Admiralty Towers II [2009] QBCCMCmr 200 (28 May 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mabel Hall, the owner of Lot 85

I hereby order that the body corporate for Admiralty Towers II community titles scheme 15344 must paint the trim on Level 1 Foyer white to match all other common areas in the building.

I further order that the ‘Resolution Passed Outside A Committee Meeting’ dated 3 December 2008: “That the Committee of Admiralty Towers II CTS 15344 agrees to obtain at least two quotations from interior designers/architects for the provision of a theme and relevant specifications for the refurbishment of both foyer areas, with the cost not to exceed $27,500.00 inclusive of GST, and further, select and accept the most suitable quotation”, is void.

I further order that the application by Mabel Hall, the owner of Lot 85 that:

The Body Corporate use matching wallpaper to maintain common areas in the high rise foyer, the low rise foyer, the high rise entrance, the low rise entrance and all 37 foyers in the building to retain a common theme throughout all common areas.
The Body Corporate supply and install matching wallpaper to the Level 37 gymnasium and the Level 1 gymnasium to replace the wallpaper that was removed without proper authorisation in August and September 2008.
The Body Corporate survey the owners to determine:
- (i) If they want to refurbish the building.
- (ii) What basic theme they want: modern, classic, or other?
- (iii) The extent of the refurbishment: carpets, curtains, wallpaper, paint, inside lifts, light fittings, tiles external, tiles internal, furniture, paintings, mirrors, flower arrangements, extent of specification, i.e. colour, grade, material, specification, manufacturer, supplier etc.
- (iv) Based on the owners survey, obtain at least three competitive quotes to obtain the expected budget, work specification (research, choose theme, specify, supply, install, project manage, provide warranty, assist owners in choosing scheme), timing and full cost of the complete project for the low rise and high rise external foyers, the low rise and high rise internal foyers, the Level 1 Function Room, the Level 1 Gymnasium, and the Level 37 Gymnasium, inside low side lifts, inside high side lifts.
The Motion 1 passed by ‘Resolution Passed Outside A Committee Meeting’ dated 21 November 2008 be declared invalid.

is dismissed.

The scheme
“Admiralty Towers II” community titles scheme 15344 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 dated 9 December 2008 is by Mabel Hall, the owner of Lot 85 (Applicant) against the Body Corporate seeking outcomes that:

A copy of a ‘Resolution Passed Outside A Committee Meeting’ dated 21 November 2008 indicates it was (in part) resolved by 5 votes to 1 “That the Committee...accept the attached quotation from Higgins Coatings totalling $2,236.00 plus GST, for the removal of the wall paper and painting of both mail box foyers” (November resolution).

A copy of a ‘Resolution Passed Outside A Committee Meeting’ dated 3 December 2008 indicates it was resolved by 5 votes to 2 “That the Committee of Admiralty Towers II CTS 15344 agrees to obtain at least two quotations from interior designers/architects for the provision of a theme and relevant specifications for the refurbishment of both foyer areas, with the cost not to exceed $27,500.00 inclusive of GST, and further, select and accept the most suitable quotation. Note: This ... Committee has always known the need for refurbishment “plan” ... has waited until now, when the painting of the building and the replacement of the sails is underway to introduce the next step, being the interior refurbishment of the building. The passing of this motion will enable the incoming Committee ... to proceed immediately with the many steps required for the much needed foyers refurbishment” (December resolution).

The Applicant states she doesn’t want a “hotch-potch” job of the foyers and mail box areas. The Applicant refers to: a change in the Level 1 foyer trim that does not match with the 37 levels in the building; an October 2007 survey where owners nominated the entrances to the apartments as being a satisfactory area of the building; and the removal of wallpaper in the Level 37 gymnasium.

The Applicant provided a copy of emails dated 21, 24 and 27 November 2008 involving Ruth Bonnett and Mike Jones which Ruth Bonnett forwarded to the Applicant on 9 December 2008. On 21 November Ruth Bonnett informed Mike Jones that there is a close match to the wallpaper requesting holding off on the painting until further information is received from a supplier. On 24 November 2008, Mike Jones emailed Ruth Bonnett stating the painting is not a project but interim maintenance, it is expected it will take 12 months before the foyer refurbishment is approved and the committee considers the foyers should be “fresh and inviting” during this period. By email dated 27 November 2008 to Mike Jones, Ruth Bonnett acknowledged that maintenance of the lobbies is required, but questioned the need to remove the wallpaper when matching wallpaper can be sourced and the need to spend $27,500 on a consultant when the owners have not voted whether to refurbish.

The Applicant also provided an email from Ruth Bonnett to John Rae of Body Corporate Services Pty Ltd (Body Corporate Manager) dated 28 November 2008 submitting a motion for inclusion on the agenda of an upcoming annual general meeting to purchase matching wallpaper to maintain wallpaper on common property which shows wear and tear. The Applicant submits that she would like the owners to vote on whether there should be refurbishment considering the cost of the entire project of refurbishing two lobbies and 37 levels is an improvement which is above the committee spending limit.

The Applicant states all costs associated with a project must be considered as a whole and the entry foyers, lobby foyers, gymnasiums and the basements are all part of the same project. The Applicant says the wallpaper is a prominent and unifying feature of the scheme from the basement foyer to the level 37 foyer. In referring to section 163 of the Standard Module, the Applicant states the committee has no authority to alter common property and the removal of the wallpaper in the gymnasiums is a significant change in appearance and replacement wallpaper can be obtained to maintain the existing scheme. The Applicant says the removal of wallpaper and repainting is not in the current budget and a special contribution is required under section 141 of the Standard Module. The Applicant refers to section 56 of the Standard Module stating the committee must wait 7 days before carrying out a resolution.

Interim order
The Applicant sought interim orders that the Body Corporate not act on the November and the December resolutions. On 19 December 2008, I dismissed the application for an interim order.

Submissions to the Commissioner
On 22 December 2008, the Commissioner provided a copy of the application to the 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 Commissioner subsequently extended the time for making written submissions.

Submissions by owners
The owner of Lot 20 (current committee member) states that the wallpaper was removed from the mailbox foyers on 3 February 2009 and that it would have been more equitable for the newly elected committee to decide whether to implement the resolution to remove the wallpaper.

The owner of Lot 37 submits that his preference is to retain a subdued décor and that the committee has exceeded its powers redecorating the ground floor foyers after other areas have been redecorated. He is concerned any change in the décor of the main lobby areas would inevitably mean redecoration of all other foyer areas; a huge and unnecessary expense.

The owner of Lot 47 supported the application to have the disputed resolutions declared invalid stating it is clear the proposals to refurbish the foyer and to retain a consultant for these purposes are not provided for in the budget and owners have not, in general meeting, considered a motion about these expenditures which is contrary to section 141(2) of the Standard Module.
He submits the various works being undertaken to refurbish must be taken as one figure and not be divided into the costs of component parts.

The owner of Lot 88 supports the application saying: the committee has acted without consulting owners; owners must authorise major expenditure that is outside the budget; the committee does not have a master plan for the common property areas they wish to alter; and owners do not want things done in an ad hoc way.

The owner of Lot 92 believes matching wallpaper should be used and any refurbishment should go to owners. The owner refers to a motion proposed for the Annual General Meeting dated 2 February 2009 (2009 AGM) asking owners to vote to purchase matching wallpaper. She states the foyers, lobbies and gymnasiums are largely wallpapered in a matching theme. The owner submits the removal of wallpaper and re-covering of the surface of the external lobbies is not itemised in the existing administrative fund budget and the sinking fund forecast does not include wallpaper and painting the main foyers or the external ground level foyers and does not include painting the basement and conference room. She says any change to the ground level lobbies would commit owners to matching the work on all 37 levels to retain the common appearance of common areas, that section 152(9) of the Standard Module applies as the ground floor external lobby is a small part of a larger project, the cost of the entire project has to be considered when resolving to make a change from wallpaper to paint, and owners should have a say about removing wallpaper and replacing it with paint. The owner submits: outcomes 1 and 2 should be taken care of at the 2009 AGM; outcome 3 is not problematic given the stance of the committee; for outcome 5 the November resolution should be voided as the sinking fund forecast shows that re-papering is a major project estimated to cost at least $2,494 per owner, any changes on the ground level commit owners to the full project, owners have not voted on any refurbishment, and the resolution is unnecessary for maintenance of the external lobbies.

The owner of Lot 187 submitted (providing photographs of some areas) the same wallpaper is a prestigious feature of common property areas; if the feature is not maintained the building will have a hotch potch look causing damage to owner’s property values. The owner states that 4 separate rooms have been redesigned in this way by the committee and if the committee decided it was not desirable to maintain the existing design throughout the building interiors, it should have costed the new design, authorised it as one project, and consulted with owners to change all interiors as the committee’s spending limit would be exceeded. The owner made a further submission that on 3 February 2009, the wallpaper was stripped from the mailbox foyers and that a new committee has been elected.

The owner of Lot 189 also submitted that on 3 February 2009, the wall paper was being stripped off the mail box foyers and Higgins Coatings applied paint. The owner supports outcomes 1, 2, 3 and 5 referring to the removal of wallpaper from the Level 37 gymnasium on 27 August 2008 and the earlier disappearance of wallpaper from Levels B1 and B2 basements as a precursor to a push for the wholesale removal of wallpaper from significant areas of common property. The owner states Admiralty Towers II is a distinguished residential building, the interior design is justly renowned and should be preserved. It is submitted that the wallpaper is the unifying decorative design feature of every public area of the common property. The owner says that without consulting owners, in making the November resolution the committee radically altered and destroyed the uniform interior design appearance of the common property. The owner states any alteration to any part of the interior that changes the unified interior design must be considered and budgeted as one project; all associated costs from the start up design to the finished installation must be accounted as a whole. The owner says the quotes approved by the disputed resolutions apply to a single project. The owner considers it makes no sense to commission architects or designers to provide quotes for interior refurbishment for a project that is purely hypothetical; the committee should not be able to change the classic interior design and impose their own choice on owners. The owner argues maintenance can only be reasonably understood to mean replacing like with like (wallpaper with wallpaper) and replacing wallpaper with paint must be regarded as an improvement.
The owner believes the resolutions should not be passed by flying minute as there is no evidence the resolutions were necessary to deal with an emergency. The owner also states there is no evidence of the need for maintenance. The owner is also concerned about the wording in the December resolution to the effect that the committee will select and accept the most suitable quotation.

Committee’s submissions
Teys Legal made submissions on behalf of the committee and referred to the committee’s earlier submissions with respect to the application for an interim order.

I summarised the committee’s earlier submissions on page 3 of the statement of reasons for the interim order:

“Teys Legal made submissions on behalf of the committee stating the relevant limit for committee spending is $38,600. The committee submits the Level 1 foyer trim was painted several years ago, the survey is almost two years old and is out of date as the common property has deteriorated through wear and tear over that time, and the wallpaper in the gymnasium was removed by the on-site manager and was re-painted at no cost to the Body Corporate. The committee says it could not match the existing wallpaper and that while the wallpaper could be reprinted; it is not possible to match the existing wallpaper which has faded.

The committee states a notice of opposition has not been received by the Body Corporate secretary to the November resolution, the work is maintenance which is within the power of the committee, and even if the work is an improvement, the cost is within the ambit of the committee under section 163 of the Standard Module. The committee says the work is not part of an overall refurbishment of common property and the administration budget provides for general repair and maintenance and the sinking fund budget includes painting and refurbishment.

The committee also states a notice of opposition has not been received by the Body Corporate secretary to the December resolution, the motion relates to obtaining a scoping of works which was explained to owners in the note to the resolution, the scoping exercise will allow various options to be put to owners in relation to the refurbishment contemplated by forecasts in the sinking fund budgets for the past two years, and there is a cost for interior designers or architects to provide a theme and specifications because of the time required.

The committee submits it should be allowed to make Body Corporate decisions and to carry out its functions under the legislation without interference from a lot owner who does not agree with the decision...”
The committee also stated that the amount approved by the December resolution is not the cost of the actual works, but the amount the committee is authorised to spend up to.

In reply to the Commissioner’s invitation to make submissions, the committee refers to section 100 of the Act and sections 139, 152, 153, 159 and 163 of the Standard Module and submits the Body Corporate has an absolute duty to maintain common property in good condition.

The committee says the gymnasium area will be considered under the refurbishment programme and it is an unnecessary and costly expense to re-wallpaper it in the interim. It submits that at no time has the committee suggested or proposed to make a decision in relation to the refurbishment; the only decision it has made is the December resolution, which was within its expenditure limit. The committee believes it has acted reasonably, in the best interests of owners and in compliance with the legislation undertaking preliminary work for the refurbishment programme to be put to owners by engaging professionals to provide a scoping of works.

The committee does not agree that a special levy must be fixed stating the sinking fund budget is based on a forecast prepared by Leary & Partners Pty Ltd dated December 2005 (copy attached to submission). The committee references provision in the forecast for the replacement of wall paper, paint, carpets etc in various parts of the common property for the years 2007 to 2009 stating the balance of the sinking fund as at 30 November 2008 is above expected requirements.

The committee considers the Applicant has not provided any evidence to indicate the committee has acted unlawfully. The committee concludes that outcomes 1, 2 and 4 should be dismissed; and that outcome 5 should be dismissed given the interim order. While it considers it unnecessary, the committee does not have an issue with outcome 3 stating the trim was painted several years ago; although it doesn’t match the other foyers, it cannot be seen from the other foyers; its re-painting will form part of the imminent proposed building refurbishment.

Reply to submissions
With respect to outcomes 1 and 2, the Applicant states she seeks to retain and restore the unified theme of the interior décor by the purchase and installation of replacement wallpaper in the areas from which it has been arbitrarily removed without proper authorisation. The Applicant notes the committee do not oppose outcome 3. The Applicant does not wish to press the request stated in outcome 4. The Applicant seeks an order for outcome 5.

The Applicant states there is no evidence of a need to change the interior décor other than to install replacement wallpaper in areas from which it has been removed. The Applicant agrees with the committee that the duty to maintain common property is absolute; however she states there is no evidence the wallpaper was faded, could not be matched, was damaged or needed replacement. The Applicant disagrees that the committee has acted openly and with transparency saying the committee at the time the application was made did not provide owners with appropriate relevant information. By removing the wallpaper, the Applicant states the committee has refurbished and improved Levels B1 and B2, the two gymnasiums on Levels 1 and 37 and the High Rise Mail Box Entrance Foyer resulting in an un-coordinated patchwork of painted colours in contrast to the elegant wallpaper which is the predominant unifying feature of the interior décor on all 37 levels, the ground floor and the basement levels. The Applicant believes these areas should be maintained in their original state; the removal of the wall paper has diminished and unreasonably affected owners’ enjoyment of the interior. The Applicant says it is unreasonable for parts of common property to be painted in a variety of colours un-coordinated with other foyers for an indefinite period of time; there is no evidence that refurbishment is imminent.

The Applicant believes the committee’s submissions that it has acted openly and with transparency, and that owners will be provided with options to make an informed decision are contradicted by the terms of the December resolution that the committee will accept a suitable quotation and the fact that the committee did not include a relevant motion on the agenda of the 2009 AGM. The Applicant does not agree with the committee’s submissions that there is money in the sinking fund stating: the forecast is not included in the notice of the annual general meeting; it is a projection of possible future expenses; it is not evidence of budget expenditure that has been approved by the Body Corporate; and it does not appear to be reasonable to rely on all parts of the forecast to determine the actual spending to take place in the years for which certain expenses are projected.

With respect to the disputed resolutions, the Applicant states the committee did not comply with section 152(2) or (3) of the Standard Module. No quotations were attached to the notifications circulated to lot owners. The Applicant states the amount approved by the November resolution appears to inaccurately state the cost of painting the foyers. The Applicant also states committee member Mr Smith may be deemed not entitled to vote on the motion as he received a commission from Higgins Coatings. With respect to the December resolution, the Applicant mentioned that the resolution does not identify the foyers. The Applicant is concerned $27,500 is being spent when there is no evidence of need or owner demand.

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, 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 (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 November and December resolutions satisfying the time limit for an application of this nature (s 242, Act).

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act on 1 May 2009, I requested a member of the Commissioner’s office contact the Body Corporate Manager and ask:

On 12 May 2009, the Body Corporate Manager responded providing the following information:

The Manager provided a copy of a ‘Resolution Passed Outside a Committee Meeting’ dated 18 March 2009 and a copy of the minutes of the committee meeting dated 14 April 2009. Neither record notes any decision about the: November resolution; the December resolution; the wallpaper issue; or the refurbishment of the interior of the building.

On 21 May 2009, I requested a member of the Commissioner’s office to contact the Body Corporate Manager and ask if the Body Corporate has set an amount as the relevant limit for major spending for the scheme. On 22 May 2009, Mr Rae stated that the Body Corporate has not; the amount is that set in the regulation.

Decision
On the basis of this information and submissions, it is apparent that the November resolution has not been fully implemented and that the December resolution has not yet been proceeded with. While some owners may be concerned about the timing of part of the work approved by the November resolution, it is not evident that the carrying out of this work was contrary to the interim order or any Body Corporate decision made subsequent to it.

Common property
It is not claimed that the parts of the scheme mentioned by the Applicant and in the disputed resolutions are not common property.

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 making or not making a decision (s 92(2), Act). A body corporate has all the powers necessary for carrying out its functions (s 95(1), Act). A body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners (s 152(1)(a), Act). A body corporate must maintain common property in good condition (s 159(1), Standard Module).

Spending limits
Submissions have been made that the work approved by the disputed resolutions is an improvement to common property and is not maintenance.

Generally, work that is maintenance and a body corporate responsibility requires either committee approval or approval in general meeting. A committee decision is a body corporate decision (s 100(1), Act). The main restriction on the committee’s power to make a decision about maintenance is its spending limit. The relevant limit for committee spending means the amount last set by ordinary resolution of the body corporate or if an amount is not set, an amount worked out by multiplying $200 by the number of lots included in the scheme (s 151 and schedule, Standard Module). The committee has stated the relevant limit for committee spending is $38,600. Generally, proposed maintenance work above this limit requires body corporate approval in general meeting by ordinary resolution.

An improvement is defined in schedule 6 of the Act to include the erection of a building, a structural change and a non-structural change. Section 159 of the Act provides that the regulation module may provide for making improvements to the common property. Section 163 of the Standard Module provides for improvements to common property by the body corporate. The section contains a tiered authorisation process which is dependent on the proposed cost of the improvements. The first tier is the basic improvements limit (s 163(1)(a) and (5) — $300 multiplied by the number of lots). For this scheme, the basic improvements limit is $57,900. Section 163(1)(a) does not prevent the committee from authorising spending to make an improvement to common property. The committee would however be restricted to its relevant limit for committee spending.

In both cases, individual proposals forming part of a project must be considered. Sections 151(2) and 163(3) are in similar terms providing that if a series of proposals forms a single project, the cost of carrying out any 1 of the proposals is taken to be more than the relevant limits if the cost of the project, as a whole, is more than the relevant limits. If both amounts stated in the disputed resolutions (and assuming that the maximum of $27,500 mentioned in the December resolution was spent) were considered in isolation as components of one project, the total spending is within the relevant limit for committee spending. Categorising the work stated in the resolution as maintenance or an improvement does not have any effect on spending limits.

Submissions indicate that wallpaper has previously been removed from other parts of common property. Submissions have also suggested the costs stated in the disputed resolutions should be considered as part of a project involving replacing all wallpaper throughout the building. It is argued that if the Body Corporate proposed to do work of a similar nature to that decided by the disputed resolutions involving the entry foyers, lobby foyers, gymnasiums and the basements; that work would be part of the same project. It would seem the view is that by implementing the disputed resolutions, the Body Corporate is obligated to do more extensive work and if it did this work, the cost would exceed spending limits. However, there is no evidence that the Body Corporate proposes to have work carried out to the extent claimed. The possibility that costs may exceed prescribed limits if the work being referred to by those supporting the application was done does not affect the disputed resolutions. The costs incurred by these resolutions may be relevant in determining limits and the level of authorisation for any future related proposals; but the reverse does not apply to these decisions. There is no evidence in the circumstances to suggest that the work approved by either or both resolutions necessitated consideration of a larger project, including one about refurbishment of the parts of scheme land mentioned in this application.

It is clear from submissions that the Body Corporate has not made a specific decision about refurbishment. This fact alone does not prevent the committee making decisions of the nature dealt with in the disputed resolutions. Any previous Body Corporate decision on a proposal which would form a single project with the proposals stated in the disputed resolutions would be relevant; but such a claim is not being made in this application. There have not been any submissions demonstrating that the resolved spending is associated with another proposal/s either approved or before the Body Corporate and together all the proposals form a single project.

A question has been raised about the relevance of the relevant limit for major spending for the scheme; which means the amount last set by ordinary resolution of the body corporate or if an amount is not set, the lesser of: an amount worked out by multiplying $1100 by the number of lots included in the scheme or $10,000 (s 152 and schedule, Standard Module). As the Body Corporate has not set an amount, the relevant limit is $10,000. It is significant that the relevant limit for committee spending is more than the relevant limit for major spending. Section 153 of the Standard Module applies where a motion moved at a meeting of the committee or outside a committee meeting proposes the carrying out of work or the acquisition of personal property or services and the cost of the proposal is more than the relevant limit for major spending but less that the relevant limit for committee spending (s 153(1), Standard Module). If this section applies, the general position is that the committee must consider at least 2 quotations for carrying out the work or supplying the personal property or services (s 153(2) and (3)).

There is nothing to suggest that the expenditure approved by the November resolution is more than the relevant limit for major spending, or that it is a proposal that is part of a series of proposals forming a single project, the cost of which would exceed the relevant limit for major spending for the scheme. In my view, the November resolution is not contrary to any legislative provision regulating spending.

It is apparent however, that the expenditure authorised by the December resolution is more than the relevant limit for major spending. In its submissions to me about the interim order application, the committee stated: “the cost is to obtain a scoping from a number of consultants. Because of the time and effort required to provide a theme and specifications, the interior designers/architects charge for this. The amount of $27,500.00 is not the cost of the actual works, but to obtain a scoping of works from two or three consultants...the cost will be much less than this amount”. As this resolution has not been implemented, there is no indication of the actual cost incurred. In this circumstance, the dismissal of the interim order application is not significant. While the amount that is actually spent may be less than the approved amount and less than the relevant limit for major spending, the suggestion is that an amount could be spent above this limit. The resolution authorised expenditure; it did not simply authorise obtaining quotations to do the stated work up to this amount.

Given the amount authorised, section 153 applied. The committee could not authorise this spending without obtaining and considering at least two quotations or, if exceptional reasons existed, obtaining and considering one quotation. There is nothing to suggest the committee considered any quotations. To this extent, the December resolution was contrary to section 153. For this reason, I have ordered that the December resolution is void.

Other issues
It is clear from submissions that common property has been wallpapered in a matching theme. The proponents of this theme say for example: the wallpaper is a prominent and unifying theme; any change would necessitate redecoration of all foyer areas to retain a common appearance; owners do not want things done in an ad hoc way; the wall paper is a prestigious feature; the committee should not be able to change the design and impose their choice on owners; and removal of the wallpaper has diminished and unreasonably affected owners’ enjoyment of the interior.

Owners may be concerned the committee may have been seeking to progressively change internal parts of common property; but there is nothing in either resolution or the committee’s actions that demonstrates this is the case or that even if it was, that the actions were contrary to the legislation. The question of reasonableness has been raised. The committee must act reasonably in making a decision (s 100(5), Act). I do not believe the fact that wallpaper formed part of the original construction does not itself prevent the Body Corporate from deciding to change appearance. It is also evident that the Body Corporate did not, at the 2009 AGM, back the proposal to purchase matching wallpaper.

While there has been strong support for the continuance of the wallpaper theme, it is not evident that the Body Corporate is obliged to maintain this theme or that owners have sought to protect this ‘feature’ by for example, in general meeting, reserving the issue for decision in general meeting (s 100(2), Act and s 42(1)(c), Standard Module). Even though it would seem there were previous instances of wallpaper removal, it is apparent the Body Corporate has not taken steps to prevent the committee from making a decision about the removal of wallpaper. In the absence of any such direction, the committee has argued that it was carrying out statutory functions. There is merit to this view. In the circumstances, and in the absence of any direction otherwise from the Body Corporate, the committee could make a decision such as that stated in the November resolution.

In addition, owners supporting the application are concerned complete refurbishment of the interior is unnecessary. There is nothing in the disputed resolutions to suggest the committee passed resolutions relating to refurbishment of the magnitude being claimed. Neither has it been demonstrated that the Body Corporate has, in general meeting, decided to carry out this refurbishment work. Some owners may have objections to refurbishment; but these objections are not reason in the circumstances to void either resolution or to direct the Body Corporate about the scope of work should it consider refurbishing the interior of the building. Even though owners may not have voted on whether to refurbish; this fact alone does not limit the committee’s power to make these decisions.

There is also a view that the spending is not forecast in the budgets. In responding to the application for an interim order, the committee submitted that the administration budget provides for general repair and maintenance, and the sinking fund includes painting and refurbishment. In making its subsequent submissions, the committee stated the sinking fund budget identifies replacement of wallpaper. While the Applicant and other owners do not agree with the committee, I do not consider they have provided evidence to suggest that the expenditure stated in the November resolution is not provided for or inadequately provided for in a budget to warrant the fixing of a special contribution by ordinary resolution in general meeting (s 141(2), Standard Module). As I have stated, I do not consider the resolved work obligates the Body Corporate to a larger expenditure on refurbishment and there is nothing to suggest that the approved expenditure could not be met from the budget allocations mentioned in the committee’s submissions.

Lastly, it is argued that as there was no emergency; the resolutions could not be made by voting outside a committee meeting. A committee can make a decision at a committee meeting or by voting in writing outside a committee meeting (s 44-54, Standard Module). Section 54 makes provision for voting outside committee meetings. There is nothing in this section limiting voting in this way only to dealing with an emergency. In my view, the question raised about the application of section 56 of the Standard Module has been dealt with by the committee’s submissions and requires no further consideration. A question has been raised about Mr Smith’s entitlement to vote. I do not consider this issue requires any consideration given the result of voting on the November resolution.

Conclusion
In my view, there is not any basis to make an order in the terms sought for the first outcome. As I have indicated, I do not consider there is merit in the arguments being presented that would necessitate a declaration which in effect limits the way in which the Body Corporate maintains or otherwise deals with particular parts of common property. It would seem the Applicant has sought this outcome as a consequence of some past actions by the committee and because of the disputed resolutions. I do not consider these instances warrant imposing the suggested direction on the Body Corporate. It is also noted that the Body Corporate has not specifically opposed a proposal of the nature stated in the outcome sought. To this effect, it is arguable if a dispute exists about this issue (K.G. Tully & Anor. v The Proprietors The Nelson Body Corporate [2000] QDC 031). For these reasons, I have dismissed the outcome sought.

I have also dismissed the second outcome sought for the same reasons. There is no evidence that the Body Corporate has an obligation to do what is being sought or has unreasonably opposed a proposal to do this work.

Given the submissions made, it can be concluded the Body Corporate does not dispute the third outcome sought. As the stated work has not been carried out, I have made an order in the terms sought. The committee’s view about the work being unnecessary given the imminent proposed building refurbishment is not relevant as there is no evidence the Body Corporate has decided to carry out refurbishment work.

In her reply to submissions, the Applicant has indicated she does not wish to press the fourth outcome sought. For this reason, I have dismissed this outcome.

In my view, the November resolution could be made even though it may have been possible to obtain matching wallpaper. I agree with the committee’s submissions that it had the power to decide to remove the wallpaper. I do not consider there is a basis to void the November resolution.

For the reasons stated on page 8 of these reasons, I have concluded that the December resolution is void.

Number of Scheme:	15344
Name of Scheme:	Admiralty Towers II
Address of Scheme:	501 Queen Street, Brisbane QLD 4000

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Admiralty Towers II [2009] QBCCMCmr 200 (28 May 2009)