Adelphi Springs [2009] QBCCMCmr 16 (19 January 2009)

Last Updated: 19 February 2009

REFERENCE: 1095-2008

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28835
Name of Scheme:	Adelphi Springs
Address of Scheme:	100 Cotlew Street East SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Aileen Franklin, a co-owner of Lot 6

I hereby order that the application for an interim order by Aileen Franklin, a co-owner of Lot 6 that the body corporate for Adelphi Springs community titles scheme 28835 not act on the resolution passed at the committee meeting dated 1 December 2008 “to proceed with the quote from Anthony’s Shade Sails at $4,640.00 to install a shade sail to the shallow end of the bottom pool. Because of the uncertainty of the location of any new water tanks and the exact position of the shade sail, the existing umbrella will be dismantled and then repositioned once the shade sail is installed”, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1095-2008

“Adelphi Springs” CTS 28835

The scheme
“Adelphi Springs” community titles scheme 28835 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 22 December 2008 by Aileen Franklin, a co-owner of Lot 6 (Applicant) against the Body Corporate seeks an outcome to invalidate the resolution passed on Motion 8 of ‘General Business’ at the committee meeting dated 1 December 2008 (December meeting).

Motion 8 ‘Additional Shade for Pools’ was resolved by 7 votes to 0: “to proceed with the quote from Anthony’s Shade Sails at $4,640.00 to install a shade sail to the shallow end of the bottom pool. Because of the uncertainty of the location of any new water tanks and the exact position of the shade sail, the existing umbrella will be dismantled and then repositioned once the shade sail is installed”.

The Applicant has sought an interim order to put a hold on the resolution on Motion 8 pending a final outcome.

The Applicant claims the committee made the decision without consultation with owners. She submits that while the committee consider they have a duty of care to residents to provide sunshade, the committee have not provided any evidence or documentation of the duty of care or the legal obligation despite requests. The Applicant states the committee is only concerned about the southern pool which negates the argument about duty of care of the main pool which is used by approximately 95% of residents. The Applicant considers the matter should be voted on by owners at the March 2009 annual general meeting. The Applicant says approximately 60% of owners have been surveyed and all are against the shade sail for aesthetic and unnecessary expenditure reasons. The Applicant provided an indication of opposition to the resolution dated 8 December 2008 signed by herself and M Bisson. The Applicant also provided an unsigned letter dated 9 December 2008 from Lloyd Foster questioning the resolution. The Applicant submits that the southern pool was constructed over 10 years ago and no complaint has ever been submitted.

Jurisdiction
In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me even though affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act.

Section 279(1) provides that an adjudicator may make an interim order “if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates”.

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 24 December 2008 I invited submissions from the committee regarding the interim order application, and a copy of the application was provided to Sargeant Strata (Body Corporate Manager) for distribution to committee members. Given the Christmas period, I gave the committee until 14 January 2009 to make submissions.
The committee submits that the only survey it is aware of is the abovementioned letter dated 8 December 2008. It says the minutes of the December meeting were circulated to all owners and to date the committee is aware of the opposition of 5 owners. The committee states the proposed shade would cover about 30% of the pool and the decision was made as the pool is totally unprotected from the sun and the shade would provide an amenity for residents and their children. The committee says it would also like to install a similar shade sail over the main pool but due to existing peripheral shade sails and adjacent umbrellas, the cost is not justified at this time. The committee provided a photograph saying it shows the absence of shade at the southern pool. The committee says there is only one umbrella at the pool. The committee submit the proposed shade sail is within its jurisdiction, was determined in accordance with the legislation, and it would not be able to carry out its functions if it could not decide matters due to beliefs of a minority of owners.

Amendment to application
On 14 January 2009, the Applicant amended the application to include a copy of a request to include a motion on the agenda of the next annual general meeting. The request is dated 30 December 2008 and includes a motion that “A recent decision by the B/C/C to erect a sail over the southern pool be rescinded citing: the majority of resident owners are 100% against this decision believing it a total waste of owners funds. This cover would destroy the ambience and natural beauty of the surrounds of this beautiful southern pool.” The explanatory note to the motion says the rationale that the committee has a duty of care is ludicrous as there is an indoor swimming pool and the premise that the sail will increase property values is equally ludicrous. The Applicant included a copy of a document signed by 13 persons stated to be resident owners indicating they wish to add their names to the motion.

In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 14 January 2009 I invited submissions from the committee regarding the amendment, and a copy of the application was provided to the secretary.

The chairperson, Felicity Wilkes responded stating the Applicant has inflated the signatures as one of the signatories is not an owner and another is a co-owner of Lot 6. The secretary, John Garbett submitted on behalf of the committee that one signatory is not an owner and the motion was submitted on 31 December 2008.

Determination
Given section 279(1) of the Act, it is necessary to determine whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the Applicant does need to establish that the circumstances of the application warrant the making of an interim order.

The Applicant requests an interim order because she says the resident manager has informed her that the shade sail would be installed in January 2009. It is not apparent from submissions that the committee has implemented the resolution on the Motion or that the committee does not anticipate the installation will be made this month. As the Applicant has questioned the resolution authorising the installation of a shade sail, I consider urgent circumstances are demonstrated to warrant consideration of the interim order application.

To assist me in determining whether it is just and equitable to grant relief at this stage, before full and final consideration of all the issues raised, I consider it relevant to briefly consider whether the Applicant raises any serious legal question that will need to be determined. If a serious legal question is raised, then it may be appropriate to make an interim order to attempt to preserve the integrity of the matters in dispute pending the final determination.

The resolution on Motion 8 related to installing a shade sail at the shallow end of a pool. In the absence of claims to the contrary, I am satisfied the pool and its surrounds are part of the common property for the scheme. A body corporate must administer the common property for the benefit of lot owners (s 94(1)(a), Act). A body corporate must act reasonably in anything it does under section 94(1) including making a decision (s 94(2), 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)(a), Act).

A body corporate consists of all lot owners (s 31, Act). It chooses a committee each year. The Act (and in this case, the Accommodation Module) confers powers on the committee and also limits the things which the committee can do. A committee decision is a decision of the body corporate provided for example, the decision is not on a restricted issue for the committee or the decision is not on a proposal involving spending above the relevant limit for committee spending (s 100, Act; s 42 and s 149, Accommodation Module). The committee must act reasonably in making a decision (s 100(5), Act). In the absence of any information to the contrary, the relevant limit for committee spending for this scheme is $24,600.00 ($200 multiplied by the 123 lots included in the scheme – schedule, Accommodation Module).

The Applicant has not raised any questions about the way the committee decided Motion 8. It is not being claimed that the December meeting was incorrectly called or the way the Motion was decided did not comply with the legislation.

The Applicant is concerned about the lack of committee consultation with owners. However, the Applicant has not referred to a particular legislative provision which could be relied on to suggest consultation should have occurred. It is not being claimed that the committee did not give notice of the meeting to owners as required by the Accommodation Module, or that owners were excluded from attending the meeting. In these circumstances, I do not consider this point necessitates making an interim order in the terms sought.

The committee has submitted that owners have been given a copy of the minutes of the December meeting. While owners are entitled to be advised of a committee resolution, it is relevant that the Accommodation Module does not make provision for owners to stop a committee resolution from being implemented by notification of opposition to the resolution. The Applicant has suggested that there is opposition to the resolution. However, I am not satisfied from the material provided that the extent of the evidenced opposition warrants any further consideration of this point for the purposes of making an interim order, especially when the Accommodation Module does not provide a basis for owners to influence committee resolutions in this way.

The Applicant has shown that a motion dealing with this issue has been submitted for consideration at an upcoming annual general meeting. The fact that an owner — seemingly after being advised of the committee resolution — decides to submit a motion to a general meeting about the subject of the resolution does not itself necessitate an interim order in the owner’s favour. In my view, the indicated support for the motion is not significant.

I am satisfied from the information provided that the committee has the power to make a decision of the nature it made on Motion 8. There is nothing to suggest the cost of the proposed work exceeds the relevant limit for committee spending. Neither has it been argued that the decision is a restricted issue for the committee. The Applicant has not shown that the proposal is contrary to a previous Body Corporate decision. It could be argued the installation of the shade sail is an improvement to common property by the Body Corporate. In the absence of contrary arguments, the committee is not prevented from deciding to make such an improvement (s 161, Accommodation Module).

Given the arguments being made, the Applicant may be relying on the legislative provisions relating to acting reasonably. However, I do not consider a serious issue has been raised on this point. The committee has stated its reasons for making the installation. The Applicant disagrees. However, I do not consider that the Applicant has demonstrated, or that there is a basis to suggest, the committee has acted unreasonably in making the decision. I am not satisfied that in the circumstances, the fact that a shade sail is not being installed at another outdoor pool is significant. Nor am I satisfied that the existence of an indoor pool is relevant. The Applicant has not demonstrated that it is likely that the installation will for example, have a detrimental affect on common property, or her use and enjoyment of the common property or her lot. Neither has the Applicant shown that it could be found the installation of a shade sail will not be of benefit to owners. The fact that the Applicant may oppose the resolution or have a different opinion to the committee does not demonstrate there is a serious issue to warrant making an interim order in the terms sought.

For these reasons, the application for an interim order is dismissed. This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.