Glades Easthill North [2008] QBCCMCmr 194 (12 June 2008)

Last Updated: 26 June 2008

REFERENCE: 0444-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32506
Name of Scheme:	Glades Easthill North
Address of Scheme:	Easthill Drive ROBINA QLD 4226

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

Karl Eric Robert Eliasson, the owner of lot 5

I hereby order that, pending a final determination of this application, the body corporate for Glades Easthill North community titles scheme 32506 (including its committee or any member of its committee) must not take any action to remove the shade sails in respect of lot 5. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0444-2008

“Glades Easthill North” CTS 32506

Application

This application is by Karl Eric Robert Eliasson, the owner of lot 5 (applicant), against the body corporate, seeking an interim order to prevent any attempts being made to remove the shade sails upon his lot. The applicant seeks final orders in the following terms:

1. That the result of motion 29 at the 2008 AGM be dismissed.
2. That the shade sails at lot 5 be approved as erected.
   

Motion 29 was recorded as follows in the minutes of the AGM of 8 May 2008:

MOTION NO. 29
LOT 5 SHADE SAILS – ATTACHMENT F

Options A and B, reading as follows, were put to the meeting and were declared Lost by Special Resolution:

“Option A Approve the Shade Sails

That the shade sails as erected at Lot 5 (as approved by last two years annual general meetings), be approved by special resolution.”

AND

“Option B Require the Removal of the Shade Sails

That the Body Corporate requires the owners of Lot 5 to remove within 30 days of the date of this meeting all portions of the shade sail structure in the exclusive use area of Common Property assigned to Lot 5.

That the shade sails as erected at Lot 5 (as approved by last two years annual general meetings) be approved by special resolution.”

VOTE: A: 30 B: 16 ABSTAIN: 4

POLL VOTE A: 2258 B: 1145 ABSTAIN: 288

Jurisdiction

“Glades Easthill North” is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act. An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s276(2), Act).

Procedural matters

In accordance with the Act, submissions were called and a copy of the application was provided to each committee member with an invitation to make submissions regarding the interim order application.

Background

The applicant provided the following information by way of background:

• In July 2004 he received approval from the committee to erect shade sails on his property. The purpose of the sails was to provide relief from the intense sun, as lot 5 faces due west.
• After construction, Messers Huddy and Butlin lodged an application with the Commissioner’s Office seeking an order that the shade sails be removed. They argued that the sails erected differed from the sails proposed and approved by the committee. The order required the applicant to submit a request for approval of the shade sails to a general meeting of the body corporate.
• At an AGM held on 13 July 2006, the shade sails were approved.
• Mr Huddy submitted a further dispute resolution application to the Commissioner’s Office arguing that the format of the motions and therefore the vote at the AGM was unlawful. The order required that the matter be put to the next AGM.
• At the AGM held on 17 May 2007, the applicant’s motion to approve the shade sails was passed by special resolution. However, Mr Huddy had submitted a motion requiring that the shade sails be removed (which was lost) and again made application to the Commissioner’s Office again arguing that the format of the motions and therefore the vote at the AGM was unlawful. The order again required the matter to be submitted to the next AGM for a new vote.
• At the AGM held on 8 May 2008, two motions regarding the applicant’s shade sails were submitted. The applicant’s motion was lost by special resolution with 31 votes in favour and 16 against.
  

Submissions

The applicant

• Considers that the earlier order, where it provided instructions to the format of the motion, prejudiced him. If the motion could have been worded as a normal motion with alternatives, those alternatives would allow for a vote on majority rather than a special resolution. The special resolution outcome led to a vote of 31 in favour with 16 against which in effect gave him a 2/3 majority but an overall loss.
• States that there was a mistake in the text of motion 29 put to the AGM on 8 May 2008 in that the last paragraph of Option B clearly should not have been inserted. It is quite obvious, the applicant states, that owners could have been misled by the mistake and might have voted for Option B when they meant to vote for Option A. The applicant lost his motion by only one vote.
• Believes that an explanatory note included by Messers Huddy and Butlin in relation to their motion was intentionally erroneous. The applicant states that their incorrect claim that he had erected the shade sails without first seeking approval was misleading and an obvious attempt to alienate him from any new owners who were not aware of the history of the matter.
• Believes that his situation is similar to that of an earlier case involving lot 21. The owners of lot 21 had received approval from the then committee (including Mr Huddy and Mr Butlin) but having constructed their awnings, were advised that the construction differed from the approval and were initially ordered to remove them. The owners of lot 21 were eventually provided with approval (from the Commissioner’s Office) for their awnings to remain.
• States that there are many other examples of homes within both Glades Easthill North and South, where residents have erected shade sails, pergolas, awnings and other similar structures to protect them from the sun and improve their outdoor living options. All these structures have received approval from the relevant body corporate committee, including several passed at the May 2008 AGM. These cases provide evidence of precedence and reinforce the applicant’s belief that he has been isolated for attack by two disgruntled former committee members.
• Believes that the number of applications by Messers Huddy and Butlin is indicative of their vindictive nature, and that they are disgruntled by their untimely dismissal from the original body corporate committee. Their actions have managed to drag this matter on year after year for approximately three years now, creating disharmony in the community and huge worry for his wife and him and their young children.
  

The committee

• A facsimile was received from Challenge Strata Management (the new body corporate manager (BCM)) on 4 June 2008 advising that they had contacted the secretary, Ms Noelle Hogbin-Roksandic, who upon being appraised of the nature of the matter, advised that “the committee had no intention of attempting to remove the applicant’s shade sails and would certainly await the outcome of the final orders sought before contemplating such action”.
• The BCM therefore advised that there appears to be no reason why the interim order sought should not be made so that the substance of the application can be dealt with at the earliest possible time.
  

Upon receiving advice from the new BCM that they were still in the process of receiving all documentation for the body corporate, I did grant an extension of one week within which the committee could make further, or more formal, submission if it wished to. I have not receive any further submissions.

Determination

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate.

The applicant seeks to prevent the body corporate from taking any action to remove the shade sails he has erected, until his request for final orders is determined. He provides background which reveals a saga of at least three attempts to gain approval for his shade sails at AGMs, in addition to his initial request of the committee in July 2004. In these circumstances, it is appropriate to briefly consider whether the applicant raises any serious legal questions that will need to be determined. If the application raises such a question then it may be appropriate to make an interim order to attempt to preserve the integrity of the matters in dispute until the application is dealt with.

Without examining the application in any detail, it is apparent that motion 29 considered at the AGM of 8 May 2008 (the applicant’s most recent attempt to gain approval for his shade sails) contained an error. On the face of that alone, I do consider it likely that owners could have been confused when casting a vote in relation to motion 29 and that their vote may not have reflected their opinion in relation to whether the shade sails should be approved or not. In particular, it seems that owners may have voted for Option B (to require removal of the shade sails) when in fact, they wanted to indicate their approval for them. In addition, I note that motion 29, even with the error, was lost by special resolution by only one vote. I am also concerned about the validity of motion 29, apart from the obvious error mentioned by the applicant and note that the outcome achieved at the AGM on 8 May 2008 leaves the shade sails neither approved, nor able to be removed. Further, I believe that the other submissions made by the applicant warrant further investigation.

Based on the above, I am satisfied that further investigation is necessary before any action is taken in relation to the shade sails, including seeking the views of all owners in relation to the matter. In my view, the likely inconvenience should no interim order be granted outweighs any inconvenience likely to result from the interim order, particularly in circumstances where the committee has consented to the making of the interim order.

For these reasons, I have made an order preventing the body corporate (including its committee or any member of its committee) from taking any action to remove the shade sails in respect of lot 5 until the application for final orders is determined, or the application is otherwise ended.

This application will now be administered in accordance with the Act.