Grand Mariner [2009] QBCCMCmr 34 (4 February 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mark Zebrowitz, the owner of Lot 163 and Arleen Doyle, a co-owner of Lot 173

I hereby order that pending a final determination of this application, the body corporate for Grand Mariner community titles scheme 4264 (including through its committee) shall not proceed with, implement or otherwise act upon the following resolutions of the committee:

Item 2 of Business Arising at the meeting dated 24 November 2008 – Peeling Paint on Pergolas - “After discussion, it was RESOLVED that the Building Manager is to ensure that the flashing is to be replaced on top of the pergola at Lot 173 (with such flashing to be similar to that at Lot 174) and the painting of the top of both pergolas at Lots 173 and 174 are both to be completed by 8 December 2008 if possible”.
Item 3 of Business Arising at the meeting dated 9 January 2009 - Peeling Paint on Pergolas - “The Building Managers stated that they have had to obtain further quotes for this painting as the approved painter has indicated he will not now do the work. Jovan advised that they anticipate having a price for the flashing shortly. It was RESOLVED that the Building Manager will obtain 2 quotes for the flashing and the painting to present to the next committee meeting”.

I further order that in all other respects, the application for an interim order by Mark Zebrowitz, the owner of Lot 163 and Arleen Doyle, a co-owner of Lot 173 is dismissed.

This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

The scheme
“Grand Mariner” community titles scheme 4264 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 made by Mark Zebrowitz, the owner of Lot 163 and Arleen Doyle, a co-owner of Lot 173 (Applicants) is dated 18 December 2008. The application was amended on 27 January 2009 and is against the Body Corporate. It seeks the following outcomes:

The Applicants have sought an interim order to suspend the painting of the tops of two pergolas located between Lot 173/177 and Lot 174/178, or any other repair, replacement or carrying out of maintenance on any pergolas pending the final order.

The Applicants provided a copy of the minutes of the November 2008 and the January 2009 committee meetings.

Item 2 under Business Arising at the November meeting related to peeling paint on pergolas. The committee resolved: “that the Building Manager is to ensure that the flashing is to be replaced on top of the pergola at Lot 173 (with such flashing to be similar to that at Lot 174) and the painting of the top of both pergolas at Lots 173 and 174 are both to be completed by 8 December 2008 if possible”. At Item 17 under General Business “The committee noted that Mr David Donan of ARUP Engineering had recommended a regular inspection programme for all pergolas wherein all pergolas have the inspection plates removed and the fixings checked for corrosion and if necessary treated and that this be done every 3 years ... it was resolved to approve Mr Alek Filep liaising with the Building Managers and the handyman to determine if the pergola inspections and rust treatments can be done by the handyman and Mr Alek Filep to report back to the next meeting”.

Item 3 under Business Arising at the January meeting also related to peeling paint on pergolas. It is minuted: “The Building Managers stated that they have had to obtain further quotes for this painting as the approved painter has indicated he will not now do the work. Jovan advised that they anticipate having a price for the flashing shortly. It was resolved that the Building Manager will obtain 2 quotes for the flashing and the painting to present to the next committee meeting”. At Item 31, it was resolved to defer the inspection programme for all pergolas to the next meeting.

The Applicants say management has said: the minutes of the January meeting are inaccurate; the painting quote is in and accepted; two quotes for the repair for the flashing are being obtained; and that once they have been obtained (this week or next) the repair to the flashing will be completed and then the painting will be done. The Applicants want an interim order to stop this work as they say it will result in duplicate expenditure of Body Corporate funds, and it is unnecessary and unfair to paint 2 pergolas when other pergolas need maintenance. The Applicants consider it is a waste of money to paint the tops of these pergolas, only to come again and finish the rest later if it is necessary to do so. The Applicants believe all pergolas should be assessed as per the resolution of 24 November 2008 and then begin the necessary maintenance as a project. The Applicants state the work being conducted would seem to be for the chairperson’s benefit given the 2 pergolas are those of the chairperson and another committee member, and is biased as other residents with similar pergolas are not having their pergolas painted.

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. 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).

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 27 January 2009, I invited submissions from the committee regarding the interim order application, and a copy of the application was provided to Body Corporate Services (Body Corporate Manager) for distribution to committee members.

The Body Corporate Manager responded the committee wishes to advise that it has no objection to the interim order request.

Determination
The Applicants dispute proposed maintenance of two pergolas, have indicated that the work has not yet been completed and suggest the work is about to be carried out. Given the committee has not disputed these claims, I am satisfied the Applicants have demonstrated urgent circumstances to warrant consideration of the interim order application.

The Applicants would seem to question the reasonableness of committee decisions to maintain particular pergolas in the circumstance where pergolas generally may require maintenance. In the absence of contrary material, it would seem the pergolas mentioned in the November 2008 committee resolution and other pergolas are common property. 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). A decision of the committee (other than a decision on a restricted issue) is a decision of the body corporate (s 100(1) and (2), Act). The committee must act reasonably in making a decision (s 100(5), Act).

The resolution for Item 2 at the November meeting refers to pergolas at Lots 173 and 174. While the January meeting resolution for Item 3 refers to painting pergolas (and it may relate to the pergolas mentioned at the November meeting), it does not specifically identify the pergolas proposed to be painted. Despite the question with respect to the pergolas subject to the resolution on Item 3, it would seem the Applicants require a final determination with respect to the resolutions passed on Items 2 and 3. In the absence of contrary argument, I am satisfied the Applicants raise a question about the reasonableness of these resolutions that will need to be determined. For these reasons, I have made an interim order in relation to the implementation of these resolutions.

Even though the committee do not oppose the terms of the interim order sought, the Applicants have (in part) proposed an order to prevent the Body Corporate from carrying out any repair, replacement or maintenance on any pergola. In my view, this part of the interim order sought is broader than the abovementioned resolutions and the terms of the final orders being sought. Further, the Applicants have not provided grounds for seeking this interim order. The Applicants have referred to other pergola related resolutions — Item 17 at the November meeting and Item 31 at the January meeting. However, the Applicants have not specifically disputed these resolutions and I am not aware of any other Body Corporate decision in relation to pergolas. In the absence of any decision related to the terms of the interim order sought, there is a question as to the existence of a dispute. It is not known what future decisions the Body Corporate may make about the maintenance of a pergola and given its legislative obligations, the Body Corporate should not be prevented from giving proper consideration to this issue. Given the grounds on which the outcomes are sought and the stated final outcomes, I do not consider there is any basis for making an interim order that prevents the Body Corporate from properly deciding to maintain a common property pergola pending the final order.

For these reasons, I have made an interim limited in its scope to the decisions made by the committee at the November and January meetings under the headings: ‘Peeling Paint on Pergolas’. The interim order sought is otherwise 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.

Number of Scheme:	4264
Name of Scheme:	Grand Mariner
Address of Scheme:	12 Commodore Drive SURFERS PARADISE QLD 4217

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Grand Mariner [2009] QBCCMCmr 34 (4 February 2009)