Burleigh Surf [2008] QBCCMCmr 78 (6 March 2008)

Last Updated: 18 April 2008

REFERENCE: 0102-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5648
Name of Scheme:	Burleigh Surf
Address of Scheme:	Burleigh Surf Apartments, The Esplanade BURLEIGH QLD 4220

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

Joe and Roma Calabro, the Owner(s) of lot 101

I hereby declare that purported resolution of the committee for Burleigh Surf dated 25 January 2008 and purporting to grant a licence to Allegro Networks Pty Ltd is, and was at all times, void.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0102-2008

“Burleigh Surf” CTS 5648

Application

Burleigh Surf Community Titles Scheme (Burleigh Surf) is a 101 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application by Giuseppe and Roma Calabro, owners of lot 101 (applicants) against the body corporate for Burleigh Surf (respondent).

The applicants say that the committee has acted without authority to purport to authorise Allegro Networks Pty Ltd (Allegro) to install transmission equipment on the roof of the building. Orders are sought to declare void the committee meeting and disputed resolution.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the applicants, were to the effect that the committee has purported to grant a lease or licence over part of common property to Allegro but the legislation requires that any lease or licence can be only granted by special resolution of owners.

The committee was invited to make a submission on the matters raised but this office has not received any submission on behalf of the committee.

Allegro provided a submission to the effect that it has statutory and contractual rights to complete the proposed installation based upon:

• Notice being given of the proposed installation of additional equipment under clause 13 of Schedule 3 of the Telecommunications Act 1997; and
• Clause 4.2 of the Standard Site Licence Terms and Conditions providing an entitlement for Allegro to install additional equipment.
  

All owners were given an opportunity to provide written submissions. Some submissions were in favour of allowing the proposed installation to proceed, including submissions that the installation should be upheld regardless of the procedures by which the decision was taken. Other submissions opposed allowing the proposed installation to proceed, including submissions that the transmissions may be a health hazard, the installation may reduce property values, and that clause 8.1(a) of the Standard Site Licence Terms and Conditions is inappropriate as it may give Allegro the right to object to the installation of the body corporate’s own digital signal reception equipment.

The applicants’ response to the above submissions was to the effect that:

• Allegro, formerly ServiceCorpIT Pty Ltd already has the benefit of an agreement entered into in 2005 that is not being challenged. A letter dated 6 July 2005 shows that the company and the body corporate were both aware of obligations that "The Body Corporate and Community Management Act 1997 provides that any improvements to the common property must be approved by all owners at an Annual General Meeting"; and
• Allegro does have rights under the Telecommunications Act, but Allegro has neglected to mention that there are rights afforded to owner/occupiers to raise objections to the rights to enter and install. Objections can be on various grounds and lot owners have been denied their right to lodge objections as the body corporate neglected to inform owners and submit the agreement for their approval as required by the legislation. The Telecommunications Industry Ombudsman has the power to temporarily suspend works while an objection by a land owner is being determined.

Further enquires

The above submissions dealt satisfactorily with the issues raised. It was therefore unnecessary for me to carry out any further investigation of the application.[1]

Issues for determination

Applicable law

The legislation includes provisions to the effect that:

• A decision of the committee is a decision of the body corporate, except where the decision is on a restricted issue for the committee (Act, 100);
• Restricted issues for the committee include decisions to change rights, privileges or obligations of owners and decisions required to be made by ordinary resolution, majority resolution, special resolution, or resolution without dissent (Accommodation Module, 24); and
• The body corporate may only grant a lease or licence over common property if authorised by special resolution for a lease or licence of ten years or less (and resolution without dissent for a lease or licence of more than ten years) (Accommodation Module, 110).

Purported grant of licence in excess of authority

A notice dated 30 January 2008 of a purported resolution passed outside of a committee meeting on 25 January 2008 satisfies me that the committee purported to grant Allegro a licence of part of the common property roof area for a period of two years.

I am satisfied that the grant of such a licence is a restricted issue for the committee, requiring a special resolution passed by owners in general meeting and that this purported resolution of the committee is therefore not a valid decision of the body corporate (Act 100, Accommodation Module 24, 110).

This conclusion alone is sufficient to entitle the applicants to the order sought declaring the committee resolution to be at all times void.

Possible action by Allegro

Any action by Allegro against the body corporate would be outside the jurisdiction of this office and I do not intend to deal with the validity or otherwise of any statutory or contractual rights claimed by Allegro.

However, I am aware that bodies corporate sometimes encounter difficulties in defending or compromising legal claims such as those raised by Allegro due to the time frames involved in calling and holding a general meeting at which owners can consider the issues involved. If the committee wishes to call an extraordinary general meeting to allow owners to vote on whether to grant a new licence to Allegro or vote on any response to litigation threatened by Allegro then the committee may wish to lodge an application seeking an order authorising a reduced notice period for the calling of an extraordinary general meeting.

Order

I am satisfied that it is just and equitable in the circumstances to grant the above order as sought by the applicants.

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[1] Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336, Jerrard JJA, Keane JJA, Cullinane J, 9 September 2005 at paragraphs 31 and 17.