The Red Hill Centre [2009] QBCCMCmr 302 (18 August 2009)

Last Updated: 28 September 2009

REFERENCE: 0116-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8030
Name of Scheme:	The Red Hill Centre
Address of Scheme:	152 Musgrave Road REDHILL QLD 4059

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

Sharif Ahasan, a co-owner of lot 8

I hereby order that resolution 1 (Maintenance of Grease Trap – Recovery of Cleaning Costs) purportedly passed at the committee meeting of 7 March 2008 was at all times void. I further order that resolution 2 (Maintenance of Grease Trap – Recovery of Ongoing Maintenance Costs) purportedly passed at the committee meeting of 7 March 2008 was at all times void. I further order that resolution 2 (Waste Collection Costs Recovery) purportedly passed at the Annual General Meeting of 7 May 2008 was at all times void. I further order that resolution 3 (Grease Trap Cleaning – Costs Recovery) purportedly passed at the Annual General Meeting of 7 May 2008, was at all times void.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0116-2009

“The Red Hill Centre” CTS 8030

APPLICATION

This is an application by a co-owner of lot 8, Sharif Ahasan (the Applicant), against the Body Corporate for “The Red Hill Centre” (the Respondent), seeking the following orders:

1. To declare void the resolution of 7 March 2008 in relation to grease trap cleaning and maintenance costs. The grease trap cleaning and maintenance cost should be paid by the body corporate from the administrative or sinking fund.
2. To declare void the resolution of 23 May 2008 in relation to waste collection costs recovery. General waste costs should be paid by the body corporate from the administrative or sinking fund.
   

The extra burden of charges relating to the above, only to a limited number of occupiers, is not expected. Further, the body corporate should not add penalties to the bills unless and until a decision has been reached.

The Applicant provides grounds to the following effect:

Grease Trap Cleaning and Maintenance Costs

• The body corporate decided to charge only four shops the above costs. Also, the proportion of cost sharing is not fair or reasonable.
• These costs have been introduced recently. The body corporate had been paying them from its funds since the building started operation (some 24 years).
• Some of the costs are the direct result of the body corporate’s negligence.
  

General Waste Collection Costs

• This has also been introduced recently.
• Only shops downstairs are being charged and in a very unreasonable proportion.
• Downstairs only seven shops are contributing waste but 12 lots from upstairs are not producing any waste, according to the committee. Evidence suggests otherwise.
• The Applicant believes that his waste quantity is just enough to fill council bins.
  

Minutes of a committee meeting of 7 March 2008 provide the following in relation to the grease trap cleaning costs:

MAINTENANCE OF GREASE TRAP

Preamble: Recently, our office was notified of a problem with the grease trap on the premises which was blocked causing effluent to spill out, creating a health and safety hazard on common property, and a public liability risk for the Body Corporate.

Regular maintenance of the grease trap is required, and to this end the Body Corporate has engaged a contractor to clean it out on a regular (quarterly) basis, approx cost $400.00.

The Body Corporate is entitled to recover the costs from the lot owners who use the service, under Section 99 of the Body Corporate Regulations (Commercial Module).

Accordingly, the maintenance costs will be shared between the following proprietors who use the service, the allocations (based on expected usage) to be as follows:

1. Indian Restaurant 40%
2. Fish and Chip Shop 40%
3. Brumby’s 15%
4. Dental Technician 5%
   

The cleaning of the blockage has incurred the following costs to the Body Corporate:

Tony Theodore Plumbing $1,287.00
Additional Plumbing Costs 851.00
Cleaning of Grease Trap 945.00
Associated Billing costs 250.00
Total: $3,433.00

These costs will be shared by the proprietors according to the allocations mentioned above.

MAINTENANCE OF GREASE TRAP – RECOVERY OF CLEANING COSTS

Motion 1: RESOLVED that the Body Corporate approve the recovery of recent costs (totalling $3,433.00 incl. GST) (refer to preamble) incurred cleaning out the grease trap and associated work from the proprietors/lot owners using the service, according to the expected proportional usage:

i. Indian Restaurant 40% ($1,373.20)
ii. Fish and Chip Shop 40% ($1,373.20)
iii. Brumby’s 15% ($ 514.95)
iv. Dental Technician 5% ($ 171.65)

5 YES 0 NO 0 ABSTAIN

MAINTENACE OF GREASE TRAP – RECOVERY OF ONGOING MAINTENANCE COSTS

Motion 2: RESOLVED that the Body Corporate approve the recovery of costs (on a quarterly basis, approx $400.00) for the ongoing maintenance of the grease trap on the premises, from the proprietors/lot owners using the service, according to the following allocations, which are based on expected proportional usage:

1. Indian Restaurant 40%
2. Fish and Chip Shop 40%
3. Brumby’s 15%
4. Dental Technician 5%
   

5 YES 0 NO 0 ABSTAIN

Minutes of the Annual General Meeting (AGM) of 7 May 2008 provide the following in relation to waste collection and grease trap cleaning costs:

2. Waste Collection Costs Recovery

All owners present including all members of the new committee agreed that the recovery of these costs from the designated lot owner/proprietors be continued in accordance with the following allocations:

Lot	Unit	%
2	1	2
3	2	2
4	3	20
5	4	10
6	5	10
7	6	5
8	7	10
9	8	10
22	21	1
23	22	30

3. Grease Trap Cleaning – Costs Recovery

Meeting noted that in accordance with a Resolution of the committee dated 7th March 2008, maintenance costs of the grease trap are to be paid for & then recovered by the Body Corporate from the proprietors using the service, allocated as follows:

5. Indian Restaurant 40% (Lots 8 & 9)
6. Fish and Chip Shop 40% (Lot 7)
7. Brumby’s 15% (Lot 4)
8. Dental Technician 5% (Lot 19)
   

Capital BCA to arrange the billing

JURISDICTION

“The Red Hill Centre” was registered as a building units plan (now known as building format plan) of subdivision on 8 February 1986 comprising 21 lots and common property. Lot 1 has since been subdivided and the scheme now comprises 22 lots and common property. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Commercial Module) Regulation 2008 (the Commercial Module).

This is a dispute between the owner of one lot and the body corporate and comes within the dispute resolution provisions of the Act (see sections 226, 227 & 228).

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

(c) a claimed or anticipated contractual matter about-

(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)).

NON-COMPLIANCE WITH SECTION 242 TIME LIMIT

Section 242 of the Act provides that an application for an order declaring void a resolution of the committee or a general meeting of the body corporate must be made within three months after the meeting at which the resolution was passed, although such time restriction may be waived by an adjudicator “for good reason.” The Applicant lodged this application on 10 February 2009, over nine months after the AGM referred to and some six months outside the legislative time limit. In relation to the committee meeting referred to, some 11 months had elapsed before this application was lodged, some 8 months in excess of the legislative time limit. When asked to provide reasons for the delay in lodging the Application, the Applicant advised that he didn’t have the opportunity to attend the committee meeting of 7 March 2008 and was late to the AGM of 7 May 2008. He states that he raised the issue of sharing the cost of grease trap matters, but one committee member was very annoyed and didn’t want to discuss further. The rest of the committee he states, “kept shut and carried on discussing other issues. This time I was not sure what was the decision.” Further, the Applicant states that “... the body corporate committee took the decision to impose waste collection costs to certain owners at very unrealistic proportion. They took this decision earlier before I arrived at the meeting.”

“I never went through the detail of the meetings, since I keep on receiving various letters from the Body Corporate, file them if necessary. I was not sure exactly how the Body Corporate matters work and actually waiting for any extra bills to arrive, then I would take the matter further, as you can see the bills were only issued on 15th January 2009.”

In the appeal of Weeks v. Commissioner for Body Corporate (Maroochydore District Court Appeal 13/99), Judge Dodds made the following statement about section 242 at pages 4 and 5 of the judgment:

“... the objects of the Act, for instance section 5(a) and (h) militate against too strict or legalistic a view about good reason for waiving non-compliance with the time limit. What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought. The
applicant, being the person seeking a waiver, will have the task overall of satisfying the adjudicator that the time limit should be waived in all the circumstances.”

Given the requirements of section 242, I must deal with the matter of jurisdiction at the outset. This entails an examination of the application and submissions against each of the above criteria.

The delay between the passing of Motions 2 and 3 of the AGM of 7 May 2008 and lodgement of the application is just over nine months, over eleven months in respect of the committee meeting of 7 March 2008. Given the three month time limit imposed by the legislation, I consider this period one of substantial delay. However, I accept the Applicant’s reasons for the delay, although substantial, as plausible, especially as he was not invoiced for the charges agreed to at the committee meeting of 7 March 2008 and AGM of 7 May 2008, until 15 January 2009. Further, it appears to me as though English may be the Applicant’s second language and I accept that he may have some difficulty interpreting minutes of body corporate meetings. I am satisfied that the Applicant wasn’t aware of the charges agreed to at the committee meeting of 7 March 2008 and AGM of 7 May 2008 until January 2009, when he was invoiced for them.

With regard to the effect on others of invalidating the motions, I find in the circumstances that to invalidate the motions would have a financial effect on others affected by the dispute (the remaining lot owners and the body corporate). This effect would be advantageous to some lot owners but disadvantageous to others. However, I consider that this effect is justified if it is found that the motions are invalid. I also note that no submissions were received which complained about the non-compliance with the time limit for the lodging of this application and that no owners were invoiced for the charges complained of, until January 2009.

With regard to the last of the criteria set out in the Weeks case, that is, whether the Applicant’s claim has merit and would be successful if it were not for the time limit, on this matter I have several concerns about the validity of Motions 1 and 2 of the committee meeting of 7 March 2008 and Motions 2 and 3 of the AGM of 7 May 2008, as set out in my reasons below. On balancing these criteria, I am satisfied that I have jurisdiction to make an order in this matter, and shall waive the non-compliance with the time limit imposed by section 242.

SUBMISSIONS

In accordance with section 243 of the Act, a copy of the application was provided to the body corporate manager, Capitol Body Corporate Administration, for distribution to all owners (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application.

The owners of lot 3 made submission to the following effect:

• Historically, general waste collection costs have been paid by the Body Corporate but recovered from the lot holders (or the lessees). The costs have been apportioned on a user pay basis ever since they have been associated with the scheme.
• They support this as it means that businesses pay a cost relative to the amount of general waste that they produce. The centre is of a mixed use nature. The tenants downstairs (Bottle Shop, Pharmacy, Bakery, Convenience Store, Take Away Store and Restaurant) produce a lot more general waste than do the tenants that occupy the second story (Physiotherapist, Conference Management Business, Dentist, Business Brokerage, Dentist, Dental Technician, Mobile Banker Office and Psychologist).
• They attach a copy of the allocation of general waste that is from the mid 1990’s and a letter of 6 June 2003 outlining a change to the allocation of costs. This review was necessitated due to tenancy changes and businesses varying the amount of general waste produced.
• The last change in 2003 was after a lengthy process of the committee reviewing the waste produced. It has been in place this past 5 years. Certain businesses were exempt from paying due to the little general waste that they produced. Each lot is entitled to one Council wheelie bin. Rather than have 22 wheelie bins on the property (and the logistics of having them put out each week and having the centre look shabby) it was decided that businesses that do not produce much waste should not have to pay a percentage of the general waste bill since they should be entitled to that one free wheelie bin each week (which would be sufficient for their needs) – a fair compromise at the time of the review.
• The body corporate managers have been remiss in not recovering these costs of late, leading possibly to the incorrect conclusion that the centre pays for all general waste costs.
• As far as the grease trap is concerned, a similar principle is in place – a fair flow on of the costs to the businesses that contribute to the expense. They are not sure of the history of the grease trap and its maintenance, but would prefer the body corporate to ensure it is maintained and then recoup the costs.
  

The occupiers of lots 2, 3 and 22 (Red Hill Day and Night Pharmacy) also purported to make submission. As occupiers, they were not invited to make submission. However, as one of the owners of lot 3 has authored the submission, I have regarded it in addition to the one made above by him. This submission was to the following effect:

• Supports the current policy of a user pay system for recovering costs for both general waste and grease trap maintenance. The Body Corporate pays the bill and then recovers this money from the owners/tenants.
• Currently, the Pharmacy pays 5% of the general waste bill that the body corporate levies them. The pharmacy produces little waste as they mostly dispense medication and do not have a large “front shop” trade that you would see at pharmacies in shopping centres. Their wholesalers all use plastic boxes that carry the drugs which they return daily. They do buy items packed in boxes but this is a small portion of their business – almost 95% of what they sell comes from a pharmacy wholesaler using plastic boxes. They have deliveries daily and so order small amounts regularly, thus they have no need for large quantities packed in original cartons.
• Each business at the centre is different and the waste they produce is vastly different. It would seem unfair to offices and “greener” businesses to subsidise other businesses. They believe this to be the intent of the Applicant who is objecting to paying his own way.
• If the body corporate decided to recover these costs on a lot entitlement basis, they would be severely disadvantaged as they rent 3 lots (out of a total of 22) in the complex and would pay 14% of the rubbish costs. Next door is a Liquorland store which occupies one lot – they would pay under 5% of the rubbish costs and yet they would be the largest producer of rubbish by a long way. All their goods are packed in cardboard boxes that need to be disposed of and their staff often do not compress the boxes – the bins could be full as soon as they have put a delivery order away.
• As far as the grease trap is concerned, they have an average of three staff members on deck at any one time. Making tea and coffee is the only real use their kitchenette gets. It would be unfair if they had to pay the costs of maintaining the grease trap when other businesses produce the waste and earn the majority of their income in making and selling food that produces this waste to being with.
• If the body corporate decides to divide the costs of disposal of general waste equally then the centre would probably cease its current arrangement of organising large industrial waste bins and they would have to operate with 22 wheelie bins with the resultant mess and vandalism that would accompany such a change.
  

The committee, of which the owner of lot 3 is also a member, made submission to the following effect:

• The Red Hill Centre is a 21 lot commercial body corporate comprised of a diverse mix of retail, food outlets, medical, dental and professional office suites in the inner Brisbane suburb of Red Hill.
• Since inception, the body corporate has, to the best of the knowledge of the current committee, on-charged the costs of both liquid and solid waste disposal to the various lot owners in accordance with lot usage. Unfortunately, the committee concedes that there is no supporting documentation available prior to 2003, partly due to loss of the relevant archived material and incomplete passing over of documentation to the current body corporate managers, who took over management in early 2004. Notwithstanding the lack of written documentation prior to this time, at least 2 members of the current committee can confirm that this “on-charging” has occurred since day 1, since they have been lot owners since that time.
• In 2003, the committee recognised that the costs of disposal of liquid and solid waste on the premises were inequitable between the lot owners and resolved to revise them in accordance with lot usage. Costs of this nature can of course be on-charge to lot owners in accordance with section 125 of the Commercial Module.
• In 2008, the committee once again reviewed the apportionment of waste disposal costs in light of changes of ownership and lot usage and determined that the costs of liquid and solid waste were now in fact different. A resolution was passed by the committee on 7 March 2008. In passing this resolution, the committee recognised that there were a number of proprietors who did not contribute at all to the liquid waste and therefore, should not be expected to pay for cleaning or waste removal costs.
• Due to an unexpected blockage of the grease trap which occurred in late February 2008, a similar resolution was passed on 7 March 2008 to apportion the costs of the cleaning and associated plumbing work.
• All owners present at the AGM of 7 May 2008 reaffirmed the resolution of the committee passed in 2003.
• The committee further propose to review the apportionment of costs in 2009 of both the liquid and solid waste disposal, to ensure the continuance of a fair and equitable distribution amongst the lot owners.
  

The Applicant exercised his right to inspect the submissions, and replied to them to the following effect:

• Nataraja Indian Restaurant was established some 22 years ago. They have owned it for the last five and a half years. It occupies two lots (8 & 9) of the centre. They only trade between 5:30pm to approximately 9pm, making them the last operational outlet, time wise, in the centre.
• During the greater number of earlier years prior to 2000, the business was doing tremendously well. Current business volume is approximately one third of the earlier years.
• They were not aware that there were waste collection levies and grease trap cleaning costs on-charged, until January 2009. Had they known these extra levies existed, on top of the sinking and administrative fund contributions, they would have walked away and not purchased the property in the first place.
• Their waste is limited and minimal. They estimate that their general waste is on average 50 litres per day, which council bins would amply cater for.
• It is suggested that the Fish and Chip shop, Brumbies Bakery, 7 Eleven Food and Grocery Store and the Liquor Land Bottle Shop all contribute more general waste then the restaurant.
• Further, the operators from upstairs do contribute to waste, to what extent is questionable, but it’s certainly not nil.
• They would like to see waste collection costs to be shared equally by all lots. If this is not possible, they would ask for council bins to be reinstated. If that is not possible, they ask that the waste costs be shared as follows:
  

33% Liquor land bottle shop

26% 7-Eleven Food Store

20% Brumbies Bakery

13% Fish and Chips

5% Indian Restaurant

3% Pharmacy

In terms of the grease trap cleaning and maintenance, all lots have access to the grease trap and the body corporate should pay for it to be cleaned and maintained.

FURTHER INVESTIGATION

On 16 June 2009, the following further information was requested from the body corporate:

• Whether the grease trap was part of the initial construction of the building or whether it was installed sometime after the building was constructed (if so, when it was installed);
• Which lots in the scheme are connected to the grease trap;
• A diagram of the location of the grease trap, showing how each lot is connected to it.
• A copy of the agreement under section 125(2) of the Commercial Module, made with the owners of each lot which utilises the grease trap and/or waste disposal service, by which the body corporate charges for the services to the extent necessary for reimbursing the body corporate for supplying the services;
• How the body corporate arrived at:
  • the figures used in resolution 1 of the committee meeting of 7 March 2008 (and AGM of 7 May 2008) for “expected proportional usage” in relation to apportioning the cost of cleaning the grease trap and ongoing maintenance costs of the grease trap;
  • the figures used for allocating waste collection costs amongst lot owners, in resolution 2 of the AGM of 7 May 2008.
• A copy of the minutes of any committee or general meeting where this issue has been discussed in 2009.
  

The body corporate manager responded on behalf of the committee by letter dated 15 July 2009 to the following effect:

• As far as the committee is aware, the grease trap was installed at the time of construction of the building, but without further investigation with Brisbane City Council (BCC), an exact date cannot be determined.
• The committee believe that all lots in the scheme are connected to the grease trap, however, currently only four lots (by virtue of the nature of their commercial operations at the centre) contribute to the grease waste, ie Indian Restaurant, Bakery, Seafood Restaurant, Dental Laboratory.
• Without further extensive examination of the body corporate archives and/or an attempted retrieval of any diagrams from BCC describing the location of the grease trap and how each lot is connected to it, the committee is not able to provide a diagram of it.
• The “expected proportional usage” as determined by the committee initially examining the volume of “grease” waste being output by the relevant lot proprietors. This data was further supported by examination of the relevant customer numbers being serviced by each of the lots.
• The proportional allocations of the waste collection costs were determined from the volume that each lot was contributing to the total.
• Since the output of waste is essentially a dynamic enterprise obviously subject to change according to the different and changing levels of business activity, the committee continually monitor the situation so as to maintain a fair level of apportionment.
• An informal committee meeting was held on 13 July 2009 to discuss the waste cost allocations and a draft review was tabled. This draft will be considered by all members individually prior to the next meeting, and finalised at that time, for distribution to all owners.
• To preserve fairness and equity to all lot owners the waste collection and cleaning costs should be allocated on the basis of usage of the services and it should not be a body corporate cost funded from the administrative or sinking fund.
• The committee notes the requirement under section 125(2) of the Commercial Module that an agreement is to be made between the body corporate and the relevant lot owners to charge for the abovementioned services, however it is not aware of any such agreements being in place.
• Following the review mentioned above, the committee propose to formally enter into agreements with the relevant lot owners.
  

A copy of this correspondence was forwarded to the Applicant on 22 July 2009 and he was given a further two weeks to make any comments in response to it.

The Applicant responded by letter dated 3 August 2009 to the following effect:

• A diagram of the location of the grease trap, showing how each lot is connected to it is vital to establish and further resolve this dispute.
• No proper investigation or examination has been conducted by the body corporate or any other individual to arrive at the figures used in resolution 1 of the committee meeting of 7 March 2008. Real volume and relevant customer numbers were never established on a proper and fair basis. Had it been done correctly, they wouldn’t be in this dispute.
• The figures used for allocating waste collection costs amongst lot owners, in resolution 2 of the AGM of 7 May 2008, was not done correctly and doesn’t reflect the actual and fair allocation of costs.
• The volume of waste produced by the majority of the big contributors is relatively static. Therefore, once the proportion of use and contribution have been determined correctly, it should not be necessary to continually re-determine the usage.
• The Applicant was yet (as at 3 August 2009) to receive minutes of the informal committee meeting of 13 July 2009 or the draft proposal referred to.
  

DETERMINATION

Applicable Law

The body corporate must maintain common property in good condition (section 115, Commercial Module). The common property for a community titles scheme includes all utility infrastructure except for utility infrastructure that (section 20, Act):

• supplies a utility service to only one lot

• is within the boundaries of the lot

• is not within a boundary structure for the lot.

Utility infrastructure means pipes, cables, wires, sewers, drains, ducts plant and equipment which supply lots or the common property with a utility service (e.g. water supply, gas or electricity supply, a telephone service, a sewer system or a system for the removal or disposal of garbage or waste) (definition of “utility infrastructure”, Act).

Unless otherwise stated in the BCCM Act or the regulation module, the contributions levied on the owner of each lot must be based on the contribution schedule lot entitlement of the lot (section 100(5) Commercial Module).

Section 125 of the Commercial Module provides for the supply of services by the body corporate. It provides as follows:

125 Supply of services by body corporate—Act, s 158 [SM, s

169]

(1) The body corporate may supply, or engage another person to

supply, utility services and other services for the benefit of

owners and occupiers of lots, if the services consist of 1 or

more of the following—

(a) maintenance services including, for example, cleaning,

repairing, painting, pest prevention or extermination or

mowing;

(b) communication services including, for example, the

installation and supply of telephone, intercom, computer

data or television;

(c) domestic services including, for example electricity, gas,

water, garbage removal, air conditioning or heating.

Example—

The body corporate might engage a corporation to supply PABX

services for the benefit of the owners and occupiers of lots.

(2) The body corporate may, by agreement with a person for

whom services are supplied, charge for the services (including

for the installation of, and the maintenance and other

operating costs associated with, utility infrastructure for the

services), but only to the extent necessary for reimbursing the

body corporate for supplying the services.

Note—

See also section 96 (Body corporate must not carry on business) of the

Act.

(3) In acting under subsections (1) and (2), the body corporate

must, to the greatest practicable extent, ensure the total cost to

the body corporate (other than body corporate administrative

costs) for supplying a service, including the cost of a

commercial service, and the cost of purchasing, operating,

maintaining and replacing any equipment, is recovered from

the users of the service.

Findings

Grease Trap

The committee believe that all lots in the scheme are connected to the grease trap, however, assert that currently only four lots (by virtue of the nature of their commercial operations at the centre) contribute to the grease waste. On the basis that the grease trap provides a service to more than one lot, it is common property utility infrastructure and the body corporate is responsible for maintaining it in good condition.

The cost for maintaining the grease trap should be recovered from owners in accordance with their contribution schedule lot entitlements.

In the circumstances, I consider that resolutions 1 and 2 purportedly passed at the committee meeting of 7 March 2008 and resolution 3 purportedly passed at the AGM of 7 May 2008, were at all times void.

Garbage Collection

The garbage removal is a service supplied by the body corporate for the benefit of the owners and occupiers of lots. Under section 125(2) of the Commercial Module, the body corporate may, by agreement with a person for whom services are supplied, charge for the services, but only to the extent necessary for reimbursing the body corporate for supplying the services. The committee has stated that it is not aware of any such agreements being in place. Therefore, the body corporate has no right to charge individual owners or occupiers for the service. I must also point out, that even if such agreements had been in place (this would require the consent of each individual owner/occupier for whom the services are supplied), I am not satisfied that the allocation of the costs for the service are being apportioned such that the body corporate is recovering the costs of the service from the users of the service. I cannot accept that some occupiers of lots in the scheme contribute no waste at all. Further, the committee has not been able to justify the figures it arrived at in purportedly allocating the costs fairly. It states that they are based on the volume that each lot was contributing to the total, but provides no details of what the volume contributed by each lot in fact was, what the period of time was when the volume of waste was supposedly measured, who measured it, etc.

In the circumstances, I am satisfied that resolution 2 purportedly passed at the AGM of 7 May 2008 was at all times void.

ORDER

For these reasons I have made the order above.