Sanctuary Manors [2006] QBCCMCmr 773 (14 February 2007)

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

Lawrence & Sunny Lucock, owners of lot 8 & Patricia Jeude, as the holder of a power of attorney from Helen Denison, the owner of lot 7

I hereby declare that the all committee meetings alleged to have been held since the annual general meeting on 3 June 2005 were at all times void.

I further order that:

1. Kalglen Pty Ltd (respondent) must, within two weeks, reimburse the body corporate the amount of $6,136.55. This represents body corporate funds spent by nominees of the respondent contrary to the legislation and primarily for the benefit of the respondent. The body corporate must credit these amounts towards the next budgets adopted by owners and levies must be adjusted accordingly;
2. The body corporate must, as soon as practicable, reimburse all owner contributions for the financial year of 1 March 2005 to 28 February 2006, in which year no budgets were adopted. The body corporate must also reimburse the owners of lots 7 and 8 their costs of and associated with obtaining the engineering report from Kavanaugh Consulting Engineers Pty Ltd and include a copy of this report with the body corporate’s records. Budgets and levies adopted for the present financial year must be adjusted accordingly;
3. The body corporate must, as soon as practicable, remove the timber fence that was erected along the beachfront and, subject to relevant approvals or supplementary orders, install a low block wall no higher than the original wall that was removed;
4. The body corporate must, as soon as practicable, remove the electric gate erected across the driveway of the scheme and restore a letterbox to the position of the original letterbox;
5. The owner of lot 7, Helen Denison, is authorised to, within three months, commence installation of a privacy screen of the same height and position as the privacy screen that was removed from the balcony in front of lot 7 in as near as practicable a position to the privacy screen that was removed and is the subject of this order. Any owner of lot 7 will be required to maintain this replacement screen in good condition and the body corporate must enter the screen in the register of improvements to common property for the benefit of lot 7;
6. The owner of lot 7, Helen Denison, is authorised to, within three months, commence installation of a concrete block privacy wall up to a maximum height of and in as near as practicable a position to the privacy wall that was removed and is the subject of this order. Any owner of lot 7 will be required to maintain this replacement wall in good condition and the body corporate must enter the wall in the register of improvements to common property for the benefit of lot 7.

I further order that:

1. The specifications and details of any work to be performed pursuant to this order must be provided to all owners at least fourteen days before the work is commenced;
2. All owners have, within the next three months, leave to apply to the adjudicator for a supplementary order to vary or specify requirements for work that is to be done pursuant to this order; and
3. The body corporate must raise special levies for any work to be done by the body corporate pursuant to this order. Helen Denison, owner of lot 7, and Lawrence and Sunny Lucock, owners of lot 8 (applicants) are to be excused from contributing to this levy on the basis that the work is being done to reverse unauthorised works that were performed without their knowledge and the levies should be adjusted accordingly.

I further order that, within one month, the respondent must ensure that stored goods are removed from common property carport areas and that those areas are used only for the parking of vehicles.

I further order that any claim for loss of rent arising from the erection of the timber fence is dismissed on the basis it should be dealt with in a court or tribunal of competent jurisdiction.

I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0024-2006

"Surf Sound" CTS 14546

Surf Sound Community Titles Scheme (Surf Sound) is a 5 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes and lot boundaries are designated under a building units plan (now known as a building format plan).

This is an application by Patricia Jeude as the holder of a power of attorney from Helen Denison, the owner of lot 7 and by Lawrence and Sunny Lucock, owners of lot 8 (applicants) seeking orders against the body corporate for Surf Sound (body corporate) and Kalglen Pty Ltd ACN 010 760 540, owner of lots 1, 2 and 6 (respondent). The sole director and secretary of the respondent is Margaret Allen (formerly Margaret Collyer).

Surf Sound is a beachfront property at Currumbin. It consists of five residential units that are, subsequent to a re-subdivision, numbered 1, 2, 6, 7, and 8. The building is a two storey "L" shape with the base of the "L" facing the beach and additional basement car parking facing the road underneath the stem of the "L". Unit 8 faces the beach and is primarily the upstairs floor of the base of the "L". This unit is owned by Lawrence and Sunny Lucock. Unit 7 faces the beach from the ground floor of the base of the "L". This unit is owned by Helen Denison who is represented by Patricia Jeude under a power of attorney. Units 1, 2, and 6 are located within the stem of the "L" and face to the side of the property rather than towards the beach. Units 1 and 2 are on the ground floor and unit 6 is a larger unit on the second story. At all relevant times, units 1, 2 and 6 were owned by Kalglen Pty Ltd with Margaret Allen being the sole director of that company.

Significant conflict between the applicants and the respondent appears to have arisen at the annual general meeting planned for 20 May 2005 and adjourned to 3 June 2005. At this meeting owners failed to adopt disputed motions to set budgets, renew insurance and renew the engagement of the body corporate manager.

On 30 September 2005 the owners of lots 7 and 8 lodged their first application seeking to invalidate an extraordinary general meeting called for 8 October 2005.^[1] Motions listed for consideration at that meeting included motions proposing:

An adjudicator held a teleconference with the representatives of the applicants and the respondents on 6 October 2005. A recording of this teleconference shows that a number of issues were raised at this teleconference including that:

The proposed extraordinary meeting did not proceed and the application was withdrawn.

The applicants lodged the present application with this office on 10 January 2006 seeking, among other things, a general meeting to appoint a committee or the appointment of a professional body corporate manager. On 19 January 2006 the application was amended to allege that, since lodgement of the 10 January 1006 application, representatives of the respondent had made a number of alterations to the common property without any agendas, meetings or authorisation. The alleged alterations included:

On 20 January 2006 a copy of the application for interim orders was sent to the body corporate for Surf Sound seeking a written submission from the committee by 27 January 2006. On that same day one of the applicants contacted this office to ask that the application be dealt with urgently, saying that timber had been delivered to Surf Sound that day and that one of the next door neighbours had overheard a conversation in which Margaret Allen said that an electric gate would be installed by the long weekend, presumably by 26 January. On the afternoon of 20 January this office contacted Margaret Allen by telephone to arrange a teleconference and sent a copy of the application to her by email. It is alleged that, on 21 January 2006, Margaret Allen instructed contractors in the removal of a low block wall and the construction of a high timber fence that significantly impairs the ocean views from lot 7.

After some difficulties in arranging the teleconference, I held a teleconference on 27 January 2006 with Patricia Jeude representing the owner of lot 7, Lawrence Lucock representing the owners of lot 8, and Margaret Allen’s solicitor representing the owner of the remaining lots. In this teleconference serious questions were raised about the validity of the committee and the actions of the committee in demolishing existing structures and putting up a new fence. Patricia Jeude also raised questions about whether Margaret Allen proposed further work including installing an electric gate but these questions were unable to be answered as Margaret Allen was not present. Margaret Allen’s solicitor submitted that the demolishing of existing structures was necessary for safety reasons and the new fence was required by the public liability insurer to stop trespassers. Lawrence Lucock disputed this saying that structures had been up for 30 years and would have lasted 30 more years. The respondent was given additional time to make written submissions before any decision was made on the validity of the committee and whether it was necessary to appoint an administrator. However, I indicated that I would make a preliminary interim order to stop any further work.

Shortly after the teleconference Patricia Jeude contacted this office to say that the electric gate had been installed during the teleconference. On the afternoon of 27 January 2006 I made a preliminary interim order that the respondent and the committee not take any action on behalf of the body corporate or make any alterations to the common property pending a further order and that any gates recently installed be left unsecured, at least until all owners and occupiers were provided with a means to open all gates.^[2]

On 10 February 2006 I attended the scheme to inspect the scheme in the context of the work that had been done and was proposed to be done. I met with Nicholas Lucock as representative of the absent owners of lot 8, Patricia Jeude as representative of the owner of lot 7, and Margaret Allen and Paul Patty as representatives of the respondent. Bob Mackay of Body Corporate Admin Services also attended this meeting as a professional body corporate manager who had been proposed by the applicants as an interim administrator.

At this meeting, Margaret Allen made representations that indicated that she, Paul Patty and William Collyer may constitute a valid committee. However, Margaret Allen also admitted that body corporate funds had been spent without resolutions authorising the spending and in excess of legislated spending limits.

On 15 February 2006 I made a further interim order appointing Bob MacKay as administrator with specific powers including the power to obtain a professional sinking fund forecast and call the next annual general meeting of the body corporate.^[3] On 1 March 2006 the application for final orders was amended and submissions and a reply were then sought, closing on 23 March 2006. However, on 24 March 2006 this office received a letter from Bob MacKay indicating that he had been unable to obtain sufficient financial information from Margaret Allen to construct a meaningful budget for the upcoming annual general meeting and tendering his immediate resignation.

Separate applications from owners followed on the issues of urgent plumbing works and the appointment of a replacement administrator. On 31 March 2006 I made an order authorising emergency expenditure for plumbing works on certain conditions.^[4] These works were not performed. On 21 April 2006 I made an order formally terminating the appointment of Bob MacKay as administrator and appointing Conrad Beal of The Body Corporate Headquarters as administrator.^[5] On 24 April 2006 I made an order authorising emergency expenditure for the purposes of performing the plumbing works and authorising Conrad Beal to engage one of two contractors on behalf of the body corporate and supervise the work.^[6]

In the meantime, investigation of the present application continued. This included obtaining details of expenditure from the body corporate bank account since 1 March 2005, obtaining copies of body corporate records related to this expenditure, and obtaining further information from a building inspector and two engineers who had inspected the scheme. All parties have been given an opportunity to respond to this further information.

The applicants make submissions to the effect that there was no valid committee after Helen Denison resigned on 8 October 2005 due to concerns that the insurance might not be renewed. They further make submissions to the effect that they were unaware that any alleged committee meetings were actually taking place and that they did not receive minutes of the meeting of 15 October 2005 or any notice or minutes of other alleged committee meetings until February 2006 after the present application was lodged. The validity of the alleged meeting of 15 October 2005 and the subsequent meetings are therefore challenged as part of this application.

The submissions on behalf of the respondent are to the effect that a valid committee was appointed with Margaret Allen (as nominee of Kalglen Pty Ltd) elected at the annual general meeting on 3 June 2005, Paul Patty (as nominee of Kalglen Pty Ltd) elected at the same meeting to fill the vacancies of secretary and treasurer, and William Collyer (as nominee of Kalglen Pty Ltd) appointed at the committee meeting on 15 October 2005.

The respondent’s representative provided copies of a minute of meeting for 15 October 2005 indicating that Margaret Allen, Paul Patty and William Collyer were present at the meeting as nominees of the respondent, accepted resignations on behalf of Larry Lucock and Helen Denison who were nominees of the applicants, and appointed William Collyer to the committee as the third nominee of the respondent

The respondent’s representative has also provided minutes for the other alleged committee meetings. These minutes show the main substance of the alleged meetings to be:

It is interesting to note that the alleged committee was comprised entirely of nominees of one owner. Normally, each owner can only nominate one individual for election to the committee (Standard Module, 13(2)). The explanatory notes for amendments to the Standard Module effective 1 December 2003 explain that an owner can nominate only one person for committee membership to limit stacking of committees.^[7] However, these explanatory notes also make it clear that this restriction is relaxed if there are insufficient nominations to fill all executive or ordinary member positions. From the material provided I can be reasonably satisfied that the appointment of Paul Patty as a second nominee of the respondent was appropriate under the legislation given that no owner had nominated anyone to fill the positions of secretary and treasurer. The nomination was made from the floor of the meeting and therefore each owner was entitled to nominate an additional person to fill the vacancy (Standard Module 21(2), 21(3)).

I am also satisfied that it would have been possible for the two nominees of the respondent to have a committee meeting at which they could fill a sudden vacancy in the committee membership with a third nominee of the respondent (Standard Module, 25C).
However, it is by no means clear that the formal legal steps to fill this vacancy were properly followed. In particular, the applicants challenge the validity of the committee meeting of 15 October 2005 at which the third nominee of the respondent is alleged to have been appointed. The applicants make submissions to the effect that they were aware a meeting was proposed but did not consider a valid meeting had taken place because only two persons were observed as being present and they did not receive any minutes of a meeting. Submissions on behalf of the respondent fail to adequately address the allegations by the applicants that only two persons were observed to be at the meeting on 15 October 2005 when the minutes say three persons were present. These submissions also fail to adequately address the concern that other owners were unaware that anything had actually been alleged to have been decided in committee meetings until after the present application was lodged due to the failure to send any minutes to owners.

In the face of these inadequate submissions, I accept the submission of Patricia Jeude that no minutes of the disputed committee meetings were provided to the owners of lots 7 and 8 until all agendas and minutes were provided in a single envelope on 15 or 16 February 2006. The conclusion that the applicants had no notice of any alleged committee resolutions is supported by the fact that the applicants were quick to formally dispute a proposed extraordinary general meeting on 8 October 2005 but did not dispute the agendas or minutes for subsequent committee meetings that purportedly dealt with similar matters including maintenance of common areas, insurance cover, gates, and removal of private property from common areas. As late as 16 January 2006, Patricia Jeude wrote to the committee to the effect that since 8 October 2005 the committee had not consisted of three owners as required by the legislation and claiming that the committee members should be personally liable for any expenses incurred without proper authority. It seems more likely than not that one of the applicants would have taken action to challenge the appointment of William Collyer or the other matters discussed at committee meetings if those minutes had been sent to the applicants at an earlier time.

In short, from the submissions made by the applicants, I am satisfied that the applicants genuinely believed that there was no valid committee for the body corporate. Of the alleged committee meetings of 15 October 2005, 29 October 2005, 12 January 2006, and 17 January 2006, I accept the submission to the effect that notice of only the first of these meetings was given to other owners and that no minutes were provided for any of the meetings until after the present application was lodged.

The legislation provides that a copy of minutes of committee meetings must generally be given to owners within 21 days after the meeting has been held (Standard Module, 36). Further, most committee resolutions cannot be carried out until seven days after minutes have been given to owners (Standard Module, 37).

In making an order that is just and equitable in the circumstances to resolve a dispute, non-compliance with the legislation of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.^[8] However, the present actions of the nominees of the respondent go well beyond insubstantial non-compliance. Nominees of the respondent have purported to hold committee meetings without other owners being aware of these meetings occurring and therefore without any opportunity to challenge alleged resolutions.

I do not consider it just and equitable to allow any alleged committee meetings to stand in the present circumstances. Failure to give proper notice and minutes of the alleged committee meetings deprived other owners of the opportunity to challenge the alleged outcomes of these meetings at the time. As discussed below, many of these alleged outcomes were themselves independently contrary to the legislation.
In particular, these meetings have been used to justify spending by the committee that has ignored the budgets, has exceeded committee spending limits, and has directly contravened the prohibition on transferring funds between the administrative fund and the sinking fund (Standard Module 94, 103, 100(7)). This has left the body corporate in a position of having virtually no funds remaining of levied amounts that were initially put aside for anticipated future maintenance works.

Representatives of the respondent make a number of submissions seeking to justify the committee meetings notwithstanding that the alleged meetings did not comply with the legislation. I do not accept that any of the arguments raised are sufficient to justify these meetings. Firstly, any past failure to comply with the legislation does not authorise subsequent failures to comply if subsequent failures are challenged. In particular, evidence of any previous unauthorised spending of body corporate funds is of a much more minor nature, in accordance with the budgets adopted at the time, and unchallenged by other owners. Secondly, I do not accept the claims that work was needed to be done urgently without notice to owners to avoid potential public liability claims. Motions to obtain expert reports and perform some of the disputed work were proposed for the general meeting back in October 2005. However, it is alleged that it was only after Larry and Sonny Lucock went interstate on 9 January 2006 that the respondent’s representatives arranged for experts to come to the premises. These delays make it difficult to argue that the work was so urgent that it needed to be performed without notice to other owners. Even if reports, when obtained, made representatives of the respondent suddenly aware of an existing concern then there is merit in submissions to the effect that the structures had stood the test of time and any sudden concerns about safety could have been temporarily dealt with by cordoning off the areas of concern. This would have given other owners an opportunity to gain their own reports and have input into body corporate decision making as required by the legislation. Alternatively, the background to this dispute shows that the relevant persons were aware of the existence of this office and could have telephoned to obtain information on how to obtain an order of an adjudicator authorising emergency expenditure if the circumstances truly justified urgent action.

As it happens, I made subsequent enquiries of the building inspector and note that he had no major problems with the back wall that was partially demolished. The building inspector said this wall had a bit of a bow but was mostly underground and did not pose a problem. Further, the building inspector expressed concerns with the privacy screen and privacy wall that were both demolished but said that it would have been possible to rectify the safety issues albeit by partially demolishing the structures and putting them back together again. Expressed concerns that the public liability insurance for the scheme would be void if owners did not install gates to prevent trespasses also appear greatly exaggerated. A letter from the insurer merely indicates that it is the responsibility of the body corporate to take reasonable care to prevent damage or injury. I do not accept submissions to the effect that fences were required by the insurer. In fact, the ongoing failure to take any action to address basic trip hazards at the scheme leads me to infer that risk of liability was not seen as an urgent and pressing risk as trip hazards seem likely to be the main risk of causing injury to trespassers, occupiers and invitees alike.

I therefore do not consider it just and equitable that the alleged committee meetings be treated as valid notwithstanding the failure to comply with the procedural requirements of the legislation. I will make a declaration that any committee meetings alleged to have been held since the annual general meeting on 3 June 2005 were at all times void.

The applicants have also sought orders that any unauthorised funds spent on private improvements by the respondent be reimbursed to the administration and sinking funds by the parties who authorised the disbursements. I will give reasons for what reimbursement of unauthorised spending is just and equitable in the circumstances after considering the other specific works objected to by the applicants.

I have formed the view that the partial removal of the block wall and replacement with a timber fence was contrary to the legislation. These works can be properly classified as a single project amounting to an improvement to common property. The amount of spending involved exceeded the committee spending limit for the scheme of $625. These improvements, if made by a lot owner, would have required authorisation by special resolution (Standard Module, 114). If made by the body corporate then the improvements would have either required a special resolution or authorisation of an adjudicator as improvements reasonably necessary for the heath, safety or security of persons who use the common property (Standard Module, 113). No such resolution was made or authorisation given. On this basis alone I conclude that the partial removal of the block wall and replacement with a timber fence was contrary to the legislation.

However, there is a further basis upon which the replacement of the fence contravenes the legislation. There is a legislative requirement that the body corporate must act reasonably in administering the common property and body corporate assets for the benefit of owners (Standard Module 94, 152). This means that the interests of owners generally must be taken into account in any decisions of the body corporate to make or approve improvements. It is submitted that the wooden fence is significantly higher than the previous block wall and obstructs the beachfront views from lot 7. I accept, based on photographs and my inspection of the scheme, that the fence does substantially obstruct these views. The timber fence is of such clear and obvious detriment to lot 7 that I cannot escape the conclusion that the decision to install a fence of this nature would be an unreasonable action in the administration of the body corporate and therefore contrary to the legislation (Standard Module 94, 152). The respondent’s solicitor has submitted that "The timber fence is no higher than the dense shrubs and trees between it and the beach. Therefore the ‘views’ have not been significantly affected, if at all". Based on the photographs provided with the application and various submissions, lot 7 formerly had an outlook over the grassed common property, low brick wall, hundreds of metres of natural sand hills and then the ocean. Depending on where exactly a person in or in front of lot 7 would be positioned, the new fence significantly impairs views of the sand hills and glimpses of the ocean. I conclude that this submission is both false and misleading.

If this submission was made with the knowledge of Margaret Allen or Paul Patty then it would be difficult to escape the conclusion that the submissions containing this statement were a document that these persons knew to be false and misleading in contravention of the Act (Act, 298). This is particularly surprising given the respondent’s submission of 13 March 2006 had referred to section 298 of the Act and implied that the applicants had committed the offence of giving a document to the commissioner or adjudicator that was known to be false or misleading.

Other submissions on behalf of the respondent are to the effect that the timber fence was necessary to stop members of the public using the property as a thoroughfare to the beach and, in particular, was required by the body corporate’s insurers to prevent claims from these persons. I simply do not accept these submissions. A letter provided from the body corporate’s insurer does not satisfy me that a fence of this nature was necessary as opposed to taking reasonable steps to remove any hazards on common property that may have resulted in a claim by a trespasser, or in fact any occupier or invitee. Further, to the extent that it is desirable to stop persons using the scheme as a thoroughfare the body corporate could have simply installed a short fence and lockable gate at each side of the building blocking any thoroughfare to the beach. Instead, submissions indicate that there was a green fence and gate on one side of the building that blocked the main thoroughfare to the beach but nominees of the respondent removed this fence and gate rather than making it lockable. An electric gate has since been installed to block any thoroughfare on the other side of the building. However, this gate is positioned near the road where it also makes it difficult for legitimate visitors to access the beachside units. Any thoroughfare could have been restricted simply by installing small manual gates at either side of the building at its widest point near lots 7 and 8.

Submissions were also made to the effect that the besser wall was unstable. I do not accept these submissions. As discussed above, the building inspector said that he had no major problems with the back wall that was partially demolished which he said had a bit of a bow but was mostly underground and did not pose a problem. I also accept a statement from Kavanaugh Consulting Engineers Pty Ltd to the effect that the remainder of the wall seems fine and is relatively straight and true and that if any of the blocks on top had been loose they could easily have been removed and replaced. Finally, the applicants have also submitted that Margaret Allen and Paul Patty have been seen standing on top of this wall on many occasions to view the surf and suggested that they would not have done this if the wall was in fact unstable. These submissions as a whole lead to an inference that this low besser wall was not unstable.

There is a further matter of the manner in which the fence was erected. The owner of lot 7 was residing interstate at all relevant times and the owners of lot 8 left the scheme to go interstate on 9 January 2006. Submissions are made to the effect that, on 21 January 2006, the son of the owners of lot 8 saw Margaret Allen and Paul Patty supervising a contractor in the demolition of some of the fencing, asked this contractor to stop work while he contacted his parents, returned about fifteen minutes later to find the demolishing complete, and was not told of plans to erect a wooden fence that was erected later that day. These submissions lead me to infer that Margaret Allen and Paul Patty wanted to have the wooden fence erected without other owners having the opportunity to challenge the validity of this alteration to the common property.

Other submissions on behalf of the respondent may suggest that the work was consistent with a resolution at the annual general meeting on 3 June 2005 that a sign and gate be erected to stop people walking through to the beach. This seems to be justification after the event as a fence is very different from a sign and gate. Further, the obvious places for a sign and gate to be erected would be at the existing stairs to the beach with the sign facing the beach or at the south-west of the scheme opposite the stairs with the sign facing the road. In particular, this resolution does not specify the type of work or authorise any expenditure. At best this resolution could be seen as an expression of support for a concept and a further resolution would have been necessary to specify the work and authorise the expenditure. If this further resolution was not a restricted issue then it could have been made by committee, otherwise a specific resolution in general meeting would have been necessary (Standard Module, 26).

Finally, the applicants say that representatives of the respondent have made offers to purchase lots 7 and 8 and invited the conclusion that the nominees of the respondent erected the timber fence in bad faith with the intention of devaluing lot 7 and placing pressure on the owner of lot 7 to sell. The respondent’s representative has submitted that offers of purchase are not relevant to the application with respect to spending. However, I consider any allegation that the nominees of the respondent have spent body corporate funds in the personal interests of the respondent rather than the interests of owners as a whole to be relevant in determining an order that is just and equitable in the circumstances. Considering the clear and obvious detriment to lot 7 and the manner in which the fence was erected without proper notice to or consultation with the owners of lots 7 and 8, I reach the conclusion that the nominees of the respondent erected the timber fence in the interests of the respondent rather than in the interests of owners.

I have particular concerns about the ongoing presence of this timber fence given my conclusion that it was installed contrary to the legislation and has a significant detrimental impact on the enjoyment of lot 7. The fence should be removed and ideally the original low block wall should be replaced. However, it is by no means clear that the original low block wall would still comply with council or building code requirements and this may be a question of legal concern for the body corporate.

The body corporate is taken to be the owner of scheme land for the Dividing Fences Act 1953 and is the appropriate entity to remove the timber fence and erect replacement fencing (Act, 311). I will order that the body corporate endeavour to install a low block wall no higher than the original wall subject to council and other relevant approvals. However, given it is not possible to determine at this stage exactly what type of fence will meet these requirements I will also order that the specifications and details of this work are to be provided to all owners at least fourteen days before the work is commenced and that all owners have leave to apply for a supplementary order to vary or specify requirements for the proposed work.

In terms of the cost of this work, the body corporate should raise a special levy to pay for the work. However, I have found that the timber fence was erected in the interests of the respondent and that it was erected without notice to the owners of lots 7 and 8. I therefore conclude, on a just and equitable basis, that the owners of lots 7 and 8 should be excused from contributing to this levy.

I note that an order to the effect that the owners of lots 7 and 8 be excused from the levy will require the body corporate to set and raise the levy contrary to the provision of the legislation that generally requires contributions to be calculated on the basis of each lot’s contribution schedule lot entitlement (Standard Module, 95(5)). However, I consider it appropriate for an adjudicator to order steps be taken outside of the standard legislative requirements if this would be just and equitable in all the circumstances to resolve the dispute.^[9]

A final issue is a claim by the applicants that the owner of lot 7 be compensated for any loss of rent that occurs because of the obstruction of the view from this lot. The fence was erected primarily in the interests of the respondent and contrary to the provisions of the legislation. There is evidence that the owner of lot 7 may suffer financial loss as a result of this contravention of the Act. An adjudicator has broad powers to make an order that is just and equitable to resolve a dispute (Act 276, Schedule 5) and an order that is ‘just and equitable in the circumstances’ is not limited to the model orders listed in Schedule 5 of the Act.^[10]

However, a claim by an owner for compensation for loss of rent resulting from erection of the fence is substantively of the character of a tortious claim of nuisance even though it is founded upon contraventions of the Body Corporate and Community Management Act 1997. Based on the reasoning of the Court of Appeal,^[11] a claim for loss of rent resulting from nuisance should not be dealt with under the general power of an adjudicator to make an order that is just and equitable to resolve a dispute as it is more of the nature of an order to remedy a civil wrong. The claim arises out of a contravention of the Act but any damage caused is based on principles of loss caused through nuisance and could be seen as trespassing onto the field ordinarily occupied by the common law.^[12] Section 281 provides a specific head of power for an adjudicator to make an order for damages in these circumstances but this power is limited to recompense where damage to property has been suffered. Where loss of rent is sought on the basis of a contravention of the Body Corporate and Community Management Act 1997 then the procedures of this office may well constitute a process for the resolution of the dispute that acts to exclude resolution by any other process (Act, 229).^[13] However, unless the application is dismissed to a court as part of this process,^[14] the authorities suggest that there is no power for an owner to obtain an award of damages for loss of rent based on a claim under the dispute resolution provisions of the Act. For this reason, I have concluded that the only appropriate course of action is to specifically dismiss this part of the application on the basis it should be dealt with in a court of competent jurisdiction (Act, 270(1)(b)).

Closely related to the installation of the timber fence is the installation of an electric gate at the front driveway to the scheme. Again, nominees of the respondent procured the installation of this gate without any notice to the other owners. Body corporate funds were spent in disregard of the budgets and in excess of spending limits.

The applicants claim that the gate is a private improvement by the respondent to protect items stored by the respondent in car port areas. They say that this gate makes it difficult for visitors to contact the occupiers of lots 7 and 8 as these units are located at the other end of the scheme and there is no intercom. It was further alleged that the letterboxes for the scheme were removed to allow this gate to be installed and were placed in a position that makes it difficult for the elderly occupiers of lot 8 to access. Against this, submissions for the respondent are to the effect that fencing of the scheme is for the benefit of all owners to prevent trespassers.

I find that the electric gate was in fact a private improvement to the common property for the benefit of the respondent. The other owners in the scheme do not consider this gate to be of any benefit to them. In fact, the other owners complain that this gate makes it difficult for legitimate visitors to come to their door and seek restoration of the area to its original condition. It is unfortunate to see money wasted by making an order requiring the respondent to reverse this improvement. However, this is a case where representatives of the respondent had the gate erected without any notification to the other owners and in the knowledge that the other owners had brought an application disputing other works that had been performed without notice. By installing this electric gate without notice and with knowledge that it might be disputed the respondent was taking the risk that the installation might be contrary to the legislation and may be required to be removed. The installation was in fact contrary to the legislation involving both a spending of body corporate funds without proper authorisation and also amounting to an improvement to common property without the necessary resolution.

I therefore consider it just and equitable to order that the body corporate remove this gate and restore the letterbox. Similar to the timber fence, this gate was a private improvement to the common property for the benefit of the respondent and I will order that the owners of lots 7 and 8 be excused from contributing to a special levy to pay for this reinstatement of common property. Again, actual details of the removal and the replacement of a letterbox should be provided to all owners and owners should have leave to apply for supplementary orders regarding those details as necessary.

The applicants also seek orders for the restoration of a wall described as a privacy screen (privacy screen) on the balcony in front of unit 7 and a privacy wall defining the barbeque area that has been described as a curved breeze block feature wall (privacy wall). Submissions by the applicants are to the effect that the privacy screen and privacy wall were designed to segregate the beachside common property into property immediately in front of the living areas of lot 7 and an area on the northern side typically used as a barbeque area by other occupiers.

Submissions on behalf of the respondent are to the effect that the privacy screen and privacy wall were unauthorised improvements and that these walls were unstable and dangerous, so were removed in the interests of safety.

The tenant of unit 7 also made submissions to the effect that, at the time the privacy screen was being removed, she protested to Margaret Allen and Paul Patty about the removal. The tenant says that when she asked if they had told other owners she was told that it was none of their business or her business. The tenant further submits that Margaret Allen subsequently sat on the patio immediately outside unit 7 where the privacy screen had been and when the tenant asked her about her motives said something to the effect that the tenant had no rights to anything except inside unit 7. Further, that the tenant could sit outside anywhere she wanted but that Margaret Allen could too.

I am satisfied that the privacy screen and privacy wall have been part of the scheme for many years. I conclude that even if the construction of the privacy screen and privacy wall were not properly authorised then these structures were given tacit approval by all the owners of lots in the scheme over a long period of time and this amounts to deemed approval by acquiescence. The plan shows that the patio immediately outside lot 7 is common property. However, there is a general requirement that an occupier must not use or permit the use of a lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of other occupiers (Act, 167). For example, if an occupier of one lot was to sit on the common property immediately in front of another occupier’s doors or windows then that may amount to unreasonable interference with the second occupier’s enjoyment of their own lot and it would be no excuse for the first person to say they were acting within their rights by using common property for their own benefit.

I have concluded that these structures were built to improve the privacy of lot 7 and the proper legal status of these structures under the legislation is that of specific improvements for the benefit of lot 7. The owner of lot 7 from time to time should have been responsible for maintenance of these structures in good condition (Standard Module, 114(4)). I accept the evidence provided on behalf of the respondent that the privacy screen and privacy wall were in very poor condition and enquiries to the building inspector and engineers indicate that these walls would have needed to be partially demolished and put back together again to be put into a good structural condition.

In making an order that is just and equitable to resolve the dispute I consider that the owner of lot 7 should be given deemed authorisation to reinstall a privacy screen and privacy wall in the same positions. However, I have some difficulty in determining what is just and equitable in terms of the costs of the demolition and replacement of these walls. On one hand, the owner of lot 7 should have been responsible for the costs of any partial demolition and reinstatement. On the other hand, the demolition of the walls and disposal of the bricks without notice to the owner of lot 7 has deprived the owner of lot 7 of the opportunity to obtain her own quotations and reuse the materials.

On balance, the fairest outcome seems to be that the owner of lot 7 be responsible for the costs of building the replacement privacy wall and privacy screen if she elects to replace them. I recognise that the owner of lot 7 suffers some disadvantage in not being able to reuse the old materials but I do not consider this to be unjust as it is partially a consequence of the failure of the owner of lot 7 to ensure proper maintenance of walls erected for the benefit of her lot. I will allow three months for the owner of lot 7 to elect to commence restoration of these walls. If restoration is commenced then it should be completed within a reasonable time. Similar to the work to be performed by the body corporate, it seems just and equitable that the owner of lot 7 provide specifications and details of the proposed replacement walls and all owners have leave to apply for a supplementary order to vary or specify particular requirements for the replacement wall.

The applicants sought an order to the effect that body corporate funds spent on private improvements by the respondent be reimbursed to the administration and sinking funds. I consider an adjudicator has power under section 276 to make orders requiring reimbursement of funds that have been spent contrary to the Body Corporate and Community Management Act 1997. Such an order for reimbursement of funds is of a very different nature to an order for general damages or loss of rent.

The applicants could have elected to sue the respondent for conversion in which case the claim would have been of the nature of allegation of a civil wrong that would have needed to be referred to a court of competent jurisdiction.^[15] However, the applicants have instead elected to proceed against the respondent on the basis of spending contrary to the Body Corporate and Community Management Act 1997. Requiring reimbursement of unauthorised spending is an order with respect to matters that might be expected to arise in the administration of the affairs of the body corporate^[16] and appears to be the appropriate remedy under section 271 that is just and equitable to resolve the present dispute. Orders requiring reimbursement of expenses have previously been granted by an adjudicator under section 276(1)^[17] and there is no money limit in respect of orders an adjudicator can make under this provision.^[18] If the amount claimed was significantly higher then I may have accepted any arguments to the effect that formal procedures under the court processes are more appropriate for determination of the dispute (Act, 270(1)(b)). However, the amounts involved in this dispute are well below the $50,000 limit for the Magistrates Court, through which Court orders of an adjudicator are enforced. Further, the provisions allowing for enforcement of orders of an adjudicator specifically provide that it is immaterial for the purposes of enforcement through the Magistrates Court if the amount outstanding under the adjudicator’s order is more than the amount for which an action may be brought in the Magistrates Court (Act, 286).

The allegations in question require consideration of the detailed provisions of the Act and Standard Module regarding committee meetings, financial arrangements of the body corporate, and requirements of the body corporate to act reasonably in administering the common property for the benefit of owners. It therefore seems appropriate that a determination be made using the provisions of the Act that are designed to constitute a specialised mechanism peculiarly suited to speedy, cheap and relatively informal resolution of community titles scheme disputes.^[19] I will therefore determine whether it is just and equitable to order reimbursement of monies under section 276 rather than referring the matter for determination by a court.

If committee members engage in unauthorised spending of body corporate funds then, generally speaking, owners cannot take proceedings directly against those committee members to seek reimbursement of the funds under the dispute resolution processes of the Body Corporate and Community Management Act 1997 as these processes do not apply to disputes between owners and committee members (Act, 227). However, the dispute resolution processes under the Act do apply to a dispute between the body corporate and members of the committee and the body corporate would generally be the proper party to take action for reimbursement of its funds (Act, 227(1)(g)).

The present application is unusual in that the applicants are effectively raising a "fraud on the minority" type scenario where it is alleged that a single majority owner is spending body corporate funds on private improvements that are for the benefit of that owner. It is a well accepted principle of equity that a majority shareholder in a company cannot alter the rules by which the company is governed in a way that is oppressive to a minority shareholder or group of shareholders.^[20] More generally, courts in equity have established the doctrine of ‘fraud on a power’ stating "a person having a power, must exercise it bone fide for the end designed, otherwise it is corrupt and void"^[21] and establishing that the doctrine of fraud on a power "authorises intervention where the power is exercised in bad faith or for purposes foreign to the power"^[22]. The New South Wales Court of Appeal has recognised this doctrine of fraud on a power as being of general application and, specifically, as applicable to bodies corporate under the Strata Titles Act of New South Wales.^[23]

While the Body Corporate and Community Management Act 1997 does not expressly confer equitable jurisdiction on an adjudicator, an adjudicator is expected to make an order that is "just and equitable" to resolve a dispute (Act, 276). The substance of the allegation is that the majority owner has used its control over the body corporate’s accounts to spend body corporate funds for its private purposes. On one hand, the applicants might seek redress through internal processes of the body corporate. Within these processes an adjudicator may override any unreasonable opposition by a majority owner to a motion proposing that the body corporate take legal action against that owner or may overturn any attempted ratification of body corporate spending for private purposes by a majority owner (Act, 94).^[24] On the other hand, the applicants have jointly brought the present application in their capacity as minority owners as against the majority owner. In equity, the court could allow minority owners to bring a derivative action as a recognised exception to the rule that the body corporate itself is the proper plaintiff.^[25] The courts have articulated that the usual procedure is to allow the minority shareholder to sue in a representative form on behalf of all members contingent on the company being joined as a co-defendant so that any judgement for relief or recovery that might be given would both bind and operate in favour of the company found to have been wronged.^[26]

In the context of dispute resolution pursuant to the Body Corporate and Community Management Act 1997, the dispute over whether nominees of the respondent have used body corporate funds for the private purposes of the respondent rather than for the benefit of owners as a whole can be correctly categorised as a dispute by minority owners against a majority owner. The parties to the present dispute include all owners and the body corporate (Act, definition of ‘parties’). There is jurisdiction for an adjudicator to determine a dispute between owners (Act, 227(1)(a)). There is also jurisdiction for an adjudicator to determine a dispute between owners and the body corporate and between the body corporate and committee members (Act 227(1)(b), 227(1)(g)). If the application was brought in a court of law then the court would consider the standing of the applicant to sue in a derivative capacity and whether the corporate entity needs to be joined as a party. The present application is brought pursuant to provisions of the Act designed to constitute a specialised mechanism for the speedy, cheap and relatively informal resolution of community titles scheme disputes. An adjudicator is obliged to observe natural justice, to act quickly, and with as little formality and technicality as is consistent with a fair and proper consideration of the application (Act, 269). All owners are parties to the dispute and in the circumstances where the alleged wrongdoers hold sufficient voting rights to be in control of any decision to take action to correct an abuse of powers I am satisfied that this is a dispute properly characterised as an alleged "fraud on the minority" properly determinable between the present parties. The broad powers in section 271 to make an order that is "just and equitable" to resolve a dispute include the power to make an order, as between the present parties, that the respondent reimburse to the body corporate any funds that have been spent without proper authorisation. If the applicants can establish that nominees of the respondent have spent funds contrary to the procedures set out in the Act and in a manner that is primarily for the personal benefit of the respondent then I consider it just and equitable to order that the respondent reimburse those funds to the body corporate. An order of this nature would correlate with the outcome if a court gave judgement in favour of a corporate entity after a minority owner has been given leave to bring a derivate action against the company and its majority owner.^[27] I consider such an order to be the only order that is just and equitable in the circumstances to resolve the dispute.

On 29 March 2006 I exercised investigative powers under section 271 of the Act to request details of all expenditure from the body corporate’s bank account since 1 March 2005. On 7 April 2006, this office wrote to the respondent stating "As part of the present application the Adjudicator will be considering whether Kalglen Pty Ltd should reimburse body corporate funds spent contrary to the procedures established by the legislation. However, even where spending is contrary to the legislation the Adjudicator may refrain from ordering reimbursement to the Body Corporate if the Body Corporate has received a benefit from the spending. Therefore, when providing an explanation of spending, please also describe any benefit to the Body Corporate from the spending." The respondent provided details and a description of the spending, the applicants were given an opportunity to respond to this information, and the respondent’s solicitors provided a further response to the applicants’ material.

In considering an order under 276(1) for reimbursement of body corporate funds it is necessary to consider what is "just and equitable in the circumstances". After considering the circumstances in their entirety, I have concluded that it is just and equitable that the respondent reimburses body corporate funds that were spent contrary to the legislation and for the benefit of the respondent rather than owners as a whole. However, particularly given evidence to the effect that owners had tolerated some spending in past without all procedures being followed correctly, I have concluded that it is not just and equitable to require the respondent to reimburse funds that were spent generally in accordance with earlier budgets adopted by owners in general meetings or where owners generally have received some equal benefit from the spending.

Based on the submissions provided, I find that spending contrary to the legislation and for the benefit of the respondent rather than owners as a whole comprises a total amount of $6,136.55, being:

Other controversial spending included a total of $1098 on garden maintenance. In particular, the applicants refer to an amount of $286 alleged to have been spent on cutting down trees and on cutting the top out of a tree in the next door neighbouring property solely to give a view of the ocean from one of the respondent’s lots. Any agreement with a neighbouring owner to trim trees on the neighbouring property for the benefit of only some of the owners would appear to be something outside the parameters of what body corporate funds should be spent on. However, it would not seem unreasonable for the body corporate to spend funds on reasonable trimming of its own trees even if only some owners directly benefit in terms of improved views. On balance, the applicants have not satisfied me of what proportion amounted to trimming neighbouring trees as opposed to trees on common property that the body corporate is required to maintain. Further, there is an argument that owners had earlier resolved to remove vegetation from this area even though the actual removal and associated spending was not properly authorised by specific resolutions. I will therefore not order reimbursement of any amounts spent on garden maintenance but owners should be on notice that any future spending should be properly and specifically authorised and any future irregularities are unlikely to be overlooked. Similarly contentious matters included the unauthorised spending of $220 for potentially unnecessary legal advice and a small amount spent on a lock that seems to have been used to improperly secure a store room that forms part of lot 7. However, I am not satisfied that it is necessary or appropriate to order reimbursement of these amounts.

Other contentious matters are the spending of significant sums on plans and expert reports. These include the amount of $215 on obtaining a copy of building plans from the council, $198 on an electrical report from D&C Mifsud, $440 on a termite inspection from The Termite Exterminators, and $660 on a structural report from Lynskey Structural Consultants Pty Ltd. Again, the issue of whether the respondents should reimburse the body corporate for this unauthorised expenditure is a difficult one. Submissions from the respondent’s solicitor are confusing in this respect. On one hand, it is suggested that the body corporate has received a benefit from the reports obtained by representatives of the respondent. This is on the basis that the reports have been used by the quantity surveyor to update the sinking fund forecast, have been quoted by the applicants in dispute resolution applications, and are available for use by the body corporate in considering the types of quotations required to rectify the building. On the other hand, it is suggested that a structural report obtained at the personal expense of the owners of lot 7 and 8 is a private report the costs of which should not be reimbursed by the body corporate. However, this report obtained at the personal expense of the owners of lot 7 and 8 was presumably also relevant to any updated sinking fund forecast and is also available for use by the body corporate in considering the types of quotations required to rectify the building. Further, I note that the respondent’s submissions indicate a use of the reports for personal rather than body corporate benefit. This is in the sense that the respondent is negotiating to purchase lots 7 and 8 and using the reports to seek to justify claims that the prices sought by the owners of lots 7 and 8 are inflated.

In respect of the details of the reports, I note that the structural report obtained with body corporate funds recommends underpinning of the building at an estimated cost of $40-50,000. However, the report obtained at the personal cost of the owners of lots 7 and 8 indicates that underpinning is not required. I made some telephone enquiries with the respective engineers.

These enquiries revealed that even the engineer who initially recommended underpinning has said that the integrity of the building is not affected by the cracking and he would underpin the building to fix the problem if it was his building but it would be reasonable to just monitor the building to see if there was further cracking. The engineer obtained at the personal cost of the owners of lots 7 and 8 recommended merely monitoring the building and gave a verbal estimate of likely future costs of $4-5,000 to repair brickwork generally including sticking the lintels back, $10,000 for a new retaining wall, and $500 to prevent corrosion of metal posts. Presumably this information gained at the cost of the owners of lots 7 and 8 is as valuable to all owners as the reports obtained with body corporate funds.

On balance, I consider that it is not just and equitable to require the respondents to reimburse the body corporate for the costs of the expert reports as the reports benefit all owners. However, on a just and equitable basis, I will order that the body corporate reimburse the owners of lots 7 and 8 for their costs of obtaining their own private report that similarly provides a benefit to all owners and can be used as a basis for future body corporate decisions. This should include reimbursement for related costs including obtaining a copy of the building plans. However, all parties should be informed that any future expenditure on expert reports should be properly authorised.

There are various other amounts of unauthorised expenditure including amounts spent for routine maintenance. Again, I will not require the respondent to reimburse these amounts but owners should take care to ensure that all future spending is specifically authorised by resolution of the committee or of owners in general meeting.

Finally, I note that owners did not adopt any budgets or levies for the financial year of 1 March 2005 to 28 February 2006. However, owners made some contributions for this year based on the amounts set for levies in previous years. In order to ensure all owners are treated equally, the body corporate should reimburse these extra contributions and adjust the budgets and levies for the present financial year accordingly.

The applicants say that, since June 2005, representatives of the respondent have stored a large amount of household goods in common property car port areas. This evidence is uncontested and supported by photographs. I accept submissions to the effect that these items are unsightly, a potential hazard, and that occupiers of the respondent’s lot are parking on other parts of the common property because these goods prevent vehicles accessing the car port areas.

The plan indicates that the car spaces in question form part of common property. By-law 42 for the scheme allows for the possibility that those car parks have been granted to the exclusive use of the respondents. In the absence of other specific provisions, the person granted exclusive use is responsible for maintenance of the area (Standard Module, 123(2)). In relation to a car park area I would consider that maintenance includes keeping the area reasonably clean and tidy.^[28] Further, a grant of exclusive use for car parking purposes does not authorise a person to alter the car parking area or store goods on that area. The legislation specifically provides that if an exclusive use by-law does not authorise the lot owner to make an improvement then the lot owner may make the improvement only if the body corporate authorises it to be made (Standard Module, 124(3)). The present storage of goods amounts to an unauthorised improvement to the common property. It also amounts to use of common property in a way that interferes unreasonably with the use or enjoyment of common property by other persons given the extent of the storage, the potential hazards and the resultant parking of vehicles on the common property (Act, 167).

I will therefore order that, within one month, the respondent must ensure that stored goods are removed from common property carport areas and that those areas be used only for the parking of vehicles.

The applicants seek orders about a number of other matters including on the number of votes the respondent can have on the committee and the responsibility to deal with matters still outstanding from a previous annual general meeting. Questions are also raised about an alleged proxy to Paul Patty at the last annual general meeting, although it appears the applicants may be confusing the concept of the right of an owner to nominate an individual for membership of the committee with the right of an owner to grant someone a proxy to exercise a vote on the owner’s behalf.

On 21 April 2006 I made an order appointing Conrad Beal of The Body Corporate Headquarters as administrator. Pursuant to this order the administrator will act in place of the committee up until the annual general meeting following the current financial year of the scheme. If any previous resolutions have not been carried out then it is for the administrator to determine if those resolutions specifically authorise work and spending within his authority. Otherwise, the administrator should consider if a more specific resolution can be passed or any owner can submit a more specific resolution. I do not consider any order is necessary in this respect.

Similarly, the administrator will conduct processes for obtaining nominations and appointment of a new committee in due course. If any disputes arise regarding this process then an order can be sought in due course.

I will therefore refrain from making any further orders at this time.

^[1] Surf Sound, Application 0693-05 (withdrawn).
^[2] Surf Sound, 0024-2006, D Toohey, 27 January 2006.
^[3] Surf Sound, 0024-2006, D Toohey, 15 February 2006.
^[4] Surf Sound, 0194-2006, D Toohey, 31 March 2006.
^[5] Surf Sound, 0233-2006 & 0240-2006 , D Toohey, 21 April 2006.
^[6] Surf Sound, 0169-2006, D Toohey, 24 April 2006.
^[7] Explanatory Notes for SL 2003 No. 263, page 6
^[8] Wei-Xin Chen v. Body Corporate for Wishart Village CTS 19482, (unreported), District Court (Brisbane) D4080/2000, Boulton J, 29 May 2001 at paragraph 27.
^[9] Refer Holloway, Wilson & Watts v Meek (unreported), Appeal 22 of 1998, District Court (Maroochydore), Dodds J, 24 December 1998 at page 10.
^[10] Hablethwaite v Farrington & Ors, 3 of 2005 Innisfail, 219 of 2005 Cairns, Bradley DCJ, 17 February 2006 at paragraph 21.
^[11] See generally, James v Aarons Community Titles Scheme, [2003] QCA 329, Davies, Jerrard JJA and MacKenzie J.
^[12] Ibid. paragraph 20.
^[13] Ibid. paragraph 12.
^[14] Refer to sections 250 and 270 of the Act.
^[15] James v Aarons Community Titles Scheme, supra, at paragraph 20.
^[16] Ibid.
^[17] For example Ti-Tree Application 0550-1998, PJ Hanly, 17 February 2000, as subsequently upheld on appeal in Ellimont Pty Ltd v The Proprietors Ti-Tree Building Units Plan No 70782, District Court (Brisbane), D1293/2000, Brabazon DCJ, 15 September 2000.
^[18] James v Aarons Community Titles Scheme, supra, at paragraph 20.
^[19] James v The Body Corporate Aarons Community Titles Scheme 11476 [2002] QSC 386, paragraph 17.
^[20] Gambotto v WCP Ltd [1995] HCA 12; (1995) 182 CLR 432.
^[21] Aleyn v Belchier (1758) 28 ER 634.
^[22] LGSS Pty Ltd v Egan, [2002] NSWSC 1171.
^[23] Houghton & Anor v Immer (No. 155) Pty Ltd (1997) 44 NSWLR 46, referring to Free Church of Scotland v Overtoun [1904] AC 515 at 695.
^[24] For overruling of a resolution by a majority owner that is unreasonable, see generally comments of the Court of Appeal in Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336, Jerrard JJA, Keane JJA, Cullinane J, 9 September 2005 at paragraph 33. For ratification in the context of a community titles scheme see generally Victorian Professional Group Management Pty Ltd v The Proprietors "Surfers Aquarius" Building Units Plan No 3881 [1991] 1 Qd R 487 and Hollis Holdings Pty Ltd v PJ Hanly and Commissioner for Body Corporate and Community Management and Body Corporate for Noosa on the Beach CTS 6417 [2002] QDC 1.
^[25] Hurley v BGH Nominees Pty Ltd (1982) 6 ACLR 191.
^[26] Refer Metyor Inc v Queensland Electronic Switching Pty Ltd [2002] QCA 269; (2002) 42 ACSR 398 at paragraph 6. See also Campbell v Kitchen & Sons Ltd and Brisbane Soap Co Ltd [1910] HCA 23; (1910) 12 CLR 513 and Carre v Owners Corporation SP 53020 [2003] NSWSC 397.
^[27] Refer Spokes v Grosvenor Hotel Co [1897] 2 QB 124.
^[28] Refer generally Oceana on Broadbeach Community Titles Scheme 24163 v. Searle v & Ors [2003] QCA 283, Davies and Williams JJA and Fryberg J, 11 July 2003 at paragraphs 22-25.

Number of Scheme:	14546
Name of Scheme:	Surf Sound
Address of Scheme:	12 Darwalla Avenue CURRUMBIN QLD 4223

•	Removal of a green fence and gate that was stopping people using the property as a lane way from the road to the beach;
•	Removal of a brick barbeque and block wall from the patio at the front of unit 7; and
•	Having an electrician and structural engineer on the premises without notice.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sanctuary Manors [2006] QBCCMCmr 773 (14 February 2007)