L'Colonial Court [2008] QBCCMCmr 332 (18 September 2008)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Cynthia Barker, Owner of Lot 2; Robert Lovf, Owner of Lot 3; Michael Ives, Co-owner of Lot 5; and Patricia Shaw, Owner of Lot 9

I hereby order and declare that By-law 35 is invalid.

I further order that, within three (3) months of the date of this order, the Body Corporate for L’Colonial Court shall prepare and lodge a request to record a new community management statement that deletes By-Laws 35.

I further order that if the Body Corporate for L’Colonial Court passes an appropriate resolution at a general meeting to amend or replace other by-laws within three (3) months of the date of this order, the requirement to delete By-law 35 may be completed within three (3) months of the date of that general meeting.

I further order that Motions 16, 17, 18, 19, 20 and 21 purportedly passed by the Body Corporate for L’Colonial Court at the annual general meeting on 24 August 2007 were at all times invalid and of no effect.

I further order that the Body Corporate for L’Colonial Court shall pay Linda Phelps the amount of $1,670 within three (3) months of the date of this order.

I further order that the application is otherwise dismissed.

L’Colonial Court community titles scheme 9169 (L’Colonial Court) consists of nine lots and common property. The community management statement (CMS) for L’Colonial Court indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 6045.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Cynthia Barker, Owner of Lot 2; Robert Lovf, Owner of Lot 3; Michael Ives, Co-owner of Lot 5; and Patricia Shaw, Owner of Lot 9 (applicant) on 22 February 2008.

The applicants sought orders against the Body Corporate for L’Colonial Court (respondent) in the following terms:

Issue C We seek to have the proposed By-law in the CMS in substitution of the existing By-law 45 or the removal of By-law 45 without replacement

Issue D We seek dismissal of Motion 16 given E Phelps appointed L Phelps to carry out secretarial duties without the approval of the committee. Any liability for cost incurred should be between E Phelps and L Phelps.

Issue E We seek dismissal of Motion 17 for the state reasons and those included under Motion 16. Given E Phelps appointed L Phelps to carry out secretarial duties without the approval of the committee, any liability for cost incurred should be between E Phelps and L Phelps.

Issue H We seek clarification of ownership of Lot 6 and whether there is an entitlement for both L Phelps and E Phelps to each nominate for committee positions.

Initially the applicants lodged a conciliation application, on 6 December 2007. In January 2008 the Commissioner’s Office conducted a conciliation session to assist in the resolution of this dispute. Unfortunately conciliation did not resolve the dispute[1]. Accordingly this application was lodged.

After clarification of some aspects of the application, the application was provided to the Body Corporate pursuant to section 243 of the Act, with an invitation to the Committee and all owners to respond to the matters raised by the application. A submission was made by Elsie and Linda Phelps (the Phelps)[2]. The applicants inspected the submission and made a written reply.[3]

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

There is a long history of dispute in this scheme. This is the ninth adjudication application lodged with this Office, each of which related to disagreements between the Phelps and the other lot owners in the scheme. Mrs Phelps and her husband, now deceased, were the original developers.

This application relates to motions considered at the Annual General Meeting (AGM) for the scheme held on 24 August 2007. Several issues are raised and I will summarise the arguments from the applicants and the Phelps in respect of each of the issues.

Motion 22 at the AGM sought a special resolution that By-law 35 be removed on the basis that it does not comply with the body corporate legislation. The motion failed with four votes in favour and five against. The applicants say the by-law, which allows an owner to be fined for breaching the by-laws, is contrary to section 142(5) of the Act[4], in that by-laws must not impose a monetary liability. The applicants seek the removal of the by-law.

The Phelps’ argue the motion was invalid because the voting paper listed the proponent as the Michael Ives, the Owner of Lot 5, but referred to his lot number as Lot 3. The Owner of Lot 3 had confirmed that he did not submit any motions. The Phelps’ also argue the motion is unworkable. They say it does not provide for action to implement the resolution if passed, including the requirements to change the CMS and the costs of changing the CMS, and so the Committee could not implement the proposal without the need for further decisions. They claim that the defects were such that the motions were not capable of a yes or no answer.

The applicants acknowledge the error in the proponent’s lot number and say it was mentioned at the meeting. They argue that the Phelps did vote on the motion and made no suggestion that the votes were invalid. They also say Mrs Phelps has threatened owners with fines under the by-law.

Motion 23 sought a special resolution that By-law 45 be removed on the basis that it does not comply with the current legislation. By-law 45 allows Mrs Phelps to be able to use any lot as a display unit for prospective purchasers and place advertising signs around the building. Motion 24 proposed a replacement By-law 45. Both motions failed with four votes in favour and five against.

The applicants argue that the motion is discriminatory and restrictive, in that Mrs Phelps is allowed to advertise lots for sale but others cannot. They note that By-law 17 allows advertising with the Body Corporate’s consent, but in the past Mrs Phelps has required the removal of sale signs displayed by another owner and threatened fines. The applicants claim the alternative by-law would overcome the inequity in the existing motion, while maintaining control over advertising. However they would accept the removal of the current Motion 45 without replacement.

The Phelps raise the same arguments about Motion 23 and 24 as for 22, focusing on the validity of the motions rather than the by-law itself. The applicants make the same comments in reply.

Payments to Linda Phelps for administration for the 2006 AGM (Issue D and E)

Motion 16 at the AGM sought payment of an account for $1,063.42 dated 28 April 2006 from Linda Phelps for the cost of secretarial and administrative services provided to the Body Corporate. Motion 17 sought the payment of an account dated 28 June 2006 for $1,215.23 for secretarial and administrative services. Each motion passed with five votes to four.

The applicants say that prior to the 2006 AGM the relationship with the former body corporate manager (BCM) for the scheme broke down and their contract was terminated. Elsie Phelps, as secretary at the time, issued a notice for the 2006 AGM to be held on 28 April 2006. However the applicants say no Committee meetings were held prior to the AGM to discuss budgets and the AGM agenda and some motions submitted by owners were not included. The meeting proceeded, but was not recognised. A further AGM was held on 28 June 2006. At the June AGM Linda Phelps was appointed chairperson, secretary and treasurer and a new BCM was appointed.

The applicants say that following the departure of the previous BCM, Elsie Phelps, as secretary, should have prepared the documentation for the 2006 AGM. They say she had no authority to unilaterally appoint Linda Phelps to act on behalf of the Body Corporate in that regard. Following an adjudicator’s order on 4 October 2005[5], Linda Phelps formed no part of the Committee. Moreover, Elsie Phelps had a conflict of interest in authorising her daughter to act on behalf of the Body Corporate. Some of the amounts claimed exceed the Committee spending limit. They also dispute the claim for payment for a meeting called without authorisation. They accept that Elsie would have incurred costs in calling the 2006 AGM, but refute her ability to employ secretarial services and incur substantial and unreasonable costs on behalf of the Body Corporate.

The applicants also dispute the quantum of fees charged by Linda Phelps, including that:

Motion 19 sought the payment of an account dated 27 July 2007 for $401.95 for secretarial and administrative services. Motion 20 sought the payment to Linda Phelps of $399.85 for outlays itemised in a document headed ‘L’Colonial Court Job Outlay Sheet’. Motion 21 sought the payment of an undated account relating to the 2007 AGM for $1,917.58 for secretarial and administrative services. Each motion passed with five votes to four.

Despite the 2006 AGM decision to appoint a BCM, the applicants say Linda Phelps failed to do so and performed the duties herself. They dispute the charges sought on the basis that:

The applicants accept Linda Phelps would have incurred costs and consider it fair to pay her $1,170 being the amount that would have been charged by the proposed BCM plus $500 for expenses, although that was substantially above the charges imposed by the previous BCM. The Phelps note that the applicants have made an offer (totalling $1,670) in respect of Motions 19, 20 and 21. They say this offer was never put to them previously, but consider it fair and equitable and so accept the offer. The applicants note that this offer has been accepted.

Motion 18 sought the payment of an account for $1,786.67 for time involved in preparing the Body Corporate’s defence in relation to a dispute with a neighbour regarding a fence dispute. The motion passed with five votes to four.

The applicants say that the Committee was not made aware of the notice for demolition of the fence and to re-fence. They say no correspondence was presented to the Committee in regard to the matter before Linda Phelps commenced action and indicate that there is no correspondence in regard to the issue in the current Body Corporate records.

On the basis of the account they believe that the notice was served in July 2006. The first time the matter was raised was at a Committee meeting in June 2006 after the Magistrate’s Court had issued a ruling, but no mention was made of any expense incurred. Linda Phelps was not a committee member at the time and so Elsie Phelps appears to have acted unilaterally to appoint her. Owners were not informed of the appointment or the expected costs. The applicants believe that had they been informed of the matter it could have been resolved without proceeding to Court. They also note that the matter could have been resolved through mediation and that legal representation is not required in the Small Claims Tribunal. They anticipate that a Committee member could have attended any proceeding without any charge to the Body Corporate. Moreover, the originating claim by the neighbours was for a colourbond fence which would have been the preference of the applicants. However the fence was replaced in timber which appears to have been the choice of Linda and Elsie Phelps without reference to other owners. The expenditure on this work exceeds the Committee spending limit. The $1,786.67 charged, in addition to $220 for a surveyor, was to demolish and replace a $915 fence.

The applicants imply that both Elsie and Linda Phelps are each nominating committee members in the capacity of owner. However they say that their inquiries indicate that Elsie Phelps is the owners of all five units in her name only. They say that when they queried this, Linda Phelps advised that she is a joint owner of Lot 6 through a trust and that while the ownership was not recorded on the title it was registered with the Commissioner. The applicants say that a search of the Roll shows that Lot 6 was transferred joint ownership on 11 July 2006.

In regard to this issue that Phelps argue that a previous Adjudicator[8] had accepted that Linda Phelps is a co-owner of Lot 6, and refer to documents filed in that matter to substantiate this. However they further argue that the ownership of Lot 6 is not relevant to Elsie Phelps right as owner of five lots to nominate a person to the Committee. They note a previous determination by an Adjudicator[9] that Elsie was only entitled to nominate one person to the Committee despite owning five lots. However they refer to a later finding of the District Court[10] that the owner of multiple lots is entitled to nominate one eligible individual for each lot held. On that basis they claim that Elsie’s right to nominate for the Committee had been invalidly removed and that she is entitled to nominate for each of her five lots.

In response the applicants say there is no reference in the 2007 adjudication that Linda’s co-ownership of Lot 6 had been accepted by the adjudicator. They reaffirm their concern that there is no record on the title to substantiate the co-ownership.

In addition to their responses to the application, the Phelps argue that considerable time has been spent in responding to the application. Accordingly they seek an award of costs against the applicants. The applicants refute this and say the Phelps should consider the “...time, expense and anguish caused to the other owners by them continually forcing their will on us”.

After a review of the material submitted by the parties and titles records in respect of the scheme, I wrote to the Phelps pursuant to my investigative powers under section 271 of the Act to seek further information in regard to several issues. I then requested further information from the Body Corporate and provided the applicants with the opportunity to respond to the information.

I requested that the Phelps provide clarification of certain information regarding their financial claims, the fence dispute and the ownership of Lot 6. In response the Phelps have advised:

The secretary indicates that there do not appear to be any minuted approval of payments to any owner as remuneration, allowances or expenses in relation to Committee membership.

The applicants were invited to comment on the information provided by the Phelps:

A jurisdictional issue arises in this application in respect of the time in which this application was lodged. Section 242 of the Act provides that an application to invalidate a committee or general meeting, or a resolution of a committee or general meeting, or a committee election, must be lodged within three months of the date of the relevant meeting, including a meeting at which a resolution was purportedly passed. However, the section provides that if the application is lodged outside the time limit the Commissioner must deal with the application as if it were in time. The section goes on to provide that the adjudicator may waive the time limit for ‘good reason’.

Many of the orders sought in this application seek to overturn motions passed at the AGM on 24 August 2007. Section 242(3) of the Act provides that the time limit will have been complied with if a conciliation application for the same dispute is lodged within the time limit. The conciliation application relating to this dispute was lodged on 6 December 2007. Accordingly the application was lodged some 12 days outside the time limit.

The Phelps oppose any waiver of the time limit. They say none of the applicants requested the records while they held them, the applicants know the procedures of the Commissioner’s Office and the legislation, the minutes were only a few days late, the applicants knew the outcomes of the AGM regardless of the minutes, and the disputed amounts sum have been budgeted for.

In a District Court appeal decision[11] Justice Dodds set out the basis for waiving compliance with the time limit. His Honour stated:

“As to waiving compliance for good reason ... the objects of the Act, for instance section 5(a) and (h) mitigate against too strict or legalistic a view about good reason for waiving non-compliance with the time limit. What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought. The applicant, being the person seeking the waiver, will have the task overall of satisfying the adjudicator that the time limit should be waived in all the circumstances.”

The delay in this case was short. Given the nature of the motions in question and the Phelps’ submissions, I have no reason to believe that any owner was disadvantaged by the delay. Most importantly, given the seriousness of the issues raised and my findings below, I am satisfied that there is good reason in this instance to waive a minor non-compliance with the time limit.

On that basis, I am satisfied that I have jurisdiction to determine this matter, within the context of the legislative dispute resolution provisions.[12]

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 claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[13] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[14]

In considering the legislative requirements relating to the orders sought, I have had regard to the provisions of the Standard Module as in force at the time that the events in question occurred. However, I draw the parties’ attention to the new Module which applies from 30 August 2008. In most cases the provisions relevant to this dispute are unchanged however it will note key changes.

I will consider each of the separate issues raised. However I will first mention some general issues relating to by-laws which are applicable to the first three orders sought by the applicants.

L’Colonial Court was registered in March 1984 under the Building Units and Group Titles Act 1980 (BUGTA), which applied to schemes prior to the commencement of the current Act. The CMS for L’Colonial Court, which was automatically registered on 15 July 2000 under the transitional provisions of the Act, states that the by-laws for the scheme are taken to be those in effect as at 13 July 2000[15]. The original by-laws under Schedule 3 of BUGTA were replaced by by-laws recorded on 16 April 1984 and so these continue to be the by-laws applicable to the scheme.

Section 340 of the Act provides for the retention of by-laws recorded under BUGTA as follows:

A by-law, including an exclusive use by-law, maintained in force under this part for a new scheme continues to have effect, and may be included in a subsequent community management statement recorded for the scheme, even though it is not competent for the community management statement for a community titles scheme established after the commencement to include the by-law.

An Adjudicator has previously commented[16] that this section allows for the retention of by-laws that would otherwise be ultra vires under the current legislation. For example, the fact that a pre-existing by-law had not been approved in the same way that the current Act would require would not render the by-law incompetent. However the Adjudicator indicated that this section would not validate by-laws that are inconsistent with the provisions of the current legislation. I concur with this view. On this premise, the validity of the L’Colonial Court by-laws can be considered in light of the requirements of the Act, and particularly section 180 which sets out the limitations for by-laws.

Generally, section 180(1) of the Act provides that a by-law that is inconsistent with the Act, regulation module, or any other Act, is invalid to the extent of the inconsistency. Although not directly relevant to this dispute, I note that By-laws 1 to 9 provide for administrative matters including the operation of the Body Corporate Committee (referred to as the ‘Council’). To the extent that these by-laws are inconsistent with the provisions of the Act and Standard Module, they would be invalid. Owners should look to the Standard Module in the first instance regarding to the operation of the Committee and may wish to review all the by-laws in light of this issue.

First the Phelps say that the motions were proposed by Michael Ives, Owner of Lot 5, but were listed as being submitted by the Owner of Lot 3. Accordingly they say they were not motions submitted by the owner of the lot under section 69 (formerly section 41) of the Standard Module.

Section 69 provides for owners to submit motions. There are no requirements for information which must be provided when motions are submitted, or a particular form which must be used. The key requirement is that the person submitting the motion be a member of the body corporate – a lot owner. Regardless of the minor typographical error in the details of the motion submitted, Michael Ives is clearly a lot owner and so there was no defect in the submission of the motions. Even if there were some legislative requirement that a lot number be specified when a motion was submitted (which there is not), there was no adverse impact to any owner and so there would be no reasonable justification to invalidate the motions on the basis of such minor non-compliance[17].

I am at a loss to understand why the then secretary, who obviously was aware of the error, did not simply correct it when preparing the agenda and voting paper. The fact that she contacted the Owner of Lot 3 but did not contact the Owner of Lot 5 exposes her to the perception that she deliberately sought to undermine the validity of the motions. If this were the case it has failed.

The second objection from the Phelps is that they are unworkable, in that they could not be implemented without further actions or steps by the Committee. I do not accept this argument.

Section 81 (formerly section 47) of the Standard Module provides that a person chairing a meeting must rule a motion out if the motion, if carried, would conflict with the Act, Standard Module, by-laws or a motion already voted on at the meeting, or would be unlawful or unenforceable. I can see nothing unlawful or contrary for the Body Corporate to decide to remove a by-law. The question is then whether the motions were unenforceable.

It may have been helpful if the motions had included a requirement that the Committee prepare and register a new CMS for the scheme within three months of the date of the meeting[18]. However the absence of this detail does not make the motions unenforceable or unworkable. The intention is entirely clear. Under section 101(2) of the Act the Committee must put into effect the lawful decisions of the Body Corporate. Accordingly, if the motions had passed, the onus would have be on the Committee to take such steps necessary to implement the motions. If those steps required expenditure beyond the Committee’s spending limit the Committee could simply put a motion to a further meeting (or seek the written consent of all owners[19]) to approve the expenditure.

Even if these three motions were invalid (and I am not of the opinion that they were) the applicants have not sought to deem the motions passed but rather to invalidate the by-laws. Accordingly I will proceed to consider the validity of the by-laws themselves.

The first order sought is, in effect, to invalidate By-law 35. This by-law provides as follows:

The applicants object to this by-law on the basis that it imposes a monetary liability contrary to the Act. The Phelps do not comment on this aspect of the application. Section 180(6) states that a by-law, other than an exclusive use by-law, must not impose a monetary liability on the owner or occupier of a lot. By-law 35 clearly purports to impose a monetary liability and does not relate to an exclusive use by-law. Accordingly I am satisfied that the by-law is invalid.

The applicants seek, in effect, to invalidate By-law 45. This by-law provides as follows:

The applicants say the by-law is discriminatory and restrictive, in that Mrs Phelps is allowed to advertise the sale of her lots but others cannot. They note that By-law 17 allows advertising with the Body Corporate’s consent, but that Mrs Phelps has required the removal of advertising signs. The Phelps do not comment on the validity of the by-law. There are several issues which arise in regard to this by-law. On its face, the by-law appears discriminatory in that one owner is given rights which are not afforded to others. Presumably these rights were given to Leonard and Elsie Phelps (by their own resolution) because of their role as developers. While other owners are required to seek Body Corporate approval for any signs or advertisements, the Phelps were given the capacity to advertise lots as of right.

Section 180(5) of the Act provides that a by-law must not discriminate between types of occupiers. The reference to ‘types of occupiers’ is critical. The rights afforded by By-law 45 do not attach to the Phelps in their capacity as occupiers but as the original owners. These rights exist whether they occupy a lot or not. As such I am not convinced that section 180(5) is applicable

In addition to section 180, an adjudicator is empowered to consider the reasonableness of by-laws generally. Item 20 in Schedule 5 of the Act specifically contemplates an adjudicator determining that a by-law is “oppressive or unreasonable” having regard to the interests of all owners. It is not apparent that Elise Phelps is continuing to actively promote the sale of lots as a developer, as she and her husband may well have done or contemplated when the by-laws were first recorded. Notwithstanding that, I am not convinced that it is inherently unreasonable to have a by-law that allows an original owner certain additional rights to facilitate the sale of lots. As such, the rights provided for in By-law 45, while perhaps no longer necessary, are not necessarily unreasonable.

But what may be unreasonable is any refusal to allow other owners to advertise under By-law 17. It would seem to me that, whether or not owners can agree on the removal of the possibly unnecessary By-law 45, the more important issue is the application of By-law 17. Owners can apply for approval to put up signs or advertisements under By-law 17, and (unless it is reserved a restricted issue for the Committee[20]) the Committee must decide whether to grant permission in the circumstances. The Committee must act reasonably[21] in exercising its discretion whether to grant permission. I would suggest that the key consideration would be whether the proposal would unreasonably impact on the visual amenity of the scheme. If the Committee refused permission and owners considered this unreasonable, they could seek to overturn the decision in this Office.

Another issue for owners to consider is whether By-law 45 continues to have any effect. It is arguable that a strict interpretation of the wording of By-law 45 requires both Leonard Phelps and Elsie Phelps to be proprietors of any lots in the scheme for the rights in By-law 45 to apply. This is suggested by the word “and” rather than terms such as “and/or” or “either or both”. On this interpretation, the by-law would have no current effect as Leonard Phelps is not a proprietor.
In the circumstances I do not consider that it any order to invalidate By-law 45 is warranted. It follows then that it would not be appropriate to order that By-law 45 be replaced. However this does not mean that it may not be desirable in the current circumstances for owners to decide to remove the by-law entirely or replace it with a more equitable provision. Regardless, I consider that the Body Corporate should take great care in applying By-law 17 to ensure it acts equitably.

Payments to Linda Phelps for administration for the 2006 AGM (Issue D and E)

This application involves six motions approving payments to Linda Phelps totalling $6,784.70. In the first instance I will consider Motions 16 and 17, relating to accounts dated 28 April 2006 and 28 June 2006. Both accounts refer to secretarial and administrative services (including photocopying, postage and word processing) for the AGMs held in April and June 2006. The first account for $1,063.42 includes $126.75 in outgoings (postage, photocopies, a facsimile and a telephone call) and the remainder for preparation of documents at $35 per page. The second account for $1,215.23 includes $312.25 in outgoings (postage, envelopes, photocopies) and word processing of the presumably very similar 23 pages of meeting notices as the disputed AGM. The Phelps’ have given no explanation for why they waited over a year to submit these accounts to the Body Corporate, and why no receipts or other supporting documentation were provided to the Body Corporate at the time the accounts were submitted.

Section 14 of the Act defines a BCM as a person engaged by a body corporate (other than an employee of the body corporate) to supply administrative services, whether or not the person is also engaged to carry out the functions of a committee, and the executive members of the committee. The reference to ‘engaged’ implies a contract with consideration (remuneration). This suggests that whenever a person is contracted to undertake administrative services for a body corporate, regardless of the duration of the engagement, that person is a BCM.

Linda Phelps was clearly not an owner at the relevant times[22] and, following the Adjudicator’s order in October 2005 she was not a Committee member. A such it seems she could only provide and be remunerated for administrative services to the Body Corporate if she was engaged as a BCM. The Phelps seem to suggest that they believed Linda Phelps was acting as or in the same capacity as a BCM because the claim is for the same type of work at the same rate as charged by a BCM.

The requirements for engaging a BCM are provided for in Chapter 6 of the Standard Module. An engagement must be in writing, specify the terms and duration of the engagement, and state the basis for payment[23]. The Body Corporate must approve the engagement by ordinary resolution, with no proxy votes and the terms of the engagement included in the meeting notice[24]. If the total cost exceeds the major spending limit (which in this scheme was $2,250 at the relevant time but, under the new Standard Module, is now $9,900 unless the Body Corporate sets a different amount by ordinary resolution[25]) at least two quotes for the work must be considered at the meeting.

It is clear that Linda Phelps was not formally engaged by the Body Corporate to provide administrative services. There is no evidence of any written agreement or any other evidence of an engagement. There is no indication that the Body Corporate or its Committee attempted to formally engage her or even considered the possibility of such an engagement. Aside from a brief reference to records being given by Ives to Linda Phelps (which could have been with the intention of them being passed on to Elsie as secretary) I have received no evidence that other owners had any knowledge or expectation that Linda Phelps would be undertaking the role of BCM between April to June 2006 or otherwise undertaking administrative services in return for remuneration.

It is an entirely different question as to whether Elsie Phelps entered into a private arrangement with her daughter for assistance in undertaking her functions as secretary. Any remuneration for such an arrangement would be solely between Linda and Elsie. It is unclear whether any such arrangement existed. Section 310 of the Act provides that a transaction is valid and binding if a person, acting honestly and without notice of an irregularity, enters into a transaction with a member of the committee for the body corporate or a person who has apparent authority to bind the body corporate. Linda Phelps has not provided any evidence that she reasonably believed that her mother had the authority to engage her as a BCM for the scheme and I find it improbable that, given her apparent legal knowledge, she could genuinely believe that her mother could unilaterally enter into a contract with her on behalf of the Body Corporate.

I do not consider that the fact that meeting documentation was undoubtedly prepared automatically assumes that payments should be made. Where no BCM has been properly appointed, there is no automatic assumption that persons (such as committee members) who undertake administrative tasks for a body corporate are entitled to remuneration or reimbursement of costs. It is common in schemes without a BCM for members to undertake this type of work without remuneration or with only outgoings reimbursed. The legislation limits the circumstances where committee members can be paid[26], with the expectation that no remuneration or reimbursement can be contemplated unless those requirements are met and the payments approved. Moreover, I would not consider that it would be reasonable for a committee member or their associate to expect payment on the same rate as a qualified professional BCM.

I also do not agree with the Phelps’s submission that it was irrelevant whether Linda or Elsie Phelps claimed payment because either would have claimed for the same amount. The applicable legislative provisions are quite different in regard to the engagement of a third party as a BCM as opposed to the remuneration of a committee member. I am satisfied that there is no reasonable basis for Linda Phelps to claim from the Body Corporate for costs purportedly incurred, at the request of her mother, in assisting her mother in her duties as secretary. I consider that Motions 16 and 17 are void on the basis that it was not reasonable for the Body Corporate to pay someone for services which were not actually or even ostensibly engaged by the Body Corporate. In the circumstances (including the lack of substantiation of the actual expenses) I do not consider that it would be reasonable for the Body Corporate to retrospectively approve these payments.

I note that it is possible that Linda Phelps was purporting to claim payments as a Committee member appointed in 2005, notwithstanding the order of an Adjudicator invalidating that appointment. There are several reasons why it would not be reasonable for the Body Corporate to approve such a payment. Firstly to purport to act as a Committee member would be in defiance of the Adjudicator’s order. Even if the Phelps’ disputed the order, including in light of later court decisions, the order still stands unless and until it is overturned on appeal. Secondly, Linda’s claim for payment in her 2005 nomination was not included in the ballot papers as required by the legislation[27]. Thirdly, Linda’s request for payment in her 2005 nomination form was for actual outgoings (phone, postage, fax, stationary and travel costs) and did not including any allowance for word-processing or other costs. Fourthly, there has been no documentation evidencing the actual outgoings claimed. Finally, there was arguably an unreasonable delay in submitting the claims.

Notwithstanding that there was no authorisation which would entitle Linda Phelps to claim reimbursement, Elsie Phelps, as secretary at the time, could potentially claim for actual expenses incurred on her behalf. Elsie’s nomination form for the position of secretary in March 2005 did contemplate reimbursement of outgoings (but similarly did not contemplate word processing or other costs), although this was not included in the ballot paper as required by the legislation. No such claim has been made by Elsie Phelps.

For it to be reasonable for the Body Corporate to approve a claim by Elsie Phelps, particularly in the absence of any compliance with the legislative requirements regarding payments to committee members, the expenses would need to be clearly reasonable and include supporting evidence such as receipts to confirm that the expenditure was in fact incurred. The two invoices from Linda include $439 in outgoings. These outgoings have not been substantiated and the Phelps’ advise that no records exist. Although the Phelps’ say records were destroyed in January 2008, they were put on notice by an Adjudicator in March 2007[28] that such evidence would be required to support a claim for Committee expenses so it is unclear why such evidence was not supplied when the accounts were submitted in July 2007. While I accept that some outgoings may have been incurred in photocopying and postage for the AGM, I am not entirely satisfied that the rates charged were reasonable or actual. Moreover I do not consider that Elsie Phelps could reasonably charge for word-processing, document preparation and so on.

As an aside, even had Linda Phelps been sufficient authorisation to enable her to claim for her time in assisting with her mother’s secretarial duties, I would suggest that it would not be reasonable for either to charge for a meeting which was called unilaterally and without authorisation. The Phelps have not disputed that there was no Committee meeting which authorised the AGM in April 2006. While it may depend on individual contractual provisions, I would suggest that if a professional BCM attempted to charge for convening a meeting which they would not authorised to call they would not be entitled to charge for it. I have certainly seen examples of professional BCMs bearing the cost of meetings which have failed because of their own error. Even if the first meeting was called with authorisation, I agree with the applicants that charging twice for the full cost of word-processing 23 pages of meeting papers, which presumably had only limited differences, appears to have been quite unreasonable in the circumstances.

I would also draw owners attention to section 53 (formerly section 34) of the Standard Module. It provides that a Committee member must disclose any direct or indirect interest in an issue to be considered by the Committee which could conflict with their performance of their duties as to the consideration of the issue, and is not entitled to vote of a motion involving the issue. This means that neither Linda or Elsie Phelps could vote on any Committee meeting motions purporting to engage them to provide paid services to the Body Corporate or to receive other payments or remuneration as Committee members. However no such restriction applies at a general meeting.

Motions 19 to 21 authorised payment of $2,719.38 to Linda Phelps for secretarial and administrative services for a Committee meeting on 20 July 2007, the AGM on 10 August 2007, and other work purportedly undertaken between 19 June 2006 and 14 June 2007.

The applicants object to Linda Phelps undertaking this work herself when the 2006 AGM had decided to appoint a BCM. They dispute that reimbursement now sought was included on the ballot paper for the relevant Committee election, that there is no documentation supporting the amounts, and that the fees charged are higher than those quoted by the BCM who was to have been appointed and that previous BCM’s had charged. Notwithstanding their objections, the applicants accept that Linda Phelps would have incurred costs and have offered a payment of $1,670. The Phelps have accepted this offer.

Section 18(2)(e) (formerly section 13A(2)(e)) of the Standard Module provides that a nomination for committee membership must include details of any payment to be made to, or sought by, the candidate from the body corporate for the candidate carrying out the duties of a committee member. Sections 21(5)(d) and 22(5)(d) of the Standard Module (formerly sections 16(5)(d) and 17(5)(d)) provide that the ballot paper for committee elections must include details of any payments made to or to be sought by the candidate for the candidate carrying out the duties of a committee member.

Section 43 (formerly section 26(1)(f) provides that a committee cannot pay remuneration, allowances or expenses to a committee member unless it is authorised by an ordinary resolution, or it is reimbursement for expenses incurred in attending a meeting which do not exceed $50 and do not result in the member being reimbursed more that $200 in a 12 month period[29]. Moreover, any motion to approve payments to a committee member must state the full amount of remuneration, allowances or expenses sought, the reason any expenses were incurred and an explanatory schedule stating the full details of the amount claimed must accompany the voting paper[30]. While a candidate for committee may seek remuneration, and allowance for the remuneration may even be included in the scheme’s budget, payments cannot be made unless and until they are authorised by the committee or an ordinary resolution as applicable.

Linda Phelps’ nomination for Committee membership in March 2006 did include a schedule of the remuneration sought by her for acting as a Committee member. However, while she (by her own admission) prepared the documentation for the 2006 AGMs, she did not include the details of the payments she (and her mother) sought on the ballot papers as required. Accordingly, owners were not notified of the claim. There was also no Body Corporate resolution authorising payments prior to any costs being incurred.

The schedule of fees did not include the $35 per page rate for word-processing claimed by Linda, or indeed any charge for word-processing. I also note that there appears to be a discrepancy between the amount included in the resolution 20 and the ‘job sheet’ detailing the amount claimed. Most fundamentally, it is not apparent that there is any supporting documentation evidencing the amounts claimed, such as receipts.

In March 2007 all owners were put on notice as to the requirements for obtaining prior approval for and claiming for Committee member payments. The Adjudicator at the time made the following comments regarding unsubstantiated claims from Elise Phelps for expenses:

In my view, an essential element of any proposal to pay allowances or expenses to a committee member is that the member provides adequate details. I do not consider that the document supplied by Mrs Phelps to the AGM contains sufficient detail. Mobile and facsimile calls are not verified by a copy of the relevant section of invoices from the service provider or any explanation of the purpose of the call or the facsimile. ... I do not agree that she can make calculations of costs without evidencing or verifiable material and cannot rely on the prices of retailers or service providers whose services were not acquired with the authority of the body corporate.

In my view, the body corporate is entitled to this degree of detail if a committee member is seeking a payment from it prior to the member actually carrying out duties as a committee member. In this way, the body corporate are aware of the member’s intentions if that person performs certain duties and may consider other options about the performance of the work if it considers the proposed costs too expensive (for example, the engagement of a body corporate manager). Also, the member performs the duties with the knowledge that certain approved payments will be made by the body corporate. It is more important when the member is seeking a payment subsequent to carrying out the duties. In this circumstance, the member should explain the reasons for incurring costs and demonstrate to the body corporate the actual costs incurred.[31]

For the same reasons, I do not consider that it was reasonable of the Body Corporate to approve motions 19 to 21. In the circumstances, the applicants’ offer to settle this aspect of the dispute is more than generous. However, as the parties have agreed on this issue, I consider it appropriate to give effect to this agreement.

I have concerns that the Body Corporate did not engage a BCM in 2006 as agreed at the AGM. Pursuant to section 101(2) of the Act the Committee must put into effect the lawful decisions of the body corporate. Accordingly the motion should have been implemented unless it was rescinded at a later general meeting or it was invalidated by an adjudicator. As Linda Phelps held all executive positions on the Committee she bore the primary responsibility of convening any Committee meetings necessary to action the engagement of the BCM. However I note that all Committee members failed to act to ensure that this resolution was implemented.

The final aspect of the dispute regarding payments to Linda Phelps relates to the approval in Motion 18 for a payment of for $1,786.67 for time involved in preparing the Body Corporate’s “defence and preparation of defence submissions” in relation to a dispute with a neighbour regarding a fence dispute. The motion passed with five votes to four. The undated invoice from Linda indicates that the charge of $110 per hour is based on the hourly rate payable to a BCM, obtained from a quote from Active BodyCorp Management.

I asked Linda Phelps to specify whether she purported to act for the Body Corporate in the capacity of a legal adviser to the Body Corporate, or a Committee member, or a BCM or in some other capacity. Linda says that she attended as the person named in the court papers and to protect the interests of the Body Corporate. I do not consider this an adequate response.

All documentation supplied by the Phelps’ relating to the fence claim clearly state that the respondent was the Body Corporate for L’Colonial Court. The documentation is addressed not to L Phelps, as they claim, but to the Body Corporate c/- L Phelps. There can be no suggestion that Linda had any personal responsibility or obligations in the matter. It is clear from the original claim document that the documentation was sent to the Body Corporate care of Linda in her capacity as Chairperson and Treasurer. This was logical on the part of the claimant because Linda had written to the claimant in her capacity as Chairperson and Treasurer, a letter coincidentally dated the day before an adjudicator’s ordered that she was not validly a member of the Committee. When notification of the Claim was received in December 2005 it would have been a simple matter for Linda Phelps to notify the Tribunal and the claimant that she no longer held a position on the Committee and to update the address for service for the Body Corporate.

Between January and April 2006, when the claimed costs were incurred, Linda Phelps was not an owner and was not a member of the Committee. She should have been well aware of this. Linda could have represented the Body Corporate if she had been engaged as a BCM, and specifically authorised by to represent the Body Corporate pursuant to any terms of the contract of engagement. The fact that Linda has purported to charge at the same rate as apparently indicated in one quote from a BCM suggests that she considers she was acting as a BCM. If this were the case, the requirements discussed above regarding the engagement of BCMs would have applied.

Alternatively, Linda could have been engaged by the Body Corporate as a legal representative. If this were the case I anticipate that, at the relevant time, she would need to have been a legal practitioner with a current practicing certificate and complied with the relevant provisions for legal practitioners with regard to acting under instructions from the client and informing of costs.

It is not apparent that there is any documentation engaging or purporting to engage Linda Phelps to act and incur costs on behalf of the Body Corporate in regard to the fence dispute, as a legal representative, a BCM or in any other capacity. It is also clear that the Body Corporate as a whole did not contemplate, even informally, any person acting for in it regard to this dispute. Owners and the Committee as a whole were not even notified of the matter. Similarly there was no formal approval for expenditure on Linda’s time in the matter. As the amount claimed was above the major spending limit at the relevant time, the expenditure would have needed to be approved at a general meeting with two quotes. Motion 18 at the AGM did not include multiple quotes.

I am at a loss to understand why, from September 2005 when the first correspondence on the matter was received, to April 2006 when the final order was made, neither Linda nor Elsie Phelps made any attempt to inform any other owners of the existence, nature or progress of the dispute, let alone submit motions for the approval of the action being taken. Meeting minutes indicate owners were first informed at the general meeting on 28 April 2006, after the matter was finalised, and then only to inform an order had been made. The minutes note that the Body Corporate would be responsible for $1,135 in regard to the Tribunal order (for survey, demolition and fencing costs), but gives no indication of any other costs purportedly incurred. No explanation has been given as to why the invoice for the purported charges was not presented until well over a year later. It was entirely inappropriate for Linda and Elsie Phelps to make unilateral decisions regarding the response to the original letter from the neighbour and in regard to the progress of the dispute.

Similarly I consider that it was inappropriate for Linda and/or Elsie Phelps to purport to incur costs in relation to the fence dispute without any prior Body Corporate approval. It cannot even be said the costs of representation in the Tribunal would need to have been expended whether or not it was validly approved or regardless of who was engaged by the Body Corporate. Had all owners had the opportunity to consider and discuss the original proposal from the neighbours and then Tribunal claim, and particularly the costs Linda would charge to attend, it could well have been that the Body Corporate could have accepted or directly negotiated the proposal with neighbours or a member of the Body Corporate could have attended the Tribunal at no cost.

On balance I do not consider that it is reasonable for the Body Corporate to retrospectively approve payment of nearly $1,800 to a person who was not a member of the Body Corporate or Committee at the time, who had not been informally or informally authorised to act and incur costs for the Body Corporate, on a matter that the Body Corporate as a whole had not even been informed of, and, moreover, when the claim was not made until well over a year after the charges were purportedly incurred. For this reason I consider that motion 18 is void.

The final area of dispute relates to the capacity of Linda Phelps to make a nomination for committee membership. Pursuant to section 10 of the Standard Module the person who nominates a person for committee membership (the nominating entity) must be a member of the body corporate. Section 31 of the Act provides that the members of a body corporate are the owners of all lots. The definition of an owner of a lot[32] includes a person who “...is, or is entitled to be, the registered owner of the lot...”. It is clear from the titles records that Linda Phelps is not and has never been the registered owner of Lot 6 or of any other lot in this scheme. The question then is whether she “is entitled to be” the registered owner.

Pursuant to section 285 of the Act, an adjudicator does not have the power to resolve a question about title to land. There is no dispute here between Elise and Linda Phelps over the title to Lot 6, and I do not purport to determine any question of title to land. However, to resolve a dispute in regard to the application of section 10 of the Standard Module regarding the right to nominate, it would be appropriate to determine whether there would be any basis for the Body Corporate to accept a nomination signed by Linda Phelps because of a purported co-ownership of Lot 6. I note that the Supreme Court has previous noted that there is a distinction in regard to an adjudicator making a decision involving managerial intervention as opposed to determining a legal question concerning title to land[33].

An instrument does not transfer or create an interest in a lot at law until it is registered.

A person to whom an interest is to be transferred or in whom an interest has been created has a right to have the instrument transferring or creating the interest registered if—

(b) the person lodges the instrument and any documents required by the registrar to effect registration of the instrument; and

(c) the person has otherwise complied with this Act in relation to the registration of the instrument.

The Phelps say that the instrument transferring a 1000th share of Lot 6 to Linda Phelps, which was executed on 11 July 2006, complied with the requirements of section 61 of the Land Titles Act 1994 regarding the requirements for an instrument of transfer. However they confirm that the instrument of transfer has never been lodged for registration despite two years having elapsed. Having not complied with section 183(b) of the Land Title Act (and potentially also section 183(c)) it seems clear that, regardless of the execution of the instrument of transfer, Linda Phelps has no right to have the transfer instrument registered. I can see no basis in the current circumstances upon which Linda Phelps can claim to be “entitled to be the registered owner” of Lot 6 when, as yet, she has no right to have her interest registered.

Unless and until the Phelps can demonstrate that all three requirements of section 183 of the Land Titles Act 1994 have been met, or she can provide evidence from an appropriate authority or a judgement from a court of competent jurisdiction confirming that Linda is legally entitled to be a registered owner of Lot 6, I consider that the Body Corporate is entitled to treat Elsie Phelps as the sole owner of Lot 6 in all issues regarding the application of the body corporate legislation. The applicants have not sought a specific order in this regard and I do not consider that one is appropriate at the time. However the situation should now be clear to all and if Linda Phelps purported to make a nomination in the current circumstances that could be refused by the Committee or invalidated in this Office.

The Phelps refer to section 193(1)[34] of the Standard Module, which requires notification when a person becomes an owner by transfer or some other means. However the preliminary requirement remains that the person has become an owner and, as indicated, I do not consider that Linda Phelps has yet become an owner within the definition in the Act.

The Phelps also argue that the ownership of Lot 6 is not relevant to Elsie Phelps right as owner of five lots to nominate a person to the Committee. They refer to a previous adjudication and a later District Court finding. All parties should be aware that the new Standard Module includes new provisions regarding Committee nominations. The new section 17 provides as follows:

(1) The owner of a lot may nominate 1 person for election as a voting member of the committee.

(2) However, if the owner owns more than 1 lot in the community titles scheme, the owner may nominate persons for the election as follows—

(a) if the owner owns 2 lots or there are fewer than 7 lots included in the scheme—the owner may nominate 2 persons;

1 Ms Jones owns 3 lots in a scheme that includes 6 lots. Ms Jones may nominate 2 persons for election.

2 Ms Smith owns 2 lots in a scheme that includes 8 lots. Ms Smith may nominate 2 persons for election.

(b) if the owner owns more than 2 lots and there are 7 or more lots included in the scheme—the owner may nominate 3 persons.

(ii) an individual who may be nominated by the owner of the lot in accordance with section 10(1)(b)(i); or

(i) an individual who may be nominated by the owner of the lot in accordance with section 10(1)(b)(ii) or

(4) If the owner of a lot owes a body corporate debt when the owner’s nomination is received by the secretary, the owner’s nomination or nominations are taken not to comply with this regulation.

(5) The right of the owner of a lot to nominate persons for election under this section applies only for the purposes of sections 16 and 19.

In L’Colonial Court this provision means that Elsie Phelps may nominate three persons for election to the Committee. If Linda Phelps were to become a co-owner of one or more of the five lots owned by Elsie, there would be no increase to the nominations permitted from those five lots.

The Phelps’ seek an award of costs against the applicants. Section 270(1)(c) of the Act provides that an adjudicator may dismiss an application if satisfied that the application is frivolous, vexatious, misconceived or without substance. If an application is dismissed on that basis, section 270(3) empowers an adjudicator to award costs of up to $2,000 incurred by the respondent in defending an application without merit. Aside from section 270(3) and section 280 (which may apply if a respondent fails without reasonable excuse to participate in conciliation) it is a settled matter that adjudicators have no general power to award a parties costs in relation to a dispute resolution application.

Although clearly opposing the application, the Phelps have not presented any specific argument that the application is frivolous, vexatious, misconceived or without substance. Moreover, in view of my findings, it is clear that the application has merit. Accordingly there is no basis to dismiss the application entirely or consider an award of costs.

As outlined above I make the following findings as to the motions considered at the AGM on 24 August 2007 I find no basis to determine that the motions were Motions 22, 23 and 24 invalid. However, for the reasons presented in the discussion above, I find that Motions 16, 17, 18, 19, 20 and 21 were not decisions that the Body Corporate could reasonably make in the circumstances. Accordingly I intend to order that each resolution was void.

In regard to claims for Committee payments, I note that a previous order explained the requirements for payments to be approved. While expenditure, for Committee payments or otherwise, can be ratified after the event in certain circumstances, this should not be the norm. I am concerned that the Phelps are deliberately ignoring the requirement to obtain prior approval for expenditure and relying on a voting majority to retrospectively approve expenditure.

Regardless of what positions they hold on the Committee or how many lots they own, the Phelps cannot make unilateral decisions on behalf of the Committee or Body Corporate. All Body Corporate decisions, including spending decisions or the decision to call a general meeting, must be made either by the Committee or at a general meeting.

In extreme circumstances, if it is not possible to obtain sufficient Committee participation to enable a meeting to be called or necessary expenditure to be approved, an application can be made for and order of an Adjudicator to authorise the action. It is simply not sufficient for Elsie or Linda Phelps to say that they undertook unilateral actions or decisions because there were not enough other owners around to enable them to call Committee meeting. There is no evidence in any of the issues that have arisen in this dispute that either made any attempt to convene Committee meetings, to secure a quorum with proxies for absent owners, or even canvas the views of other owners. This is despite the fact that one or other were the secretary at the relevant times. The Committee can vote outside a Committee meeting[35] and there is no reason why Committee meetings cannot be held by telephone.

In regard to By-law 35 I find that this by-law is contrary to the legislative requirements for by-laws. Accordingly I propose to order that the Body Corporate prepare and lodge a new CMS with the Registrar of Titles within three months of the date of this order which deletes this by-law.

I find no basis to invalidate By-law 45. However I note that this by-law may no longer be relevant or applicable. Owners may wish to review this by-law, along with other by-laws which appear to include potentially invalid or inappropriate by-laws. For this reason, I will allow the Body Corporate additional time to lodge a new CMS deleting By-law 35 if they resolve within three months of the date of the order to amend other by-laws. This could avoid the time and expense of amending the CMS twice in a short period of time.

In view of the settlement offered by the applicants and accepted by the Phelps, I proposed to order that the Body Corporate pay Linda Phelps the amount of $1,670, in view of her time and expenses in regard to various work undertaken on behalf of the Body Corporate.

Finally, I can find no basis in the current circumstances upon which Linda Phelps can claim to be “entitled to be the registered owner” of Lot 6. Accordingly I consider that the Body Corporate is entitled to treat Elsie Phelps as the sole owner of Lot 6 in all issues regarding the application of the body corporate legislation.

[1] Pursuant to section 252E(5) of the Act, evidence of anything said or done about a dispute in a departmental conciliation session is inadmissible in a proceeding. Accordingly I have disregarded any such evidence. However, I note that nothing prevents arguments raised at conciliation being raised again in the context of the adjudication application.

[2] Elsie Phelps is the registered owner of Lots 1, 4, 6, 7 and 8, being all lots in the scheme not owned by the applicants. Linda Phelps is her daughter.

[3] See sections 246 and 244 of the Act respectively
[4] It appears that the applicants may have intended to refer to section 180(6) of the Act
[5] L'Colonial Court [2005] QBCCMCmr 542 (4 October 2005), Reference 0367-2005

[6] Presumably this is intended to be a reference to section 104 of the former Standard Module which requires quotes for spending over the major spending limit. The provision now applying is section 152, which is substantially unchanged, aside from an increase to the major spending limit in the Dictionary.
[7] It being the day prior to the Adjudicator’s order which determined that she did not hold that position.
[8] M Schmidt in L'Colonial Court [2007] QBCCMCmr 665 (29 November 2007), Reference 0463-2007
[9] P Hanly in L'Colonial Court [2005] QBCCMCmr 542 (4 October 2005), Reference 0367-2005
[10] Lee Parker Pty Ltd v Young [2007] QDC 006
[11] Weeks v Commissioner for Body Corporate, District Court Appeal 13/99, 20 September 1999, unreported
[12] See sections 227, 228, 276 and Schedule 5 of the Act
[13] Section 276(2) of the Act
[14] Section 284(1) of the Act
[15] See section 339(5)(a) of the Act
[16] D Toohey in Top of the Mark [2008] QBCCMCmr 172 (20 May 2008)

[17] In this regard I note the principles in Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (Unreported).
[18] As per section 65 of the Act, See also sections 62 and 64
[19] As per section 151(b) of the Standard Module
[20] Section 42(1)(c) of the Standard Module
[21] Section 94(2) of the Act
[22] The purported transfer of partial ownership of Lot 6 was not executed until 11 July 2006
[23] Section 116 (formerly section 78)of the Standard Module
[24] Section 114 (formerly section 87) of the Standard Module

[25] Under the former section 104 of the 1997 Standard Module, which applied at the relevant time, the major spending limit defined as $250 x 9 lots. Under the new Standard Module, section 152 provides in similar terms for major spending to be considered at a general meeting, but the major spending limit is now either the limit set by the body corporate by ordinary resolution, or, if no amount is set, $1,100 x 9 lots.
[26] Note sections 18(2)(e), 21(5)(d), 22(5)(d) and 43 of the Standard Module, which I will discuss below.
[27] Sections 21(5)(d) and 22(5)(d) of the Standard Module
[28] P Dowling in L'Colonial Court [2007] QBCCMCmr 153 (14 March 2007), Reference 0502-2005

[29] I note that the applicants’ may have misunderstood the $50 limit for committee member payments. While the Committee cannot individual payments of over $50 or exceed $200 a year (providing payments generally are approved by ordinary resolution), higher payments can be approved by ordinary resolution
[30] Section 43(1)(b) (formerly section 26(2) of the Standard Module
[31] P Dowling in L'Colonial Court [2007] QBCCMCmr 153, Reference 0502-2005, at page 4-5
[32] In the Schedule 6 Dictionary of the Act
[33] Thomas JA in Independent Finance Group Pty Ltd v Mytan Pty Ltd & Anor [2001] QCA 306, para 34
[34] Section 140(1) of the 1997 Standard Module
[35] Section 54 of the Standard Module

Number of Scheme:	9169
Name of Scheme:	L’Colonial Court
Address of Scheme:	4 Murlong Crescent PALM BEACH QLD 4221

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

L'Colonial Court [2008] QBCCMCmr 332 (18 September 2008)