Alice Place [2007] QBCCMCmr 139 (12 March 2007)

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

I hereby order that -

(1) John De Ruyter, co-owner of Lot 4, is appointed as administrator to call, hold and chair a general meeting ("the meeting") of the Body Corporate for Alice Place on 14 April 2007 which shall be deemed to be the annual general meeting for the scheme for 2007.
(2) The administrator shall hold the appointment for the period beginning from the date of this order until of the close of the meeting ordered.

I further order that the administrator shall -

(1) convene and conduct the meeting in accordance with the Body Corporate and Community Management (Standard Module) Regulation 1997, except insofar as provided for in this order;
(2) not be required to provide any further opportunity for owners to submit motions for the meeting agenda, except insofar as provided for in this order;
(3) give a notice of meeting to all owners whose name appears on the roll as the owner of a lot in the scheme by no later than 23 March 2007;
(4) consult with Kerry Watson, owner of Lot 5, in the preparation of the notice of meeting; and
(5) include a copy of this order and statement of reasons to all owners with the notice of meeting.

I further order that the administrator shall include on the agenda for the meeting:

(1) any motion submitted by John De Ruyter and Linda Harvey, the co-owners of Lot 4, requesting Body Corporate permission for them to keep pets on Lot 4;
(2) any motion submitted by any owner within seven (7) days of this order regarding common property gardens in the scheme; and
(3) any other motion previously submitted by any owner.

I further order that for the purpose of calling, holding and chairing the meeting, the administrator shall have all the powers of the chairperson, secretary and treasurer of the body corporate, and of the committee, with the exception of the following powers –

 to further delegate any of those powers to another person; or
 to incur any expenditure, apart from that necessary for the calling and holding of the meeting, except in regard to body corporate expenses that must necessarily be met and are capable of being authorised and incurred by a committee under the legislation.

I further order that no owner shall install or remove plants, or otherwise undertake development work, on common property garden areas, with the exception of routine maintenance, unless and until the future of the gardens is first discussed at a general meeting and then the work is approved at a general meeting or by the Body Corporate Committee or a body corporate manager appropriately authorised to carry out the functions of the Body Corporate Committee.

I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0743-2006

"Alice Place" CTS 20456

Alice Place community titles scheme (Alice Place) consists of five lots and common property. The community management statement for Alice Place indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Group Titles Plan 2483.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Kerry Lee Watson, owner of Lot 5 (applicant) on 13 September 2006. The applicant sought orders against John De Ruyter and Linda Harvey, owners of Lot 4 (respondents) in the following terms:

1. In accordance with the By-laws contained in the third schedule of the Act - By-law 2 - "Vehicles", I request that the owners of Unit 4 be requested to return the garage area back to a garage to enable one of their vehicles to be garaged and for the second vehicle to be removed to the street for parking. This will then comply with the By-laws. The garage should be the same as the other 4 units, otherwise this could effect the insurance.

2. In accordance with By-law 4, I would like the owners of Unit 4 to be informed that this garden in question is on common property and the numerous pots and plants that they have put in the garden now and lights also have been placed there at their own cost and no Body Corporate permission was sought for this work to be done.

3. In accordance with By-law 11 - "Keeping of Animals" I would like the owners of Unit 4 to comply with this By-law as no permission was sought from the Body Corporate for their dog and cat. Otherwise remove them from the property.

PROCEDURAL MATTERS

In October 2006 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately conciliation did not proceed.

Under section 243 of the Act, a copy of the application was provided to the respondents and the Body Corporate, with an invitation to the respondents, the committee and all owners to respond to the matters raised in the application. Submissions were made by the respondents. The applicant inspected the submissions received and made a written reply.^[1]

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

On 8 March 2007 I conducted a teleconference to discuss some of the issues arising in the dispute with the applicant and John De Ruyter representing the respondents.

MATTERS IN DISPUTE

The application relates to the applicant’s concerns with the actions of the respondents, particularly regarding compliance with various by-laws. The facts of the dispute, as outlined in the application, submissions and reply to submissions, can be summarised as follows.

The respondents purchased Lot 4 in 2005 and John De Ruyter then took over the role of body corporate manager (BCM). The applicant has concerns with the way he has undertaken this role, but the application focuses on the alleged by-law breaches.

The applicant claims the respondents have built a room in their garage and as a consequence they parked one car in front of their unit on common property and their second car in the visitor car park in front of her unit. She indicates that, after she first complained, both of the respondents’ cars were parked in the visitor car park. The applicant says the respondents claim to have Body Corporate permission to park in the visitor carpark, but there was no meeting to discuss this and any permission would have been given by Dot Maynard, the former owner of Lot 4 who previously held the secretary/manager role. The applicant says she wants the respondents to park one vehicle in their garage and for any other vehicles to be parked on the street.

The application also claims the respondents have built a wall in their garage and that other owners did not consent to these garage renovations. She claims that after she queried Body Corporate and Council approval for the renovations she has been subjected to intimidation. There is some suggestion that approval for this work was a condition of the respondents’ purchase of Lot 4 and that Dot Maynard obtained or provided this approval. The applicant says she wants the garage returned to use as a garage in the same way as the other units.

The applicant alleges the respondents have replanted body corporate gardens and installed pots and lights, apparently at their own expense but without Body Corporate approval. The garden area in front of Lot 4 was allegedly dug out after the respondents called a meeting, apparently without notice, while the applicant was away. Installed plants have now been progressively removed.

In relation to pets, the applicant claims no Body Corporate permission was sought for a cat and a dog. A representative from Logan City Council visited her on the matter and was surprised to hear that she had not signed consent for the animals as she claims the Council require.

On 16 May 2006 the applicant wrote to the BCM enclosing a BCCM Form 1 Notice to Body Corporate of Contravention of a Body Corporate By-law to the Body Corporate alleging that the respondents had breached the by-laws. The notice referred to By-law 8 (Appearance of lot) and By-law 2 (Vehicles) of the Act’s default by-laws. It indicated that the garage renovations breach By-law 8, albeit through no fault of their own, because Dot Maynard did not obtain proper Body Corporate approval. The notice says the respondents are breaching By-law 2 by parking on common property and that additional insurance premiums may be due because of the renovations.

A further BCCM Form 1 notice was sent by the applicant on 19 June 2006, referring to By-laws 2 (Vehicles), 4 (Damage to lawns etc on common property) and 11 (Keeping of Animals) from section 30 of the Building and Group Title Act 1980 (BUGTA). It claims the respondents are parking vehicles on common property, the common property garden in front of unit 4 has been damaged and that a dog and pet are being kept without body corporate approval.

The application also expresses concerns that there is no committee, that appropriate meeting procedures have not been followed, that levies are increasing to meet the respondents’ ambitions for the scheme, and by-laws are being ignored.

Submissions from the respondents include the following comments:

In the course of investigating the dispute I invited the respondents to provide information on a range of issues and gave the applicant the opportunity to respond to those issues.

JURISDICTION

I am satisfied that this matter falls within the dispute resolution provisions of the legislation.^[2]

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about:

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

DETERMINATION

This application is substantively about whether the respondents have breached various by-laws for the scheme. However the application raises many further questions regarding the administration and management of the scheme.

Applicable by-laws

Alice Place was registered in 1990 under BUGTA, which applied to schemes prior to the commencement of the current Act. The community management statement (CMS) for Alice Place that was registered on 15 July 2000 under the Act states that the by-laws for the scheme are taken to be those in effect as at 13 July 2000. Accordingly, while the current Act now applies to the operation of the scheme, as no other by-laws have been registered, the applicable by-laws are still those contained in Schedule 3 of BUGTA.^[3]

The relevant by-laws in Schedule 3 of BUGTA state:

Save where a by-law made pursuant to section 30(7) of this Act authorises a proprietor or occupier to do so, the proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

Subject to section 30(12), a proprietor or occupier of a lot shall not, without the approval in writing of the body corporate, keep any animal upon his or her lot or the common property.

Pursuant to section 185 of the Act, if an owner or occupier wishes to pursue a by-law breach, their first step is to ask the body corporate (using BCCM Form 1) to issue a by-law contravention notice. If the body corporate advises within 14 days that it has issued a contravention notice, the complainant can only pursue a dispute resolution application in this Office against the body corporate for failing to enforce the contravention notice. But if the body corporate fails to issue a contravention notice or to advise the complainant, the complainant can lodge an application against the person allegedly breaching the by-laws. I am satisfied that the applicant has followed the required process and, the Body Corporate having not issued contravention notices against the respondents, was able to lodge a dispute against the respondents in respect of alleged breaches.

Parking

The applicant says that because of the garage renovations (discussed below) the respondents have parked in the visitor car park and (until she objected) in front of her unit. The respondents say they now park both cars on the road and the applicant has confirmed this. The applicant has recently indicated that this issue is now resolved.

The applicant also says other residents are now parking in the visitor car park, but the Body Corporate is not pursuing these by-law breaches. The respondents say many residents have parked in the visitor carparks but no resident is currently doing this on a regular basis. They note that some residents who frequently parked on common property have since left the scheme. Moreover they say no concerns had been raised to them prior to the applicant’s correspondence.

By-law 2 makes it clear that owners and occupiers cannot park on common property without Body Corporate consent. The respondents confirm that there is no record in the Body Corporate files of any owner or occupier being given approval to park on common property. Accordingly, it does appear the respondents have previously breached By-law 2 by parking on common property. However I am satisfied that no breaches are occurring now and so no order is warranted. Moreover, it does appear likely that By-law 2 has been breached on an ad hoc or regular basis by many residents, including the applicant. This is not necessarily a problem.

The by-laws exist for the benefit of all owners and occupiers and to facilitate harmonious living. On the one hand it is arguable that by-laws must be enforced to provide certainty for all. However there may be a collective view that strict enforcement of by-laws is not necessary and that minor or occasional breaches are not problematic. This may be acceptable to owners here if there is no particular parking shortage and no detriments suffered by other residents by such breaches.

However the Body Corporate could provide more certainty on this issue. Owners could consider changing the by-law entirely to reflect the preferred arrangements (which would require approval of a new by-law at a general meeting and registering of a new community statement).^[4] But a simpler and more flexible option would be for the Body Corporate to utilise the capacity in By-law 2 to give owners approval to park on common property. For example, the Body Corporate could agree to give a blanket approval to all residents to park on common property at any time, or for limited periods such as (for arguments sake) no more than two hours per day, or only at certain times of the day or week (eg. when the car park is not usually busy). In addition, the Body Corporate could make a more active practice of granting short or long term approval for residents who might have a particular need to park on common property at certain times. These approvals would be in the power of the Committee to grant but it would be desirable for all owners to discuss and decide on their approach to parking on common property at a general meeting. Of course, owners must bear in mind the need to maintain car spaces for genuine visitors, and to comply with any Council requirements regarding parking. Once an approach is decided, by-law breaches can be pursued.

Garage renovations

There is no clear evidence that the Body Corporate approved the garage renovations, and I have doubts about the authority of Dot Maynard to give any valid approval for the work as part of the contract of sale or on behalf of the Body Corporate. However, to the extent that the works undertaken in the garage of Lot 4 are confined to the boundaries of Lot 4, these works would not require Body Corporate approval. While the default by-laws in the current Act include By-law 8 restricts changes to the external appearance of a lot without body corporate approval, there is no such provision in the BUGTA by-laws that apply to this scheme.^[5]

There is no suggestion by the applicant that the renovations in the respondents’ garage include changes to common property. However if they did, there are two grounds upon which they would require Body Corporate approval. Section 114 of the Act (outlined under "Gardens" below), requires an owner to seek approval for proposed improvements to common property and in many cases requires a special resolution. In addition, By-law 5 provides, in part, that an owner or occupier shall not mark, paint, drive nails etc, or otherwise damage or deface any structure that forms part of the common property without written consent from the body corporate.

Issues of whether Logan City Council (LCC) approval has been sought or was required for any part of the works is beyond the jurisdiction of this Office and should be addressed directly with LCC. However I note that the respondents have included correspondence from LCC dated 10 January 2007 stating that LCC had investigated alleged illegal building at the respondents’ residence in June 2006 which revealed that wall had been built without approval. The respondents were advised to remove the wall or have it approved by a private building certifier. A later investigation revealed the wall had been removed and LCC had closed its file. The letter indicated that the LCC file showed no indication that the unapproved building work impinged on common property or interfered with parking arrangements.

The applicant refers to insurance concerns but has given no evidence of how renovations in the garage area have or could affect insurance. However the Body Corporate should review its insurance each year when it is up for renewal to ensure that the insurance coverage is adequate for the property in the current marketplace.

Gardens

It seems the work in common property gardens included the repair of the carpark garden retaining wall, removal of long grass and weeds, relocation of a plant from outside Lot 4 to the driveway garden, purchase of plants soil and potting mix for several garden areas, painting of retaining wall and edges, and installation of three solar lights and a trellis. The respondents argue that they improved and re-established the gardens. However it seems that they have since progressively removed most of the plants and other additions.

The applicant says her concerns predominantly related to the garden outside Lot 4 and the fact that it had been converted to private use. She suggests that there was general agreement among owners for plantings in the other gardens. She confirms that the lights, trellis, pots and plants in the garden outside Lot 4 have been removed. While at one point during the progress of the application she said the garden had been left looking ok, she has since said that more plants have been removed and the garden is looking very bare. The respondents indicate that they now realise the plants were ‘illegal’ and as they were their own plants they have been removing them. The applicant says she was not seeking the removal of the plants and they could have been left as they were if the respondents had just sought Body Corporate permission.

The respondents have confirmed that the Body Corporate records do not contain any meeting minutes or correspondence that purport to authorise any lot owner to make improvements or changes to common property gardens. Pursuant to By-law 4 common property gardens can be converted to private use if there is Body Corporate approval in writing. Owners should also be aware of the following section 114 of the Standard Module.

(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.

(2) The improvement must be authorised by special resolution of the body corporate unless--

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.
There is nothing in the legislation or by-laws that prevent the improvement of gardens on common property for the benefit of the appearance of the scheme as a whole or for the benefit of an individual owner, providing that it is appropriately approved by the Body Corporate. It appears that this is a dispute that could have been avoided by clearer communication between all owners through the discussion of proposals on the agenda at a general meeting and the minuting of decisions so that those not able to attend are fully informed.

Animals

The respondents say they have had a cat and dog in their lot since December 2005, and that they had approval for these pets before moving into their lot. There is also some indication that a Body Corporate meeting on 8 October 2005 agreed to their request for one of their pets, however no minutes were apparently taken of this meeting. The respondents have provided correspondence dated 15 October 2005 indicating that the meeting on the 8^th had approved ‘one small dog’, although no evidence of the approval of the cat has been provided.

The respondents have also advised that:

The applicant says neither she nor other owners were told of the request for animals or of any decision to permit animals. She claims the dog was allowed to defecate on common property outside Lots 3 and 4, although she says this problem has now ceased.

There are several issues to consider in relation to the animals in Lot 4. The first is whether the Body Corporate has in fact given consent to the respondents for their pet, pursuant to By-law 11. The respondents have not evidenced purported approval of a cat and I have some query over the capacity of Dot Maynard, in her purported capacity as the former BCM to grant such approval or the validity of the meeting which allegedly gave approval.

As it is not apparent that any other pets have been approved or refused by the Body Corporate, the Body Corporate would not be acting inequitably if it either approved or refused these animals. There also is no indication that the Body Corporate has expressed a particular preference for or against pets (and any such preference would be subject to the consideration of the circumstances of each request for pets, which I believe is implicit in By-law 11).

Generally, if a body corporate does not take steps to enforce the by-laws and remove an unapproved pet within a reasonable time, it can lead an owner to assume implicit approval to keep the animal. Moreover it would arguably be unfair for an owner to have to remove an animal that they have been allowed to keep for an extended period of time. As the respondents’ pets have been in Lot 4 for well over a year now, it is arguable that there has been acquiescence on the part of the Body Corporate, even if no valid written approval has been given. However as one the respondents has acted as the Committee, any lack of Body Corporate action can be explained.

I have also considered that other owners have not demonstrated any objection to the pets, and that the applicant has not detailed any detriment she has suffered by the continued presence of these animals (other than defecation which has apparently been addressed).

Finally, there are differing views as to whether Logan City Council does or does not have letters from other lots consenting to pets in Lot 4. I consider this, and any approval or otherwise from the Council, to be irrelevant to whether the respondents have kept pets contrary to By-law 11.

While I there is a strong case for the respondents being able to retain their pets in the circumstances, on balance I consider it is appropriate that all owners consider this issue at the next general meeting.
Management of the Body Corporate

Although it seems all owners have acted in good faith, there are fundamental concerns with the administration of this Body Corporate. For some time the respondents were under the misapprehension that the scheme operated under BUGTA rather than the Act, but the only part of BUGTA that continues to apply is the Schedule 3 by-laws. Meetings have clearly not been conducted in accordance with Standard Module requirements. The scheme’s last annual general meeting (AGM) was reportedly held on 28 February 2004 although, as the name implies, AGMs must be held annually. The minutes of this last AGM, presumably prepared by Dot Maynard, are extraordinarily brief and certainly fall far short of the requirement for ‘full and accurate minutes’.^[6] Importantly, the minutes give no indication of the conduct of any committee election or engagement of a body corporate manager to carry out the functions of the committee. On this basis alone, it is clear that there is no properly elected committee for the scheme and that John De Ruyter is not properly authorised to hold the position of body corporate manager.

Election of a committee

There are concerns with the ability of this scheme to find sufficient persons willing to be on a committee. It may assist owners to clarify eligibility for committee membership. This may help owners determine whether there is a viable alternative to engaging a body corporate manager.

In a scheme the size of Alice Place there must be a minimum of three and a maximum of five voting members on the committee. Any individual owner can nominate themselves, another owner, a person appointed as their own power of attorney, or a member of their own family (including their spouse or de facto, their child, step child or adopted child over 18 years of age, a parent or a sibling). A family member or power of attorney of a lot owner can be elected to the committee at the same time as that same lot owner, but only if the lot owner is nominated by another lot owner in the scheme. Normally only one co-owner of a lot can be a committee member at any one time. However if the number of candidates for ordinary membership, along with executive members, is less than three, then no more than one other co-owner of the lot may be nominated as an ordinary member of the committee, but only to bring the number of voting members of the committee to three.

There must be a chairperson, secretary and treasurer (known as the executive members of the committee) but one person may hold any two or all three of these positions at the same time. Other committee members are known ordinary members.

Engagement of body corporate manager instead of a committee

A Body Corporate must elect a committee unless it validly engages a BCM to undertake these functions (known as a ‘Division 10 appointment’).^[7] The requirements for a Division 10 appointment are outlined in sections 37B to 37F. I will not outline these lengthy sections in full^[8] but will summarise their provisions.

Under section 37B the Body Corporate can engage a BCM under Division 10 if:

Under section 37C the engagement must be in writing, state that the BCM is required to carry out the functions of the committee and each executive member, and state the basis on which the BCM’s payment will be calculated. A Division 10 appointment cannot exist for more than 12 months. Section 37D provides the engagement automatically ends at the end of the next annual general meeting after the annual general meeting at which the engagement was approved, or 12 months, whichever is earlier. The body corporate cannot purport to elect committee members during the term of engagement but can terminate the BCM in the same way as any other BCM.^[13]

Under section 37E a BCM has the functions and powers of the committee and each executive member of the committee. However, as with any committee, there are a range of matters that must be determined by all owners at a general meeting. Section 37F sets specific requirements for the BCM to provide written quarterly reports to the body corporate outlining information including planned repairs and maintenance, the financial status, expenses incurred, and decisions made.

Engagement of John De Ruyter as body corporate manager

It seems that after the respondents’ purchase of Lot 4, John De Ruyter ‘assumed’ the role of BCM on the same basis as former owner, Dot Maynard. The respondents say they attended a meeting on 8 October 2005 at which Dot Maynard and one other owner were present. At this meeting Dot Maynard said she was vacating the BCM role and, after discussion, the meeting apparently agreed that De Ruyter would assume the role immediately. There are no minutes of this meeting. De Ruyter says that he contacted all owners to discuss this and says they were pleased to have someone who was prepared to do it. He also recalls sending correspondence on the matter to owners but has not retained a copy.

There was no written agreement in respect to De Ruyter role as BCM. He says his duties were to undertake the positions of chairman, secretary and treasurer, and to mow lawns. Dot Maynard’s remuneration had apparently been $30 a month plus stationary costs, and the lawn mowing had cost a further $30 a month. De Ruyter says he agreed to payment of $50 a month, plus costs, for all these functions but that states he has not drawn any remuneration.

The primary difficulties with De Ruyter’s apparent engagement as BCM include:

It also seems that, perhaps because of his lack of information about the legislative requirements, has not fulfilled the role of the Committee as required in accordance with the legislation or provided quarterly written reports to the Body Corporate.

Applicable regulation module

Alice Place is currently regulated under the Standard Module. As owners clearly wish to maintain the administration of the scheme themselves, without engaging an outside professional BCM, owners may wish to consider whether it would be desirable to change regulation module to Body Corporate and Community Management (Small Scheme Module) Regulation 1997. The Small Schemes Module is only available to schemes with six or less lots and in some respects involves less regulation and simpler processes than the Standard Module.

Owners can contact the Information Service in the Commissioners Office^[14] if they would like detailed information on the differences between the modules or the formal process for changing the applicable regulation module. Some of the key differences include:

Conclusion

In regard to parking on common property, I find no evidence that the respondents are currently parking on common property and so no order is warranted in this regard. However, I would encourage all owners to discuss the approach to the use of the visitor carpark and any requests for approval to use the visitor carpark at a general meeting.

On the basis of the evidence that the renovations to the Lot 4 garage are contained within the boundaries of the lot, I find that there was no requirement for Body Corporate approval for the renovations. Accordingly, I have dismissed this aspect of the application.

In regard to common property gardens, it seems unfortunate that, because of a lack of communication and due process, time and effort has been put into developing and then dismantling common property gardens. It seems owners are generally keen to improve the appearance of the Body Corporate and to pursue this themselves at the least cost and I am sure this can be achieved. At this point I consider that the most appropriate course of actions is for all owners to discuss the development, and responsibility for development, of the various gardens in the scheme at a general meeting. I have ordered that no work proceed (including either to plant or remove plants) until this discussion has occurred, although general maintenance (weeding, mowing and so on) is not restricted. Once the ‘bigger picture’ plan for the gardens is discussed at the general meeting, specific work can be approved either by a motion passed at a general meeting, or a decision by a committee, or a decision by a BCM under a Division 10 appointment.

I am not satisfied the respondents have received valid approval for their pets, although they are justified in believing they had approval at least for their dog. In the circumstances I consider the respondents should submit a motion to the next general meeting seeking approval for a cat and dog. They may wish to submit an explanatory material^[15] for inclusion with the voting paper supporting their motion. In considering this motion, all owners should have regard to the fact that any decision to refuse the pets must be reasonable in the circumstances and could be challenged by the respondents on that basis. Owners should note the circumstances of the purported approval, the duration of the animals’ presence in the scheme, and any impact that the pets have. Finally, owners could consider granting approval subject to conditions relating the keeping of the pets (for example that they not cause unreasonable noise or nuisance to other owners).^[16]

As indicated, I consider that some of the issues in this application should be discussed at a general meeting. John De Ruyter has already notified owners that an next annual general meeting will be held on 14 April 2007. However, for the reasons outlined above, I do not consider that De Ruyter’s engagement as body corporate manager is valid or that there is a validly elected committee for this scheme. Accordingly, there is currently no-one with the legal authority to call and conduct this meeting. For this reason, at our teleconference I discussed with the parties the need to appoint an administrator to convene the annual general meeting and to get the Body Corporate back on a proper legal footing.

In light of the written consent of all owners for De Ruyter to chair the forthcoming meeting, I am satisfied that it is appropriate to appoint De Ruyter as administrator for the purpose of this meeting. However, as agreed by the parties at or teleconference, De Ruyter will consult with the applicant about the contents of the meeting agenda and the notice of meeting papers.

Importantly this meeting should consider the election of a committee. I have ordered that the meeting must also consider any motion put by the respondents regarding their pets, any motion submitted by any owner regarding gardens, and any other motion previously submitted by an owner. However, to enable the notice of meeting to be sent out in sufficient time, I have ordered that there be no further opportunity for owners to submit motions for the meeting. In addition, De Ruyter as administrator should be aware of the statutory motions required to be considered at every annual general meeting:

I would encourage De Ruyter and any other interested owner to contact the Information Service in the Commissioner’s Office if they have any queries about the requirements for the conduct of annual general meetings. I would also commend to owners the excellent online training program^[22] provided by the Information Service. The three modules available to date (Committees, General Meetings and Financial Management) provide more detail than is available in the fact sheets and may assist owners in the conduct of the forthcoming meeting and beyond.

^[2] See sections 227, 228, 276 and Schedule 5 of the Act.
^[3] See section 339(5)(a) of the Act and section 30 of the BUGTA.
^[4] See chapter 2 part 6 of the Act regarding community management statements

^[5] Furthermore, it is noted that By-law 8 in Schedule 4 of the Act expressly does not apply to schemes created under a standard format plan of subdivision, which this scheme is.
^[6] As explained in section 59 of the Standard Module
^[7] Section 7 of the Standard Module

^[8] The full provisions of the Standard Module can be accessed online from the Office of the Queensland Parliamentary Counsel at www.legislation.qld.gov.au/Acts_SLs/Acts_SL_B.htm
^[9] See section 106 of the Act for the requirements of a special resolution
^[10] See section 53, 53A and 53B of the Standard Module
^[11] Under section 24Cof the Standard Module
^[12] Under section 25C of the Standard Module
^[13] See sections 86 to 86C of the Standard Module
^[14] Freecall 1800 060 119
^[15] This should be a maximum of 300 words, see section 42C of Standard Module

^[16] If the impositions amount to the amendment of the motion, owners should have regard to section 57 of the Standard Module. If a motion is amended at the meeting, the vote a person who is not present at the meeting personally or by proxy, but who is entitled to vote, must be counted as against the motion regardless of what their vote was in respect to the unamended motion.
^[17] Section 105 (particularly subsection (6)) of the Standard Module
^[18] Section 106 of the Standard Module
^[19] Section 94 of the Standard Module
^[20] Section 95 of the Standard Module
^[21] Section 126A of the Standard Module
^[22] www.dtftwid.qld.gov.au/Dispute+Resolution/BCCM/Online+Training

Number of Scheme:	20456
Name of Scheme:	Alice Place
Address of Scheme:	132 Bryants Road SHAILER PARK QLD 4128

	The scheme is no longer under the control of the original owner;
	The Body Corporate has passed a special resolution^[9] approving the engagement.
	The resolution is decided by secret ballot^[10] with no votes exercised by proxy;
	The notice of meeting which decides the motion includes the terms of the engagement and an explanatory note in the approved form explaining the nature of the engagement;
	The meeting which seeks to engage the BCM can either be:
-	an annual general meeting at which either one or more executive positions have not been filled or the total number of voting members elected to the committee is less than three;
-	an extraordinary general meeting^[11] called and held within two months of an annual general meeting which failed to fill one or more executive positions or the required total number of committee members; or
-	a general meeting called to fill vacancies on the committee^[12] which fails to fill one or more executive positions or the required total number of committee members
	The motion approving the engagement must be the last item of business for the meeting; and
	Any engagement or amendment to an engagement made under Division 10 is void if it does not comply with sections 37B and 37C.

	Body Corporate approval for the enclosure of their garage was a condition of the contract of purchase. They have since been advised that such approval was not required.
	Residents, including the applicant and her tenants, have frequently parked on common property. There are no parking issues in the scheme and all residents have free access. However, their vehicles have been removed from the scheme and are parked on the road.
	They have approvals for their pets.
	The applicant previously had a greyhound without Body Corporate or Council approval.
	All owners, including the applicant, have placed pots in the common garden. Body Corporate records do not show approval being given to any owner to alter the common gardens.
	The establishment of the garden bed in front of their unit was done in May, with some plants offered by the applicant. A relocated banksia is thriving elsewhere in the scheme. All plants they planted will be removed but without them the gardens will be bare and other owners have expressed concern about the removal of the plants.
	Three solar lights were installed for safety reasons as the complex has no external lighting.
	Any allegations of abuse, threats and bullying are denied.
	The applicant is believed to have only attended two Body Corporate meetings in eight years.
	They dispute that they have spent all the Body Corporate funds and claim all owners have been kept well aware of the financial affairs of the scheme and approved expenditure.
	Owners have rejected the idea of forming a committee as there are insufficient owners prepared to be involved. They believe the only alternative is to involve "outside administration" which is not acceptable to owners due to the cost.

	The three visitor car park spaces for the five units are required by Council, but for 12 months two of these spaces were taken by Lot 4. She has only used the visitor spaces occasionally for a short period of time. The respondents have now moved their cars to the street but Lot 1 is regularly parking in the visitor car space for the whole day but the BCM is taking no action.
	She did have a pet for a short period of time in 1993 but she received no complaints about it.
	While other owners have planted cuttings in the Body Corporate gardens, this was to try and make them look better because of years of neglect.
	The garden bed in dispute was established in August 2006, and she offered cuttings as she knew there were no Body Corporate funds. She argues the large pots, a trellis, lights, plants, fruit and vegetables are against the by-law as it is converting the garden to personal use.
	She attended several Body Corporate meetings while she rented her unit out, but as Dot Maynard failed to carry out decisions she lost interest. However she says she attended all but the last of those meetings that she had been informed about.
	Some issues occurred with her tenants while her unit was rented out some years ago but she dealt with those issues immediately and they are not relevant to this dispute.
	She has not said that the respondents are misappropriating funds, but she has not seen any financial statements since April 2006 and has no idea what funds the Body Corporate has.
	Owners appreciate the respondents’ efforts in improving the appearance of the scheme but she believes all owners ‘do their bit’.
	She understood that the respondents would be remunerated for his work, including maintenance work, on the same basis as the previous ‘BCM’.
	It is not for the respondents to decide a committee cannot be formed.

	There are no other meeting minutes or correspondence relating to pets in the scheme;
	They are not aware of any other pets currently in the scheme; and
	While they do not have direct details of any other pets in the scheme, they have heard the applicant mention a greyhound which she previously had and a cat kept by tenants in Lot 5.

	There was apparently no proper attempt at an annual general meeting or subsequent extraordinary general meeting to form a committee;
	The terms of the engagement were not put to a meeting;
	The engagement is not in writing; and
	The engagement has purported to continue beyond 12 months.

	The committee consists only of a secretary and treasurer and one person can hold both roles;
	The spending limit for the committee without body corporate approval is $200;
	There is no requirement for voting papers to be included in the notice of a general meeting; and
	There are fewer restrictions on the use of proxies.

	Presenting a statement of the body corporate’s accounts for the past financial year;^[17]
	Appointing an auditor to audit the body corporate’s accounts for the next financial year, or resolving not to audit the accounts;^[18]
	Adopting administrative and sinking fund budgets for the next financial year;^[19]
	Fixing contributions to be paid by owners for the next financial year;^[20] and
	Reviewing each insurance policy held by the Body Corporate.^[21]

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Alice Place [2007] QBCCMCmr 139 (12 March 2007)