Wilanga [2009] QBCCMCmr 14 (19 January 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Wilanga

I hereby order, by consent, that the Body Corporate for Wilanga and Kathryn Hillman and Jason Pickersgill, the Owners of Lot 7, having reached a conciliated settlement of their dispute on 18 December 2008, and having signed an agreement setting out the terms of settlement and requesting that a consent order be made by an adjudicator, must abide by those agreed terms which are set out below:

The parties agree that the planter boxes have been removed and the co-owner of Lot 7, Jason Pickersgill, agrees that they will not be re-instated without written approval of the Body Corporate; and
The parties acknowledge that the special resolution passed at the Annual General Meeting in 2005 relating to the shutters is a valid resolution; and
The parties acknowledge that the special resolution passed at the Annual General Meeting in 2005 granted approval for the owners of Lot 7, Jason Pickersgill and Kathryn Hillman, to install white 6-panel bi-fold shutters to the balcony of Lot 7; and
The parties agree that the owners of Lot 7, Jason Pickersgill and Kathryn Hillman, will remove the currently installed 4-panel bi-fold shutters and replace with the approved 6-panel bi-fold shutters; and
The parties agree that the replacement of the shutters will be completed by 30 June 2009; and
The parties agree that the cost of installation and ongoing maintenance of the replacement shutters will be borne by the owners of Lot 7, Jason Pickersgill and Kathryn Hillman.

I further order that the carrying out of the above terms must be in accordance with the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Standard Module) Regulation 2008.

Wilanga community titles scheme 10016 (Wilanga) consists of 16 lots and common property. The community management statement (CMS) that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 5179.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), an application for conciliation[1] was made by the Body Corporate for Wilanga (applicant) on 3 November 2008, pursuant to a committee resolution dated 21 October 2008. The applicant sought the following outcomes against the Kathryn Hillman and Jason Pickersgill, Owners of Lot 7 (respondents):

1. The four panel bi-fold shutters to be removed from Lot 7 & replaced with six panel bi-fold shutters once written application for the six panel bi-fold shutters has formally been approved by the body corporate committee

2. The planter boxes, which are mounted to the balcony railing of Lot 7, to be removed.

The application relates to the installation of bi-fold shutters and planter boxes in Lot 7. The Body Corporate asserted that the installations were contrary to By-law 22, which requires written consent of the Body Corporate to perform any works or erect any structure on the lot which will alter the external appearance of the scheme. The Body Corporate was concerned that the planter boxes, which were installed on the external side of the balcony handrail overhanging a common walkway, were a safety hazard and altered the external appearance of the building. It was also concerned that the bi-fold shutters were four-panel, rather than six-panel elsewhere in the scheme, altering the appearance of the scheme. On 8 December 2005 an Annual General Meeting (AGM) for the scheme had passed a special resolution approving the installation of 6 panel bi-fold shutters on balconies. The motion ratified an installation in Lot 11, referred to proposed installations in Lots 7, 10 and 14, and included a note that future installations were to be the same width and colour.

On 18 December 2008 the Commissioner’s Office conducted a conciliation session between the representatives of the applicant and the respondents to assist in the resolution of this dispute. I have been informed by the Conciliation Service that the persons attending the conciliation as representatives of the Body Corporate, Melissa Argent and Caroline Manthey, were authorised as agents for the Committee pursuant to section 252G of the Act. The parties reached agreement in regard to the matters in dispute, and requested that the terms of their agreement be referred to the Commissioner for Body Corporate and Community Management for a consent order.

The conciliation agreement was referred to the Acting Commissioner as requested by the parties and in turn has been referred to me for consideration of a consent order.

Where a conciliation agreement is signed by a committee voting member authorised as agent for a body corporate under section 252G of the Act and the parties consent to the agreement being referred to an adjudicator for a consent order, certain requirements must be met. Section 252J of the Act requires that within 30 days after the agreement is made the body corporate must provide notice to the Conciliator that the committee has ratified the agreement, that it has given a copy of the agreement to each lot owner, and that it has not received a notice of opposing the agreement which has been signed by or for the owners of at least half the lots in the scheme.

On 13 January 2009 the Body Corporate provided confirmation that these requirements had been met. On 21 December 2008 the Committee ratified the outcome and decisions of the Committee’s authorised agents. On 22 December 2008 a notice was issued to all owners providing a copy of the conciliation agreement and the Committee ratification, and requesting any objections by 12 January 2009. By 13 January 2009 the Body Corporate had received no contact from any owner objecting to the agreement.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2] Moreover, I am satisfied that the Committee has ratified the conciliation agreement, that no notice of opposition was received in respect of the agreement, and that the requirements of section 252J of the Act have been complied with.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about: a claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4] In particular, section 276(5) provides that an adjudicator may make a consent order, but the order may include only matters that may be dealt with under this Act, and must not include matters that are inconsistent with this Act or another Act.

This dispute was successfully conciliated by the parties. It is commendable that the parties took the opportunity to work through their concerns through the conciliation process and to identify acceptable solutions to their dispute.

I am satisfied that the terms of the conciliation agreement are able to be dealt with under the Act and I have no evidence that the agreed terms are inconsistent with the Act or any other legislation. However I make the following comments in respect of some of the points in the agreement.

Points 2 and 3 relate to the AGM resolution in 2005. The wording of the agreement indicates that the parties agree to accept that the resolution in question was valid and approved the installation of a 6-panel bi-fold shutter on the Lot 7 balcony. I must make it very clear to all parties that I cannot, in the context of the parties’ request for a consent order, make an order determining that the resolution was in fact valid or that it in fact constituted approval for the shutters. This would require me to undertake a full investigation of the issues including seeking submissions from all affected parties. However, I consider that I can infer from the wording in the agreement that the intention of the parties was to agree that they do not dispute the validity of the resolution or the approval. It might perhaps have been preferable if the wording of the of points 2 and 3 began “The parties do not dispute...” however it would not be appropriate for me to substitute these words without seeking the consent of the parties, which would require further ratification from the Committee and a further notice to all owners. I do not consider the delay and inconvenience which that would incur is warranted in the circumstances. Rather, I intend to make the consent order regarding Points 2 and 3 in the terms sought by the parties on the basis that the order only relates only to the parties agreement that they accept, and do not dispute, the validity of the resolution and the approval. Nothing in this order purports to make any determination on the validity of the resolution or the approval. This order does not prevent any other interested party from challenging the validity and effect of the special resolution passed at the 2005 AGM[6], or from an adjudicator making a finding on those matters.

Point 7 of the conciliation agreement is procedural, and has already been completed. As such this point is not appropriate for inclusion in the consent order.

Point 8 of the conciliation agreement is an expression of good faith. While highly desirable and commendable, it is not something that could practicably be enforced. For that reason, while I encourage the parties to adhere to that aspect of the agreement, I do not consider that I can make a binding order in those terms.

Accordingly, I have made a consent order on the terms agreed by the parties at points 1 to 6 of the conciliation agreement. However, I have also noted that, in carrying out the agreed terms, the parties must ensure that they comply with the provisions of the Act and the Standard Module.

All parties should be aware that a consent order may be enforced in the Magistrates Court in same manner as any other order of an adjudicator[7] but, unlike other adjudicator’s orders, a consent order cannot be appealed[8].

[1] Application reference number 0948-2008
[2] See sections 227, 228, 276 and Schedule 5 of the Act
[3] Section 276(2) of the Act
[4] Section 284(1) of the Act

[5] The copy of the agreement signed by the applicant amended the word ‘step’ in item 3 to ‘steps’. The Body Corporate has confirmed that the Committee ratified this amendment.

[6] It should be noted that section 242 of the Act provides a time limit of three months on applications seeking to invalidate a committee or general meeting, a resolution at a committee or general meeting, or a committee election. Any application seeking to invalidate the 2005 AGM resolution would need to satisfy an adjudicator that there was good reason to waive the time limit. It would be unusual for the time limit to be waived in respect of a meeting held over three years ago.
[7] See section 287 of the Act
[8] See section 289(1)(b) of the Act

Number of Scheme:	10016
Name of Scheme:	Wilanga
Address of Scheme:	383 Bowen Terrace NEW FARM QLD 4005

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Wilanga [2009] QBCCMCmr 14 (19 January 2009)