make an order confirming the validity of the resolution.

In the meantime, at an extraordinary general meeting on 15 September 2006, owners had passed five resolutions purporting to accept quotations for work related to roofing and painting the building. In the present application, the applicants seek to have these five subsequent resolutions declared void. These five resolutions are:

•	Resolution 3 - To accept quotations from Kenmac Constructions for the new roof and Mossman Refrigeration Services for relocation of the air conditioners;
•	Resolution 4 - To accept a quotation from GND Cairns Painters to paint the building;
•	Resolution 5 - To accept a quotation from Darren Barnes for additional roof repairs to the western roof being wall capping, box gutter and roof repairs;
•	Resolution 6 - To accept a quotation from Into Constructions to replace laser light roofing; and
•	Resolution 7 - To accept a quotation from Into Constructions for air conditioner repairs.

Submissions

Initial submissions from the applicants were to the effect that

• Resolution 3 described as "Roof Repairs" should be void as it involves the building of "a new metal roof over the terrace" and amounts to a structural addition or improvement as opposed to repair or maintenance. It is therefore submitted that this needed to be passed by special resolution rather than ordinary resolution;
• Resolution 4 described as "Painting of Building" not only relates to the painting of existing structures and areas but also the painting of new walls to be constructed on top of the existing front section of the building. The painting therefore amounts to an improvement rather than maintenance;
• Resolution 5 described as "Additional Roof Repairs to Western Roof", resolution 6 described as "Replacement of Laser Light Roofing", and resolution 7 described as "Air-Conditioner Repairs" are all part of a series of associated repairs and or improvements to the western roof area and should be grouped as a whole project or separated into repairs and improvements. Resolution 5 includes the provision of non existent wall capping so should be a special resolution for improvements. Resolutions 6 and 7 are associated improvements;
• Some additional information was distributed two days before the meeting and includes newly constructed balconies as additions for the exclusive benefit of lot 16 without notification or consent of grant; and
• The above resolutions are not reasonably necessary for the health, safety or security of persons as a more viable option is available as submitted by the previous committee for the extraordinary general meeting of 28 April 2006. Further, the ability of the present committee to act honestly, fairly and equally represent all owners is questioned and the appointment of an administrator to perform the functions of the committee is requested.

Further submissions in support of the application have also been made, including that:

• There are other issues that need to be addressed prior to repairs on the western roof;
• The construction of additional balconies would require a resolution without dissent;
• The special resolution purporting to give permission to construct the balconies seems to make the body corporate liable for the costs and does not specify that common area will be used;
• Water ingress should have been addressed for all balconies by installing additional splitters on either side of the box gutters to stop overflow of water into the ceiling space of balconies below in the event of excessive rain. Even installing a roof at a higher level will not stop the rain blowing onto the floor level and installing a floor over the existing balcony roofs will render the existing box guttering useless; and
• Body Corporate Services has issued an invoice for levies associated with all the proposed building works which are still under adjudication. The only reason for this appears to be to place owners who question payment in an unfinancial position without a vote at future meetings.

The committee initially made submissions to the effect that:

• The application is a complete duplication of a previous application that was dismissed by the adjudicator but was since appealed to the District Court;
• The persons making this present application were all former committee members and were, at the April 2006 annual general meeting, removed from those positions by the majority of owners for failing to rectify the building’s water ingress (amongst other things);
• The motion put forward by these former committee members at the April 2006 annual general meeting was by way of an ordinary resolution with alternatives and the vote in favour of this motion was unanimous with the vote for the alternatives being determined by a simple majority which we understand is in accordance with the Act;
• The committee is astounded by the objections raised to the quotes for the extraordinary general meeting on 15 September 2006 when the quotes were based on the scope of works and on preliminary plans that were prepared by the applicants to this dispute. These same former committee members had spent over $10,000 on plans and consultants but did not produce any quotations for a roof structure as mandated by the owners at the previous annual general meeting in March 2005 and as recommended by the body corporate’s consulting engineers; and
• The application is even more ludicrous and contradictory given that the works and repairs in question include repairs directly above the units of some of the applicants, some of the applicants previously requested that the Commissioner authorise the appointment of a builder to rectify works over these lots, but in this application they are asking the Commissioner to stop any of these works proceeding.

Further submissions opposing the application have also been made, including that:

• It has been recommended by experts that the only way to stop the roof from leaking is to completely re roof the building. So to dispute the obvious seems ridiculous;
• All owners were provided with detailed information to make their vote;
• The original plans for the new roof were produced by Greg Skyring in consultation with ARUP engineers. These were distributed to owners in December 2005 and accepted in principal by owners at a general meeting on 28 April 2006 subject to owners voting to only roof the front section and carry out repairs to the western section that has an existing roof;
• It was always intended to relocate the air conditioners because enclosing the air conditioners under the roof would be inappropriate for their ventilation and operational performance;
• The roof structures over balcony areas are necessary to alleviate water ingress;
• The original plans for roof structures over the balconies included a roof at a height of one metre that would have blocked the opening. However, at an extraordinary general meeting on 29 August 2003 unit 16 had been given permission to place new tiled patio areas in this position and erect wrought iron balustrade to match balconies;

Decision

Maintenance or improvement

General concepts

A body corporate must administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners (Act, 152). The regulation modules place obligations on the body corporate in respect of maintenance. Significant maintenance generally needs to be approved by an ordinary resolution of owners in general meeting.

The regulation modules may also make provision for the circumstances under which improvements may be made, including who is authorised to make improvements (Act, 159). Under the present regulations, significant improvements normally need to be authorised by a special resolution of owners in general meeting.

On a broad view of "maintenance" a body corporate should be allowed a reasonably wide discretion in the means by which it performs its maintenance obligations^[3] and any repair can invoke an element of improvement but still remain within the general concept of repair.^[4] For example, the view has been taken that quite different solutions or methods of repair might be categorised as "maintenance" if the principal intention of the proposal is to return something to a useable condition or state of repair.^[5] For example, replacement of a balcony balustrade with a safer type of balustrade can constitute "maintenance",^[6] as can redecorating common property lift landings and replacing the floor coverings.^[7]

A narrow view put forward by the applicants is to the effect that any "change" amounts to an "improvement" even if that change is for the purpose of maintenance. I note that the definition of "improvement" in the Act includes both structural and non-structural changes and that the definition of "change" in the Acts Interpretation Act includes change by addition, exception, omission or substitution. If these definitions are applied in relation to section 112 of the Accommodation Module then all of the alternatives put forward for repairing the roof for No. 9 Port Douglas would constitute an "improvement". For example, even acceptance of the quotation from Into Constructions would have required a special resolution due to, among other things, use of a more modern type of membrane and the addition of wall capping.

On balance, I prefer a broad view of "maintenance" that does not classify a change as an "improvement" if the purpose of the proposal is maintenance of existing structures or things, even if the work involves some change or the replacement of something with a modern equivalent. The Act contains a very wide definition of "improvements" that effectively states that the regulation module may include provisions about the erection of a building, a structural change and a non-structural change. The regulation modules then specifically provide for an authorisation process for improvements to common property but do not contain their own definition of "improvements". Normally, words in regulations have the same meaning as they have, from time to time, in the Act under which the regulation is made (Statutory Instruments Act 1992, 37). However, this rule may be displaced by a contrary intention (Statutory Instruments Act 1992, 4).

The purpose of the relevant provisions in the regulations appears to be only to provide a means by which owners can vote to authorise changes made for the purpose of improving the use of scheme land rather than provide an additional hurdle for authorisation of changes made in order to meet the maintenance obligations imposed by other provisions of the legislation. It would seem absurd if basic maintenance like adding sealant around a window frame, trimming common property trees or repair of an item by replacement with modern substitute would require the proposed work to go though a special authorisation process as an "improvement".

The word "improvements" seems to be used in the regulation modules according to its usual legal meaning of "something to enhance the value of land or make the use of land more efficient"^[8] as opposed to work comprised of a change designed to keep existing improvements in good repair. This usual legal meaning of the word "improvements" also fits better with the requirements in the regulations that the original owner give the body corporate plans of all buildings and improvements showing related utility infrastructure, provisions relating to insurance of improvements, and the requirement for the body corporate to keep a register of authorised improvements made by an owner.

Roofing an improvement to the extent it relates to balconies

I have taken a broad view of "maintenance" as being work where the purpose of the proposal is maintenance of existing structures and have read "improvements" to refer to structures, items or work where the purpose is to improve the value or use of the land.^[9]

A new metal roof as an alternative to a roofing membrane can fall within the concept of maintenance where the membrane has failed in the past and the body corporate has been advised that building a new metal roof is the best way to stop rain water pouring into the lots below. However, to the extent that proposed roofing is not designed to protect the areas with the failing membrane but is above areas where an owner is proposing to add new balconies, the roofing is clearly an "improvement".

This is based on a previous decision where the view was expressed that replacement of a safety balustrade with a safer type of balustrade constitutes "maintenance" but the erection of balustrades on an area where none previously existed would be considered to be an "improvement".^[10] In short, if the owner of lot 16 improves the lot by adding new balconies then any new roof over those balconies is also an improvement.

Similarly, submissions indicate that the new roof will also cover some existing balconies that were previously open to the elements. In this respect it is more difficult to see that this part of the roof serves a maintenance purpose as rain will still presumably blow onto the balconies and the roof therefore will not serve a waterproofing function in the same way as proposed for the main section of the roof above the tiled terrace of lot 16 and the rooftop common property area. However, following a common sense approach these comparatively small areas of new roofing would provide some protection from rain and may be best seen as peripheral to the general maintenance purpose of waterproofing the building.

Relocation of air conditioners an improvement

Installing air conditioners on common property is also an "improvement". In the present situation, air conditioners are to be relocated from another area rather than installed fresh but this would still fall within the concept of work done as an improvement rather than maintenance.

There is an argument that moving the air conditioners on top of the new roof will assist the air conditioners to operate more efficiently. However, I do not accept that this takes the work outside the concept of an improvement and into that of maintenance. Rather, any evidence that the air conditioners are not functioning properly and need to be moved may instead be relevant to whether the improvements are necessary for health and safety or whether votes opposing the relocation of the air conditioners are exercised unreasonably.

Painting

The proposed painting of the building is for the purpose of maintenance rather than to improve the scheme.

I do not accept the applicants’ argument that painting of small amounts of additional brickwork would take the work outside the general concept of maintenance.

Repairs to western roof

The proposed repairs to the western roof also fall clearly within the concept of work for the purpose of maintaining the existing building.

I do not accept the applicants’ argument that addition of wall capping to stop water seeping into the walls takes this work outside the general concept of maintenance.

Replacement of laser light roofing

The proposed replacement of old laser light roofing with new laser light roofing is within the concept of repair and maintenance. However, the extending of rafters by one metre on each side and new guttering leading to the box gutter raises the question of whether the proposal serves a dual purpose of maintenance and also improvement.

The applicants refer to a decision that involved the replacement of a dilapidated BBQ Hut.^[11] In that decision the proposed rendering of the BBQ Hut was seen as a peripheral aspect of the body corporate maintaining the BBQ Hut. However, an additional proposed cost of 36% to install a new feature involving stainless steel bench tops and splashback was considered to be sufficient to change the nature of the proposal from "maintenance" to "improvement".

In short, the complete demolition and replacement of the BBQ Hut was a reasonable manner of "maintaining" the common property even though the proposed replacement BBQ Hut was not exactly the same as the existing BBQ Hut. However, a significant proposed alteration in the form of stainless steel bench tops at an additional cost of 36% was significant enough that the benches amounted to an "improvement".

In relation to the replacement of laser light roofing it is necessary to determine if the additional work is merely peripheral to the replacement or if it amounts to an "improvement".

In the present situation, the proposed extension of rafters by one metre and additional guttering and piping leading to the box gutter seems to be for the purpose of improving the waterproofing of the building rather than providing any additional usable improvement. I therefore conclude that the proposal for replacement of the laser light roofing is "maintenance" and the minor extensions to the existing roof are merely peripheral aspects that do not transform the work into an "improvement".

Air Conditioner Repairs

The proposed work on the air conditioners involves maintenance rather than improvements.

I do not accept the applicants’ argument that additional sealing and casing to prevent the piping insulation carrying water into the ceiling space takes this work outside the general concept of maintenance.

Summary

In short, resolution three proposing to accept quotations from Kenmac Constructions for the new roof and Mossman Refrigeration Services for relocation of the air conditioners relate to works that include "improvements", in the form of roofing new balconies and relocation of air conditioners. These proposals therefore need to have been authorised by a special resolution.

However, motions 4, 5, 6, and 7 are properly "maintenance" issues and I do not accept the arguments from the applicants to the effect that these works would need to have been authorised by special resolution.

Authorisation by special resolution

Special resolutions relied upon to authorise proposed works

Two resolutions have been put forward as providing the necessary authority for any works that amount to "improvements".

The first of these is a special resolution at an extraordinary general meeting on 29 August 2003 authorising the owner of unit 16 to remove planter boxes surrounding the skylight, install a shade sail, place a false tiled floor above the balconies below, and make internal changes enclosing the small porch.

The second of these is the resolution of 28 April 2006 that the body corporate install a roof over the front section of the building incorporating the open area above units 7, 8, 9 and 10, carry out repair works on the remaining roof section, and wall capping above units 16, 17 and 18. The decision of the District Court indicates that the body corporate’s lawyers conceded that the works proposed by this resolution involved improvements but argued that the motion was decided as if it were a special resolution anyway. The District Court accepted this argument and said that the failure of the voting paper to specify that the motion was by special resolution was an irregularly of the most technical nature in the context of the case.

Building of new balconies

The proposed new balconies were discussed in some detail during a teleconference concerning this application. The owner of unit 16 made submissions to the effect that he had previously built the balconies at a cost of $7,000, that these balconies helped prevent water ingress to lots below, but the committee removed the balconies at a cost to him of $5,000 because of a dispute about provision of an engineers report. Submissions by the applicants were to the effect that the new balconies made the water ingress problems worse, that the plans show the balcony would slope inwards and the boxed guttering contained within each balcony would be useless, and that the area where the balconies are to be installed is not common property and does not exist in its present form requiring a resolution without dissent to register a new plan.

I have reviewed the wording of the resolution and attached drawings as well as the plan of the building. It is reasonably apparent from this material that the special resolution operates as authority for the owner of unit 16 to install balconies above the balconies of lots 9 and 11 below with wrought iron balustrade to match those of the balconies below.

I am also satisfied that, from the body corporate’s perspective, a special resolution is sufficient to authorise an improvement of this nature. Almost any authorisation for an improvement to common property for the benefit of a lot allows the person making the improvement to take "exclusive use" of the area of the common property at least for some period of time. If an owner wants some form of guarantee that they can use a specific area of common property for a specific period of time then the owner can seek the benefit of a lease for that period. If the owner wanted to be sure that owners could never withdraw their permission to use an area or if improvements to an area were to be of a permanent nature so that it would not be feasible to restore the common property to its former condition then a resolution without dissent should be sought and a new community management statement should be registered to make the areas part of the owner’s lot or subject to an exclusive use by-law

However, the owner of lot 16 has indicated that he does not require permanent approval for the new decks and they can be removed if owners pass another special resolution revoking the authorisation. From the body corporate’s perspective a special resolution is sufficient to authorise an improvement to common property for the benefit of an owner’s lot. The minutes reflect that the resolution was properly passed as a special resolution and it can only be amended or revoked by another special resolution. In the absence of the resolution specifically providing otherwise, it is the responsibility for the owner of unit 16 to obtain any necessary council or other approvals in addition to the approval of the body corporate. The resolution also does not specifically deal with expectations of how the owner of unit 16 will deal with rain water that happens to fall on the balconies. However, the owner of unit 16 remains under a general obligation to ensure that the construction of the balconies does not cause nuisance to other lots and lack of adequate drainage would also provide good grounds upon which the body corporate could require alterations to the design or revoke the authorisation.

New roof extending over balconies

The District Court has determined that the resolution of 28 April 2006 that the body corporate install a roof over the front section of the building incorporating the open area above units 7, 8, 9 and 10 operated as a special resolution. The plan shows that the eastern side of the building has units 7, 8, 9, 10, and 11 and that each of these units has a balcony. My understanding from the teleconference is that units 7 and 10 currently have open balconies and the remaining units have a roof over the balcony but have problems with water ingress.

Evidence has been provided to the effect that it was always intended to put a new roof over these balconies. The difference is that earlier plans proposed that the openings in unit 16’s wall leading out to the proposed new balconies would be bricked up and the new roof would be located only about half way up these openings. Obviously, if unit 16 is to build new balconies then these openings in the wall will need to be left open and the proposed roof will need to be lifted up a metre or two higher.

It is not clear why the resolution of 28 April 2006 did not specifically refer to roofing above the balcony of lot 11 or refer to the proposed new balconies above the balconies of lots 9 and 11. However, the body corporate had approved balconies for unit 16 above the balconies of lots 9 and 11 and the original proposal to build a roof only approximately one metre above the new floor level and brick up the access openings obviously needed to be changed.

The resolution of 28 April 2006 contemplated roofing above balconies and no reason has been provided why a roof would not be put over all balconies on this side of the building. Even if the owner of lot 16 builds his additional balconies, there is no evidence that there would be any significant additional expense in putting a roof over the new balconies at a reasonable height rather than at a height that would partially obscure the existing openings. In fact, it may actually prove cheaper as it would no longer be necessary to brick up the relevant openings. Further, a roof above the height of the opening seems the only sensible solution to allow access to the proposed new balconies while still preventing rain blowing onto the tiled area of lot 16 that the body corporate wishes to avoid trying to waterproof.

I am satisfied that roofing above balconies was contemplated by the resolution of 28 April 2006 and that the only reasonable solution is to put the roof high enough to appropriately cover any proposed new balconies built above the existing balconies. In these circumstances, I am satisfied that sufficient authorisation has been given by owners for aspects of the roofing that amounts to an "improvement" and the technical objections of the applicants in this respect will be dismissed.

Relocation of air conditioners

While the resolution of 28 April 2006 contemplated roofing above balconies, it did not expressly contemplate relocation of the air conditioners.

However, I have been provided with a submission to the effect that plans distributed in December 2005 and adopted in principle at the extraordinary general meeting on 28 April 2006 showed that the air conditioners would be relocated. I have reviewed a copy of the plans and these plans show a proposed relocation of existing air condition units to a steel frame in addition to proposed new roof structures over the entire building and proposed new roof structures for the balconies of lots 7, 9 and 11.

At the meeting of 28 April 2006 owners were given various options including a new roof over the entire scheme, a new roof over the front with repairs to the existing roof on the back, and new waterproofing membranes for the front of the scheme with repairs on the existing roof on the back. All of these options involved significant expenditure and it would be expected that owners would have informed themselves of the details of the options as best as possible, including looking at any existing plans. I therefore consider it reasonable that the approval given by the resolution of owners also includes approval for any incidental works shown in the plans including the relocation of air conditioners. In particular, it has been submitted that this relocation is necessary for a proper operation of the air conditioners. Where other significant works are proceeding it does not seem unjust or inequitable to the applicants to allow air conditioners to be relocated according to the original plans available at the 28 April 2006 meeting.

Conclusion

The applicants challenge the resolutions at the meeting of 15 September 2006 on the basis that these resolutions were passed as ordinary resolutions but needed a special resolution to the extent that they involve making "improvements".

However, the District Court has now determined that the resolution of 28 April 2006 effectively amounted to a special resolution authorising a proposal to roof the front section of the building and repair the back section. The plans indicate that it was reasonably within the contemplation of this authorisation to relocate the air conditioners and also to roof the front balconies.

The resolutions of 15 September 2006 allowed owners to accept quotations for proposed work. Some of this work was maintenance. Parts of this work amounted to an improvement. However, the parts that constituted an improvement had already been authorised by special resolution back in April 2006. Perhaps ideally the resolution of April 2006 would have had detailed specifications for every alternative option so the work could have been put immediately to tender and there could be no later argument about the scope of work. However, it also seems impracticable and unrealistic to expect owners or the body corporate to pay for detailed specifications for every alternative and it is reasonable that owners were give some proposed plans and the opportunity to select a preferred alternative before final plans were developed.

In this context, the improvements in dispute had been authorised by the resolution of 28 April and the 15 September resolutions were effectively just allowing owners to accept quotations provided. I have not been provided with evidence that satisfies me the resolutions of 15 September proposed any significant "improvements" that were not already in the contemplation of owners and authorised by the resolution of 28 April. I therefore do not consider it just and equitable to invalidate these resolutions.

Order

For these reasons, the application is dismissed.

As a final matter, I would encourage the committee to ensure it communicates well with all owners during the course of performing the proposed work. Obviously the works are very significant and some changes may be necessary in terms of time frames or the detail of the work. Decisions will also need to be made in relation to any attempts to temporarily waterproof parts of the building pending completion of the works. The committee should keep owners informed and call meetings to obtain authorisations from owners as necessary.

In particular, at a teleconference concerning this dispute it seemed that the applicants were aware of issues with the building that were relevant to the maintenance of the building. It would ultimately be to the benefit of everyone if all owners worked together to put forward problems and multiple potential solutions to the various problems with the building and encouraged open discussion so that owners can make informed decisions.

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^[1] No. 9 Port Douglas Road, Order 0327-2006, D Toohey, 1 June 2006.
^[2] Maxwell Stainlay and Tecelec (Qld) Pty Ltd v Body Corporate for No. 9 Port Douglas Road Community Title Scheme 24368, District Court (Cairns), White DCJ, 1 December 2006.
^[3] Body Corporate for Golden Sands Highrise v Galtos & Anor, Appeal 33 of 1999, District Court (Southport), Robin DCJ, 10 March 2000, paragraph 18. See also Surfers Aquarius, Application 0218-2005, RA Meek, 11 November 2005;
^[4] Proprietors "The Rocks Resort" v. Costi, Building Units Appeal Tribunal No 227 of 1997, O’Driscoll SM, 24 September 1997.
^[5] Merrimac Heights, Application 0246-2006, RA Meek, 2 May 2006.
^[6] Las Rias, Order 0063-2006, L Ex, 8 June 2006.
^[7] Bayview Shores, Order 0412-2004, RA Meek, 16 November 2004.
^[8] See Butterworths Australian Legal Dictionary.
^[9] "Improvement" may also include a change to common property by removal of an existing structure. See Coronation Towers, Order 0043-2006, RA Meek, 3 February 2006.
^[10] Las Rias, Application 0063-2006, L Ex, 8 June 2006.
^[11] Paloma, Order 0005-2002, DJ Reardon, 19 June 2002.