Kangaroo Court [2009] QBCCMCmr 127 (23 March 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Beverley Mort, the owner of Lot 2

I hereby order that the resolutions passed on Motions 8 and 9 by the body corporate for Kangaroo Court community titles scheme 13331 at the Annual General Meeting dated 29 September 2008 and adjourned to 6 October 2008 are void.

I further order that the application for an order by Beverley Mort, the owner of Lot 2 against the Body Corporate seeking outcomes that:

1. The adjourned Annual General Meeting held on 6 October 2008 be declared invalid and that the 2008 Annual General Meeting in lieu be convened within six weeks from the date of this order.

2. Only motions listed as Motions 1 to 7 inclusive on the agenda of the Adjourned Annual General Meeting held on 29 September 2008 be on the Agenda of the Annual General Meeting to be convened pursuant to the preceding order.

3. The resolutions passed on Motions 10 and 11 at the Annual General Meeting dated 29 September 2008 and adjourned to 6 October 2008 be set aside and declared of no effect,
is dismissed.

The scheme
“Kangaroo Court” community titles scheme is comprised of four lots and is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application made on 14 November 2008 by Beverley Mort, the owner of Lot 2 (Applicant) against the Body Corporate seeks the following outcomes:

The Applicant has named Bellborough Pty Ltd trading as P.B.C.M (PBCM) as an affected person.

The Applicant provided a copy of the notice of the Annual General Meeting set down for 29 September 2008 at 2pm which she submits complied with the regulations. The notice states the meeting will be held at the office of Body Corporate Headquarters. The Applicant states that at the appointed time, Mr Vella (owner of Lots 1, 3 and 4) and Mr Danieletto (proxy for the Applicant) were present. She argues that a quorum was present as all lots were represented and one voter was present personally (stating there are only 2 different owners). The Applicant believes the meeting was unlawfully adjourned.

The Applicant provided a letter dated 1 October 2008 written by Attilio Danieletto stating his recollection of what transpired when he attended the office of Body Corporate Headquarters at 1.55pm on 29 September 2008. The Applicant also provided a Statutory Declaration by Mr Danieletto dated 23 October 2008 declaring information about the accuracy and completeness of a document titled ‘Kangaroo Court CTS 13331 Adjourned AGM Minutes 29/09/08’.

The Applicant provided a copy of the “Minutes of the adjourned annual general meeting of the Body Corporate...held on Monday, 29 September 2008, at 2:00pm in the offices of P.B.C.M. Suite 3/30 Straithaird Road, Bundall”. These minutes note Mr Vella (Lots 1, 3 and 4) and Mr Danieletto (Lot 2) as being present and Mr Danieletto exiting the meeting at 2:15pm. The lots recorded as being represented are Lots 1, 3 and 4 present in person and by voting paper; and Lot 2 by proxy who “would not attend, would not exercise his proxy or vote by voting paper”. The minutes note a quorum was not represented and the chairperson declared the meeting adjourned at 2:30pm to be reconvened in 7 days.

The Applicant submits that given the end of the financial year for the scheme is 30 June, the annual general meeting must be held by 30 September each year. She states that if the annual general meeting is held outside this time, it is an invalid meeting unless the later time has been authorised by order of an adjudicator. The Applicant contends that since the meeting did not take place before 30 September 2008, the adjournment was after this date and consequently the purported adjourned meeting is null and of no effect.

The Applicant also provided a copy of the “Minutes of the reconvened annual general meeting of the Body Corporate...held on Monday, 6 October 2008, at 2:00pm in the offices of P.B.C.M. Suite 3/30 Straithaird Road, Bundall”. The minutes of this meeting record Mr Vella (of Lots 1, 3 and 4) as being present in person and by voting paper.

Motion 8 relating to car parking was proposed by Mr Vella and required an ordinary resolution. The minutes record the Motion: “The occupier of a lot must not – park or permit an invitee to park a vehicle or enter the premises as there is no allocation of BUP for parking” was carried by 3 votes to 0.

Motion 9 relating to prohibition of proxy was proposed by Mr Vella and required an ordinary resolution. The minutes record the Motion: “That the Body Corporate prohibit the use of proxy with the exception for family members” was carried by 3 votes to 0.

Motion 10 relating to sliding gate at the front of the property was a motion with alternatives requiring an ordinary resolution. The minutes record the Motion: “That the Body Corporate agree to install a sliding gate to the front fence of the property and that the following (attached) quotations be considered and one quotation be accepted and payment be made from the Sinking Fund”. The Motion included two alternative quotations — one for $1,628.00 and the other for $1,782.00. The notice of the meeting included a copy of the quotations. The minutes indicate the Motion was carried by 3 votes to 0 and that the quotation from A-Grade Aluminium for $1,628.00 received the highest number of votes.

Motion 11 relating to installation of a concrete pad for the front entry sliding gate required an ordinary resolution: “That subject to Motion 10 being carried, the Body Corporate agree to install a concrete pad along the front fence line to slide the gate along and that the attached quotation submitted by Barry Aafjes Bricklayer in the amount of $195.00 be accepted and payment be made from the Sinking Fund”. The minutes indicate the Motion was carried by 3 votes to 0.

The Applicant opposes the resolution passed on Motion 8 stating (in restating grounds from previous Application 0740-2005): it purports to change parking arrangements that have existed for over 25 years where residents have at all times been permitted to park their vehicles in front of their units; there are no garages so the only on-site parking is in the area at the front of each unit; and there is limited parking available outside the parcel. The Applicant believes the resolution is unreasonable. She states that to address the certainty that similar motions will persistently be submitted by Mr Vella in future, that an ancillary order be made that each lot be deemed granted exclusive use of the area in front of it for the purpose of parking a vehicle and require that a new community management statement be recorded to evidence the allocations.

The Applicant questions the reasonableness of the decision on Motion 9 stating the long standing antagonism towards her by Mr Vella is the reason she engaged a professional adviser to represent her at general meetings. The Applicant considers that it is in the best interests of the owners that she is professionally represented at general meetings. The Applicant refers to a previous dispute[1] where the adjudicator stated [at page 2]: “Even if the body corporate were to pass such a resolution in the future, Ms Mort would be entitled to seek an order of an adjudicator that the motion was void if it could be shown that its intention was simply to oppress Ms Mort or to deny her the opportunity of having a representative in person at the annual general meeting”. The Applicant states the amendment made at the reconvened meeting in relation to family members does not assist as she has no family members who live locally. The Applicant also notes the requirement under section 100(2) of the Standard Module that a motion of this nature requires a special resolution.

The Applicant opposes Motion 10 submitting a manually sliding gate would result in inconvenience to residents each time they ingress and egress in a vehicle, or alternatively would lead to additional cost to the Body Corporate to motorise the gate. The Applicant states there has not been any provision made in the sinking fund for this expenditure. The Applicant believes the expense is unjustified and unreasonable.

Submissions to the Commissioner
On 1 December 2008, the Commissioner provided a copy of the application to PBCM to firstly, make submissions regarding the application and secondly, to distribute the application 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).

PBCM
PBCM made submissions stating reconvening the meeting on the 6 October 2008, 6 days after the due date is non-compliance of minor nature caused by the actions of Mr Danieletto in electing not to attend the meeting. It states there was a quorum in the reception area of their office, but there was no quorum in the meeting. PBCM included a file note made by the managing director, Mr Perkins of his discussion with Mr Danieletto. PBCM submits that Motion 9 was not amended at the reconvened meeting and was passed by special resolution.

Mr Vella
In relation to the resolution carried on Motion 8, Mr Vella submits there was never any allocation, provision or permits authorised for parking in front of the units or anywhere else. He states parking vehicles and motorbikes have impacted the front panel inside the patios of the units and that parking in front of each unit must protrude into the patio area otherwise parking is impossible as there is not enough room without obstructing the common driveway which has caused conflict in the past between occupiers. Mr Vella says cars parked in front of each unit constitute a health hazard, make it hard to access units, and create fumes and noise straight into units as most cars back in. Mr Vella submits that he no longer allows his occupiers to park on the premises and the occupier of the Applicant’s Lot does not own a car. He states that a new community management statement has been recorded for the scheme stating the schedule 4 by-laws.

With respect to Motion 9, Mr Vella states there is a long standing history of antagonism and character assassination towards him by Mr Danieletto who makes life hard for body corporate managers. He says he is aware the Applicant has a daughter who lives in Brisbane (he included a photograph of a person standing beside a ‘To Let’ sign) and of other family members.

For the resolution passed on Motion 10, Mr Vella submits a gate will give more protection from increasing vandalism, burglaries and violence and will stop cars illegally parking on the premises.

Reply to submissions
The Applicant made a written reply to submissions to the effect that the person in the photograph is an acquaintance. She adds there is no truth to the assertion that cars have impacted the front of the units.

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 community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s 276(1), 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 Annual General Meeting satisfying the time limit for an application of this nature (s 242, Act).

Investigation
The plan of survey for the scheme — Building Units Plan 1783 — identifies the four lots in the scheme as being on Level A and B of ‘2 storey brick units’. The Plan does not indicate that a garage is included on any of the lots.

The community management statement (711931550) recorded by the registrar of titles, Department of Natural Resources and Water on 4 November 2008 includes the by-laws as in schedule 4 of the Act. Relevantly, By-Law 2 of schedule 4 states:

(a) park a vehicle, or allow a vehicle to stand, in a regulated parking area; or

(b) without the approval of the body corporate, park a vehicle, or allow a vehicle to stand, on any other part of the common property; or

(c) permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property, other than in a regulated parking area.

(2) An approval under subsection (1)(b) must state the period for which it is given.

(3) The body corporate may cancel the approval by giving 7 days written notice to the occupier.

regulated parking area means an area of scheme land designated as being available for use, by invitees of occupiers of lots included in the scheme, for parking vehicles.

On 23 February 2009, I invited the Applicant to make submissions to me about her claim that the work approved by the resolutions passed on Motions 10 and 11 was unjustified and an unreasonable expense. The Applicant responded to my invitation on 2 March 2009. On 4 March 2009, I invited Mr Vella to make submissions in response to those made by the Applicant (I choose to involve Mr Vella and not the Body Corporate given he is the owner of the other lots included in the scheme and supports the resolutions passed on the Motions). Mr Vella made submissions on 9 March 2008.

On 2 March 2008, I requested PBCM provide me with a copy of the Body Corporate roll of lots and entitlements. PBCM provided the requested documentation on 3 March 2009.

Decision
The Annual General Meeting
It is not disputed that the Annual General Meeting set down for 29 September 2008 was adjourned for the reason that a quorum was not represented within 30 minutes of the time scheduled to start the meeting. There is dispute about the presence or absence of Mr Danieletto, the proxy for the owner of Lot 2.

“A quorum at a general meeting is at least 25% of the number of voters for the meeting, except that if the number of voters for the meeting is 3 or more, 2 voters must be present personally and if the number of voters for the meeting is fewer than 3, there is quorum if at least 1 voter is present personally”: s 82(2), Standard Module.

A ‘voter’ includes “an individual whose name is entered on the body corporate’s roll as the owner of a lot” (s 83(1)(a)(i), Standard Module). The copy of the roll provided by PBCM indicates that at the date of the meeting: Samuel Vella was the owner of Lots 1, 3 and 4; and the Applicant was the owner of Lot 2. The individuals entered on the roll were Samuel Vella and Beverley Mort. The determination of a quorum is concerned with the number of voters, not the number of lots. Therefore, the number of lots owned by Mr Vella was not relevant in the determination of a quorum. Consequently, the number of voters for the Annual General Meeting set down for 29 September 2008 and adjourned to 6 October 2008 was 2. Applying section 82: 1 voter must be present personally, by proxy or by written or electronic voting paper (at least 25% of the number of voters) and 1 voter must be present personally (there were fewer than 3 voters for the meeting).

In these circumstances, the dispute about the presence or absence of Mr Danieletto and the effect this had on there being a quorum by 2.30pm on 29 September 2008 is of no consequence; the meeting could have, and should have proceeded, even if only Mr Vella was present (which is not established). I agree with the Applicant, the decision of the chairperson to adjourn the meeting for the absence of a quorum was incorrect.

A meeting adjourned on the basis of there not being a quorum “must be adjourned to be held at the same place, on the same day and at the same time, in the next week” (s 82(3), Standard Module). The minutes of the reconvened meeting suggests there was compliance with this provision. The Applicant is not concerned with this point. She is disputing the fact that the reconvened meeting was held outside the 3 month period for holding an annual general meeting (s 66, Standard Module).

The legislation does not make specific provision about the effect of an adjournment. Joske’s Law and Procedure at Meetings in Australia[2] states: “An adjournment postpones the meeting to another time, or to another time and place ... It does not close the meeting, and ... will be resumed at exactly the point it was interrupted ... An adjourned meeting for the purpose of completing the unfinished business of the previous meeting is deemed a continuation of that meeting ...” Horsley’s Meetings: Procedure, Law and Practice[3] states: “The two or more parts of an adjourned meeting comprise one meeting only. An adjourned meeting when it is resumed is a continuation of the original meeting: Scadding v Lorant [1851] EngR 699; (1851) 3 HLC 418. It is not a new meeting: Jackson v Hamlyn [1953] Ch 577 ... It has been held that, unless the rules of a body provide otherwise, the date of the original meeting is to be regarded as the date of a resolution passed at the adjourned part (that is, the continuation) of the meeting, even though this is held at a later date: Neuschild v British Equatorial Oil Co Ltd [1925] 1 Ch 346”.

It is apparent that the business transacted at the adjourned meeting was that stated in the notice of the Annual General Meeting. On the basis of the above commentary and the stated authorities, I consider the reconvened meeting was a continuation of the Annual General Meeting set down for 29 September 2008; even though it was incorrectly adjourned for the absence of a quorum. The fact that the date of the reconvened meeting was outside the 3 month period stated in the regulation is irrelevant.

For these reasons, I do not consider an order in the terms sought is warranted. The first outcome is dismissed. The second outcome is consequential to an order being made in the terms sought for the first outcome. Therefore, this outcome is also dismissed.

Motion 8
This Motion related to parking a vehicle on scheme land stating that an occupier must not park a vehicle on the premises and must not permit an invitee to park a vehicle on the premises. It would seem the Motion also proposed that a vehicle must also not enter the premises. The Motion required an ordinary resolution and was carried.

The earlier quoted By-Law 2 of schedule 4 deals with parking vehicles on common property. This By-Law applies to the scheme and is binding on the Body Corporate, owners and occupiers (s 59 and 66, Act). Relevantly, the By-Law provides that an occupier may park a vehicle on common property with the approval of the body corporate. The By-Law also contains provisions about an invitee parking a vehicle on scheme land.

Clearly, the Motion proposed regulating parking on scheme land. Significantly, the Motion proposed a way contrary to the provisions of the By-Law without proposing making a new by-law. As the by-laws are stated in the community management statement for the scheme, a change to a by-law can only have effect if the Body Corporate consents to a new statement containing the change, the new statement is prepared and then recorded by the registrar of titles, Department of Natural Resources and Water (s 54 and 62, Act). Section 81(1) of the Standard Module provides that the person chairing a general meeting must rule a motion out of order if the motion, if carried, would conflict with the by-laws. In my view, the Motion conflicts with By-Law 2 and should have been ruled out of order. As the chairperson did not do so and the Motion was passed, I consider an order in the terms sought is warranted. For these reasons, the resolution passed on Motion 8 is void.

The Applicant has asked that an ancillary order be made that each lot be deemed granted exclusive use of the area in front of the lot for the purpose of parking a vehicle and require that a new community management statement be recorded to evidence the allocations. In effect, the Applicant seeks an order that makes an exclusive use by-law that specifically identifies the common property to which it applies. Section 171 of the Act provides that a body corporate may make such a by-law by passing a resolution without dissent consenting to the recording of a new community management statement to incorporate the by-law. The Applicant has not demonstrated that the Body Corporate, in general meeting, considered and opposed such a proposal. She seeks the order “to address the now certainty that similar motions will persistently be submitted by” Mr Vella in future. However, as the Body Corporate has not been asked to consider a proposal to make an exclusive use by-law, there is no dispute with the Body Corporate: K.G. Tully & Anor. v The Proprietors The Nelson Body Corporate [2000] QDC 031 at [3]. For this reason, I have not proceeded any further with respect to the request to make the suggested ancillary order.

Motion 9
This Motion proposed prohibiting the use of proxies limiting the class of person who could be appointed as a proxy to family members. The resolution did not define whether it applied to proxies for committee members, proxies for general meetings or both.

The regulation module may, for meetings of the committee, provide for (amongst other things): whether a committee member may appoint a person to act as the member’s proxy; who may or may not be appointed to act as a proxy; the way proxies may be used; and the authority for the body corporate to prohibit the use of proxies for some or all matters (s 102, Act). The regulation module may, for general meetings, provide for (amongst other things): whether an owner may appoint a person to act as the owner’s proxy in a general meeting; who may or may not be appointed to act as a proxy; the way proxies may be used; and the authority for the body corporate to prohibit the use of proxies for some or all matters (s 103, Act).

Sections 99 to 105 of the Standard Module make provision for proxies for committee members. A voting member of the committee may appoint a proxy to act for the person at a committee meeting (s 100(1)). However, the body corporate may by special resolution prohibit the use of proxies for particular things described in the special resolution or altogether (s 100(2)). A person appointed a proxy must be another voting member of the committee (s 101(1)). The secretary or treasurer may appoint a proxy only with the committee’s approval (s 101(2)(a)). A person may be appointed the proxy of not more than 1 voting member of the committee for a meeting (s 101(2)(b)).

Sections 106 to 111 of the Standard Module make provision for proxies for general meetings. A voter for a general meeting may appoint a proxy to act for the person at a general meeting (s 107(1)). However, the body corporate may by special resolution prohibit the use of proxies for particular things described in the special resolution or altogether (s 107(2)). A proxy may be given by any person who has the right to vote at a general meeting and subject to the limitations stated in the regulation, may be given to any individual (s 108). A proxy must not be exercised at a general meeting in the circumstances stated in section 109(3). A proxy cannot be exercised for someone else by the original owner in specific circumstances, or by a body corporate manager, or an associate of a body corporate manager (s 110(2)).

The Applicant has not disputed the notice of the Annual General Meeting. On my reading, it is apparent that the Motion was decided in the terms stated in the voting paper. In my view, the question is whether the Body Corporate had the power to decide the Motion.

The abovementioned sections 102 and 103 of the Act prescribe the things the Standard Module may provide for with respect to proxies for committee members and for general meetings. I have stated the relevant provisions of the Standard Module. Significantly, a body corporate’s power to prohibit proxies is for particular things described in the resolution or altogether. I do not regard this provision as authorising a body corporate to decide who can be appointed as proxy for a committee member or an owner. In both cases, the regulation states who may or may not be appointed to act as a proxy. The regulation does not provide that a body corporate may choose the person or class of person who may or may not be appointed to act for the committee member or owner.

It would seem the parties are aware of the terms of a previous adjudication made with respect to this scheme[4] where the adjudicator stated [at page 4]: “...The second issue related to resolutions 11 and 12, headed Prohibition as proxy and Appointment of Proxy. I promptly indicated that both these resolutions were invalid and the respondent acknowledged this. Specifically, the legislation did not allow the body corporate to prohibit an owner being represented by a particular proxy...Rather, what the legislation allowed was the body corporate, by special resolution, to prohibit the use of proxies either altogether or for particular things (see section 72(2) of the standard module). The basis why the respondent sought to prevent the applicant’s proxy, Mr Danieletto, from representing the applicant was discussed. Both parties are alleging intimidation or oppression by the other. I indicated my views on this matter. The position is that subject to a special resolution being carried prohibiting proxies, then the applicant was entitled to be represented at any meeting by the proxy of her choosing. At such meeting, it was the role of the chairperson to control the behaviour of persons attending the meeting, and that all persons attending the meeting should act in an appropriate way...”[5]

In my view, the adjudicator clearly stated the boundaries relating to the Body Corporate influencing the appointment or use of a proxy for voting in general meeting. The resolution passed on Motion 9 exceeded the legislative powers of the Body Corporate with respect to the appointment of proxies. For these reasons, I have made an order in the terms sought.

Motion 10
The passing of Motion 10 authorised the installation of a sliding gate to the front fence of the scheme. The proposed position of the installation is not in dispute — the front entrance to the scheme from Leonard Avenue. Given the information stated in BUP1783, the area at the front of the scheme is common property.

The installation does not propose to replace a gate already in existence. It is something new; an addition to the common property. In my view, the proposal to install a permanent sliding gate is an improvement. An improvement includes a structural or non-structural change: “Improvement” defined schedule 6, Act. In the Body Corporate for The Phoenician community titles scheme 27745 v Herme Pty Limited BD2346/05, Judge Durward SC DCJ stated: “The meaning of the term "improvements" is to be ascertained by reference to the context in which it is used in "Part 8 - Property Management" of the module [p 43]. Part 8 proscribes matters about property management for a community title scheme ... The context is clearly one of permanency and attachment to the land or the building, rather than some merely ephemeral addition or adornment..." [p 44].[6]

A body corporate may make an improvement to common property if the improvement is authorised in a way stated in section 163 of the Standard Module. Section 163(1) provides a tiered approach to the type of authorisation required before an improvement may be made. Relevantly, section 163(1)(b) provides that the body corporate may authorise the making of an improvement by ordinary resolution if the cost of the improvement is within the “ordinary resolution improvement range” for the scheme. In this case the upper limit of the range is $8,000 (4 lots multiplied by $2000 – s 163(5)). The work approved by the resolution on Motion 10 was $1,782.00, an amount well within the above range. If a series of associated improvements forms a single project, the cost of all associated improvements must be considered (s 163(3), Standard Module). The work approved by the resolution passed on Motion 11 is, in my view, an associated improvement. However, the inclusion of this cost does not change the type of resolution required to pass Motion 10.

It is also noted that the Motion was correctly included on the voting paper as a motion with alternatives given that two quotations were submitted (s 71 and s 72, Standard Module).

The Applicant expressed concern about the sinking fund being applied to meet the costs of the improvement. A body corporate could pay for work of this nature from the sinking fund (s 139(2), Standard Module). However, as stated by the Applicant, this expenditure must be budgeted for. If it is not, the cost should be met by fixing a special contribution to be paid by lot owners (s 141(2), Standard Module). Given the minutes of the meeting, the Body Corporate did not decide to adopt a sinking fund budget for the current financial year. The minutes indicate that owners agreed not to fix a contribution to be paid to the sinking fund for the current financial year (the Applicant has not disputed this notation). The Applicant has not explained the anticipated expenditure that has been provided for in the sinking fund budget. She has not demonstrated that the monies in the sinking fund have been allocated for specific anticipated expenditures or that the money is necessary to meet necessary spending in the short-term. The Body Corporate can adjust any budget it has adopted and there is no indication that any such adjustment would, in the circumstances, be unreasonable. In my view, the Applicant has not substantiated her claim with respect to the application of the sinking fund to warrant an order in the terms sought.

The Applicant also states that the expenditure is unjustified. The fact that the Applicant may oppose the resolution or have a different opinion to the Body Corporate does not demonstrate there is a basis for a finding in the terms sought, particularly when it is evident the Body Corporate has the power to make the decision and complied with the procedural requirements of the legislation in making the decision.

However, a body corporate must administer common property for the benefit of owners and carry out other functions given to it under the Act (s 94(1), Act). The body corporate must act reasonably in anything it does under subsection (1) including making or not making a decision for the subsection (s 94(2), Act). In determining whether the Body Corporate acted reasonably in deciding Motion 10, 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 Applicant says a manually sliding gate would result in inconvenience to residents each time they ingress and egress in a vehicle, or alternatively would lead to additional cost to the Body Corporate to motorise the gate. The Applicant responded to my invitation to make further submissions on this point. She states residents will be inconvenienced every time there is a visitor as no intercom facilities are proposed and there would be no means of announcing their arrival. Ms Mort submits as there is no provision for pedestrian access, the gate will have to be opened and closed every time a person enters or leaves the complex which will result in an additional ongoing maintenance cost to the Body Corporate. She adds that there could also be an additional cost incurred to replace lost or misplaced keys. Ms Mort believes there are safety concerns about a manually operated gate. She says that the front fence line is less than a car width from the roadway and that it will be evitable that residents will enter the complex by vehicle and that when this occurs the vehicle will block the footpath while the gate is opened. Ms Mort states it is likely that residents will fail to close and lock the gate which will defeat its purpose.

At my invitation, Mr Vella responded to these submissions stating the purpose of the gate is to keep unannounced visitors such as drug pushers, illegal parking, vandals and uninvited visitors out. He submits that a sliding gate makes its easier for pedestrians to open as the entire span is not required to be opened. Mr Vella states all vehicles have to stop on a driveway before entering a property no matter what mechanism is used to open a gate and there is no need for intercom given mobile phones. He considers there is not an unreasonable cost burden on owners and savings from vandalism alone will be worth it.

The owners clearly have a difference of opinion with respect to the need for, and purpose of, a front gate. A number of the arguments advanced by both owners are, in my view, subjective. It has not been demonstrated: that residents will have difficulty opening and closing the gate or will be inconvenienced; that there will be additional costs to the Body Corporate; or that there will be safety problems. Equally, Mr Vella has not shown that the gate will keep unannounced visitors out or that indeed there is such a problem to warrant the installation of the gate. I have noted that he has mentioned an alleged vandalism and a break-in. The Applicant mentions problems locking the gate. There is nothing in the quotations or the minutes to suggest the gate will be locked. If it was locked, there could related issues for the Body Corporate such as dealing with entry by emergency vehicles. I do not agree that the use of mobile phones as a reasonable response to the question of contacting occupiers.

While there may be a variety of issues arising from the installation of a gate, I am not satisfied from the submissions made that it can be objectively concluded that the decision to install a gate is unreasonable. On balance, I am not satisfied from the arguments presented by the Applicant that the Body Corporate has acted unreasonably in making the decision on Motion 10. As I indicated above, there could be problems, particularly if the gate is to be locked. However, this is a matter for the Body Corporate to administer, manage and control in the best interests of the lot owners.

Motion 11
This Motion is related to, and subject to Motion 10. Given the determination made above with respect to the validity of Motion 10, I do not consider there is any basis to void the resolution passed on this Motion.

[1] Kangaroo Court [2004] QBCCMCmr 419 (1 September 2004).
[2] Magner Eilis S, Thomson Lawbook Co., 2007, pages 75 and 77.
[3] Lang AD, LexisNexis Butterworths, 2006, page 166.
[4] Kangaroo Court [2005] QBCCMCmr 228 (28 April 2005).
[5] On 30 August 2008, the Standard Module commenced replacing the previously applying Body Corporate and Community Management (Standard Module) Regulation 1997. Section 72(2) is the equivalent provision to the currently applying section 107(2) of the Standard Module.
[6] This decision was based on then applicable Body Corporate and Community Management (Accommodation Module) Regulation 1997. Chapter 8 of the Standard Module contains equivalent provisions to the referenced Part 8.

Number of Scheme:	13331
Name of Scheme:	Kangaroo Court
Address of Scheme:	30 Leonard Avenue SURFERS PARADISE QLD 4217

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Kangaroo Court [2009] QBCCMCmr 127 (23 March 2009)