Lexington [2008] QBCCMCmr 39 (4 February 2008)

Last Updated: 1 March 2008

REFERENCE: 0040-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26466
Name of Scheme:	Lexington
Address of Scheme:	41 Rossiter Parade HAMILTON QLD 4007

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

Wayne Richard Ostrofski, the owner of lot 16

I hereby order that the application for an order to prevent resolutions 2 (Replacement of blinds – Unit 4), 3 (Back Deck – Unit 4) and 4 (Engineers Report) of the EGM of 12 December 2007 from being implemented, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0040-2008

“Lexington” CTS 26466

Application

This application is by Wayne Ostrofski, the owner of lot 16 (applicant), against the body corporate seeking an interim order the effect of which is to prevent the implementation of resolutions 2, 3 and 4 of the Extraordinary General Meeting (EGM) of 12 December 2007 until the validity of those motions is determined. The applicant seeks final orders declaring resolutions 2, 3 and 4 invalid.

Minutes of the EGM of 12 December 2007 record the following in relation to resolutions 2, 3 and 4:

MOTION No2 REPLACEMENT OF BLINDS – UNIT 4

(STATUTORY MOTION)

Person Proposing: D Paton

Lot No: 4

Resolution Required: Ordinary Resolution

RESOLVED that the Body Corporate approve the replacement of blinds on front north east corner room with swing windows identical in finish to adjacent windows.

7. YES
2. NO

0 ABSTAIN

MOTION No3 BACK DECK – UNIT 4

(OPEN MOTION)

Person Proposing: D Paton

Lot No: 4

Resolution Required: Ordinary Resolution

RESOLVED that the body Corporate approve the erection of a deck in the back courtyard of Unit 4, leading out from the kitchen to facilitate ease of access, and move the personnel gate to the east. The current fence would be replaced with a rail around the deck and this would meet building requirements.

4 YES

3 NO

2 ABSTAIN

MOTION No4 ENGINEERS REPORT

(OPEN MOTION)

Person Proposing: Committee

Lot No: Not Applicable

Resolution Required: Ordinary Resolution

RESOLVED that the Body Corporate engage the services of an Engineer to inspect and report on the cracks in the building, (in particular Unit 4 – if any other owners have particular concern, please note this on your voting papers).

6 YES

3 NO

0 ABSTAIN

Jurisdiction

“Lexington” is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). It comprises 17 lots and common property.

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 and the owner of lot 4, with an invitation to make submissions regarding the interim order application.

Submissions

The applicant

• States that, at the time of the EGM, it was unclear to voters which lot was the subject of the motions to be voted on.
• States that lot 4 is part of a duplex and any costs relating to inspections for cracking should be borne by the owner as it is under a GTP situation.
• States that as motion 3 deals with the possible alteration to common property (without any plans being provided to voters), it should have been required to be passed as a special resolution.
  

The owner of lot 4

• Believes that motions 2, 3 and 4 of the EGM of 12 December 2007 are valid for the following reasons:
  • Pursuant to by-law 13(i), an owner can remove blinds and make other improvements with the prior consent of the committee as long as the change does not affect the uniform external appearance of the building. Motion 2 was resolved by ordinary resolution in general meeting and so is valid. The replacement windows face a fence and are to be in keeping with the current windows on that side of the house.
  • In relation to motion 3, the erection of a back deck does not require any approval as the land upon which it is to be built is owned by her. The fence is at the rear of her property and as such, she is 100% responsible for the repair and maintenance of the fence. At the most, she believes that by-law 13(h) may require her to obtain committee approval for a structural alteration to her lot.
  • In relation to motion 4, as a building format plan, the maintenance of all structural walls is the responsibility of the body corporate under section 109 of the Standard Module. She notes that the applicant is arguing that the relevant lot was misdescribed in the motion (ie lot is not known as lot 4, but rather 39 Rossiter Pde Hamilton). Unit 4 is located in the block of units and the proposed motion would not be possible there. She believes this technicality would only be of concern if other lot owners suffered some detriment from the misdescription, which she states they would not.
• States that, as a courtesy to all owners, she requested an EGM for motions 2, 3 and 4, when in fact, only committee approval was required. She requests that all motions be upheld, as all owners had the chance to review them.
  

The committee

• Believes that all resolutions passed are in order.
• In relation to motion 2, the window replacement is to be in keeping with the current building, will improve the exterior of the property, and is to be installed at no cost to the body corporate. The changing of the windows will have no impact on any other lot at the complex.
• In relation to motion 3, the section of land involved in very small and has absolutely no impact on common property – the area is owned by the owner of lot 4. The fence involved is a private fence and all the improvements are at the expense of the owner, with no impact on common property or any other lot owner.
• The complex is a building format plan and therefore any structural works that require attention are the body corporate’s responsibility. The committee has also been advised that the new section of the complex (the unit block) has cracks which need investigation. Pictorial evidence of the cracks to lot 4 has been provided by the owner of lot 4.
• The representation of lot4/unit4, in the committee’s opinion, has no consequence to the outcome of the motions. The layout of the complex is such that with regard to these two lots only lot 4 could carry out the alterations proposed.
• Requests that all motions passed by the owners on 12 December 2007 be upheld.
  

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, in effect, to prevent resolutions 2, 3 and 4 of the EGM of 12 December 2007 from being implemented, until the validity of the resolutions is determined. He alleges that the lot the subject of the motions was incorrectly described as “unit 4”, when in fact, lot 4 was the relevant lot. “Unit 4” is, according to the owner of lot 4, located within the five story building in the scheme. He further alleges that the scheme is under a GTP (Group Title Plan) situation and therefore, any costs relating to inspections for cracking should be borne by the owner of lot 4. He further alleges that motion 3 deals with the possible alteration to common property without any plans being provided to voters and should have been passed by special resolution.

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.

At this stage, I am not persuaded by the grounds put forward by the applicant that he is entitled to the interim order he seeks. I do not consider that the description of lot 4 as “unit 4” was significant enough to warrant preventing motions 2, 3 and 4 from being implemented. A representative from R Jackson Pty Ltd has advised this office that lot 4 and unit 4 are the same thing. Further, in the case of motions 2 and 3, the proposer of the motion was described as the owner of lot 4. Given the content of the motions, it seems to me that voters would have assumed that the motion related to the lot owned by the proposer of the motion. In relation to motion 4 specifically, the applicant is mistaken in his belief that “Lexington” is registered as a standard format plan (previously known as group title plan) of subdivision. Registered plans of the scheme show that it is, in fact, registered as a building format plan of subdivision. Section 109(2)(b) of the Standard Module requires that the body corporate maintain certain elements (including foundation structures, roofing structures providing protection and essential supporting framework, including load-bearing walls) of scheme land that are not common property, in a structurally sound condition. I therefore regard motion 4 as a valid motion in terms of the body corporate fulfilling its legislative responsibility. With regard to motion 3, the owner of lot 4 states that the deck is to be built within the boundaries of lot 4. As such, it appears to me that, pursuant to by-law 13(h), committee approval would have been sufficient. Similarly, it appears to me that, pursuant to by-law 13(i), committee approval would have been sufficient for the replacement of blinds the subject of motion 2. It is implicit in the committee submission that the committee approves of the action proposed.

Based on the above, I am not satisfied that it is just and equitable to make any interim orders in respect of this matter. The application appears to me to be to be of little substance and, at least in so far as the physical description of the property is concerned, misconceived. I am not persuaded that resolutions 2, 3 and 4 are anything other than valid resolutions of the body corporate. I will, however, allow the application for final orders to proceed to be administered in accordance with the Act and the views of all owners will be sought (via the submission process) in relation to these matters.