Roscommon House [2008] QBCCMCmr 469 (17 December 2008)

Number of Scheme:	11803
Name of Scheme:	Roscommon House
Address of Scheme:	44 Benson Street TOOWONG QLD 4066

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

I hereby order that the application for an order that an extraordinary general meeting be called to consider motions submitted by the applicant regarding driveway modifications and a new parking area, is dismissed.

Roscommon House Community Titles Scheme (Roscommon House) is a 16 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module).

This application is by Joseph Tunny, owner of lot 16 (applicant) seeking orders against the body corporate (respondent). The applicant is seeking to require the body corporate to call an extraordinary general meeting to consider motions submitted by the applicant regarding driveway modifications and a new parking area.

The applicant says that the body corporate initially passed a $20,000 ‘blank cheque’ to ‘repair’ the driveway at the December 2007 annual general meeting. Subsequently, at a May 2008 extraordinary general meeting, the body corporate adopted a quotation for $16,996 that involved complete replacement of the driveway and actually involved spending in excess of $20,000. No second quotation was provided as required by the legislation and no special resolution authorising the improvement was passed. The applicant says that he therefore submitted a motion proposing replacement of part only of the driveway with quotations complying with a detailed specification.

The applicant also objects to a resolution at the extraordinary general meeting that authorises the body corporate to pursue investigations with a town planner to turn the back of the building into a car park at a cost of $3,850. The applicant says that a pre lodgement meeting with the Brisbane City Council should occur before this money is spent and the applicant submitted a motion to this effect.

A response from the chairperson was to the effect that the body corporate subsequently decided to seek fixed price quotations for the driveway and that the committee was arranging a prelodgement meeting with the Brisbane City Council at a cost of $1,650.

I made further enquiries about the annual general meeting held on 4 December 2008. Minutes of this meeting indicate that 11 owners voted in favour of the body corporate accepting a quotation from Vella Builders in the amount of $23,667 for driveway rectification with only one owner voting against this motion. A comparative quotation from KD & KL Pty Ltd for $43,890 was attached for the consideration of owners but was not listed as an alternative motion. The motions that had been submitted by the applicant proposing replacement of part only of the driveway and a pre-lodgement meeting were not included on the agenda for owners to vote upon.

After the 29 May extraordinary general meeting the applicant raised legitimate concerns about the driveway and car park proposal, in particular the absence of two quotations for the driveway works. The applicant also prepared two motions for consideration by the body corporate concerning these matters. Receipt of these motions has not been acknowledged by the body corporate. However, it seems more likely than not that the motions were received by the body corporate. If the committee had not received the applicant’s motions then the committee should have made that clear upon receipt of the present application asking for an extraordinary general meeting at which the motions could be considered.

I therefore conclude that the applicant’s motions should have been included for consideration of owners at the next general meeting, being the December 2008 annual general meeting (Standard Module, 69(2)).

This apparent failure of the committee to comply with this requirement would appear to justify requiring the body corporate to hold another general meeting at which the applicant’s motions can be considered. However, an adjudicator must make an order that is just and equitable to resolve a dispute (Act, 276). In the present circumstances, events have overtaken the application. The process of making the application has resulted in submissions from the committee that it decided to arrange a pre lodgement meeting with the Brisbane City Council. Further, at the recent annual general meeting, owners have voted 11 in favour and only one against adopting a quotation from Vella Builders in the amount of $23,667 for driveway rectification. In doing this, owners have been aware of the present application. The substance of the motions submitted by the applicant has therefore effectively been considered by the body corporate and a course of action has been adopted which overtakes the particular motions in question. It would therefore not be just and equitable to require the body corporate to hold a further general meeting to consider these motions.

I note that the applicant may have some ongoing objections to the vote at the 2008 annual general meeting to adopt the quotation from Vella Builders. In particular, the applicant may have arguments that a special resolution was required and that the quotation from KD & KL Pty Ltd for $43,890 should have been listed as an alternative motion rather than simply provided for consideration by owners. However, the courts have recognised that the very detailed provisions of the regulations make it almost inevitable that from time to time there will be non-compliance with the legislation. Non-compliance of an insubstantial nature should not be allowed to imperil the actions of bodies corporate.[1] In this instance, the large vote in favour of the driveway rectification satisfied the requirements of a special resolution and two quotations were available for consideration by owners. I therefore do not consider it just and equitable to make any ancillary orders in relation to the present application.

The orders sought by the application have effectively been overtaken by subsequent actions of the committee and a further resolution passed at the December 2008 annual general meeting. In the circumstances, the application will be dismissed.

[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Roscommon House [2008] QBCCMCmr 469 (17 December 2008)