Rainbow Regis [2008] QBCCMCmr 77 (6 March 2008)

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

I hereby order that a committee meeting for Rainbow Regis must be held within two months of the date of this order.

I further order that this committee meeting must consider whether or not to approve all of the following matters provided that they are not restricted issues for the committee:

the alterations to the clothes lines for the scheme;
the alterations to trees and shrubbery;
the removal of the bollards restricting car parking;
the installation of an outside shower;
the removal of signage;
any alterations to fencing that has not otherwise been approved; and
any authorisations to keep pets.

I further order that if any of the above matters are restricted issues for the committee then those matters must be considered at the next general meeting of the body corporate for Rainbow Regis.

I further order that if any of the matters are not approved by the committee or by owners in general meeting as applicable, then the body corporate must take all reasonable steps to rectify the issue and Keith and Jennifer Taylor, owners of lot 4, are to be excused from any costs associated with the rectification of the issue.

I further order that the application is otherwise dismissed.

Rainbow Regis Community Titles Scheme (Rainbow Regis) is a 6 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application by Keith and Jennifer Taylor, owner of lot 4 (applicants) against the owners of lots 1, 3, 5 and 6 (respondents).

The applicants say that a number of changes have been made to the building and common property without their prior knowledge. These include changes to fencing, the clothes lines, rendering, removal of bollards and signs, and changes to the gardens. The applicants have sought an order that all changes be reversed at no cost to the body corporate and that all future works be carried out in accordance with the law.

Submissions from other owners were primarily to the effect that all owners support the changes, apart from the applicants. A copy of the minutes of an extraordinary general meeting of 25 January 2008 indicated that owners had voted to approve the rendering, albeit after the rendering had commenced. These minutes also indicated that owners had approved the replacement of the side fence. However, no evidence was provided of any formal approval of a number of the matters raised by the applicants.

On 5 March 2007 I held a teleconference with one of the applicants, one of the committee members, and the body corporate manager.

From the submissions and teleconference it is obvious that most owners support various alterations that have been made to the common property over the last few months. However, it is also clear that most owners have been happy to informally agree on what should be done rather than follow legislative procedures that would give all owners the right to participate in the decision making process and allow decisions to be properly made at committee or general meetings.

Minutes of an extraordinary general meeting on 25 January 2008 indicate that the most financially significant alteration, being the rendering of the building at a cost of $19,000, has since been approved at a general meeting by a vote of five in favour and only one against. The replacement of the side fence at a cost of $2,328 was also approved at this meeting.

However, it appears more likely than not that the other matters complained of by the applicants have not been properly authorised by the body corporate as no minutes of a committee meeting or general meeting authorising these matters have been provided to this office.

The applicants are correct in seeking to insist that the body corporate follow proper procedures in making decisions. These procedures are formulated to provide all owners with notice of any significant changes proposed to the scheme as well as giving owners an opportunity to make suggestions or obtain competitive quotations for the proposed changes.

Most day to day decisions of the body corporate can be made by committee meeting. However, notice of the meeting or proposed resolution needs to be sent out prior to the decision being made (Standard Module 28(3), 35(3)). Any decisions made at the committee meeting must also be recorded in the minutes and sent to all lot owners, generally before the decision is put into effect (Standard Module 36, 37). There are similar requirements for notice of and distribution of minutes of general meetings (Standard Module 42, 59).

As discussed at the teleconference, it is possible for owners to ratify decisions at a subsequent meeting even if work was performed before a proper resolution was passed authorising the work.[1] However, any blatant or repeated actions of owners to ignore appropriate procedures to have work performed and actions of the majority to continue to rely upon a subsequent ratification are likely to result in an order appointing an independent administrator to ensure the scheme is properly administered according to law.

An adjudicator is required to make an order that is "just and equitable" in the circumstances to resolve a dispute. I am not satisfied that it is necessary or appropriate to appoint an administrator at this time. Further, the applicants’ objections in this instance are more of the nature of the failure by other owners to follow proper procedures rather than specifically in relation to the work that has been performed. Particularly as the submissions indicate that the majority of owners support the work that has been done I do not consider it just and equitable to make the order sought to the effect that the work performed be reversed at no cost to the body corporate. Rather, I will make an order requiring that the body corporate hold a committee meeting within the next month at which the issues raised by the applicants can be either resolved or set down for consideration at the next general meeting.

If the committee or general meeting fails to ratify the work in question then the work should be reversed and the applicants should be excused from any associated costs.

[1] Refer Warren v Body Corporate for Buon Vista [2007] QCA 160, de Jersey CJ, Keane JA and Holmes JA, 18 May 2007 at paragraph 12.

Number of Scheme:	14574
Name of Scheme:	Rainbow Regis
Address of Scheme:	26B Eden Avenue RAINBOW BAY QLD 4225

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Rainbow Regis [2008] QBCCMCmr 77 (6 March 2008)