Bayview Shores [2006] QBCCMCmr 98 (3 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0889-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4078
Name of Scheme:	Bayview Shores
Address of Scheme:	5 Bayview Street RUNAWAY BAY QLD 4216

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

Elaine Bermingham, the Owner(s) of lot 70

I hereby order that, pending a final determination, the body corporate for Bayview Shores must not replace the carpet on lift landing 19. This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0889-2005

"Bayview Shores" CTS 4078

Interim Application

Bayview Shores Community Titles Scheme (Bayview Shores) is a 101 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.

This is an application for interim orders. It arises out of an application by Elaine Bermingham, owner of lot 70 (applicant) seeking orders against the body corporate for Bayview Shores (respondent).

Interim Orders Sought

The applicant seeks an interim order to stop the body corporate carpeting the lift landing on level 19 with a predominately black carpet chosen by the majority of owners.

By way of background, the majority of owners voted in favour of the body corporate refurbishing all common property lift landings at an annual general meeting on 24 April 2005. The proposed refurbishment involved removal of wallpaper and painting of all surfaces including surfaces that had previously been covered by wallpaper. Some submissions were made to the effect that some lift landings were still in very good condition and required only minor maintenance rather than a complete renovation. However, it was also conceded that other landings were in poor repair and it was no longer possible for the body corporate to obtain wallpaper with the same design as that used when the landings were first decorated.

At an extraordinary general meeting on 5 September 2005 owners passed resolutions allowing for a delay in the decoration of lift landings 2, 6, 7, 19 and 21 following a request being put forward by owners on those floors. I understand that all other lift landings have now had had the wallpaper removed and have been repainted.

The present dispute concerns a resolution by owners at an extraordinary general meeting on 15 December 2005 to install new carpet on all lift landings from level 2 to 29. The outcome of the vote favoured a carpet that is predominantly black in colour.

Submissions

The applicant has provided submissions to the effect that:

• The chairman wants a black carpet on his landing and has engineered a vote for black carpet by failing to include details of alternatives;
• Five groups of owners are putting forward a different proposal for the decoration of their respective landings as has already been resolved by the body corporate. The committee has abused their power by encouraging owners to vote to put black carpet on those landings as well.

Submissions on behalf of the body corporate are to the effect that:

• The committee conducted a survey and submitted a sample to owners based on this survey. Another owner submitted a motion proposing two alternative samples. That owner had not provided any explanatory notes to the motion but had written to all resident owners. The committee facilitated the display of all samples for owners to compare by delaying the display of samples until one week after the general meeting was called. Samples were available for viewing by owners for two weeks before the meeting and at the meeting itself; and
• The original decoration of landings concerned the removal of wallpaper and painting. Floor coverings were not included in that proposal or in the resolutions to delay the decoration of particular landings.

Decision

Urgent interim relief

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

The applicant is seeking an interim order to stop the body corporate installing new carpet on the lift landings. To assist me in determining whether it is just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I consider it relevant for me to briefly consider whether the application raises any serious legal question.

Allegations motion misleading

The minutes of meeting indicate that fifty-five owners voted in favour of replacing the carpets on the landings with only one owner voting against this motion. Forty-two owners showed a preference for the black carpet with only twelve owners favouring the green carpet.

There is little evidence that the motion was in fact misleading in any way, particularly as one of the documents provided says that the owner who submitted alternative carpets did not submit any additional explanatory notes. It may have been preferable if photographs of the samples could have been provided to absentee owners but it may also be arguable that it would be difficult to assess the samples without comparison to the other decoration used in the lift landings. In any event, absentee owners could have made enquiries or sought further information if they were particularly interested in the carpet choices.

I therefore conclude that no serious questions have been raised to question the validity of the motion to replace the carpet on the lift landings with the carpet preferred by the vast majority of owners voting at the meeting.

Delayed decoration for other landings

However, there is a serious question raised about whether the body corporate should proceed to replace the carpet on landings 2, 6, 7, 19, and 21 when the body corporate has earlier passed resolutions delaying the redecoration of those landings and proposing that the owners of units on those landings provide a resolution at the upcoming annual general meeting regarding the decoration of those landings.

There is some argument regarding whether the delayed decoration refers only to the walls and doors or to decoration of the landings generally. Perhaps owners were under the impression that those particular landings were still in a state of good repair and could stay exactly as they were. Alternatively, perhaps this intention related only to the walls and the doors. Submissions from all owners would be required before a final determination could be made on this issue.

However, it is clearly arguable that floor coverings are an integral part of any alternative decoration of individual lift landings. If some lift landings are still in good repair then it is certainly arguable that owners should be entitled to agree that the landing stay in its present condition. Alternatively, owners could argue they are entitled to seek the permission of other owners to redecorate their own landing at their own cost and in their own style.

This results in the situation where earlier resolutions of the body corporate to allow alternative proposals for the decoration of certain landings may conflict with a later resolution to replace the carpet on every landing. Particularly if each lift landing is locked off to all occupiers except those with units located on the particular floor then it could be argued it is unreasonable for the body corporate to require replacement of the carpet on what is essentially a private landing. However, if there is not unanimous agreement of all owners on a particular landing then it would seem difficult for another owner to force an argument that their landing should be different from the majority decision.

In considering whether it is appropriate to preserve the existing state of affairs pending the final determination, I conclude that the earlier resolution allowing an alternative proposal to be submitted justifies an interim order delaying installation of carpet on that landing pending an opportunity for those owners to seek authorisation for an alternative in general meeting. That alternative may simply be seeking a continued delay to any refurbishment of the landing subject to any minor repairs. On the other hand, the owners in question may seek a special resolution allowing redecoration of the landing in a different way to that preferred by the majority. Unless agreed otherwise, that redecoration would be an improvement to common property needing to be paid for by the owners in question with ongoing maintenance also being the responsibility of those owners.

Order

For these reasons, I make the interim order above. Owners of units on levels 2, 6, 7, and 21 may also wish to put forward proposals for their landings to be treated differently from other landings. However, no orders have been sought in respect of those landings. If the owners on those landings all agree that they do not wish to have the carpet chosen by majority resolution then those owners can approach the committee to seek agreement that installation of carpet on their landing also be delayed pending the upcoming annual general meeting. If the committee does not agree then those owners may wish to seek an order in this respect.