Amalfi On Kings [2009] QBCCMCmr 398 (15 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0436-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	36051
Name of Scheme:	Amalfi On Kings
Address of Scheme:	50 king Street Kings Beach CALOUNDRA QLD 4551

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

John Evered, the Owner of lot 18

I hereby order that the application for the following orders: That the Body Corporate instruct the BC Manager that the directors and staff of the BC Manager do not continue to use the term “Administrator” in their position title, they not being employed by an Administrator having been appointed by an Adjudicator or a court, and comply with the BCCM Act 1997, as previously advised to them in BCCM 94-2007, when writing to owners, or in any other capacity. That the “AGM” meeting held on 18 December 2008 be declared invalid, not having been authorised under the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate. That the Body Corporate ensure that a copy of the Minutes of the “AGM” meeting held on 18 December 2008 be placed on the BC files and circulated to all owners, as required by the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate. That the Body Corporate ensure that a copy of the Form 15 is placed on the BC files, as required by the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate. That Resolutions 9 and 10 of the AGM held on 23 February 2009 be declared invalid, the Motions not having been authorised by the Body Corporate, as required by the appropriate Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in the future, on behalf of the Body Corporate. That Resolution No.3 and also Resolutions No. 5 & 8 of the AGM held on 23 February 2009 be declared invalid as the Motions do not comply with the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate. That Resolution No.8 of the AGM held on 23 February 2009 be declared invalid as the Motion that the Body Corporate delegate its powers to the BC Manager was invalid, under the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate. That the Resolution No.12 of the AGM held on 23 February 2009 be declared invalid and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate. That the Body Corporate instruct the BC Manager that all past BC documents and information be available for inspection, by interested parties, on the BC files, as required by the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate. Than any Income Tax and PAYG – Instalment Tax charged to the Sinking Fund be refunded by payment from the Administrative Fund, as required by the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate. is dismissed under section 270(1)(c) of the Act for being frivolous, misconceived and without substance.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0436-2009

“Amalfi On Kings” CTS 36051

APPLICATION

This is an application by the owner of lot 18, John Evered (the Applicant), against the Body Corporate for “Amalfi On Kings” (the Respondent), seeking the following orders:

1. That the Body Corporate instruct the BC Manager that the directors and staff of the BC Manager do not continue to use the term “Administrator” in their position title, they not being employed by an Administrator having been appointed by an Adjudicator or a court, and comply with the BCCM Act 1997, as previously advised to them is BCCM 94-2007, when writing to owners, or in any other capacity.
2. That the “AGM” meeting held on 18 December 2008 be declared invalid, not having been authorised under the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate.
3. That the Body Corporate ensure that a copy of the Minutes of the “AGM” meeting held on 18 December 2008 be placed on the BC files and circulated to all owners, as required by the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate.
4. That the Body Corporate ensure that a copy of the Form 15 is placed on the BC files, as required by the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate.
5. That Resolutions 9 and 10 of the AGM held on 23 February 2009 be declared invalid, the Motions not having been authorised by the Body Corporate, as required by the appropriate Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in the future, on behalf of the Body Corporate.
6. That Resolution No.3 and also Resolutions No. 5 & 8 of the AGM held on 23 February 2009 be declared invalid as the Motions do not comply with the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate.
7. That Resolution No.8 of the AGM held on 23 February 2009 be declared invalid as the Motion that the Body Corporate delegate its powers to the BC Manager was invalid, under the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate.
8. That the Resolution No.12 of the AGM held on 23 February 2009 be declared invalid and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate.
9. That the Body Corporate instruct the BC Manager that all past BC documents and information be available for inspection, by interested parties, on the BC files, as required by the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate.
10. That any Income Tax and PAYG – Instalment Tax charged to the Sinking Fund be refunded by payment from the Administrative Fund, as required by the appropriate Section of the Regulation, and that the Body Corporate instruct the BC Manager to comply with the relevant BCCM legislative obligations in future, on behalf of the Body Corporate.
    

JURISDICTION

“Amalfi On Kings” was registered as a building format plan of subdivision on 23 October 2006 comprising 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 (Accommodation Module) Regulation 2008 (the Accommodation 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)).

SUBMISSIONS

In accordance with section 243 of the Act, a copy of the application was provided to the owner of each lot and the committee, with an invitation to respond to the matters raised in the application. Four submissions were received. Three from individual owners and one from the committee.

Three individual owners made submissions to the following effect:

• The scheme does have some history as to the original managers and their dismissal.
• Since the Applicant became an owner, owners and the committee have been inundated with hundreds of emails regarding items, some relevant and some irrelevant, to the scheme. All items such as these should be referred to the next committee meeting. Since the inundation of emails has eventuated, it has been necessary to call committee meetings every month to attempt to address these items, worthy or unworthy.
• This application adds further stress and unnecessary work for voluntary committee members. It is also adding further expense each month to continue managing unnecessary interference with normal body corporate business.
• This application should be thrown in the bin. It is a waste of tax payers’ money. Surely there are much more important things than nitpicking about trivialities.
• The Applicant is a serial pest.
  

Strata Care Australia Pty Ltd (Strata Care) (BCM) made submission on behalf of the committee, responding to the specific complaints of the Applicant. That submission concludes that the committee have found the last six months extremely difficult to function efficiently as a committee and the costs and time management regarding Strata Care are of great concern. Strata Care’s accounting, administration and management staff are constantly flooded with requests for information and monthly appointments to inspect the records and scan any new documents to the Applicant’s personal scanner/laptop.

The Applicant exercised his right to inspect the submissions, and replied to them, in some detail. He purported to submit one response to submissions by the committee and Mr Merritt, dated 5 July 2009, then a supplementary response to the submission by the committee, dated 11 July 2009. Subsequent to that, the Applicant has sent two further emails dated 22 August 2009 and 27 September 2009.

DETERMINATION

I will consider each of the alleged irregularities the Applicant details in his grounds.

1. Referral of Body Corporate Managers to themselves as “Administrators”
   

The Applicant asserts in his grounds that the body corporate administration agreement states that the body corporate manager (BCM) is Strata Care Australia Pty Ltd (hereinafter called “the Administrator”), and the directors and staff use the term “Administrator” in their position title in correspondence. In the context of the body corporate legislation, the Applicant asserts that the term “administrator” relates to a person appointed by an Adjudicator or a court. A body corporate can only appoint a “body corporate manager”.

The committee submits that the agreement entered into between the body corporate and Strata Care is a body corporate management agreement drawn up by the company’s solicitors at that time and the agreement refers to Strata Care as “the Administrator” (as they administer the body corporate affairs). If the advice they have received from their company solicitors is in contradiction to any particular legislation or regulation, they have no problem in calling themselves “the body corporate manager.

It does not appear to me that the BCM’s referral to themselves in written correspondence as “Administrator” rather than BCM is of any consequence. No owner making submission has mentioned it. The Applicant has not identified any disadvantage caused by the BCM’s reference to themselves as “administrator”. I regard this aspect of the application is frivolous.

2. That the “AGM” meeting held on 18 December 2008 be declared invalid

Section 242 of the Act provides that an application for an order declaring void a general meeting of the body corporate must be made within three months after the meeting, although such time restriction may be waived by an Adjudicator “for good reason.” The Applicant lodged this application on 8 May 2009. It was amended on 20 May 2009, before which it could not be proceeded with. This is some five months after the AGM referred to and some two months outside the legislative time limit.

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.”

The Applicant has not provided any reasons for the delay in lodging the Application. Accordingly, I decline to waive the non-compliance with the time limit in section 242 of the Act and dismiss the application for the second order sought. In any event, it appears that the meeting referred to by the Applicant did not in fact proceed. The fact that it didn’t was the reason that the body corporate lodged an application for an order of an Adjudicator to hold their AGM outside of the legislative time limit[1]. In such circumstances, I regard this aspect of the application as frivolous and misconceived.

3. That the Body Corporate ensure that a copy of the Minutes of the “AGM” meeting held on 18 December 2008 be placed on the BC files and circulated to all owners

The committee submits that the Applicant disputed the validity of this meeting and the committee resolved to adjourn it and seek the advice of this office. A subsequent Adjudicator’s order was made granting approval for the body corporate to hold its AGM outside of the legislative time limit[2]. In any event, the committee submits that the minutes of the meeting have been placed on the meeting file. In circumstances where an Adjudicator has found that this meeting did not proceed, I regard this aspect of the application as frivolous and misconceived. I decline to make the third order sought by the Applicant.

4. That the Body Corporate ensure that a copy of the Form 15 is placed on the BC files

The Applicant asserts that a copy of the application form which the body corporate used to seek the order referred to above, by which it was granted permission to hold its AGM outside of the legislative time limit, is missing from the body corporate files. He attaches a copy of an email from Strata Care which states that the form was not prepared or sent by Strata Care and they did not have a copy. The committee submits that a copy of the form 15 and the resulting order from this office is in the body corporate records. In the absence of any complaint other than by the Applicant in relation to this issue, I accept the committee’s submission. In any event, if the Applicant still wishes to obtain a copy of the said application form and is unable to locate it amongst the body corporate records, he may apply to this office for a copy. I decline to make the fourth order sought by the Applicant.

5. That Resolutions 9 and 10 of the AGM held on 23 February 2009 be declared invalid
   

The Applicant submits that Resolutions 9 and 10 of the AGM of 23 February 2009 should be declared invalid on the basis that these motions were not approved by the committee at its meeting of 13 January 2009 for inclusion on the agenda.

The committee submits that Motions 9 and 10 were included on the agenda of the AGM for 23 February 2009 at the direct request of the Applicant to a committee member, who then instructed the BCM to include two additional motions. A copy of an email dated 28 January 2009 from Gary Turner to Sharon Raciti substantiates this. Section 67(2) of the Accommodation Module requires motions submitted for consideration at a general meeting by a member of the body corporate or the committee, to be included on the next general meeting agenda on which it is practicable to include the motion. I am not satisfied that the Motions 9 and 10 were inappropriately included on the agenda for the AGM of 23 February 2009.

In his grounds, the Applicant appears to allege a breach of section 63(1) of the Accommodation Module, by suggesting that at a committing meeting held on 13 January 2009, the calling of an AGM was not specifically authorised, although he concedes that motions for inclusion in the agenda were approved. I am not satisfied that there has been any breach of section 63(1). The submission by the committee and documentation included with their submission evidences to me that the AGM of 23 February 2009 was not called without appropriate authorisation. I regard this aspect of the application as frivolous and regard the Applicant’s argument as irrelevant to the order he seeks in that, the alleged failure of the committee to call the AGM in accordance with section 63(1) of the Accommodation Module would affect the validity of the entire AGM, not just resolutions 9 and 10.

6. That Resolution No.3 and also Resolutions No. 5 & 8 of the AGM held on 23 February 2009 be declared invalid

The Applicant alleges a breach of section 175(3) of the Accommodation Module in that the full replacement value of the building and the date of the valuation was not disclosed in the Notice of AGM or a note to the administrative fund budget. He asserts that resolutions 3 (Administrative Fund Budget & Contributions), 5 (Body Corporate Insurance Contribution) and 8 (Confirmation of Insurance) are therefore invalid.

In its submission, the committee states that the original insurance replacement cost estimate was provided by the original developer and was dated 26 October 2006, which is in the records. The committee instructed the BCM to have an insurance valuation for replacement costs carried out on 12 July 2007; this was circulated to all owners at the time.

The Applicant, in his reply to the committee submission, states that the insurance valuation for replacement costs carried out on 12 July 2007 may well have been circulated to all owners at the time, but owners who purchased units after that date were unaware of it. The point, the Applicant states, is that it wasn’t circulated with the Notice of Meeting as required by section 175(3) of the Accommodation Module. Motion 8, as listed in the Notice of Meeting, states under “Insurance Details” that the “building sum insured” is $11,665,000. While I concede that the terminology does not specifically state “full replacement value” and the date of the valuation was not disclosed, I am not prepared to invalidate resolutions 3, 5 and 8 because of it. The sum the building is insured for was clearly stated under Motion 8, the valuation upon which the insurance is based was clearly done within the last five years, as required by section 179(2), and the Applicant has not suggested that the sum insured for is inadequate. It is difficult to fathom why the Applicant would seek to declare invalid resolutions 3 and 5 when he does not appear to be objecting to the insurance coverage obtained for the building, but merely objects to the omission of information which he is now aware of, from the Notice of AGM. Further, the Applicant has failed to demonstrate any detriment suffered by him by the body corporate’s failure to disclose the date of the valuation in the Notice of AGM, or a note to the administrative fund budget. I am satisfied that all owners are now correctly informed as to the date of the valuation upon which the body corporate’s building insurance is based and can see no benefit to anyone in granting the orders the Applicant seeks in this regard.

7. That Resolution No.8 of the AGM held on 23 February 2009 be declared invalid
   

The Applicant asserts that this resolution is invalid because the body corporate purported to delegate its powers to the body corporate manager.

The committee submits that the body corporate is instructed by its committee to obtain insurance renewal quotations. In this instance, instructions were received from the committee to obtain an insurance quotation for the renewal. Additionally, the committee, through the secretary, obtained an additional quotation. The committee reviewed both quotations and instructed the BCM to renew the insurance for the following twelve months.

Copies of emails attached to the submission indicate that the body corporate’s insurance policy was due to expire on 24 October 2008; the committee members considered two quotations to renew the insurance, approved one and then instructed the body corporate manager to renew the policy. Motion 8 of the AGM of 23 February 2009 sought to ratify that process and to authorise the BCM to renew the insurances for the ensuing twelve month period after obtaining at least two quotations.

The review of insurance policies held by the body corporate is a subject which must be included in the agenda of every AGM, as a statutory motion[3]. While I consider that the committee acted in excess of their authority, firstly, by deciding a matter that the legislation requires the body corporate to consider in general meeting and secondly, by approving expenditure in excess of the relevant limit for committee spending, I am satisfied that the passing of Motion 8 at the AGM of 23 February 2009 by 9 votes to nil was sufficient to ratify the committee’s actions. I can see no benefit to anyone in making the order sought by the Applicant.

8. That the Resolution No.12 of the AGM held on 23 February 2009 be declared invalid
   

The sole ground relied upon by the Applicant in this regard appears to be that Motion 12 was stated to have been submitted by “the body corporate administrator” when Strata Care “manage” rather than “administer” the body corporate. The committee submits that this was a typographical error and should have read “submitted by the committee” and this was acknowledged at the meeting. The minutes of the committee meeting of 13 January 2009 reveal that the committee had approved the motion for inclusion in the AGM agenda and that the motion was in fact, submitted by the committee.

I regard this as a frivolous claim by the Applicant. He is suggesting that an error in relation to who is identified as having submitted the motion in the Notice of AGM renders the motion invalid, although no objection to the substance of the motion is raised. I decline to make the order sought.

9. That the Body Corporate instruct the BC Manager that all past BC documents and information be available for inspection, by interested parties, on the BC files
   

The Applicant asserts that all the documents and information required to be kept on the body corporate files is not currently on them. He attaches a table labelled “BC Meetings – Committee, Outside Committee, AGM and EGM records on BC files”, which it appears, he authored himself. He further states that on 14 May 2009, the BCM advised the chairperson, in part, that “Proxy forms are not kept in the body corporate file, as after they have been tabled at a meeting, they are sent to archives.”

The committee submits that all documents relating to AGMs are kept in the meeting archives after the minutes have been completed and approved by the committee. Any information relating to the EGM of 14 March 2008 is excluded from disclosure due to the continued legal issues and proceedings.

The Applicant’s reply to the committee’s submission acknowledges that minutes of meetings are usually placed on body corporate files, but lists 10 documents that he alleges do not appear on the body corporate files. The documents he lists as missing, however, are only referred to generally, for example, pre-end of year notices re the calling for committee nominations and nomination forms, notices of AGMs, etc.

Without any specifics (for example, Notice of AGM dated XXX) of documents claimed to have been incorrectly excluded from the body corporate records, or any evidence of specific documents having been incorrectly excluded, I am not prepared to make any orders in this regard.

The body corporate should be aware of its legislative obligations under sections 200 – 203 of the Accommodation Module in relation to the keeping and disposal of records and access to records, and section 205 of the Act in relation to information to be given to interested persons. I draw the parties’ attention, specifically, to section 202(2) of the Accommodation Module which does not require the body corporate to allow a person access to records if a legal proceeding between the body corporate and the person has started or is threatened and the records are privileged from disclosure.

10. That any Income Tax and PAYG – Instalment Tax charged to the Sinking Fund be refunded by payment from the Administrative Fund
    

The Applicant alleges a breach of section 149 of the Accommodation Module, appearing to suggest that income tax and PAYG Instalment Tax should be paid from the administrative fund rather than the sinking fund. I assume the reference to section 149 is a mistake and that the Applicant intends to refer to section 146 of the Accommodation Module, which provides as follows:

The committee submits that there is a generally accepted accounting principle that the interest from sinking funds invested is recorded as income in the sinking fund. Interest is taxed at the standard company tax rate and this income tax is then recorded to the sinking fund expense column. This is backed up by the Australian Taxation Office, submits the committee. PAYG is a provision for income tax which is paid quarterly.

In his reply to the committee submission, the Applicant states that he cannot find anything relevant to this issue on page 128 of the Act or the Accommodation Module.

The Applicant has failed to satisfy me that the body corporate is applying sinking funds toward spending that should not reasonably be met from capital. I decline to make the order he seeks in this regard.

Conclusion

I do not consider that the Applicant has demonstrated that significant procedural irregularities, or breaches of the legislation have occurred. Nor has the Applicant demonstrated that the substance of any of the resolutions he seeks to declare invalid was unlawful, or unreasonable and should not be carried out. In meetings of all kinds, including body corporate meetings, minor procedural irregularities often occur both in the calling and conduct of the meeting. It has been the practice of the courts not to void meetings on the grounds of minor irregularities in procedure, provided that persons entitled to participate in the meeting have not been disadvantaged in properly exercising their right to vote on the matters brought before the meeting. The very detailed provisions of the Modules make it almost inevitable that from time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bone fide.[4]

I regard most, if not all, of the objections raised by the Applicant in this dispute resolution application as frivolous, as detailed above. Further, even if his objections were substantiated (which I have found, they are not), the Applicant has not demonstrated any detriment suffered as a result. In these circumstances, I consider the application to be misconceived and without substance.

An Adjudicator has power under section 270(1)(c) of the Act to make an order dismissing an application if it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance. If an adjudicator makes an order under section 270(1)(c), the adjudicator may order costs (not exceeding $2,000) against the Applicant to compensate the body corporate for loss resulting from the application. In ordering costs, the Adjudicator may have regard to previous applications made by the Applicant.

I note two previous orders resulting from applications lodged by the Applicant in relation to a different scheme, both of which were dismissed[5]. I particularly note the following comments of the Adjudicator in the most recent of these, which was dismissed under section 270(1) of the Act both for want of jurisdiction and for the reason that it appears the application is misconceived and without substance:

It is clear from submissions that a number of owners are concerned with perceived interference in the management of the body corporate by the applicant Mr Evered, and the relative merits of Mr Evered’s submissions and representations. I mention the above provisions by way of information to those owners in respect of future applications which might be made by Mr Evered. To Mr Evered, I suggest he might consider a more measured approach to the making of applications to this office. In this regard, I am conscious of a previous order involving an application made by Mr Evered. To other owners who might consider putting their name to applications made, or at least initiated by Mr Evered, then they should be aware of the possible operation of the cost provision in section 270 should future applications be dismissed under subsection (c) of that section.

If the body corporate had sought costs against the Applicant, on the basis of the material presented in this application and the previous orders made dismissing applications lodged by him, I would have been minded to award them.

The Applicant should note section 270 of the Act and give careful consideration to lodging future applications with this office.

ORDER

For these reasons I have made the order above.

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[1] Amalfi On Kings [2009] QBCCMCmr 11
[2] Amalfi On Kings [2009] QBCCMCmr 11
[3] See definition of “statutory motion” in Accommodation Module Dictionary and section 74(3) Accommodation Module.
[4] Wei-Xin Chen v. Body Corporate for Wishart Village [2001] District Court (Brisbane) 4080 of 2000.
[5] Vardon Point Apartments [2005] QBCCMCmr 223; Vardon Point Apartments [2005] QBCCMCmr 417