Points North [2008] QBCCMCmr 419 (10 November 2008)

Last Updated: 9 December 2008

REFERENCE: 0729-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4774
Name of Scheme:	Points North
Address of Scheme:	66 Marine Parade COOLANGATTA QLD 4225

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

Cecil Webster, an Owner(s) of lot 60

I hereby order that the application for an order requiring the body corporate to allow the open publication of notices on the body corporate notice board, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0729-2008

“Points North” CTS 4774

Application

Points North Community Titles Scheme (Points North) is a 141 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Cecil Webster, an owner of lot 60 (applicant) seeking orders against the body corporate for Points North (respondent). The applicant is seeking an order that would allow him to place on the body corporate notice board, from time to time, notices which he considers to be of interest to other unit owners.

Decision

Investigation and Submissions

Submissions

The applicant refers to a practice of the previous chairperson to allow any owner to put a signed notice on the body corporate notice board. The applicant provides a copy of the minutes of the committee meeting of 18 July 2008. These minutes indicate that the committee decided that material on the body corporate notice board was to be controlled and a lockable glass cabinet was to be installed to display notices.

The body corporate was given an opportunity to provide written submissions. The main submissions by the body corporate were to the effect that the body corporate has a function of self management and administering the common property and body corporate assets for the benefit of owners. It was submitted that the notice board is a body corporate asset and expresses concern regarding whether notices posted with authorisation only of a single committee member acting alone could result in a law suit against the body corporate.

All owners were given an opportunity to provide written submissions. All submissions are available for inspection by interested persons and it is unnecessary to summarise the submissions here.

The applicant exercised the right to inspect the submissions and then replied to those submissions.

Issues for determination
Issue in dispute

The key issue in dispute in this application is whether the committee could validly resolve to install the body corporate notice board within a lockable glass cabinet and, as a result, control the content of notices in that cabinet.

Applicable law

The present Standard Module commenced on 30 August 2008, replacing the previous Standard Module Regulation that operated from July 1997 (Previous Module) and references will be made to the present Standard Module or the Previous Module as relevant.

Anything done under the Previous Module will not generally be affected by the commencement of the present Standard Module (Acts Interpretation Act, 20). Further, a number of provisions of the Standard Module are the same, or substantially the same as provisions in the Previous Module despite the provisions having different section numbers and these provisions are generally to be dealt with as replacements of the similar provisions of the repealed legislation (Standard Module, 209-216). A number of specific transitional provisions are also provided including related to continuing to conduct a general meeting according to the Previous Module where that meeting was called under the Previous Module (Standard Module, 217-230).

The legislation specifically states that the body corporate may maintain a notice board on the common property (Standard Module 160, Previous Module 110).

The legislation also imposes a number of general requirements upon a body corporate. These include that a body corporate is required to act reasonably in carrying out its functions, that the body corporate must administer, manage and control the common property and body corporate assets reasonably and for the benefit of the lot owners, and that the committee must act reasonably in making a decision (Act 94(2), 152(1), and 100(5)). Further, an adjudicator may make an order that is just and equitable to resolve a dispute, including an order giving effect to a motion where the motion is not passed due to opposition that is unreasonable in the circumstances (Act 276, Schedule 5 – Item 10).

Conclusion

It is not contrary to the legislation for the body corporate to control the use of the body corporate notice board. The applicant has not been able to demonstrate that there is any provision of the legislation that is contravened. The applicant may be correct in making assertions to the effect that limiting access by owners to the notice board amounts to a form of censorship. However, there is no absolute right of freedom of speech and this claim does not provide any legal basis to grant the order sought.

Otherwise, the applicant’s claims could be read generally to the effect that the committee has acted unreasonably in resolving to limit access to the notice board.

A statutory requirement to act reasonably is satisfied if the decision is objectively reasonable.[1] The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.[2]

For the present application, there are a number of submissions by owners that satisfy me that it would be reasonable for the body corporate to allow all owners access to the notice board. These include submissions stressing the importance of expressing minority views and the capacity of the notice board to inform owners of all aspects of the situation. On the other hand, other submissions satisfy me that it would be reasonable for the body corporate to limit access to the notice board. These include submissions expressing concern about misleading information that has been published in the past and concerns the body corporate may be seen to be legally responsible for material published on the board. Given that both positions appear reasonable the decision is a matter for the body corporate and not a matter in which I should intervene.

Conclusion

In conclusion, the present dispute is a matter of a difference of opinion rather than a matter where the committee has come to an unreasonable decision. In the circumstances, I am not satisfied that it is just and equitable to overturn the decision of the committee and this majority decision should stand. However, there is nothing to prevent the applicant from submitting a motion to allow owners to vote in general meeting on this matter or on whether the body corporate should install an open notice board in addition to the locked notice board.

Order

For these reasons, the application is dismissed.

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[1] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.
[2] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621. See also McKinnon v Treasury [2006] HCA 45 per Hayne J at paragraph 61.