Wimbledon Villas [2009] QBCCMCmr 199 (28 May 2009)

Number of Scheme:	21755
Name of Scheme:	Wimbledon Villas
Address of Scheme:	Yulgibar Close KOORALBYN QLD 4285

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

I order that “should the body corporate wish to change the colour of the exterior paintwork that such change be authorised by an ordinary or special resolution of the body corporate at a general meeting,” provided that such an ordinary or special resolution would have effect only to regulate the paint colour of the common property of the scheme.

This is an application dated 24th February 2008 by Wolfgang Kowatsch (the Applicant) owner of Lots 55 and 56 in the scheme, against the body corporate for Wimbledon Villas (the body corporate) for an order that “should the body corporate wish to change the colour of the exterior paintwork that such change be authorised by an ordinary or special resolution of the body corporate at a general meeting.”

The Applicant also sought an interim order for immediate injunctive relief “preventing the body corporate from proceeding with the proposed repainting of the external façade until such time as this application is determine.” I made an order on 12th March 2009, with the consent of the body corporate, that the proposed repainting not proceed until further order.

“Wimbledon Villas” is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are 50 lots in the scheme created under a Group Title Plan of subdivision and 21 Group Title Plans of re-subdivision.

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) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The Applicant’s case is that the body corporate resolved by ordinary resolution at the annual general meeting on 6th December 2008 by a vote 18 - 1 to engage a painting contractor, Morans Painting Contractors (Morans), to repaint the external façade “of the common property” for $30,140. Since that time, the committee has chosen a new colour scheme. The body corporate manager wrote to all lot owners on 9th February 2009 explaining as follows –

“1. The three internal walls may be repainted by the contractor at an individual owners cost of $132.00 inclusive of GST. Should you wish to take up this offer, then please complete the below (sic) and return to our offices by Friday, 20 February 2009 by fax, mail or email. The cost will then be added to your next levy notice.

On 12th February 2009, the body corporate committee wrote to all lot owners as follows –

“The body corporate committee... has decided to have the exterior walls of all the units repainted. A contractor has been arranged to perform the painting work.

The committee short-listed 3 colour schemes and from this shortlist, a single preferred colour scheme has been selected.

Samples of the 3 short-listed schemes are available for viewing in the pool area........

The committee intends to instruct [the contractor] to begin towards the end of the coming week (that is, the week ending Friday 20 February 2009.”

The Applicant says that a change of paint colour was not proposed in the wording of the motion, which was to “carry out the repainting” of the scheme; and that a change to a colour scheme is “ an improvement to common property” and as such requires approval by a general meeting of the body corporate by virtue of section 163(1)(b) Standard Module, and is not a decision which the committee is authorised to make. Further, that if the matter is put to a general meeting, owners should be invited to submit motions about a colour change.

On 25th February 2009, the body corporate advised this Office that painting “will not proceed immediately.” The body corporate manager on behalf of the committee made a submission on the interim outcome sought on 4th March 2009, undertaking that repainting will not proceed until the body corporate has “properly put the matter to owners as requested in the application...” and that Morans had been instructed not to proceed.

The body corporate proposed to invite lot owners to submit alternative colour schemes within 14 days and thereafter convene an extraordinary general meeting and submit a motion to be resolved by special resolution on whether the colour should be changed, and then each option proposed, whether by owners or the committee will be voted on. Samples of paint colours would be available from the day on which the Notice of the general meeting is sent out, and owners will also be advised that colours may be inspected at paint shops, by looking at swatches available by the pool; and samples of proposed colour schemes would be painted on sample areas of the building.

In accordance with section 243(2)(b) Act submissions on the final outcome sought were invited from all lot owners as well as the committee.

Grant Alexander, owner of unit 1047, advised that following the interim order, samples of paint colours, including those chosen by the Applicant, would be looked at by the Committee on 2nd April 2009, and that the committee would be formulating a method by which owners could vote for a colour scheme if they wanted to change the existing colour scheme. The colours were also to be made available “on boards”, and the Applicant’s preferred scheme could be viewed on his two units.

Maurice Macaulay, owner of Lot 46, supported the application and said that decision on the colour of the exterior paint should be decided by ordinary or special resolution at a general meeting. He also proposed an informal gathering before any meeting to allow owners to have input into the proposed colour schemes.

The Applicant exercised his right of Reply, albeit slightly out of time. He did not refer to the submissions but provided information about the further progress of the matter. He provided a copy of a letter which he had sent to the committee and the body corporate manager in draft format on 27th April 2009 asking for their comment. In the letter he said that he was concerned that lot owners may not be aware of the legal division of maintenance responsibilities between lot owners and the body corporate in a Group Title Plan. He noted that the only common property was the tool shed, the barbecue area and the letter boxes, and that the body corporate had no power to decide what colour a lot owner must paint his or her unit.

He was concerned that if asked to vote on a colour scheme, owners might feel pressured into choosing certain colours even if they did not prefer them, whilst others might paint their units as they like. He asked the body corporate to inform owners about by-laws before any general meeting to consider the issue; and to paint sample walls with the colour schemes proposed so that owners could look at them. He said the samples so far provided were not big enough to get a real idea of the colour on a large scale. He thinks a “multi-coloured complex is not suitable,” but “matching colours” might be desirable, and attract some owners as a compromise to using their own colours.

On 27th April 2009 the body corporate manager, SE QLD Corporate Management, replied that it was not in a position to comment on his draft letter but referred the Applicant to By-law 8 of the scheme which provides that an occupier cannot make a change to the external appearance of the lot, unless the change is minor, without the body corporate’s written approval. The body corporate is of the view that this does not allow owners to paint their units in the colour of their choice.

The body corporate, via its manager, provided out of time on 20th May 2009, a letter advising that an extraordinary general meeting was held on 12th May 2009, and that three colour schemes were put to the meeting. It also provided a copy of the minutes of the meeting. The body corporate will now advise owners that “any owner wishing to paint the external façade of the building will be required to do so in the colour scheme approved.”

The minutes show that the first part of Motion 2 of the extraordinary general meeting of 12th May 2009 was whether the “existing colour scheme at the complex” should be changed at all. The vote was 15 – 1 on this issue. Three colour schemes were proposed in the alternative, alternative A gaining 2 votes, Alternative B gaining no votes, and alternative C gaining 16 votes, and therefore being carried. The colours are ‘Paper Bark’ for brickwork, fascia and under eaves; ‘African Tribe’ for main timber areas and ‘Backpack’ for guttering and front doors.

No further submissions have been sought from lot owners concerning either the minutes or the letter dated 20th May 2009 from the body corporate manager.

“should the body corporate wish to change the colour of the exterior paintwork that such change be authorised by an ordinary or special resolution of the body corporate at a general meeting.”

I understand it to be the intention of the body corporate to change the paint colour of both common property and the exteriors of owners’ units. The motion put to the annual general meeting on 6th December 2008 was-

“That the body corporate appoint a contractor to carry out the repainting of the external façade.”

On 12th February 2009, the body corporate committee wrote to all lot owners as follows –

“The body corporate committee... has decided to have the exterior walls of all the units repainted.....”.

From a perusal of the paperwork in the application, and the Applicant’s subsequent letter of 3rd March 2009 to the chairman and the body corporate manager, the surfaces to be painted were described as - “ all the units” and “ all brickwork areas”, “all timber under the roof”, “all other timber areas”, and “guttering”. In its circular to lot owners, the body corporate described its colour scheme as “all brickwork areas” in Dune, “all timber areas” in Thunderbolt, and “accent colour – guttering” – Dark Amethyst. This circular also refers to “the three internal walls” and the painters requiring access to owners’ courtyards, and for front doors to be left open so that doorframes can be painted.

During the course of this application, the body corporate, and perhaps the Applicant, have become aware that in a Group Title Plan of subdivision, it is the lot owners, and not the body corporate, that are responsible for maintenance of exterior walls of owners’ lots. Equally, the body corporate has no power to paint any part of an owner’s lot, nor to require it to be painted in a particular colour without the agreement of the lot owner. In a Group Title Plan, the owner’s lot includes roofs, exterior walls and infrastructure such as guttering which is solely for the use of that lot.

I am now aware that on 12th May 2009, there was a general meeting at which by Motion 2, the body corporate voted in favour of changing the colour of “the complex” and that the colour scheme selected incorporated colours for brickwork, fascias, under-eaves, timber areas, guttering and front doors. This would also appear to be a motion about painting, inter alia, owners’ units, although this motion and this general meeting are not the subject of this application, and there have been no submissions concerning it.

In effect, the final outcome sought by the Applicant has been achieved. However, it remains for me to address the concerns of the Applicant in respect of the legislation as it relates to this scheme, and to consider the effect of the final outcome sought.

At the time when the Applicant lodged his application, he was concerned that the committee alone had selected a colour scheme and he thought it right that that the lot owners should have input into any change of colour, hence his final outcome sought. However, I am concerned with this question. Can a majority of lot owners at a general meeting require all lot owners to paint the exterior of their lots in a certain colour or colours? That is, can the majority give the ‘consent’ required for an owner to have the colour of his or her lot changed? Or can a majority of lot owners only choose the colour scheme for the common property areas?

The by-laws for the scheme, as lodged in the Land Title Registry include By-law 8 “Appearance of Lot”, which states as follows –

8a) The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

8b) The occupier of a lot must not, without the body corporate’s written approval –

It follows that a lot owner who wishes to change the paint colour of his lot must seek the written approval of the committee, (or the approval of the body corporate at a general meeting.) The committee (or the body corporate) must act reasonably,[1] which would encompass a proper consideration of the request in a timely manner, and in accordance with principles of natural justice, giving reasons if it refuses the request of the lot-owner.

If the body corporate has by motion put to a general meeting decided on a new colour scheme, then a lot owner wishing to change the appearance of his lot to the new colour scheme should receive the approval of the committee. However, if a lot owner makes an application to the body corporate pursuant to By-law 8(a) to use other colours or another colour scheme, then if the body corporate refuses, the lot owner is able to lodge a dispute application with this Office. The question would be whether the committee has reasonably refused the request of the lot owner in the light of the preference of the body corporate for the colour scheme as voted on at the general meeting, that is, are all lot owners bound by a new colour scheme chosen by the majority?

If a lot owner simply wanted to freshen up the exterior of his/her lot, using the same colours as presently existing, there would be no ‘change to the external appearance’, and the lot owner would not need to ask the committee’s or body corporate’s approval. Lot owners may continue to re-paint their external walls in the same colours as they now have, despite any motion of the body corporate which approves a new colour scheme. There is nothing to stop them.

There is also no reason why, if a lot owner put a motion to a general meeting requesting particular colours, the body corporate should not approve it despite any prior motion for a change of “scheme” or “complex” colours to a particular format. New owners coming into the scheme might have different ideas.

Section 94 Act sets out the general functions of the body corporate, which are as follows -

94 Body corporate’s general functions
(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including any by-laws for the scheme); and

(c) carry out the other functions given to the body corporate under this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.

The section relates both to the actions of the committee and to the body corporate at general meetings.

The body corporate exists to determine how the common property, and body corporate assets are to be administered, and to enforce the community management statement, including the by-laws. The legislation gives the body corporate powers for the situation in which a lot-owner wishes to make an improvement to common property for the benefit of his lot (see Section 164 Standard Module). I am of the view, however, that there is no power under the Act for the body corporate to regulate on behalf of an owner in a Group Title Plan, how he or she may use and enjoy his or her own lot, without more, that is, unless there is a specific by-law to that effect.

Therefore, whilst lot owners may at a general meeting vote for a particular colour scheme for the common property, a vote for a particular colour scheme for owners’ lots, would not be binding or enforceable on owners who did not want to paint in those colours.

An application to this Office by an owner who had been refused permission by the committee/body corporate pursuant to By-law 8(a) for the reason only that there was a “pre-agreed scheme colour” approved at a general meeting, whilst considered on its merits, would be likely to succeed. That is, it would be demonstrably unreasonable of the body corporate to rely on a motion put to a general meeting to require a lot owner to paint his or her freehold property a particular shade against his or her will. The success of such a motion would be entirely a matter of goodwill by the lot owners.

I therefore make an order as a declaration in the terms sought by the Applicant, with the proviso that such a motion passed by the body corporate would have effect only to regulate the colour scheme of the common property.

By-laws
Section 169 Act provides that by-laws for a community title scheme may only provide for the following -

(a) the administration, management and control of common property and body corporate assets;
(b) regulation of, including conditions applying to, the use and enjoyment of—

(iii) body corporate assets, including easement areas relevant to common property; and

As mentioned in the interim order, there is at present no by-law showing that the body corporate has a requirement for, or will prefer, a particular colour scheme for owners’ lots, as there are in some Group Titles schemes’ by-laws. If the body corporate wishes to regulate the colour of owners’ lots, as opposed to common property, it may do so by passing a by-law and changing its community management statement. A new by-law requires a motion to be put to a general meeting and to be passed by special resolution.[2] Further, a new community management statement must be recorded in the Land Title Registry, before such a by-law would be effective.[3]

Even so, it is still open to a lot-owner to make application to this Office for a resolution of a dispute if he or she feels that the by-law is oppressive or unreasonable. It would, of course, be incumbent on that lot owner to prove his or her case. In Tutton –v- Pivotal Point Residential [4] a recent appeal decision of the Queensland Commercial and Consumer Tribunal, the Tribunal found that a by-law which in effect imposed an absolute ban on a lot-owner, in circumstances where approval would not have any effect on other lot-owners, gave rise to the finding that such a by-law was unreasonable, and contrary to section 94 Act.

[1] Section 94 Act
[2] Section 62(3)(a)Act
[3] Section 179 Act
[4] Tutton v Body Corporate for Pivotal Point Residential CTS 33550 [2008] CCT KA005-08 para 35

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Wimbledon Villas [2009] QBCCMCmr 199 (28 May 2009)