Admiralty Towers II [2008] QBCCMCmr 151 (2 May 2008)

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

Various Owners being the Owners of Lots 92, 175, 88, 85, 89, 49, 187, 168, 171, 141, 148, 47, 102, 113, 56, 6, 23, 165, 193, 192, 189 and 18

I hereby order as follows –

1. that the body corporate may without further authorisation paint the exterior of the building of Admiralty Towers ll in the colours which are currently existing;
2 that should the body corporate wish to change the colour of the exterior paintwork to the colour scheme Knapsack, Kahlua Milk and Grand Piano, that such change must be authorised by a special resolution of the body corporate at a general meeting;
3. that if the body corporate wishes to convene a general meeting and at that meeting the committee proposes to place motions on the agenda other than or in addition to the motion to use paint colours Knapsack, Kahlua Milk and Grand Piano as an exterior finish, that lot owners must be invited , and be given reasonable time in which, to put any motions they wish onto the agenda for that meeting;
4. that if the committee or any lot owner or owners propose an alternative colour scheme or schemes to Knapsack, Kahlua Milk and Grand Piano, that such colour scheme or schemes shall be voted on as a motion with alternatives, the substantive motion requiring a special resolution to be carried;

that the body corporate must make available to all lot owners all or any reports from colour consultants and property consultants, if any, obtained by the body corporate.

The application in all other aspects is dismissed.

This is an application dated 10th March 2008 and amended on 11th March 2008, by Ruth Bonnett (Ms Bonnett) and Richard Beardsley (Mr Beardsley), co-owners of Lot 92, Gillian Musson, co-owner of Lot 175, Donna Pekol, owner of Lot 88, Mabs Hall, owner of Lot 85, Maree and Henry Sue co-owners of Lot 89, Peter and Sandy Cooper, co-owners of Lot 49, Fran Quinn, owner of Lot 187, Lai Sheung Leung, co-owner of Lot 168, Paul and Gillian Croft, (Mr and Mrs Croft) co owners of Lot 171, Ian McKenzie, co-owner of Lot 141, Liu Yin-Shing Teng owner of Lot 148, Honorah Pinnock, co-owner if Lot 47, Paul Keran, co-owner of Lot 102, Huan Fraser owner of Lot 113, Selena Pearce owner of Lot 56, Frederick and Noi Grasby, co-owners of Lot 6, David Walker owner of Lot 23, John Campbell, co-owner if Lot 165, Pat and Russell Savage, co-owners of Lot 193, Dudley James Parfitt (Mr Parfitt) owner of Lot 180, Helen Newnes, owner of Lot 192, Carol and Ian Clark, co-owners of lot 189 and Patricia Dawson, owner of Lot 18 (the Applicants) against the body corporate (the body corporate) for an order that the body corporate implement the vote at an Annual General Meeting held on 21st January 2008 and paint the building as per the existing quotation from Higgins Coatings (Higgins) using the existing colour scheme, provided that the colour scheme be as near as the original colour specification.

If that “is not accepted by the body corporate”, the Applicants seek that the body corporate calls an extraordinary general meeting to determine 4 motions in the alternative, including a motion to seek quotations for the painting only part of the building, that is, the area from the ground level to the first level in the existing colour scheme. If that is not carried, then a motion authorising the body corporate to accept a quotation dated 9th November 2007 for painting the entire building by Higgins for $336,723 plus GST should be put to the extraordinary general meeting with motions in the alternative about the colour of the paint, either in the existing colour scheme “using confirmed original specification colours” or in the colour scheme using Dulux paint colours Knapsack, Linseed and Grand Piano in accordance with a colour consultant’s report to be attached to the notice of motions. The motions to paint part of the building or to paint all of the building in the existing colours are to be carried by ordinary resolution. The motion to paint the entire building in the Dulux colours mentioned is to be carried by special resolution.

The Applicants also sought an interim order to stop the painting of the building by Higgins, not to pay a deposit to Higgins and not to order the paint, until such time as the final outcomes sought have been determined. On 14th March 2008, following a teleconference (the teleconference) with Applicants Ms Bonnett and Mr Beardsley, committee chairman Mike Jones and secretary Robert Dillon, I made an interim order that the exterior of the building shall not be painted with a coloured top-coat or any preparatory materials which could dictate the colour of the top coat or coatings; and that the body corporate shall not order paint colours for top coatings. The order contemplated that Higgins had been engaged and were to start preparatory work prior to painting in mid April.

“Admiralty Towers II” Community Title Scheme 15344 is a community title 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 193 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)).

At the teleconference, I invited the body corporate to submit any documents it wished me to consider as soon as practicable. Copies of the Applicants’ attachments and further copies of letters sent by the Applicants on 13th March 2007, but not received by me in time for the teleconference were also provided to the body corporate. Following the interim order, submissions were invited from all interested parties.

The Applicants say that at the annual general meeting on 21st January 2008 (the AGM) the body corporate by Motion 9, resolved by 74 – 6 as follows –

“That the owners of “Admiralty Towers ll” CTS 15344 authorise the incoming committee to obtain quotations and select the most suitable for the complete exterior painting of the building and grounds, PROVIDED, that the cost does not exceed $467,500, inclusive of GST, with payment to be met from monies presently available in the sinking fund.”

There were three quotations respectively from Higgins,` Riley Shelley, and Opat provided with the notices of motions for the AGM. There was no mention in any of the quotations that the building was to painted in a particular colour.

On 15th February 2008 the committee sent an open letter to all apartment owners, saying that it had sought professional advice on the colour scheme. The committee commissioned the construction of two models one painted in the existing colours, and one painted in a new colour scheme showing Dulux colours Knapsack, Grand Piano and Kahlua Milk. The models were to be displayed in the foyer until 22nd February 2008 and a digitally coloured photograph of the building in the new colours was also available on the scheme’s web-page for owners who were not resident. The committee asked lot-owners to circle Option 1 for the existing colour scheme, and Option 2 for the new colour scheme; to put their apartment number on the open letter; and return it to the committee by 3rd March 2008. There was no requirement that the letter be signed.

The committee gave an extension of two days for the voting. On 5th March 2008, the committee posted a notice in the lifts saying that the votes had been counted and that “the new colour scheme is the choice of the majority of the owners.”

The Applicants say that Motion 9 only enabled the committee to seek quotations for the painting of the scheme in the existing colours and that the informal procedure adopted for voting for a colour scheme via the open letters was incorrect. The votes taken included telephone votes, and the system devised was insecure and open to abuse. They cite a case of an already marked photocopy being delivered to a lot-owner; the ease with which letterheads could be copied; the availability of a spare number of printed open letters held by the committee; the fact that Applicant Ruth Bonnett was not allowed to act as scrutineer on the votes when she asked to perform this role; and that the secretary refused to allow a lot owner to see the completed open letters. The Applicants are also surprised that the new colour scheme is the wish of the majority, since they had understood from informal meetings in the scheme that there was a majority in favour of the existing colour scheme, which carries some history and reflects the iconic status of the building.

The Applicants also say that the coloured photograph on the webpage, which was colour- enhanced by computer was not an accurate representation of the new colour scheme, nor a fair way in which to demonstrate the two colour schemes. The computer-coloured image was much brighter against a blue sky, with the railings of the existing façade enhanced in blue, when they are a green colour; whilst the existing colouring showed a photograph of the building with its faded paint on a dull day. The models were also only available in office hours, were no value at all to non-resident owners, and were inaccurate since they did not show the terracotta tiles at the base of the scheme on the “new colour” option, giving the “new colour” tower a more unified look which might have “biased the choice to the proposed colour scheme.” The scheme has terracotta tiles in front at ground level which cannot easily be changed and there is no proposal for them to be changed. Ms Bonnett sent on 31st March 2008, colour photographs of the two models

At the teleconference, the body corporate through chairman Mike Jones (Mr Jones) and secretary Robert Dillon (Mr Dillon) said that there was division in the committee about the colour scheme, and the committee thought the fairest thing to do would be to let owners vote on the choice of two colour schemes. The committee counted the votes during an informal meeting and some owners were waiting outside the room for the result. Some votes were made by phone but the committee was scrupulous in making sure that no lot-owner voted twice. Some owners had lost their open letters so voiced their preference. They say that the papers are now body corporate records and that anyone can see them. Copies of the open letters used in the vote have since been delivered to this Office, and circulated to the Applicants.

The committee had taken legal advice that it did not need to put the question of colour to a formal vote at a general meeting and that the question of colour could be determined by the committee alone. However, since the committee was divided and the committee wanted to be absolute fair to everyone, they devised the two-choice scheme and ran the poll. The body corporate confirmed that Higgins had been engaged and that it hoped to start painting in mid April. The body corporate was concerned that Higgins’ quotation is only good until end March 2008.

The Applicants said that the “poll” process was not transparent since there was no way of knowing who had voted, or of scrutinizing signatures. The forms could have been returned by any member of a lot owner’s family or anyone who had access to them. They say the committee had failed to respond to lot-owners in the scheme who had previously written to the committee expressing concern about the process adopted, and the change of colour.

On 17th March 2008, Ian Clark (Mr Clark), one of the Applicants, forwarded to this Office as part of the application, a copy of a letter dated 31st January 2008 and written by him to chairman Mr Jones as well as two colour photographs also previously sent to Mr Jones, Mr Dillon, Peter Smith of the body corporate painting committee and to the on-site manager. Mr Clark made the photos available at the manager’s office. Mr Clark noted owners’ concerns that the colour of the building might be changed at all since “a choice of colour was not presented as an option in the recently approved AGM motion.” Both photographs are identical in image and show a low curved wall fronting the building, front pillars and buttresses, and part of the building façade. One is coloured a terracotta/ peach colour with grey/green ironwork; the other is coloured a stone/putty colour with the same green/grey ironwork. Mr Dillon thanked Mr Clark for the photos on 1st February 2008, and agreed that careful consideration of the colour scheme was necessary, and would be given at the next committee meeting.

Applicants Mr and Mrs Croft had also written to the body corporate manager, John Rae of Body Corporate Services on 5th February 2008 asking that the colour question be put to a vote of all owners.

Material sent for the teleconference but which I had not seen until after the teleconference was supplied by Applicant Ms Bonnett, on 14th March 2008. She provided a copy of the minutes of the committee meeting of 25th February 2008 at which “none of the issues” brought up by Mr Clark ,nor by Mr and Mrs Croft were discussed or their letters even shown in ‘correspondence in.’ With reference to the painting, the minutes show only that the committee resolved to accept Higgins’ quotation for $316,438 plus GST for painting of the building and the surrounding areas ‘including the Council area.’ The Council was to be approached for a contribution towards painting the Council area.

She also provided material as an attachment to the application forwarded by Applicants Mr and Mrs Clark, noting that there has never been a committee resolution or discussion minuted at which a colour change was mooted, and owners were never notified that this was in contemplation of the committee. The decision to circulate the open letter was also not minuted or apparently resolved at a committee meeting.

Ms Bonnett sent email to this Office on 25th March 2008 to explain something she said in the teleconference for which I requested clarification in the interim order. She mentioned “Linseed” in the application, but Linseed is not one of the colours proposed by the body corporate in the poll. When the models were on display, Applicant Mr Beardsley asked another lot owner to write down the names of the colours for him. The other owner wrote down “Knapsack dark Linseed wall Grand Piano balcony edge.” She has no explanation as to why that was. She and Mr Beardsley both thought that “Linseed” was one of the colours proposed.

She also confirmed that the Applicants are “split on the issue” about whether Higgins should be doing the painting, and that not all are happy with Motion 9 put to the AGM. The dollar value of the motion exceeded Higgins quote; Motion 9 did not accord with the Act because it was beyond the spending limit of the committee; and it was not stated as a motion with alternatives, so owners could not vote for the three tenderers themselves. Further the committee has given no reason as to why Higgins was chosen. In respect of a change of colour, the motion should have been tabled as needing a special resolution and not to be by ordinary resolution. She and some of the other Applicants would also like the opportunity to be able to vote for only part of the building to be painted instead of the whole of the building.

After the teleconference Mr Dillon supplied to this Office copies of all the “Open letters” returned in the vote for the two colour options. The “Open letter” signed by Mr Dillon, explains that the committee has sought professional advice about the colour scheme and proposed to provide two models for viewing and for non-resident owners, the address of the website where the two colour schemes were posted. Option 1 is the “existing colours of the building” established by “ an expert eye match of the colours; and Option 2 is stated to be provided by a professional colour consultant and names Dulux paint colours Knapsack, Grand Piano and Kahlua Milk. The returned voting material also contain pages where a lot number and an option preference has been handwritten. These are understood to be phone votes from various lot owners.

In accordance with section 243(2)(a) Act submissions were invited from all interested parties.

Anthony and Jennifer Coutts, owners and trustees of Apartments 98 and 128 support the application. They say that at the AGM they understood that they were voting to repaint the building in the existing colour scheme. They say that if the committee does not want to proceed with a motion passed by owners at a general meeting, it needs to go back to the owners with a motion at another general meeting. The informal and unscrutinised vote, and taking votes by phone is not appropriate or legal considering that the committee is partially changing a motion approved at an AGM. They believe that the committee has acted outside its authority, and that the placing of notices in lifts in not a fair way of corresponding with absent lot owners.

Giuseppe de Simone, owner of Apartment 31 is happy with the decision of the body corporate and wants to continue with the painting of the building in the new colours.

Allen and Margaret Presnell , owners of Apartment 53 voted for Option 2, the new colour and would like to see it go ahead. They find the current colours too bright and they do not complement the terracotta tiles.

Jeanne Ozorio, owner of Apartment 176 says that she was unaware that the “voting papers” were informal. She says there should be no colour change on the basis of an informal vote. The existing colour scheme integrates with the Convict Wall, and the marble of the former Colonial Mutual Building. Painting should go ahead but in the existing colours as voted at the AGM. If not, any other colours should be put to a formal vote.

Forde and Jennifer Williams, owners and residents of Apartment 158 say that they think the foyer design is dated and not up to standard of one of Brisbane’s leading buildings. The committee was elected to “lift the building to a standard” that owners can be proud of, and it has obtained an excellent quote and done a wonderful job. They are concerned that the delay in painting might increase the quotation. Painting in the new colour would be a good investment, as well as modernising the foyers. They have voted once on this project and do not “feel we should have to vote again.”

Nicola Caseldine-Zammit (Ms Caseldine-Zammit) who lives in the UK says that there was no formal letter or proposal from a colour consultant as to whether the tiles, wallpaper and décor from the entry foyer has been taken into consideration. Also that all owners did not receive the same information when making a choice. She is an investor-owner and does not feel that she was given adequate information, with only the colour on the website to go on, and a note that the colour might not be accurate. She was also concerned that the votes did not have to be signed “ so anyone could have voted whether their interests were directly relevant.” She believes that the process was flawed and inadequate for an undertaking which could have significant consequences, including affecting the values of the units.

Rod Robinson owner of Apartment 46 is an absentee owner and was “amazed” at the process adopted by the committee. He supports the application. Regardless of what colour the building ends up being, it requires a professional study to ensure that the colour scheme is coherent with the building as a whole and coordinates aesthetically with foyers, carpets, drapes etc. The AGM was only in January and if the question of a change of colour was in mind, it could have been decided then. He disputes the committee statement that because the names and paint codes of the original colours are not known that they cannot be matched. Any major paint manufacturer should have no difficulty. He says that re-painting is not maintenance if it is to adopt a whole new colour scheme, when it becomes an improvement. Whether or not the committee has the mandate to change the colour, the informal process adopted was inappropriate for the seriousness of the matter, if only out of courtesy and respect for the owners. He had to make his choice from the website, and found the colours of the new scheme “photo-stopped” and the blue sky too good to be true.

Christopher Smith, owner of Apartment 144 was a former chairman of the scheme, and continues to support the committee. He is appalled that the personal integrity of committee members has been impugned. He is happy with the representative survey conducted and believes that it accurately and fairly represents the views of the majority of lot owners.

Bradford and Celia Temple, owner of Apartment 133, say they are not happy that the decision to change the colour scheme was done by ‘ open letter” vote. “It is far too important a change for such a casual approach.” They would like to see the current colours retained, but if a change is proposed, they request a more thorough and informative program be implemented to assist owners better understand the alternatives and their implications to the building and its surrounds.

Brigadier Michael Harris and Michelle Harris, owners of Apartment 188 believe that the committee acted in the best interests of the body corporate after a democratic vote. There were no objections to the procedure before the vote. He was the developer’s marketing agent at the time of construction, and the colours finally chosen were not the architects first choice. The colour was not specially chosen to integrate with the heritage wall, Customs House and Kangaroo Point cliffs. “Pink was simply in vogue in the mid-nineties.” He also doubts whether the building can be called “an icon building of historical value.” He thinks the colour is an eyesore which does not blend in with the contemporary colours of the larger new surrounding buildings. He thinks that repainting in the original pink would have a detrimental effect on the value of the building. The painting has been included in the sinking fund forecast for many years as a maintenance item. The painting was never viewed in terns of an improvement, just on-going maintenance.

Peter Hermann says that he voted for option 2 the new colour scheme and he thinks that that was a democratic process, and he has no reason to change his mind.

Graeme Gardiner, supports the application. The AGM approved the painting of the building only and not the colour. He is non-resident and finds the process for selecting a colour was totally inappropriate. He found the website was no assistance and “without colour references, my enquiries of paint manufacturers was fruitless.” Further, until he received a copy of this application, he was unaware that a colour scheme had been chosen. The process could not accurately communicate the colour choices to a non-resident, nor the impact on the connecting internal and external surfaces and décor.

Elizabeth Griffiths, owner of Apartment 81says that the committee advised all owners that a vote was to be taken over staying with the existing colour and changing to new colours. All owners had the opportunity to see the colours in the model as well as on the Web, and although it was hard to see a true colour representation, the committee did not try to hide the fact. The majority voted for the new colours, and a minority of owners should not be allowed to stop the process. The Applicants did not complain about the process until they lost the vote. She believes that the new colours will present a better image on the river corridor, and that the colours at present are “yesterday colours.” She is also concerned about additional costs, delays and possibly legal fees.

Dr Clare Hansson, owner of Apartment 134 says the voting procedure was democratic for repainting the building which is necessary maintenance. She voted for Option 2 as did the majority and believes her investment will be enhanced by the improvement.

Drs Edgar and Judith Gold, owners of Apartment 178 say that they have no strongly held opinion on the colour, and would accept the view of the majority if a more contemporary colour is preferred. The building needs painting soon, and the AGM approved the maintenance of the complete exterior of the building by painting. The committee provided owners with information and samples and the information was available for several weeks. The result was 65:41 in favour of the new colours. They believe that the committee’s mandate included the choice of a reasonable colour scheme, and that the committee went beyond the reasonable requirements by arranging the informal vote. A formal vote is not required on a change of colour scheme. It is simply a maintenance issue that follows from a mandate to paint the building given at the 2008 AGM.

Shane Barrett, owner of Apartment 69 says the majority of the lot owners have made themselves heard and they should not be overturned by a minority. The Applicants did not object to the voting process before their choice was overturned. The building is home to 193 families so there is bound to be some element of conflict when more than one colour option is presented. The painting is much needed and he is concerned about delays and costs. Calling an EGM would achieve the same result and mean delays. The maintenance issue of painting the external surfaces was identified more than 11 years ago. In 2006 a sinking fund forecast stated the need for $448,756 to be put aside for painting in 2008. The quotation from Higgins is $100,000 less than this and the current sinking fund sits at about $1 million with no other major expenditure forecast this year.
He also says that the colour professionals selected the colours to blend in with surrounding structures such as the Storey Bridge, Marriott Hotel and Skyline. The Convict Wall is not visible from the road or the river, and the new scheme would not anyway detract form the wall. The current colour is considerably faded, so is extremely difficult to match. He says that no records exist of what colours they were originally.

The Applicants concerns about the difference between the inside and the outside of the building will be of no significance when the inside is also repainted which is also in the current sinking fund forecast. The new colours cannot be considered “an improvement” as the cost is the same. It is scheduled maintenance, and does not need to go to an EGM. If the building did not need maintenance and the committee just decided to change the colour, he says that that would be an improvement. The vote on the colour was always to be an informal vote, so any way of casting a vote, even by phone, would be accepted as long as they were not duplicated. The scale models cost several hundred dollars each, and it would have cost far too much to put in windows which would have been an unacceptable expense. Any shows of hands at informal meetings before the AGM about changing the colours would not have taken into account the large number of investor owners who do not attend meetings, and also the fact that there was no colour scheme actually presented at this point so owners might have changed their minds. He supports the secretary’s refusal to show the Applicants the voting papers. To the claim that the models were not always on display, he says that the models were on display in office hours and until 9pm on Monday nights and at weekends.

John Swinson, owner of Apartment 169 supports the application. He is a non-resident and received the voting paper about the two colour schemes. He supports repainting but he was unable to visit the building to see the models. He looked at the Dulux website but was unable to find the colours on the website. He looked at the Admiralty Towers website and saw the two images but found they were not helpful as the existing colour scheme was not accurately depicted so he assumed the new colour scheme was also not accurately depicted. He decided not to vote. He did so because he did not believe that his vote was binding, but rather a poll “ to caucus the mood of owners” and he was not presented with sufficient information to enable him to make an informed vote. He has not been informed as to how or why the proposed new colour scheme was selected.

Brendan Noble and James Rees, co-owners of Apartment 35 find it strange that at the committee meeting on 25th February 2008, there was no mention of the “open letter” and voting system devised by the committee and sent out to all owners on 15th February 2008, even though there was an item “‘painting the building.” When the notice appeared in the lifts that Option 2 was the preference, no votes were stated and “ further information was to follow.” They are concerned that due process has not been followed. They had no idea from the motion to paint the building which they supported that the committee would consider painting it a different colour, with all the implications of “ colour matching, heritage issues, Admiralty Precinct conformity and other such issues.” A change such as proposed is not an ordinary maintenance issue and constitutes an improvement. There seems to be no debate on this issue by the committee in the committee minutes. There is no decision to poll owners. The poll appears to have no legal basis at all. They were kept completely in the dark about a desire to change the aesthetics of the building.

John and Janette Barry of Apartment 100 feel that the committee has done no wrong. “All owners agreed to the voting process forwarded to us at a recent AGM and the owners concerned about this are the owners who did not get their way.”

Jennifer Smith owner of units 126 and 186, says she would be happy with either colour scheme chosen. She was fully aware that there were two schemes and they were displayed in the office and also talked about at meetings held on this subject. The process to choose the colour was done with the full consultation with owners.

David and Bernadette Van Hoof owners of Apartment 172 says that there was no opportunity to vote on colour at the AGM. The process adopted on the vote about colour was not scrutinised by a non-committee member as the votes at the AGM were. They think that the existing colours were chosen to match the interior and to be sympathetic to the historic Convict Wall, and complement the green window frames and railings. A new colour scheme outside will mean more expense inside to make it complementary. If it is an improvement it will need a special resolution, and they were very disappointed by the photos on the website. They would like the opportunity to vote for partial painting of the building, and for choosing a colour scheme.

Drs Yee Thong and Wan Seow, owners of Apartment 155 say “ the informal vote for the change of colour was a farce.” The colours and models were inaccurate and no signatures were required on the postal vote.

Ian and Ruth Gough, owners of Apartment 66 support the application. They believe the process to choose the colour was flawed and misleading.

Raghbir and Harvinder Kalsi, copied the Applicants’ outcomes sought as their submission with no reasons given.

Heather Dillon, owner of Lot 106 does not support the application. She says that the committee has “ at all times over the period from October 2007” informed owners of the possibility of a colour change when the building was re-painted. The summary of a questionnaire completed by interested owners advised a request to consider a colour change. When the committee got quotations including an alternative colour scheme provided by a colour consultant, owners were notified of a display book in the manager’s office with photos. There were two information sessions for owners which were well advertised and held by the committee on 28th October 2007 and 4th November. A Q and A night was also conducted by the committee on 7th November 2007. “At any time a question was raised about a possible colour change as part of the necessary maintenance of the exterior painting of the building, the committee always advised owners or interested parties that this was a consideration to be determined by the owners.” There was no question in her mind when she voted at the AGM that this could exclude the option of change of colour as had been discussed openly. The choice of colour is a matter of opinion. The Applicants all say that they have an issue with the process and not the colour choice, though it is clearly the colour choice that drives them. The majority viewpoint should prevail. The advice to the committee was that they did not need to involve the owners at all in the question of colour so they have acted beyond their duty.

Michael Sues, owner of Apartment 86, says it is incorrect to state that the original paint colours cannot be matched as the committee has already had an electronic match carried out and the code number is known to the committee. He says that any branch of Bunnings can provide a paint colour code from a sliver or fragment of paint.. The present colour compliments the colour of the existing tiles on the front driveway, the large tiled plaza at the rear of the building, and the tiled plaza area on the adjacent parkland area. He does not think the motion to the AGM was valid, because it is well over committee spending limit and major spending. He says that the committee meeting minutes do not show any reference to these three quotes.

Michael and Zanthe Shepherd, resident owners of lot 107 say that they participated in the informal poll and voted for the new colours. They believe that the Applicants did not like the result of the poll and are trying to find fault with the committee in the way they conducted the exercise. They were happy with the process and pleased with the result which they noted in the lift when they got home on the night the polls closed.

Donna Pekol of Pekol Investments, says that since they are absentee owners, they did not have a chance to see any of the notices in the lift and were not aware of the book in the manager’s office. They asked to inspect the models but neither were available. They find that the committee is not neutral in this matter as evidenced by submissions from individual committee members and their wives. There is no evidence that the colour consultant matched the interior décor including carpet, curtains, tiles, wallpaper and paint. The committee did not provide the colour consultant’s advice in its submission.

Fran Quinn owner of Apartment 187 says that she voted against the motion for painting at the AGM. She would like the building to be painted “but felt it unsafe to vote for unspecified painting, by an unspecified contractor, in an unspecified colour.” The motion was not specific enough and it could have been predicted to create the problems which it has. There is a large amount of money involved so it ought to be put to lot owners with alternatives. Maintenance implies “maintaining the colour. The idea to change must be to change the look of the place, and must be thought to be an improvement, or it would not have arisen. The building is prominent on the waterfront and the choice of colour a significant matter. It would be prudent to contact other complementary Admiralty buildings such Admiralty 1 and Admiralty Quays all of which are painted in the same livery, and colours should be looked at in the context of the Story Bridge and the CBD waterfront. The way in which the colour choice was put to owners was therefore unsatisfactory and needs to be remedied. The committee has worked hard but is “unacquainted with important BCCM Act matters” and the committee meeting minutes do not properly reflect decisions of the committee. There were no minutes in 2007 or 2008 to announce the intention of a change of colour scheme. She found out by rumour, and non-residents were not even afforded that. She says –
“If it were not for the eruption of disquiet amongst resident owners precipitating a vote on the matter, non resident owners would have found the exterior colour of their building changed without their knowledge...”

She attended an “ afternoon information session” when many matters were discussed including the possibility of an EGM decide about the redesign of the Venice restaurant. There were colour charts “ floating around” and once it was realised that a colour change was proposed, there was a substantial show of hands against the idea, and she thought that was the end of the proposal. .

She did not vote for a change of colour but would do so if she could be sure and “ see” what the colours were. Non-residents would not have a clue, since there was nothing in the minutes, and the website colours were very difficult to assess. She finds the way the vote was taken “embarrassingly irregular.” It was claimed only to be an opinion poll. That was the reason given why no signature was required. She asked a committee member about the shortness of time for overseas members to vote as was told by Peter Smith that “overseas owners were not contacted for a vote because the advice was that the committee could make the decision anyway.” This is not “ fair dealing” by the committee. All owners should be given the same information, with photographs and explanatory notes and then a vote should be taken on whether all or part of the building should be painted and “what colour the building should be painted.”

There was a second submission signed by Heather Dillon but purporting to be from the committee. It provides copies of a questionnaire and pie charts done in October 2007. It says “ A possible change of colour had been discussed openly with owners for several months prior to the AGM – there was never any secret that it was a consideration...”. The owners survey results were posted to owners on 8th October 2007 and indicated a change of colour a possibility. There was also a newsletter Issue 2 posted to all owners on 3rd February which read –

“We are very excited about the building being painted and hopefully this will commence in the next 3 – 4 months. We are presently talking to some colour consultants to decide whether we change the colour or stay with what we have. We will keep you informed on this and the owners will have the opportunity for their opinion.”

In addition there as a display book to view held by the building manager. The writer asks “How could they have assumed that the painting would be in the same colours?” It further says that Peter Smith on the committee had professional contacts and access to colour consultants to ensure that if a colour change was chosen it would be suitable for the building and that the “most owners would not even begin to know or understand” the amount of work put in by Peter Smith. The committee went to a lot of trouble to provide information about the colours, including matching colours with a sample of paint from the building. Actual colours were shown at the foot of the models which the Applicants have not mentioned. No motion was put to paint part of the building as the committee had considered it and decided that it was not a cost effective option and they got a good quote for painting the whole building through Peter Smith’s contacts. A minority group should not be allowed to question the decision of the majority as this is “ clearly an insult to the majority of owners, and should not be considered by the committee.” A colour consultant has considered the effect on the interior. The idea was to choose classic colours which will be less likely to date.

The Applicants were not refused copies of the voting papers but the papers were in Peter Smith’s apartment and he was away. The models were displayed during office hours and in the common room one night as advertised in the lifts. One of the models broke once.

Teys Legal, solicitors for the body corporate, say that this matter is a case of the minority not wishing to accept the will of the majority . The Applicants failed to bring up their concerns with the committee; they never voiced an objection to the process; the change of colour was discussed openly for several months; information was sent to lot owners; and the Applicants participated in the “poll”. The Applicants have not sought that an EGM be held. They have made allegations against committee members and are harassing people.

They say that after the newsletter was sent out, there were flyers sent round to some lot owners by other lot owners and the building manager got calls from owners. The colours had not been selected at this time and an open letter was placed in the lift in response to the flyer, advising owners to ignore the flyer and that the committee was “yet to decide on this alternate (sic) colour scheme.”

In respect of the background to the dispute they say that by section 103 Standard Module the body corporate may give a mandate to the committee to select a contractor. It says that the motion “was certainly not a mandate to paint in existing colours...” and that the Applicants were fully aware of the months that the committee were looking at colours. This was made clear at sessions in October and November that a colour change was possible and an information booklet was on display in manager’s office. The committee decided to consult owners because it did not itself have a unanimous vote. The committee acted in good faith, and transparently. The implication that the committee improperly interfered with voting result is a serious allegation and denied.

They add that “There was very little difference in conducting a poll as opposed to an open ballot” and telephone and email votes are accepted by the on-site managers. No lot number voted twice. Even if the phone votes were not counted the majority view was the same. The committee denies that owners have been refused copies of the votes, but these were just not available. They provide an email from Applicant Ms Bonnett showing that she supported the new colours at first.

The body corporate is required to administer the common property ( s.152(1) Act.) Section 109 Standard Module states that the body corporate must maintain common property, and that repainting falls into maintenance. Teys cite Paloma (2000) and refer to Lord Denning’s judgment in Morcom –v- Campbell Johnson and Others. The test of what is “ maintenance” and what is “an improvement” is whether work done is the provision of something new for the benefit of the occupier, or a replacement of something old and worn out. In the Paloma case the adjudicator said that rendering was new. In Merrimac Heights (2006) the adjudicator decided that replacement can be maintenance if repair is no longer possible. They say that provided that the principal or foremost intent is repair or maintenance then the body corporate should be allowed a reasonably wide discretion in the means with which this is achieved. In Las Rias (2006) the adjudicator looked at dictionary definition of “ an improvement” as “ making something better.” Maintenance is a repair that leaves the thing unchanged whereas an “improvement” is the addition or alteration of a thing for the better so that a new thing results. In No 9 Port Douglas Road 2006, the adjudicator said that it in the narrow view “any change” is an improvement even if the purpose of the change is for maintenance.

Teys referred to there being many previous decisions of the Office about painting, including La Porte d’Or (2000) where the choice of colour was left to the committee since it would be unwieldy to give owners all a choice, unless the committee intended “to depart dramatically from the existing colour scheme.” In none of the “painting” cases did the adjudicator say that a special resolution is required to change a paint colour because it was “ an improvement” except for in one case, Barakala [2007}. The body corporate distinguishes Barakala by saying that the committee had made the decision to change the colour and had not been able to demonstrate that a colour change was known to lot owners. They also say that the decision in Barakala is possibly wrong
because it did not look at other orders on painting; it did not fully appreciated the difference between maintenance and improvement and the decision to paint had not been validly made. They say that it appears that the order was made to punish the committee.

The body corporate says the Applicants failed to complete the part of the application form about conciliation, and that the committee would consent to conciliation.

The final orders sought seek to overturn the original decision of the body corporate, and the Applicants appear to want an EGM to consider a number of alternative issues. The motions they seek are structured in a confusing way. The body corporate has already given a mandate to the committee to seek quotes and engage a contractor and they have done this. Only the colour needs addressing since it was not in the original motion. The body corporate says that the proposal is not considerably different in nature to what presently exists and that the building needs repainting. The painting is “principally to maintain it not “improve it,” and it would be ridiculous to say that it needs a special resolution when the cost is the same. Even if it was painted in existing colours the aesthetics would change as the colours cannot be matched since they are faded.

Pearl and Paul Keran say it is not correct that the dispute arose because the minority do not wish to accept the decision of the majority. The dispute arose before the vote was taken because the committee failed to address the “ additional risks” associated with changing the outside colour of the building. These were raised by owners at the information sessions and were that the new colour may not coordinate with existing tiles round the base of the building or exterior fixtures such as balcony rails and window frames; or the building’s dome which is green; it could clash with the interior which is designed to match the outside; and all these could result in extra costs. They say that they have not seen any reports from colour consultants so they do not know if those risks have been addressed. They concluded that the absentee owners had not had a report either, and it was in this context that he requested details of the voting poll.

They refute that they did not raise the issue with the committee before making the application. At the information session on 28th October 2007 objections to the colour change were raised on the basis of risks and a show of hands and an informal vote was 3 – 1 to retain the existing colour. The Crofts also sent letters to the committee on 5th February 2008 and Mr Clark on 31st January 2008 expressing concern about the colour change and method to be used. They agree that a possible change of colour was mooted, but after the AGM when the committee stated that they were given advice that they could change the colour without the need to get approval from owners. They did try to discuss it with the committee but were told “they did not need our consent.”

Mr and Mrs Croft say they recognise that the work of the committee is voluntary and that they have faith in the committee. They feel however that the committee was poorly advised in this matter, as they still feel that consultation is unnecessary. The committee seems to regard any opinions to the contrary as “irritable interference in legitimate committee business.” The Applicants were not sent a copy of the secretary’s letter of 18th March 2008 written after the interim order was made.

The committee believes that the new colours would be a capital gain but Teys say it is not “ an improvement.” To date their letter of 5th February 2008 has not been acknowledged by the committee. They did not receive a copy of the 3rd February newsletter until 11th February . \They say that they did not raise any issue before the AGM because they believed that the committee would put colour choice back to us at an EGM, which has been the committee’s formerly established practice.

Ruth Bonnett and Richard Beardsley examine the process of the motion, the consultation and the poll and say the entire process was flawed. They restate their submissions in the application . They say that the first mention of the colour consultant was in the newsletter of 3rd February 2008 buried in the “From the chair” section, and that the colour consultant’s recommendations are missing from the committee’s own submissions. Following the interim order a letter from the Mr Dillon dated 18th March 2008 maligned the Applicants as a vocal minority holding the building to ransom. The believe that lot owners were prejudiced by the voting process, and that the change is an “ an improvement” because it is “markedly different.” They say that “maintenance” is only required on first and ground levels which have waterstaining, and that a colour change is not necessary for maintenance.

They deny that they have made allegations about the committee members but have been supportive of them. They do not know what complaints have been received about them.

They dispute that the survey letters sent in October mentioned colour changes, other than one owner who proposed a colour change to cream but there was no proposals from the committee. The lift notices, flyers by concerned residents and on- site meetings only benefited residents. They were not at that time resident. Non resident owners had no official notice until the February newsletter which was after the AGM, and they might have missed that. The committee might have discussed colour change at a committee meeting but it was not minuted. If the committee had been looking at colour change for many months, it should have been in committee minutes.

They point to a muddle with the votes from lots number 49 ,45 and 86 and say that the telephone votes were poorly recorded and that the system was sloppy. They conclude - ” We consider the colour change to be an improvement to the building because it is a dramatic change from what exists and it is proposed for the owners to benefit from having something new. In our opinion the opinion poll was not sufficient and could easily have been abused by any participant.”

The reply from Carol and Ian Clark restates the Applicant’s original application. They say that rumours about colour change only started after the AGM and the Open Letter was hastily contrived in response to consternation following distribution of flyers by an unknown person. They also think that the body corporate should be reimbursed for the letter from Mr Dillon dated 18th March 2008 and not sent to everyone. It was prejudicial , unfair and negative and not reasonable action of the committee.

This dispute arose at the Annual General Meeting on 21st January 2008, when the new committee took the reins of the administration of the body corporate. Most of the “new” committee had in fact served before, and it appears that lot owners are generally appreciative of the hard work done by individual members of the committee. At that meeting, Motion 9 which was carried overwhelmingly with 74 votes to 6 was as follows –

The wording of this motion had been approved by the committee at its meeting on 13th November 2007. In my view this clearly authorised the incoming committee to do the following things:

There were three quotations from painters attached to the notice of meeting, from Higgins, Opat and Riley Shelley. The quotations from these three contractors varied slightly in scope. Both Riley Shelley and Opat quoted not only for the painting of the whole of the exterior but also for the ground level and level 1 only. However, I do not think that this is material because the committee were given a mandate only to choose a contractor for the painting of the “complete exterior.” They were not authorised to choose whether or not they opted for painting the entire building or only the ground floor areas. The committee had previously decided to look at getting quotations for painting just the ground floor (committee minutes 8th October 2007) but at its meeting on 13th November 2007 the committee decided to rescind that such a motion be put to a general meeting because they had obtained such a favourable quotation for painting the entire building. There was no challenge mounted by lot owners following circulation of these minutes, that Motion 9 in the wording proposed should not be put to the AGM, and no motions about the painting were submitted to the AGM by lot owners.

Because the three quotes were attached to the notice of meeting, it was reasonable for lot owners to have considered the quotations and the specifications, and to have decided, in the event of a “yes” vote, to leave it to the committee. I might have some doubts if the committee had selected a contractor whose quotation had not been presented to the AGM, but this does not arise. In theory, however, the committee might, from the authorisation given to them, have chosen any contractor who could paint the exterior of the building for under $467,500.

I also considered whether the authorisation given allowed the committee to engage a contractor, that is, to enter into a contract with “the most suitable,” or was the committee only to obtain quotations, perhaps more than the three quotations which the body corporate already had, and then come back to the body corporate with its choice. There have been no submissions to the effect that lot owners were not by Motion 9, authorising the committee to hire the most suitable painter at the right price. The submissions on this point have been that the committee was only authorised to organise re-painting of the exterior walls, and that Motion 9 infers that the same colours will be used. Further, the reference to payment from the sinking fund invites the conclusion that once the most suitable contractor is selected that he will be paid, presumably for painting work done under the contract. I conclude that Motion 9 therefore authorised the committee to do its research and then to engage a contractor, which is in fact what happened.

On 25th February 2008, at a committee meeting, the Committee resolved to accept the quotation from Higgins. I am not advised when Higgins were actually engaged, but I find that there is no fault with the committee’s engaging of Higgins as authorised by Motion 9. The committee itself has a restricted spending limit, but the body corporate may by ordinary resolution authorise the committee to spend above that limit. (Section 103(1)(a) Standard Module).

On 5th March 2008 the committee posted notices in the lifts at Admiralty Towers ll that the majority of owners requested a change in the colour scheme for the exterior of the building to Knapsack, Kahlua Milk and Grand Piano, all Dulux colours. It was understood by the Applicants that Higgins would be told by the committee to paint the exterior in those colours. The Applicants lodged their application on 10th March 2008 seeking an interim order to halt the painting in those colours.

The body corporate submits that the Applicants are at fault in not attempting reconciliation in accordance with the provisions of the application form. Whether conciliation is to be used in the resolution of a dispute is in fact a matter for the Commissioner to decide, and applications for interim orders, which are in the nature of injunctions, are not normally targeted for the conciliation process.

In respect of voicing their concern about the change of colour scheme with the committee before the vote on the poll was taken, I accept that the Applicants were not aware that the committee proposed to go ahead with the new colour scheme until 5th March 2008 when the results of the poll were posted in the lifts. Prior to this, the Applicants had flagged their concerns to the committee by a letter written by Mr Clark on 31st January 2008 and by a letter written by Mr and Mrs Croft on 5th February 2008. Mr Clark said –

“There are evidently owners who are concerned by any contemplated change from the present colour scheme.... Few whom I have spoken to even seemed to be aware of the possibility. A choice of colour was not presented as an option in the recently approved AGM motion. The expectation is that the colour will remain unaltered.”

Mr Dillon replied that the question of colour would be given careful consideration at the next committee meeting. The Committee minutes of 25th February 2008, the next meeting, do not show this to be case. There was no mention of Mr Clark’s letter or the photographs provided by him to committee members, even being received.

Mr and Mrs Croft wrote to the body corporate manager, “hoping” that the colour question would be put to a vote of all owners, and recommending it be given serious consideration. The body corporate manager replied on 5th February 2008 that he thought all owners would be asked to vote on a choice of three colour schemes, one being the existing scheme.

I accept that prior to the committee’s Open Letter of 15th February 2008 being sent to all owners that there had been no formal notification by the committee through its minutes at meetings that the exterior of the building would, or even might, be repainted a different colour. Even if the question of colour of the exterior paint had been mooted at the information sessions held by the committee on 28th October 2007 and 4th November 2007, which is doubtful, this could not have been formal notice to lot owners that a particular colour scheme was to be chosen by the committee. Furthermore, the body corporate says that the colours were not chosen at the time of the information sessions, and all submitters agree that non-residents would have had no information about the “information sessions” since they were not minuted (and had no need to be so.) There is nothing to stop owners or committee members meeting on a daily basis if desired to talk about the administration of the scheme. However, resolutions can only be made by the committee at committee meetings; by the body corporate at general meetings; and in some circumstances by the committee by voting on a motion outside a committee meeting. There is simply no other way that the business of the body corporate can be undertaken.

I am also of the view from the body corporate’s submission that the first informal notification to lot owners about a possible colour change was in a newsletter dated 3rd February 2008. This newsletter merely advised lot owners that the committee were looking at ideas for colours, following its authorisation to get the painting done, and would keep lot owners informed and that lot owners would “have the opportunity for their opinion.”

I do not find the results of the survey taken in October 2007 to give any indication at all that the exterior paint colour of the building might be changed, and even if I did, as stated above, this would be ineffective notice to lot owners that changing the paint colour was a decision which the committee had made.

The Open Letter of 15th February 2008 on a copy of which lot owners were asked to return their votes for either the existing colour scheme or a new colour scheme being Knapsack, Grand Piano and Kahlua Milk, says that the committee had decided that it had a choice of two options. This is not minuted in any committee meeting minutes prior to 15th February 2008. The committee had also decided to make two models, painted in each of the colour schemes. Again, it does not say when or how that decision was made. There is no evidence about the manufacture of the models or the cost of the models being given the go-ahead at a committee meeting, or voted on outside a committee meeting. The Open Letter called upon lot owners to return their votes by 3rd March 2008 in an enclosed envelope. The models would be on show from 22nd February 2008. It is not clear whether overseas lot owners were sent the Open Letter and able to take part in the vote, although owner Ms Caseldine-Zammit, who lives in the UK, was able to look at the website where photographs were posted indicating the two colour schemes.

I find that there was a very short time given to lot owners to inform themselves about the new colour scheme put forward by the committee on the recommendation of a colour consultant. It is not clear that all owners were invited to take part; the rules relating to whether votes would be accepted because they were late, or whether ‘phone votes’ were acceptable were arbitrarily made and not known to the voters; and the system for recording of the votes was unclear and secretive. It is perhaps unfair to criticise the models, but they were not accurate representations of the building or the colour. This might have some bearing on natural justice were it not for the fact that the whole process of a vote being taken in this way could do no more than give the committee an idea of whether there was any support at all for the colour consultant’s choice. It was, at best, an opinion poll and has no basis whatsoever as a legal resolution of the body corporate, any more than the show of hands at the information sessions referred to by the Applicants.

Nor has the committee resolved at a committee meeting since the voting to paint the building in any particular colours, a necessary step before the committee could proceed. Perhaps this application has stopped the committee from tabling such a motion. If the committee were to table such a motion at a committee meeting, and it was passed by the committee, it might then be challenged by lot owners under the provisions of section 37 Standard Module.[1]

The body corporate advises that it went to the lengths it did and put in all the hard work because it had received advice that the committee in any event has the power to change the colour of the paintwork, and it was merely seeking owners’ views, in a way the committee thought was democratic. However, it can only make such decisions at committee meetings which are minuted and the minutes distributed to all lot owners. It cannot support the argument that this committee does not need committee resolutions in order to take action.

The body corporate argues that it can (and must) undertake maintenance of common property and that maintenance includes painting. The colour of the building does not become “an improvement” because the colour is different from the existing colour, especially where the cost is the same. The argument is that that since the committee is authorised to engage painters, that any colour is now part of that maintenance project over which they have been given control.

The body corporate submission refers to many matters where the difference between what is mere ”maintenance” and what is “ an improvement” have been explored. The committee is authorised by Motion 9 to carry out maintenance , ie. the painting, but as all submitters agree, not to make “improvements” to the common property. To make “improvements” requires a special resolution for the body corporate at a general meeting if the cost of the improvement is more than $300 x the number of lots. In this matter, the cost of the painting at the price approved at the committee meeting of 25th February 2008 is $1917.52 per lot. The Applicants say that a change of colour is “an improvement” whereas the body corporate says that such a conclusion would be “ludicrous.”

“An improvement” is defined in the Act to include a “ non-structural change” and thus has a wide meaning to include any “change.” Adjudicators have reasoned in cases quoted by the body corporate in its submission, that it could be said that any maintenance or repair incorporates “a change” in that the aim of maintenance or repair is to make something better or look better. Any repair can invoke an element of improvement in the ordinary meaning of the word. But each case will depend on the material with which the repair is to be effected, the availability of new technologies, and the intention of the party effecting the repair or maintenance. In No 9 Port Douglas Road [2006] the adjudicator said - “it would be absurd if basic maintenance like adding new sealant around a window frame..”, ie, something that was not there before, required a special authorisation as “an improvement.” “Maintenance” is not defined in the Act but as pointed out by Ms Quinn, means to “maintain” the same thing or “keep” something. When the thing maintained becomes a “new thing” then it not mere maintenance but an improvement.[2]

The cases to which I was referred which deal with paint colour were La Porte d’Or [2000]; Service Central [2000], Kinkabool [2006] Surfers Palms North[2006] and Barakala[2007].

In La Porte d’Or the adjudicator found that the committee had the power to choose the colour of an exterior surface unless it intended to depart dramatically from the existing colour scheme. The question of whether or not a change of colour was an “improvement” or not was not raised. The applicants argued that the cost of the rectification work for spalling made it “an improvement” which was not accepted by the adjudicator. She said that the rectification work was clearly ‘maintenance and repairs’.

Service Central concerned a commercial scheme where the body corporate had authorised the committee to paint the front and sides of the building in “the original colours.” The dispute arose because three lot owners out of 8 wanted “more dynamic colours.” One lot owner had painted the front wall of his lot in his own colours. The dispute was resolved by a conciliation process orchestrated by the adjudicator who found majority consensus ( 6 out of 8) in two out of the three colours proposed. This matter is not particularly helpful since there was never any discussion of whether paint colours were or could be “an improvement” and the adjudicator acted as a facilitator in reaching an agreement. The process was not challenged.

Kinkabool concerned a dispute about raising contribution levies for the cost of painting. The adjudicator found that the application for an interim order had little merit being made out of time to challenge a resolution of the body corporate at a general meeting. The committee had chosen the paint colours. The adjudicator found that there “may be some administrative issues” relating to the selection of the colour scheme but he did not say what those were. There is nothing to link the refusal of the adjudicator to make the interim order with the acceptance of the committee’s choosing of the paint colours.

Surfers Palms North is a group titles scheme and the various painting disputes concern not common property but lot owners’ lots. I do not find the adjudicator’s statement that he could be “persuaded” that in a building units plan owners “would feel satisfied leaving the choosing of colours to the committee” has any bearing on the issue at hand. This is an ‘obiter’ statement about someone else’s point of view. The committee may well choose the colour of a scheme if to do so is not “ departing dramatically”, from the existing scheme ie. not an improvement .

The facts in the Barakala case are similar to this matter, save that the Applicant (and other owners) had no knowledge of the change of colour before the painting was done, and the committee did not have a valid authorisation although the majority of owners had approved the spending on the painting. The adjudicator cited No 9 Port Douglas Road and Lord Denning’s explanation of the difference in ordinary words between “repairs” and “improvements” as follows –

“It seems to me that the test, so far as one can give any test in these matters, is this: if the work which is done is the provision of something new for the benefit of the occupier, that is, properly speaking, an improvement; but if it is only the replacement of something already there, which has become dilapidated or worn out, then, albeit that it is a replacement by its modern equivalent, it comes within the category of repairs and not improvements.” [3]

She found no difficulty in finding that painting in different colours was “ an improvement” which had not been authorised by a special resolution.

“If the painting had used the existing colours this would clearly have just been maintenance. But I consider the new colour scheme represented an improvement. It was not a simple replacement of what previously existed. The primary reason for the change of colour was to not just to achieve the repair, for example because the previous colours were no longer available. The Committee’s own submission is that the purpose was to increase the value of the scheme.

The painting of the roof, which clearly does not require painting for maintenance purposes, would obviously be an improvement which would require a special resolution. “

There has been mention in submissions that the original colours are no longer available but this has not been argued with any great enthusiasm. Even if the names or the numbers of the original colours are not known, it is quite possible to “eye-match” the existing colours which the committee has been able to do. There is also evidence that the manager of the building is able to “touch up’ the paintwork as required from time to time so either he has the name and number of the paint or can acquire a match. There is no real argument that the previous colours are no longer available. Even so, such a dramatic change as envisaged, clearly to give a modern look to the façade, is intended to be “an improvement” in the ordinary sense of the word. It is a change which requires a special resolution of the body corporate if it is to be implemented. “An improvement” does not have to mean a change for the better. The question of aesthetics must be left to lot owners. It means a change for example by addition, exception, omission or substitution.[4]

I make an order that the new colour scheme cannot be implemented without a special resolution of the body corporate given at a general meeting. If the committee wishes to put additional motions to a general meeting at this time, then lot owners must also be given the opportunity of submitting any motions they wish. If other motions about colour schemes are received then the motion should take the format “ Do we wish to change the colour of the building?’ ( r similar) to be passed by special resolution. Then the alternative colour schemes might be voted for, A,B etc

The committee should make available to all lot owners any reports which they have from any colour consultants or property consultants. These are body corporate documents obtained by the committee for the benefit of all members of the body corporate. There is clearly concern about the risks involved in voting for any new colours if that could lead to further expense. I sought from the solicitors for the body corporate a copy of the specification referred to in Opat’s quotation. This was not apparently attached to the quotations circulated with the notice of meeting, perhaps because it is a lengthy document. All such documents must be made available to body corporate members on request if they are too large to be circulated. The specification does not include any information about colour choice.

I make no order about the reimbursement to the body corporate of the cost of Mr Dillon’s letter of 18th March 2008 which was not circulated to the Applicants. This was not part of the original application and might have to live to fight another day. Mr and Mrs Clark might take this up with the committee or the body corporate at a later time.

[1] 37 Carrying out resolutions of committee meetings
(1) A notice opposing the carrying out of a resolution of the committee (a notice of opposition), signed by or for the owners of at least one-half of the lots included in the scheme, may be given to the secretary.
(2) A notice of opposition must be given to the secretary within 7 days (the required period) after the secretary gives a copy of the minutes containing the resolution or, for a resolution passed other than at a meeting, a copy of the resolution, to each owner of a lot included in the scheme as required under section 36.
(3) The committee may carry out a resolution only if—
(a) no notice of opposition is received by the secretary within the required period; or
(b) the resolution is necessary to deal with an emergency, and—
(i) the amount required to put the resolution into effect is within the relevant limit for committee spending for the scheme; or
(ii) an adjudicator acting under the dispute resolution provisions authorises the committee to carry out the resolution; or
(c) the resolution is ratified by ordinary resolution of the body corporate.
(4) In a proceeding involving a challenge to the right of the committee to carry out a resolution, or a body corporate
manager to carry out a decision made in the exercise of a power of an executive member of the committee under an authorisation given by the body corporate, the burden of proving that action required to be taken under section 36(2) and (4) was in fact taken lies on the person asserting the right of the committee or body corporate manager to carry out the resolution or the decision.
(5) Subsections (1) to (4) do not apply to a resolution authorising a committee member to carry out a stated function of the body corporate if—
(a) the cost of acting under the resolution, including the amount of any commitment incurred, is not more than the greater of—
(i) $200; or
(ii) $5 multiplied by the number of lots included in the scheme; or
(b) the function involves a decision of a routine, administrative nature.

Number of Scheme:	15344
Name of Scheme:	Admiralty Towers II
Address of Scheme:	501 Queen Street, Brisbane

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Admiralty Towers II [2008] QBCCMCmr 151 (2 May 2008)