Central Palms [2007] QBCCMCmr 509 (20 August 2007)

Last Updated: 5 September 2007

REFERENCE: 0290-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18415
Name of Scheme:	Central Palms
Address of Scheme:	31 Norris Street MACKAY QLD 4740

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

Raylene Hanson & Charles Willey, the Owner(s) of lots 4 and 1 respectively

I hereby order that the application for orders, including to invalidate a resolution of 6 March 2007 and require another resolution in relation to the replacement fence, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0290-2007

"Central Palms" CTS 18415

Application

Central Palms Community Titles Scheme (Central Palms) is a 4 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application by Raylene Hanson and Charles Willey, the Owner(s) of lots 4 and 1 respectively (applicants) against the body corporate for Central Palms (respondent).

Submissions

The applicants’ main submissions were to the effect that:

• The eastern boundary fence of the scheme was in need of replacement;

• One of the applicants intended to put forward a motion at the annual general meeting seeking replacement of the fence;

• Another owner took the initiative and obtained quotations for a replacement colour-bond fence and called an extraordinary general meeting to consider this;

• This other owner did not contact other owners for their views even though the matter was not very urgent;

• One of the applicants had concerns with the proposed colour-bond fence and had asked for details of other owners in order to contact them. However, the meeting ultimately proceeded and owners voted to replace the fence based on misinformation; and

• The fence was then replaced without proper notice to her and the body corporate manager refused to stop the replacement despite this application.

The body corporate manager has provided a submission on behalf of the committee. This submission is to the effect that:

• The decision to replace the fence was taken at a properly held extraordinary general meeting and carried by three votes in favour to zero against;

• The committee acknowledges that formal notification of access to erect the fence was regretfully overlooked;

• The owner of the adjacent property agreed in writing to the fence. Any variation to the fence would require this person's approval as well as full responsibility for cost to the body corporate; and

• It is noted that one of the applicants voted in favour of the fence and the other applicant indicated her intention to vote against it but did not actually vote.

The two owners apart from the applicants have made submissions. One submission raises concerns about the risk of termites attacking the previous fence and states that the fence needed to be replaced. The other owner has made a submission to the effect that she has no particular concerns regarding the replacement of the fence.

Decision

The applicants appear to have genuine grievances about the manner in which the fence was replaced. In particular, at least seven days' notice should have been given of any access to the applicant's property to erect the fence. Further, it would have been prudent for the committee to delay the erection of the new fence once it became apparent that some owners had potentially failed to understand which section of the fence was to be replaced.

If the applicants had provided grounds justifying the overturning of the resolution to erect the fence then I would have no hesitation ordering that the body corporate seek the adjoining property owner's consent to a different fence and requiring that the body corporate pay the entire costs of erecting a new fence.

However, ultimately I am not satisfied that there are sufficient legal grounds advanced upon which to justify an order overturning the initial vote by owners. The submissions provide evidence that some owners may not have understood which section of the fence was to be replaced. However, the motion put forward clearly identified the section of fence in question. In the circumstances, if owners have changed how they wished to vote then they should put forward another motion proposing the body corporate seek to erect a different fence and seek any necessary consent of the adjoining owner to do so. This is on the basis that once a resolution has been passed, that resolution can be amended or revoked by a resolution of the same type (Standard Module, 58).

Order

For these reasons, the application is dismissed. Any owners who wish to alter the fencing are able to propose a relevant motion for the next general meeting.