Glenmore [2007] QBCCMCmr 774 (28 March 2007)

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

I hereby order that the application for an interim order –
" to place on hold motion 12 from the AGM of 20 Dec 2006 in order to prevent installation of the roller door until such time that a final order is made" is dismissed.

I further order that any approval by the committee of a motion voted on outside a committee meeting on 5^th March 2007, notice of which was given on 21^st February 2007, for the installation of a garage roller door on lot 2, be not instigated or acted upon as if any approval of the committee had been stayed;

And I further order that this interim order expires when a further interim order is issued, or when the application is finally determined or discontinued, or upon the expiry of 12 months from the date of this order, whichever is the earliest.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0169-2007A

"Glenmore" CTS 654

APPLICATION

This is an application dated 26^th February 2007 and amended on 1^st March 2007 by Christopher Cleary (the Applicant) owner of Lot 4 in the scheme against the body corporate (the body corporate) for the scheme, for orders as follows –

JURISDICTION

"Glenmore" Community Titles Scheme 654 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are eight lots in the scheme created under a Building Unit Plan of subdivision.

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)).

Section 247(3) of the Act allows the Commissioner to refer an application to an adjudicator for consideration for an interim order even though proper notice of the application has not been given to the body corporate or other affected persons, and despite the fact that parties to the application have not been given an opportunity to make a submission about the matters in dispute.
It seems to me that the Act allows this process because applications for interim orders often relate to emergency or otherwise urgent circumstances, where it is simply impractical or impossible to allow a period for submissions prior to the consideration of the application for interim orders. It is also relevant that generally the purpose of an interim order is simply to maintain the "status quo" of a situation, and not finally to resolve the matters in dispute.

Section 279(1) of the Act allows an adjudicator to issue an interim order in response to an application "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates".

I am of the view that when possible, it is preferable and consistent with the principles of natural justice, to allow affected persons to make a submission about an application (even if the time allowed for submissions is necessarily brief) prior to the determination of an application for an interim order.

I made an interim order on 2^nd March 2007, in the form of an order for directions in respect of a resolution of the committee in this matter to be voted on outside a committee meeting on 5^th March 2007. I ordered that the vote might take place but that the committee should not act on the motion if it was passed, until further order.

I then sought submissions from the parties affected by the interim order sought, that is the owners of Lot 2 and Lot 8, and the committee.

SUBMISSIONS

In respect of the application for an interim order, the Applicant wants to delay the installation of a roller door for Lot 8 until final order, and also delay any motion which was in favour of the owner of Lot 2 installing a roller door. He submits that the roller garage doors are not practical in that only "micro cars" will fit in the space of 4.4m x 3m. They also destroy the look of the building to such an extent that they could damage the market value of the units in the scheme. He fears that to allow one roller door will set a precedent, and because the carports are so small, by fixing roller doors to enclose the spaces, any subsequent owner may be forced to park on the common property. He says that the Queensland Building Codes stipulate a minimum internal dimension of 6m x 3m for a garage and 5m x 3m for a carport as part of a single detached house. He proposed what he feels is a more aesthetic compromise to the body corporate manager by email on 5^th September 2006, suggesting " some type of iron gate" to provide security.

Further, he says that only 50% of lot owners actually voted on Motion 12 at the annual general meeting on 20th December 2006 when the body corporate allowed the owner of Lot 8 to fit a roller garage door at his own expense.

Shane Connor, (Mr Connor) owner of Lot 8 says that he wishes to secure his motorcycle by fitting a roller door on his carport. He is concerned about theft. He believes, after consultation with other lot owners, that roller doors are the most effective solution and would look better than gates. He can see nothing wrong aesthetically with this proposal and says that since the Applicant is concerned that the installation of roller doors might make people park on common property, he points out that the Applicant has a tenant in Lot 4 who parks his second vehicle on common property. He is of the view that a secure roller door to the carport would make his property more appealing.

W.C Schluter made a submission on behalf of his son Philip Schluter (Mr Schluter) owner of Lot 2. Philip Schluter also has an expensive motorcycle and works a four-days-on/four-days-off roster away from home. They are concerned about prowlers and security. A roller door at Lot 2 would be concealed behind the beam in the carport. He thinks owners should be able to have security for their vehicles if they wish. The other alternative would be installing a secure entrance to the compound which would be very expensive, but it is an option which he would support.

There was no submission on the interim application from the body corporate committee.

DETERMINATION

The interim order sought is for the roller door for Lot 8, already approved by the body corporate at the annual general meeting on 20^th December 2006 (the AGM) , and the committee consideration of a roller door for Lot 2, both to be put "on hold" until further ideas are explored.

The Applicant is clearly strongly against the installation of roller doors for any lot in the scheme and has put his arguments clearly. I have not considered the merits of those arguments at this interim order stage, although I must in making an interim order weigh up the likelihood of success of the application by the Applicant against the inconvenience to the body corporate (and thereby to the owners of lots 2 and 8 and any other member of the body corporate) in putting a resolution of the body corporate and the committee "on hold."

Amongst the Applicant’s material is a copy of the agenda for an extraordinary general meeting on 7^th September 2006 (the EGM) wherein Motion 2 was submitted by the committee for roller garage doors to be fitted to all eight units in the scheme; and if this motion failed, the owner of Lot 2 had proposed that he be allowed to fit a roller garage door at his own expense (Motion 3). On 20^th September 2006, after emailed correspondence between the Applicant and the body corporate manager, the body corporate manager advised the Applicant that Motions 2 and 3 contained errors and "are invalid as they should have been by special resolution" in accordance with section 159 Act and section 113 Standard Module.

Section 113 Standard Module concerns the case where the body corporate proposes to make improvements to common property. (Section 159 Act merely allows the Standard Module to regulate such a proposal.) This might be pertinent to Motion 2 if the roller doors were to be fitted to common property. It would not however be pertinent to Motion 3. If a lot owner wishes to make improvements to the common property for the benefit of his lot, section 114 Standard Module would be relevant. This section requires that a special resolution of the body corporate is also achieved if the roller door proposed by the owner of Lot 2 (Mr Schluter) will be affixed to common property.

There does not appear to me on the face of it, to be any difference between Motion 3 of the EGM of 7th September 2006 ( subsequently ruled "invalid" by the body corporate manager), and Motion 12 at the annual general meeting on 20^th December 2006, save that the lot owner in each case was different. Both were stated to be carried by ordinary resolution. There is no indication that the proposed garage doors were to be fitted in a different way for each motion.

There is also no evidence that the garage doors require fitting to common property. In a Building Unit Plan of subdivision, the body corporate may be responsible for maintaining doors and associated fittings situated in a boundary wall separating a lot from common property (Section 109(2)(a)(ii) Standard Module) but that does not make the roller doors common property unless they are situated on common property, that is, on the outside half of the boundary wall of an owner’s lot.

A Building Unit Plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings. (Section 48C Land Titles Act 1994 ) Except to the extent permitted under a direction given by the registrar, the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling. (Section 49 C Land Titles Act 1994)

The roller garage doors therefore might be situated entirely within the owner’s lot, in which case section 114 would not apply; or partly within the owner’s lot and partly on common property, but so that fittings touching the common property may be incidental to the installation within a lot. Alternatively, they might be entirely situated on common property.

If the garage doors present merely a change to the visual appearance of the lot and to the scheme, the fitting of them may concern a by-law for the scheme. Commonly, where an owner wants to change the appearance of his or her lot, permission in writing must be sought from the committee. (I have not been provided with a copy of the by-laws.) Where a special resolution is not required because there is no improvement to common property by the lot owner, then the consent by the committee may be the only consent required. A lot owner may of course propose a motion to the body corporate in lieu of seeking consent from the committee, but the consent given would be the one required by the by-law and not by virtue of section 113 Standard Module.

The Applicant does not argue that the motions for the garage doors at the EGM, the AGM, or the consideration by the committee on 5^th March 2007 of Mr Schluter’s roller door, breaches the legislation or the by-laws of the scheme. He merely argues that the doors would be impractical, ugly and damaging to the future management, and possibly the future value, of the scheme. He also argues that only four people out of eight voted on Motion 12 at the AGM. The result being 3 -1, this would be sufficient number for a special resolution in any event, even though Motion 12 was posted as requiring only an ordinary resolution. The Applicant would therefore have an uphill struggle to demonstrate to me, that legally there was any reason why Motion 12 should be rescinded. As he notes in his email to the body corporate manager (8^th February 2007), he is disappointed in the apparent lack of interest of other owners, but that is entirely their prerogative.

He says that the sizes of the spaces created will be smaller than the ‘Queensland building codes’ allow for garages as part of a single detached house, and also for a carport. He provides no evidence of this, or why this argument is relevant to a community titles scheme which has existing carports measuring 4.4m x 3m, which is apparently smaller than the carport size approved by such building codes. I have no jurisdiction in such matters, and the Applicant, and perhaps the body corporate, might wish to make such observations to the planning department of the local authority.
Therefore I order that the interim order sought to put Motion 12 of the AGM "on hold" fails. There is no reason why Mr Connor who put a proper motion to a properly convened AGM, should wait to install a roller garage door as approved by the body corporate in December 2006 even if it impinges on, or is entirely affixed to common property. Whether or not that will infringe any council requirements or building codes, is a matter for him and the body corporate to satisfy themselves about.

However, the Applicant has raised an important question as to whether the committee may be approving, or prepared to approve, improvements to common property for the benefit of owners’ lots in breach of section 114 Standard Module. I do not know if this in fact the case. He says that "It has been decided by the Body Corporate Manager that this matter is to be voted on by the committee members due to the precedent provided by the AGM." Such a decision at a general meeting would give no power to a committee to make further decisions on its own without the body corporate. Unfortunately the committee chose not to make a submission in respect of this interim application. I do not know the result of the vote taken outside a committee meeting on 5^th March 2007.

There also seems to be some confusion over Motion 3 of the EGM. I do not know the result of the vote on the EGM, or how it was subsequently ruled "invalid." If the vote taken would actually sustain a special resolution, then the fact that it was described as requiring an "ordinary resolution"
would not in my view render it invalid. I do not know if Motion 3 was voted on at all. It would not have been necessary if Motion 2 was passed.

I therefore allow the second part of the interim outcome sought, that is, that any proposal put to the committee by or on behalf of Mr Schluter in Lot 2, and decided on 5^th March 2007 by a vote taken outside a committee meeting, if passed by the committee, be stayed in its execution until further or final order in this application.

Meanwhile, I point out that whilst the body corporate may propose that all lot owners have roller doors installed in their respective lots, it cannot require a lot owner to have a roller door, to take part in the scheme or to pay for that service, if any part of that roller door is required to be fitted within the owner’s lot, or if the contractor has to come within the owner’s lot to install the door. This can only be effected with the consent of the lot owner.

I now seek submissions from all lot owners and the body corporate, and the Applicant will have an opportunity to Reply. It would be helpful in those further submissions if the matter of the placement of the roller doors could be identified, as well as whether the scheme has a by-law about changing the appearance of a lot.

Number of Scheme:	654
Name of Scheme:	Glenmore
Address of Scheme:	56 - 58 Armstrong Street HERMIT PARK QLD 4812

1.	that the body corporate rescinds motion 12 of the annual general meeting held on 20^th December 2006 being approval for the owner of Lot 8 to fit a roller door to the carport of his lot;
2.	that the body corporate is directed to identify a suitable alternative to a roller door but which provides security and is in character with the building;
3.	that such alternative door or device is installed, maintained and removed when the lot owner leaves or seeks to park a vehicle on common property, all at his own expense; and
4.	that these orders also apply to the owner of Lot 2 who has made an application to the committee also to install a roller door.

1.	that Motion 12 of the annual general meeting of 20^th December 2006 be put "on hold" to prevent the installation of the roller door for Lot 8; and
2.	in respect of the application by the owner of Lot 2, that committee approval of the motion "is halted" until such time as a final order is made in this matter.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Glenmore [2007] QBCCMCmr 774 (28 March 2007)