Indigo Blue Beachside Residences [2006] QBCCMCmr 99 (1 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0800-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30961
Name of Scheme:	Indigo Blue Beachside Residences
Address of Scheme:	186 The Esplanade BURLEIGH HEADS QLD 4220

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

Edward Eadeh, the Owner(s) of lot 41

I hereby declare that the resolutions passed under heading 3.3 at the meeting of the committee of the body corporate for Indigo Blue Beachside Residences on 15 October 2005 are invalid on the basis these issues were restricted issues and could only be determined in general meeting.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0800-2005

"Indigo Blue Beachside Residences" CTS 30961

Application

Indigo Blue Beachside Residences Community Titles Scheme (Indigo Blue) is a 44 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). This module is commonly adopted by schemes designed for holiday letting. The body corporate for Indigo Blue has engaged a caretaker and letting agent to undertake certain responsibilities concerning the scheme.

This is an application by Edward Eadeh, an owner of lot 41 (applicant) seeking orders against the body corporate for Indigo Blue (respondent).

The dispute concerns a number of committee resolutions, in particular, resolutions that relate to the agreement between the body corporate and the caretaker. The applicant seeks to have these resolutions declared invalid.

Submissions

The applicant has provided submissions to the effect that:

• It was agreed to amend the caretaking agreement to ‘clarify’ that the caretaker must take rubbish to the street as part of his normal duties (without any additional payment). However, the committee subsequently resolved to change the minutes to say this duty was ‘in addition’ to the other duties under the agreement;
• A motion to heat the pool was defeated at the last annual general meeting but the caretaker claims the body corporate is required to provide facilities to enhance rentals so the pool should be heated. The committee called for quotations and has established an interpretation of the caretaking agreement in favour of the caretaker; and
• The committee is irresponsible in deciding not to recover $1395 overcharged by the building manager and interpreting the caretaking agreement in favour of the caretaker in relation to claims by the caretaker. It is essential that the body corporate get an independent legal assessment of the caretaker’s claims.

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

• The matters were fully debated at length by the committee members and other attendees present;
• One motion was put forward to clarify the requirement that the caretaker take out the rubbish and there was never a resolution to vary the agreement with the body corporate as such;
• The pool heating motion at the previous annual general meeting was ruled out of order because the motion relating to levies was defeated and there was therefore no funding available. Subsequently, a survey indicates owners wanted pool heating and this will be put to owners in general meeting; and
• It was always the intention of the committee to recommend a variation of the caretaking agreement in a general meeting but it is not clear how certain of the matters complained about can be construed as a variation. For example, reimbursement to the caretaker for cleaning the water feature is valid as it is not included in the caretaking duties. Also, the body corporate should reimburse the caretaker for security monitoring as the body corporate uses the caretaker’s equipment for this purpose.

The body corporate has subsequently provided correspondence from the caretaker stating that the caretaker has reimbursed the amount of $1395 to avoid unnecessary complications even though this amount is a genuine claim for which receipts were forwarded to the body corporate concerning amounts paid by the caretaker to contractors who had carried out work at the scheme.
Correspondence also includes a statement to the effect that the caretaker has not requested and does not agree with the amendment of the caretaking agreement to insert set amounts for various services as this would necessitate the further variation of the agreement possibly on a yearly basis.

Decision

1. Motion to correct minutes

There is dispute between the parties whether a resolution passed about rubbish removal by the manager was "to clarify" the caretaking duties or was "in addition to" the caretaking duties. There are special requirements necessary for a body corporate to amend a caretaking contract. Once the committee has agreed on amendments with the caretaker the terms and effect of these amendments will need to be distributed to all owners to allow owners to vote on the proposed amendments (Accommodation Module, 85).

In this instance the applicant has not provided sufficient evidence to satisfy me that the initial meeting agreed the resolution would be "to clarify" rather than add something "in addition to" the present duties. In any event, this question does not appear to have any real bearing on the affairs of the body corporate and the minutes of the annual general meeting on 10 February 2006 indicate that owners voted to amend the caretaking agreement regarding the collection and removal of garbage bins.

2. Motions to get quotations for pool heating

The applicant has not substantiated any claim to the effect that the caretaker has required the pool heating and that any rights of owners to choose whether or not to heat the pool have been compromised. The minutes of the annual general meeting on 10 February 2006 indicated that owners voted for a pool heater to be installed. These minutes indicate that Australian Energy is the preferred contactor. Presumably, money was available in the budget to pay for this installation and owners selected from quotations that specified the actual costs. However, this information is not apparent from the minutes of meeting provided. If this was not the case then a further resolution may be necessary to specify the amount authorised to be spent on the heater and raise a special levy to pay for this cost.

3. Motions regarding payments and reimbursements to caretaker

Other motions at the committee meeting resolved that the caretaker would not be asked to reimburse $1,395 and that the caretaker be reimbursed specified amounts for other activities said not to be included in the caretaking agreement.

The caretaker has since reimbursed the $1,395. The various other resolutions under heading 3.3 of those minutes propose that the caretaker be paid additional amounts for specific services. These resolutions appear to be invalid. This is because the additional services would amount to either an amendment of the caretaking contract or a new engagement of a service contractor. Either of these matters require a resolution of owners in general meeting (Accommodation Module, 85).

It was initially submitted that the matters considered as item 3.3 of the committee meeting would be considered at the subsequent general meeting. This did not occur. The resolutions passed as item 3.3 of the committee meeting appear to purport to change rights, privileges or obligations of owners or otherwise deal with matters required to be dealt with by ordinary resolution of owners in general meeting. I will therefore declare these resolutions invalid on the basis they are restricted issues for the committee and could only be determined in general meeting (Accommodation Module, 24).

Order

For these reasons, I make the order above.