Raywyn Court [2009] QBCCMCmr 373 (1 October 2009)

Last Updated: 12 November 2009

REFERENCE: 0902-2009

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14348
Name of Scheme:	Raywyn Court
Address of Scheme:	138 Chester Road ANNERLEY QLD 4103

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Simon and Suzanne Hewitt, the owner of Lot 5

I hereby order that pending a final determination of this application, the body corporate for Raywyn Court community titles scheme 14348 (including through its committee) must not: Proceed with or implement any purported decision by a majority of owners on Motion 1 stated in the Flying Minute attached to the letter dated 11 September 2009 from Matthews Body Corporate Management to ‘The Owners “Raywyn Court” CTS 14348’ about fencing. Otherwise permit work involving demolishing the boundary fence retaining wall on scheme land and adjacent to the neighbouring property identified as 130 Chester Road, Annerley without obtaining advice from a person with appropriate qualifications or expertise about the effect that work limited to demolishing the wall may have on scheme land or any other land. 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the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0902-2009

“Raywyn Court” CTS 14348

The scheme
“Raywyn Court” community titles scheme 14348 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 23 September 2009 is by Simon and Suzanne Hewitt, the owner of Lot 5 (Applicants) against the Body Corporate seeking an outcome that an engineer’s report be obtained to confirm that bulldozing the retaining wall and not replacing it at the same time will not cause structural damage to the building. The Applicants seek an interim order to stop any demolition of the retaining wall until an engineer’s report is done to confirm that removing the wall and not replacing it at the same time will cause no damage to the building.

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 to resolve a dispute 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).

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 28 September 2009 I invited submissions from the committee regarding the interim order application. On 30 September 2009, I asked the chairperson to provide a copy of the letter dated 11 September 2009 from Project Services, Department of Public Works (Project Services letter). On 1 October 2009, I asked the Body Corporate Manager to provide a copy of a voting slip mentioned in a letter dated 11 September 2009 from Matthews Body Corporate Management (Body Corporate Manager) to ‘The Owners “Raywyn Court” CTS 14348’ about fencing (Body Corporate Manager letter). I also spoke to Linda Woodbridge from Project Services, Department of Public Works.

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

The Body Corporate Manager letter states that the neighbours are demanding that the falling down fence be made safe. The Project Services letter identifies the Department of Communities as owning a neighbouring property at 130 Chester Road, Annerley; expresses concern about the failed retaining wall; and indicates that unless positive communication is received from the Body Corporate it will consider referring the matter to the Crown Solicitor. The Applicants submit they were told at a meeting on 14 September 2009 that the bulldozing would proceed within two weeks and an engineer’s report was not necessary. The Applicants provided a copy of an email dated 18 September 2009 from the Body Corporate Manager stating that the wall will be getting bulldozed, levelled and a new wall will be going back up. The committee submitted the plan is to remove the wall until a decision can be made about fencing the boundary. Significantly, the committee have not disputed the Applicants’ claims about the proposed bulldozing work. There is nothing to suggest that this work is not planned to proceed in the near future. In my view, the Applicants have demonstrated urgent circumstances to warrant consideration of the interim order application.

To assist me in determining whether to grant injunctive relief at this stage, I consider it relevant to briefly consider whether a serious legal question is raised that will need to be determined. If such a question is raised, then it may be appropriate to make an interim order to attempt to preserve the integrity of the matters in dispute pending the final determination. An adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted.

The Applicants have not claimed that the work is not a responsibility of the Body Corporate. It would seem the work is proposed to common property. The Body Corporate’s functions include administering the common property for the benefit of the lot owners (s 94, Act). Its duties about common property include administering, managing and controlling common property reasonably and for the benefit of lot owners (s 152(1), Act). The Body Corporate must maintain common property in good condition (s 159(1), Standard Module).

The Applicants and the Project Services letter suggest that the retaining wall has required maintenance for some time. The Applicants claim they have tried to get the retaining wall fixed since 2006 and that each proposal they have put to a general meeting was opposed. Project Services suggest the retaining wall has been leaning into the neighbouring property owned by the Department of Communities for some years. It is not argued that maintenance work is not necessary.

It would appear that the Applicants have been informed that initial work will involve bulldozing the retaining wall and that further work may be performed at a later time. The Applicants have not referred to any specific Body Corporate decision about this work. The committee have not relied on a particular Body Corporate decision as a basis for proceeding with the work. However, the Body Corporate Manager letter asks that an attached voting slip be returned. The copy of the voting slip provided to me by the Body Corporate Manager is titled ‘Flying Minute’ and asks owners to cast a vote pursuant to the Standard Module: “That a bob cat operator be engaged to take down the fence, remove the debris and grade the fence line on a gradual slope as best as possible at a cost of approximately $5,000 to be funded from the Sinking Fund reserves.” The motion was proposed to be decided by ordinary resolution.

The proposal in the Motion clearly contemplates spending Body Corporate money. The way the Body Corporate can authorise spending is prescribed by the legislation (s 150, Act). The committee can authorise spending up to the relevant limit for committee spending which, unless the Body Corporate has set another amount, is $2000 (the 10 lots included in the scheme multiplied by $200, s 151 and schedule, Standard Module). The regulation states the procedures to make committee decisions either at a committee meeting or by voting in writing outside a committee meeting (s 44 to 57, Standard Module). Proposed spending above the committee’s limit, which is suggested in this case, would ordinarily be authorised in general meeting. The regulation contains detailed provisions about procedures for giving notice of a general meeting and about the conduct of a general meeting (s 65 to 96, Standard Module). Spending above the committee’s relevant limit can however be authorised without calling and holding a general meeting (for example, s 151(1), Standard Module).

It would seem that the abovementioned Flying Minute was supported by the owners of Lots 1, 2, 3, 4, 7, 8 and 9. It was opposed by the Applicants. There is nothing to suggest that the owners of Lots 6 and 10 responded to the Body Corporate Manager letter. To the extent that the indicated support is being relied on to do the disputed work, and for the purposes of determining the interim order application, I consider there are a number of questions about the Flying Minute:

1. There is a question about whether the Flying Minute was properly authorised. The Body Corporate Manager letter is the same date as the Project Services letter. It would seem the Flying Minute was a consequence of the Project Services letter. It is not known if it was authorised by the Body Corporate.
2. Even though it invited owners to vote pursuant to the Standard Module, the legislative basis for making a Body Corporate decision in this way is to be determined. Firstly, while the committee may under section 54 of the Standard Module vote in writing outside a committee meeting, it is apparent in the circumstances that the voting is by owners and not by committee members. Secondly, section 111 of the Act which provides a way for a decision to be made by owners other than at a general meeting does not apply to a scheme subject to the Standard Module. Lastly, the Standard Module provisions relating to general meetings do not provide a way for a body corporate decision to be made by flying minute.
3. There is a question about whether the decision authorises spending in a way contemplated by section 151(1) of the Standard Module. Subsection (1)(a) provides that the spending may be specifically authorised by ordinary resolution of the body corporate. While the Flying Minute motion sought a decision by ordinary resolution, as I have indicated, there is no evidence an ordinary resolution was passed in a general meeting of this Body Corporate (s 110, Act). Section 151(1)(b) provides the owners of all lots may give written consent. There is no evidence of this consent. In fact, the Applicants have indicated their opposition to the proposal. There is nothing to suggest that subsections (1)(c) and (d) are applicable.
   

In the circumstances, there is a serious question about the way the Body Corporate has authorised both the work and the spending. There is no indication that the proposal has been approved in accordance with the legislation.

The Applicants have principally raised a question about the possible effect the removal of the retaining wall may have on the structural integrity of the building. Linda Woodbridge from Project Services Queensland is similarly concerned about the impact of removing, and not replacing, the retaining wall without the benefit of an opinion from a person with appropriate qualifications or expertise. While the Applicants have not provided any information from such a person to support their claims, neither has the Body Corporate provided any objective or authoritative material demonstrating that the removal of the retaining wall (without replacement) will not have any adverse impact on the building, any other part of scheme land, or any other land. Nor has it been demonstrated that a body corporate, acting reasonably, could in the absence of such material remove the retaining wall and not replace it. The committee submitted, without substantiation, that the building is not affected in anyway and it may be adequate to grade the land and not have a retaining wall. Without persuasive evidence to support the proposed work, I am satisfied concerns about a possible consequence of the work is a relevant consideration.

It would seem the only stated urgency for the removal of the wall is the indication in the Project Services letter about referring the matter to the Crown Solicitor. Linda Woodbridge informed me that this matter has been ongoing for a number of years and the Department would like the wall to be rectified. She is not aware of any particular circumstance which now necessitates the immediate removal of the wall. It would seem the Department has proposed taking this action as the Body Corporate has not undertaken rectification work. There is nothing to suggest that, if requested, the Department would not have provided time to the Body Corporate to properly consider and approve spending to carry out work with respect to the retaining wall. Indeed, the Department indicates that it has no desire to enter into a dispute with the Body Corporate. There is also no suggestion that the Body Corporate has, as a consequence of the Project Services letter, sought to discuss the matter further with the Department.

In my view, there are serious questions to be determined about the proposed bulldozing of the retaining wall and it is appropriate to make an interim order to preserve the integrity of the matters in dispute pending final determination. 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.