No. 9 Port Douglas Road [2009] QBCCMCmr 107 (16 March 2009)

Last Updated: 29 April 2009

REFERENCE: 0919-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24368
Name of Scheme:	No. 9 Port Douglas Road
Address of Scheme:	9 Port Douglas Road PORT DOUGLAS QLD 4877

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Maxwell Stainlay, the owner of Lot 17

I hereby order that the resolutions passed on Motions 4 and 5 at the Extraordinary General Meeting of the body corporate for No. 9 Port Douglas Road community titles scheme 24368 dated 29 July 2008 are void. I further order that the Body Corporate can only charge Maxwell Stainlay, the owner of Lot 17 for the supply of a pay television service to the Lot if he agrees to the supply of the service in accordance with section 167 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008. I further order that Mr Stainlay informed the Body Corporate on 16 April 2008 that he no longer agreed that the Body Corporate supply a pay television service to Lot 17. I further order that from 16 April 2008, Mr Stainlay was not liable to pay a contribution to the Body Corporate for the supply of a pay television service to Lot 17, and within one month of the date of this order, the Body Corporate must reimburse Mr Stainlay any contribution he has paid relating to the supply of the pay television service to Lot 17 from 16 April 2008 to the date of this order. I further order that unless an agreement is made with Mr Stainlay, the Body Corporate must at its own cost, as soon as practicable, and in accordance with the provisions of this order and the Body Corporate and Community Management Act 1997 have work carried out to establish utility infrastructure to supply free-to-air television to Lot 17 that is not dependent on the supply of pay television to the Lot and must disconnect the supply of the pay television service to Lot 17. The Body Corporate must not disconnect the supply of the pay television service to Lot 17 until it ensures the Lot is supplied with free-to-air television independent of the pay television service. Mr Stainlay is not liable to pay for the supply of pay television to Lot 17 from the date of this order to the date the Body Corporate establishes utility infrastructure that supplies free-to-air television to the Lot and disconnects the supply of pay television to the Lot. I further order that in all other respects, the application by Mr Stainlay is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0919-2008

“No. 9 Port Douglas Road” CTS 24368

The scheme
“No.9 Port Douglas Road” community titles scheme 24368 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).

Application
This application dated 27 October 2008 is by Maxwell Stainlay, the owner of Lot 17 (Applicant) against the Body Corporate seeking the following outcomes:

1. That the resolutions on Motions 4 and 5 purported to be carried by the Body Corporate at the Extraordinary General Meeting dated 29 July 2008 (2008 EGM) are invalid and of no effect.
2. The Body Corporate can only supply pay television services on the basis set out in section 167 of the Accommodation Module.
3. That the Applicant cannot be charged for pay TV services unless he agrees to the provision of the service in accordance with section 167 of the Accommodation Module.
4. That as the Applicant is not agreeable to the provision of pay TV services, the Body Corporate may engage some means of "blocking" for the provision of pay TV services to the Applicant's Lot without cost to the Applicant.
5. At all times the Body Corporate must maintain the free-to-air service to the Applicant’s Lot.
6. That the Applicant be refunded all monies paid by him as part of administration fund levies for the provision of pay TV services or in the alternative such refund can be credited to his administration account fund.
7. That the Body Corporate issue new administration fund levies deleting all references to charges for pay TV.
   

The Applicant provided a copy of the minutes of the 2008 EGM relevantly stating:

3. Rescind Motion 4 of Extraordinary General Meeting Ordinary Resolution

held 20/08/2003

Submitted by the committee

That the body corporate rescind the following motion 4 of the Extraordinary General Meeting held on the 29/08/2003;

Austar Television Subscriptions – Ordinary Resolution

Resolved that the Body Corporate pays for the subscriptions costs to Austar Television.

Resolved that motion 3 be carried Yes 16 No 1 Abstain 1

4. Provision of Austar Services by the Body Corporate Special Resolution

Submitted by the committee

That the body corporate be entitled to provide an Austar service to the owner/s of lots in the complex, and be entitled to recover the cost of the monthly subscription fee by adding such cost as a debt to the owners lot, provided that the owner/s of the lot enter into a section 118 agreement with the body corporate for the supply of such service.

In the event that owner/s do not wish to enter into a section 118 agreement for the provision of this service by the body corporate, the body corporate will at its cost, isolate the lot from the Austar service by removing the cabling running to such lot.

Resolved that motion 4 be carried Yes 11 No 6 Abstain 1

5. Provision of free to air TV service by the Body Corporate Special Resolution

Submitted by the committee

That the body corporate be entitled to provide a free to air TV service to the owner/s of lots in the complex, and be entitled to recover the cost of the installation of aerials and cabling for such service by adding such cost as a debt to the owners lot, provided that the owner/s of the lot enter into a section 118 agreement with the body corporate for the supply of such service.

In the event that the owner wishes to enter into this service the body corporate will also seek to recover the costs of the disconnection of the Austar service from the lot owner.

Resolved that motion 5 be carried Yes 13 No 4 Abstain 1

The Applicant states Motions 4 and 5 are ultra vires the powers of the Body Corporate and are in conflict with section 167 of the Accommodation Module. He says the Body Corporate cannot charge the owners of individual lots for pay television unless an agreement has been entered into under the section. The Applicant submits the Body Corporate has an obligation to supply free-to-air television and cannot remove the existing free-to-air television service connected to Lot 17. He says Motion 5 is of no effect as the infrastructure for the existing free to air service is in existence and paid for.

The Applicant provided a copy of an email he sent to the Commissioner on 14 April 2008 asking for information about this issue and stating that the Body Corporate supplies all units with regular and pay TV services. He provided a copy of an email he sent to Sarah Eury and the committee on 16 April 2008 referring to information he received from the Commissioner and stating: “...It is my request, from this date, for the disconnection of Austar Pay TV services from my Lot (17) with continued maintenance of normal free to air TV service. I do not agree to the supply of this service. It is also requested that the cost of this service as per the Admin Fund Budget for 2008 ($5,000.00) $92.59 per Lot entitlement x 5 (Lot 17) = $462.96 is deducted from my B/C levies and new levy notices reflecting the change be issued...” The Applicant also provided a copy of an email he sent to Sarah Eury (secretary) on 6 May 2008 stating: “Could you please advise what action has been taken with regard to my request of the 16th April 2008 ... The Austar service is still being supplied despite my request and I take no further responsibility for payment thereof. It is noted that the new levy notice has been issued without the deduction of the Austar fees. I request that a new notice be issued reflecting the change prior to payment (due 1/6/08)...”

Submissions to the Commissioner
The Commissioner provided a copy of the application to Body Corporate Services (Body Corporate Manager) for distribution to the owner of each lot (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

The owners of Lots 1 and 12 submitted Motions 3 to 5 were passed in good faith. They say: Motion 3 reversed a Body Corporate decision made in 2003 that it pays Austar subscriptions from administrative levies; Motion 4 allowed the Body Corporate to provide pay TV services to agreeable owners in accordance with section 167; and Motion 5 allowed the Body Corporate to provide free-to-air TV services to owners who did not take up the pay TV service which is allowable under section 167. They say that if an owner seeks to receive only free-to-air TV, new infrastructure (i.e. antenna) would be required. It is submitted that before the Motions were submitted, Craig Wicks (caretaker) contacted Austar regarding isolating individual lots from the pay TV service. They provided a copy of an email from Tyson Falzon of Austar dated 24 June 2008 stating: the installation “was completed in approx 2003 there was no provision for removal of units from the distribution system for the AUSTAR service. Once the cable is disconnected from a unit it will lose AUSTAR as well as the FTA (free to air) signal. The only way to isolate these rooms from your package is to upgrade the building with a parallel trunk which would require a detailed site survey. Subsequently there will be installation charges for this. I am unable to give you a firm installation price but you can budget up near a few thousand dollars”. They say that given this email, it was understood Motions 4 and 5 would be the most cost effective for all owners. Mr Wicks and Mr Fair submit it is understood the Body Corporate is under no obligation to supply any television service given section 167(1)(b).

The owner of Lot 15 made a late submission stating they were away for three and a half weeks. As the Applicant received a copy of the submission before replying to submissions, I have accepted the submission. The owner submits when the Applicant purchased Lot 17 over four years ago he was aware of the arrangement relating to the supply of pay TV and has been paying the levies since 2004 without problem.

The Applicant made a written reply to submissions stating he had no option when purchasing the Lot but to accept the arrangements in place. He says the Austar service was introduced after Motion 4 at the Extraordinary General Meeting dated 29 August 2003 (2003 EGM) was passed, and that the costs were paid as an administration cost according to lot entitlements. The Applicant states the Austar service was plumbed into the existing free-to-air TV service (infrastructure provided during construction) and that the free-to-air service would be permanently disconnected given the resolutions on Motions 4 and 5 at the 2008 EGM if the Austar services are isolated by the removal of cabling to units not requiring the service. The Applicant states Austar does not own the infrastructure for free-to-air distribution.

Adjudication
A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

The application was made within 3 months of the 2008 EGM satisfying the time limit for an application that includes an outcome proposing voiding a resolution passed at a general meeting (s 242, Act).

Investigation
An adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application (s 269(1), Act). An adjudicator’s investigative powers are stated in section 271 of the Act.

A search of the records of the Land Registry, Department of Natural Resources and Water shows that the scheme was established on 24 October 1997 when the registrar of titles registered Building Units Plan 106455 (s 334, Act).

On 22 January 2009, I invited the Body Corporate to make submissions explaining the basis for requiring special resolutions on Motions 4 and 5. The Body Corporate was also invited to make submissions in relation to: the infrastructure in place for the supply of a television service to lots included in the scheme when the scheme was established in 1997; the infrastructure in place for the supply of a television service to lots before the pay TV service commenced; the infrastructure installed (and the work carried out) to commence the supply of the pay TV service to lots; and any other work carried out by the Body Corporate to infrastructure relating to the supply of television to lots since the pay TV service commenced. I requested the Body Corporate to provide: a copy of the minutes of the 2003 EGM; information showing the pay TV subscription costs incurred by it; information about how owners paid these costs; and information indicating the payments made by the Applicant towards these costs.

On 30 January 2009, Mr Hurst (secretary) submitted on behalf of the Body Corporate:

• The original master antenna television (MATV) infrastructure has been in place for the supply of free-to-air television services to all lots since establishment in 1997.
• The original infrastructure included a rooftop antenna, a coax cable that ran to the office of the resident manager where the signal was split into the individual channels and where additional signals from video recorders were added into the system, and then cables distributed the television signals throughout the building.
• Austar required fitment of a rooftop dish, additional coax cable to the manager’s office, decoder box, additional modulators for each pay television channel and connection to the existing MATV system.
• An additional modulator was added to allow reception of a free-to-air channel that moved frequency about 5 years ago.
• The problem arises if one owner wishes to remove Austar as multiple units are connected to each riser cable and there is not an individual cable running to each unit from the manager’s office.
• Austar has a policy to prevent fitting a signal blocking filter to each unit that does not want Austar as the filter can be disconnected and pay television accessed without payment.
• The only way to retain Austar and remove an owner from the MATV system is to install a separate free-to-air antenna and re-cable the unit. Access to run additional cabling throughout the complex is near impossible and it would be very costly to upgrade the MATV system to allow individual units to have a choice of free-to-air and/or pay television.
• The Austar subscription for the year ended 30 November 2008 was $5,201.75. The previous year it was $4,796.40. The amount forms part of the administrative fund. The Applicant has contributed towards the subscription in his levies.

Mr Hurst provided a copy of the minutes of the 2003 EGM indicating that the Body Corporate resolved by ordinary resolution: to install Austar at a cost of $2,318.30 (Motion 3); and to pay the subscription costs to Austar (Motion 4).

On 2 February 2009, I invited the Applicant to make submissions in response to the above submissions from the Body Corporate. The Applicant responded stating the Body Corporate did not have the power to remove the free-to-air infrastructure and replace it with pay TV infrastructure and saying each owner should be able to choose whether that person wants to access pay or free-to-air TV. He submits an owner should not be forced to pay for services not wanted and the Body Corporate has a regulatory obligation to allow owners freedom of choice.

On 10 February 2009, I requested the Body Corporate Manager provide a copy of the notice of the 2008 EGM, which the Manager provided on the same date. On 19 February 2008, I requested a copy of the notice of the 2003 EGM. On 5 March 2008, the Body Corporate Manager informed me the notice of this meeting could not be found in the records.

Decision
Applicable regulation module
At the time the 2008 EGM was held, the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Previous Regulation) applied to the scheme. On 30 August 2008, the Accommodation Module commenced and the Previous Regulation was repealed. Anything done under the Previous Regulation is not affected by its repeal and the commencement of the Accommodation Module (s 208-214, Accommodation Module). The determination of this dispute, in so far as it relates to the 2008 EGM, is not affected by the new regulation (s 20, Acts Interpretation Act 1954).

Original infrastructure
A television service is a “utility service” (defined, schedule 6, Act). Cables, wires, plant and equipment by which lots are supplied with utility services is defined in schedule 6 as “utility infrastructure”. “Common property for a community titles scheme includes all utility infrastructure forming part of scheme land, other than ... utility infrastructure ... that is solely related to supplying utility services to a lot; and within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and located other than within a boundary structure for the lot”: (s 20(1)(b), Act).

Mr Hurst has described the MATV signal distribution system in place since 1997. On the basis of this description and in the absence of contrary information about ownership of infrastructure, common property includes the original rooftop antenna, coax cable and other original infrastructure distributing television signals throughout the building. It is apparent that before Austar was installed in 2003, this common property infrastructure supplied a free-to-air TV service to each lot included in the scheme.

A body corporate must administer common property for the benefit of lot owners and carry out other functions given to the body corporate under the Act (s 94(1), Act). A body corporate has all the powers necessary for carrying out its functions and has the other powers given to it under the Act (s 95, Act). A body corporate’s duties about common property include administering, managing and controlling the common property reasonably and for the benefit of lot owners (s 152(1), Act).

2003 EGM
The decision to install Austar was made at the 2003 EGM. While the body corporate made this decision, there is nothing to suggest that it resolved to discontinue supplying the original and existing free-to-air service. I do not consider this could be implied from the resolutions passed on Motions 3 and 4 at this meeting.

While the resolution passed on Motion 3 approved the installation of Austar, it did not explain how the installation would occur. I sought a copy of the notice of the 2003 EGM for the purpose of discovering if it contained any explanation about the installation. Despite the efforts of the Body Corporate Manager a copy of the notice could not be located. It is evident from submissions that infrastructure to establish the Austar TV service was added to the original infrastructure. Significantly as a consequence of this work, the supply of a free-to-air TV service to each lot became dependent on the supply of the pay TV service to the lot. It has not been argued that this work was performed to for example, maintain the supply of free-to-air TV to lots. Free-to-air supply could have continued without the supply of pay TV.

As indicated by the resolution passed on Motion 4, owners were expected to pay for the supply of pay TV through the budgeted contributions as the Body Corporate had assumed responsibility for the installation of the infrastructure and for the cost of the ongoing supply of the service. In resolving and implementing the resolution on this Motion, the body corporate acted contrary to section 158 of the Act and the then applicable section 118 of the Previous Regulation. The Body Corporate’s power to supply the service is derived from section 118 (renumbered as section 167 in the Accommodation Module). Section 118(2) provided that the “body corporate may, by agreement with a person for whom services are supplied, charge for the services (including for the installation of, and the maintenance and other operating costs associated with, utility infrastructure for the services), but only to the extent necessary for reimbursing the body corporate for supplying the services”.

The effect of these resolutions was that all owners would be liable for, and would contribute to the cost of the Austar service on the basis of their lot entitlements, not on the basis of the cost of supply. It would seem owners would have had to pay contributions whether or not their lot was supplied with pay TV. There is nothing to suggest that the Body Corporate gave any consideration to an owner wanting to retain, or to subsequently revert back to the existing free-to-air TV supply. Since 2003, the only TV service available through the common property infrastructure has been the Austar service.

Obligation to supply a television service
In Edmondstone Lodge [2008] QBCCMCmr 326 (12 September 2008), the adjudicator resolved a dispute involving similar circumstances — the body corporate had arranged for the installation of infrastructure for a pay TV service; this infrastructure was added to existing infrastructure that supplied free-to-air TV to lots; there was claimed to be no practical method to block the supply of pay TV to a particular unit; and the only way claimed that it might be achieved is if the entire building was re-cabled at prohibitive expense.

In determining the dispute, the adjudicator stated [at pages 10 and 11]: “The difficulty arises in that owners are legally entitled to opt out of receiving the service but the type of cable installed in the building leads to practical difficulties in allowing owners to do so ... This then leads to the possible difficulty for owners who do not want the Foxtel service getting reception of “free- to-air” TV. A body corporate is under no duty to supply TV infrastructure to any lot, but if by the addition of the Foxtel service, the body corporate has taken away an existing ability to receive free-to-air TV, then the body corporate should replace or supply any necessary existing infrastructure. If however, there has never been separate infrastructure for “free-to-air” and the TV service has always been delivered through a cable network, then any owner who wises (sic) to opt out of receiving TV via cable, must make arrangements for reception of free-to-air TV...”

I consider the circumstances of Edmondstone Lodge are substantially similar to those evident in this dispute. I agree with the conclusions reached by the adjudicator, especially with respect to a body corporate’s general obligations about maintaining infrastructure to supply free-to-air TV to lots included in the scheme. In this case, even though the Body Corporate decided to carry out work to connect the scheme to a pay TV provider, in the absence of any proper decision otherwise, it remained obligated to ensure that each lot could access free-to-air TV independent of the pay TV service. The fact that the Body Corporate did not maintain separate access to free-to-air television and that for approximately 4 to 5 years there may not have been any challenge from an owner or occupier does not affect this obligation.

It would seem the disputed Motions 4 and 5 at the 2008 EGM sought to formalise arrangements relating to the supply of a TV service to lots included in the scheme.

Motion 3 – 2008 EGM
While the resolution passed on this Motion is not being disputed, it is relevant that the Body Corporate rescinded the 2003 resolution to meet the Austar subscription costs from budgeted contributions.

Motion 4 – 2008 EGM
Motion 4 proposed authorising the Body Corporate to supply a pay TV service under section 118 of the Previous Regulation and sought to deal with disconnecting a lot from this service should the owner not enter into agreement under section 118.

The Motion was listed on the voting paper as requiring a special resolution. The legislation prescribes the matters to be decided by particular resolutions, including a special resolution. In my view, the reason for requiring a special resolution is not apparent. I am not aware of a legislative provision requiring this type of resolution before offering a section 118 agreement to owners or occupiers of lots, or in all cases before common property infrastructure is removed. As it was not apparent to me why a special resolution was required, I invited the Body Corporate to make submissions to me on this point. The Body Corporate did not respond to this invitation. The Applicant did not make any comment on this issue in response to my invitation.

If it was demonstrable that the Motion required a special resolution, the minuted votes cast indicates the Motion was not passed by special resolution. A motion is passed by special resolution only if: “at least two-thirds of the votes cast are in favour of the motion” and “the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme” and “the total number of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme” (s 106(3), Act). A motion will be lost if any one of these three elements is not satisfied. The minutes indicate the votes for the Motion were 11 and the votes against it were 6. Nothing has been presented to dispute these votes. The votes cast totalled 17 (an abstention is not a vote cast). At least two-thirds of 17 is 11.3. The 11 votes for the Motion do not satisfy the “at least two-thirds” criteria. On this basis the Motion must fail. The Motion would also fail if the second element is considered — at least 25% of the 18 lots included in the scheme is 4.5. If the Motion had been properly declared lost, there would have been no reason for the Applicant to question the validity of the resolution. In my view however, there is nothing to suggest anything other than an ordinary resolution was necessary and that on the basis of counting of votes for this type of resolution, the Motion was passed.

The first part of the Motion relating to entering into section 118 agreements should have been implemented in 2003. I do not consider there is an issue with this part of the resolution. The Body Corporate intends to continue to offer the supply of a pay TV service for the benefit of owners and occupiers. A body corporate could, under section 118, enter into an agreement to supply a TV service. This power has not changed under section 167 of the Accommodation Module. It would seem the Applicant is not disputing this aspect of the resolution which would seem to be in terms comparable to the second outcome being sought.

The second part of the resolution deals with disconnecting a lot from Austar where an owner does not enter into an agreement. The effect of this part of the resolution is that in the event an owner does not wish to continue to be supplied with Austar, the Body Corporate will remove “the cabling running to such lot”. While it could be argued a body corporate has the power to make this decision, a body corporate must administer the common property for the benefit of lot owners (s 94(1), Act). A body corporate must act reasonably in anything it does under section 94(1); including in making or not making a decision for the subsection (s 94(2), Act).

In determining whether the Body Corporate acted reasonably in deciding Motion 4 it is appropriate to consider if the decision is objectively reasonable: Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’: 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 p61).

The established circumstances in this case are: free-to-air TV was originally supplied to all lots via common property infrastructure; in 2003 the Body Corporate decided to install Austar; the infrastructure to supply Austar to all lots was connected to the original infrastructure; this work removed the capability to have free-to-air TV supplied to a lot independent of Austar; and there is no evidence that the Body Corporate properly decided to discontinue the supply of a discrete free-to-air TV service to lots.

The effect of the resolution passed on Motion 4 is that an owner either had to agree to the Motion and to continue to be supplied with TV services, or risk losing access to common property infrastructure and to the supply of any TV service. The removal of cabling would not only disconnect the pay TV service; it would disconnect access to any TV service. This circumstance has arisen because in 2003 and without any proper authorisation, the Body Corporate modified utility infrastructure without making alternative and appropriate arrangements to enable each lot to continue to have access to free-to-air TV independently of the installed pay TV supply. Given the configuration of the original infrastructure, especially the fact that multiple lots received a TV signal from common property infrastructure, the Body Corporate, acting reasonably should have considered the consequences of adding the pay TV service, including how to manage common property in the event an owner/occupier wanted to continue to only have access to free-to-air TV, or wanted to revert back to free-to-air TV only. It may be argued that the following Motion 5 proposed an offer of alternative supply. The resolution passed on this Motion is discussed below.

In these circumstances, I do not consider the Body Corporate has acted reasonably in making the decision on Motion 4. For these reasons, I have voided the resolution passed on the Motion.

Motion 5 – 2008 EGM
Motion 5 also sought a special resolution and was passed on the minuted votes. As with Motion 4, the Body Corporate did not respond to my invitation to make submissions explaining the basis for requiring a special resolution. The Applicant did not make any comment on this issue. It would seem the Motion only required the lesser ordinary resolution. On the basis of the minuted votes cast, the Motion was passed by ordinary resolution.

The resolution on the Motion firstly sought authorisation to provide a free-to-air television service. As I have already indicated, the provision of this service was incorporated into the original infrastructure and the Body Corporate has not properly authorised its removal. As argued by the Applicant, infrastructure to supply this service should still be available to the occupier of each lot included in the scheme, despite the work carried out in 2003 and the resolutions passed at the 2003 EGM. There is no justifiable basis for the Body Corporate to now propose to remedy the problem caused in 2003 by offering the supply of free-to-air TV to a lot/s only if the owner/s paid for the installation of the necessary infrastructure. As I stated earlier, given the configuration of the original infrastructure, it would have been reasonable for the Body Corporate to consider the consequences of adding the pay TV service. It is evident from the 24 June 2008 email from the Austar representative that no provision was made for the removal of lots from the Austar system. The fact that the Body Corporate did not give consideration to this issue in 2003 is significant.

In my view, in the absence of any proper arrangement in 2003, the additional cost to cover the circumstance now before the Body Corporate should have been incurred by it at the establishment of the pay TV service. The 24 June 2008 email from the Austar representative provided a way to access free-to-air TV in isolation of pay TV. It is not the fault of a lot owner or occupier wanting access only to free-to-air TV that there is difficulty in isolating the person’s lot. In the circumstances, the Body Corporate could not reasonably have considered that owners would always be willing to pay for a TV service and not want to revert back to the original free-to-air supply. It should have contemplated the circumstance where an owner or occupier wanted access only to the originally supplied free-to-air TV service. For deciding the validity of the resolution, it is not relevant that the Applicant was aware of the pay TV arrangement when he purchased a lot in the scheme.

It could also be argued that the resolution is ambiguous about how it will be implemented. For example, there is no information about how a free-to-air service would be supplied. Would work be carried out to supply free-to-air TV only to a particular lot on a case-by-case basis? What work would be proposed? Would initial work be carried out to supply free-to-air TV to other lots included in the scheme to accommodate other owners or occupiers who may decide not to have pay TV supplied to their lot? Who would pay for the initial work and infrastructure that may, over time, be used by other owners? I could not locate any explanation about the conditions of any such agreement in the notice of the 2008 EGM. The extent of the uncertainty about the effect of the resolution casts doubt on its validity.

For these reasons, I have voided the resolution passed on Motion 5.

Outcome 2
I do not consider there is any dispute about supplying pay TV services in any way other than as currently stated in section 167 of the Accommodation Module. The Body Corporate has sought to do so under the contested Motion 4 at the 2008 EGM. The fact that I voided the resolution passed on the Motion does not, in my view, necessitate a consequential order of the nature being sought. There is nothing submitted to indicate that the Body Corporate does not intend to comply with section 167. While the Body Corporate will need to now properly consider implementing a section 167 arrangement to ensure that the pay TV service is supplied for the benefit of owners and occupiers in accordance with the legislation, I do not consider an order is warranted in the circumstances. For these reasons, the outcome sought is dismissed.

Outcome 3
The Applicant clearly no longer agrees to being supplied with the pay TV service. He has demonstrated that on 16 April 2008 he requested disconnection from the pay TV service. The Body Corporate has not contended that it did not have notice of this advice. However, it has not demonstrated that it has acted in response to the request and disconnected the service. It would seem that the difficulty in doing the disconnection is related to the configuration of the infrastructure. I do not consider it is the fault of the Applicant that the service has not been disconnected.

Even though he may have received the benefit of the continuing service, for the reasons I have stated I do not consider he is liable to be charged for the use of a service he clearly no longer wants. In my view, an order is warranted in the terms sought.

Outcome 4
This outcome is a solution offered by the Applicant to disconnect the service. However, I do not consider an order should be made in these specific terms. It is a matter for the Body Corporate to decide, possibly in consultation with Austar and/or other persons with appropriate qualifications or expertise how the disconnection can occur. Given that the Body Corporate has not agreed with the Applicant how the costs of disconnection would be apportioned, I consider the Applicant is not responsible for any costs to disconnect the supply of pay TV to Lot 17. Further, the Applicant is not liable for any charge for the supply of pay TV to Lot 17 during the period it takes the Body Corporate to comply with this provision of the order.

Outcome 5
In the circumstances, I consider the Body Corporate is currently (and has always been) obliged to maintain infrastructure to enable each lot included in the scheme to be supplied free-to-air TV independent of the supply of pay TV. However, I do not consider an order in the terms sought is warranted. The dispute relates to the Applicant being supplied with free-to-air TV and there is reason to order the Body Corporate ensure such a service is supplied to Lot 17. While the Body Corporate made need to give consideration to the supply of a free-to-air TV service to other lots, this dispute is limited in its scope to the supply of free-to-air TV to Lot 17. I have not put a timeframe on this work as it may be dependent on the cost of the work and the authorisation required to have the work carried out. However, I have ordered that until such time as supply is provided, the Body Corporate must not disconnect the supply of the pay TV service to Lot 17 and that the Body Corporate is to bear any cost to supply this service to Lot 17 from the date of this order until a free-to-air service is supplied to the Lot.

Outcome 6
As I suggested earlier on page 5, the resolution passed on Motion 4 at the 2003 EGM was not only contrary to the legislation, but had the potential to create problems if an owner wanted to no longer be supplied with the pay TV service.

While it is not evident that the resolution has been challenged, I am of the view its effect — possibly until the passing of the resolution on Motion 3 at the 2008 EGM — should be considered in the context of the circumstances. In this case, the Applicant clearly requested the disconnection of the pay TV service and a consequential deduction on the contributions paid to the Body Corporate. I do not consider the effect of the resolution or the continued supply of the pay TV service outweighs the Applicant’s right to a claim of the nature stated in this outcome.

The Applicant seeks reimbursement of all amounts paid by him for the supply of pay TV to Lot 17. Other than his demonstrated desire to have the service disconnected in 2008, it would seem the Applicant is relying on the absence of a section 118 agreement for seeking this outcome. However, I consider these arguments need to be balanced against the fact that the Applicant had the benefit of the service for some years before informing the Body Corporate that he wanted the service disconnected. It could be argued that given the period he had the benefit of supply of the service without complaint, that his actions constituted agreement to be supplied with the service.

In my view, even though the resolution was not rescinded until July 2008, the appropriate outcome is that the Applicant be reimbursed for any proportion of a contribution paid by him to the Body Corporate from 16 April 2008 that relates to the supply of the pay TV service. This is the date he has demonstrated he informed the Body Corporate that he wanted the service disconnected. It has not been suggested that the Body Corporate did not receive the notice. In the absence of any agreement, there cannot be any terms relating to for example, the amount of notice to be given by an owner/occupier to disconnect the service. The fact that the service was not disconnected or that the Applicant received the benefit of the service after this date is irrelevant.

For these reasons, I have made an order limited to the proportion of the contributions paid by the Applicant relating to the supply of pay TV to Lot 17 since 16 April 2008.

Outcome 7
The Applicant seeks an outcome that administrative fund levies not include a charge for the supply of pay television. I have already made adequate provision for this outcome above. I do not consider a further order in the terms sought is warranted. The outcome sought is dismissed.