Regal Pines [2007] QBCCMCmr 168 (21 March 2007)

Last Updated: 2 April 2007

REFERENCE: 0860-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23769
Name of Scheme:	Regal Pines
Address of Scheme:	QUEENSLAND

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

Mr John Nicol, the Owner of lot 23

I hereby order that the application for orders: to invalidate the decision to remove the old letterboxes and install new ones; and to have the gates fixed and reinstalled is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0860-2006

"Regal Pines" CTS 23769

Application

The applicant has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) to "invalidate the decision to remove the old letterboxes and install new ones" and to require the Body Corporate to have the gates fixed and reinstalled.

Background

Regal Pines consists of 32 lots on a Standard Format Plan (previously known as a group title plan) and is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

The applicant states that Regal Pines is a prestigious estate which is largely owned by absentee landlords. The applicant further states that although very little maintenance has ever been undertaken in the estate, a decision was recently made to remove the community mail boxes and to distribute individual mail boxes. It is claimed that this was never discussed at the AGM but the decision was taken by the committee without consultation. As a result it is claimed that the roads in the complex are no longer "private" and junk mail is delivered to individual lots. The applicant states that to date 25 mail boxes have been supplied and 7 lots have not received new mail boxes. It is further submitted that the cost of supplying 32 mail boxes is above the relevant limit for committee spending contained in section 101 of the Regulation.

Submissions

Pursuant to section 243 of the Act submissions were sought from the body corporate and all lot owners and submissions were received from numerous lot owners and the body corporate.

The body corporate made the following submissions:

• At the AGM on 10 December 2005 there was discussion regarding the mail boxes situated adjacent to lot 1. It was noted that the positioning of the communal mail boxes adjacent to lot 1 was causing a nuisance including parking on lawns, littering & people coming and going at all hours;
• It was suggested that re-locating the mail boxes and it was agreed to obtain quotations with an upper level of $3,000 available for the project;
• Inquiries with Australia Post indicated there was a possibility that mail could be delivered to individual lots this was confirmed in a letter from Australia Post dated 21 June 2006 in which it was stated that they would deliver to individual residences provided gates were left open. The committee decided to permanently remove the gates as they have not been closed for 7 years and were manually operated;
• In July 2006 each resident was provided with a selection form in which they were able to indicate what type of mail box they preferred;
• Only 23 forms were received, some of which were signed by tenants. Forms from tenants were forwarded to absentee owners few written replies were received;
• The applicant expressed his opposition to the proposal on a number of occasions;
• Legal advice was obtained from Herdlaw regarding the proposal;
• A further mail-out to owners was conducted requesting owners to choose a mail box style and colour. As a result, 16 affirmative replies were received from owner occupiers, 7 affirmative replies were received from tenants and one opposing response was received from the applicant;
• Expenditure was $3,443.42 which was within the spending limit for the committee;
• The committee believes its decision was correct and in the best interests of all owners.

Five individual submissions were received supporting the decision of the body corporate. One submission pointed out that this scheme actually consists of detached residences on large blocks of land and that in total the scheme comprises 16 acres with one kilometre of roadway from the front to the rear of the estate.

Several submissions pointed out that under previous arrangements there was traffic congestion caused by residents collecting their mail from the community letterboxes outside lot 1, creating a danger for pedestrians. Further, only 25 mail boxes were purchased as the remaining lots consist of vacant bland and have no need for mail boxes at this stage.

The front gates have never been used as residents are coming and going at all hours and the gates are manually operated (i.e. someone would need to get out of their car to open and close the gates each time they wished to enter or exit the scheme land).

In response, the applicant made a number of comments which largely restated many of the points originally made in his application.

Jurisdiction

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

(c) a claimed or anticipated contractual matter about-

(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

The applicant is seeking an order to invalidate the committee decision to remove the communal letterboxes previously installed adjacent to lot one and to purchase 24 mail boxes for distribution to lot owners. He also seeks to invalidate the committee decision to remove the front gates.

The Body Corporate and Community Management Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community
titles schemes". To this end certain powers are given to the body corporate committee while other powers are reserved for the body corporate in general meeting.

In this regard, section 94 of the Act provides:
Body corporate’s general functions
(1) The body corporate for a community titles scheme must--
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1).

Further, section 100 of the Act provides as follows:

Power of committee to act for body corporate
(1) A decision of the committee is a decision of the body corporate.
(2) Subsection (1) does not apply to a decision that, under the regulation module, is a decision on a restricted issue for the committee.
(3) Despite anything in a contract with the body corporate (including the engagement of a body corporate manager), a decision of the body corporate manager is void to the extent that it is inconsistent with a decision of the body corporate’s committee.
(4) If persons, honestly and reasonably believing that they are the committee for the body corporate, make a decision while purportedly acting as the committee, the decision is taken to be a decision of the committee despite a defect in the election of one or more of the persons.

It would appear to me that the committee for this scheme was duly elected. Further, it is my view that the committee was entitled to make the decision to relocate mail boxes and to remove the front gates as these were not "restricted matters" for the body corporate to consider in general meeting.

The next matter for consideration is whether the expenditure by the body corporate committee was permitted by the Accommodation Module regulation. In this regard the Accommodation Module Regulation provides that the committee may carry out a proposal involving spending up to the relevant limit for committee spending which in this scheme, is equal to $125 times 32, the number of lots, i.e. $4,000.

The committee has advised that total expenditure for this exercise was $3,443.42 which is therefore within the spending limit for the committee.

For the above reasons I believe that the application must be dismissed.