Teneriffe Hill Apartments [2009] QBCCMCmr 424 (28 October 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Yates Nominees Pty Ltd as trustee, the owner of Lots 1, 2, 53, 54, 59, 65 and 66

I hereby order that the resolution passed on Motion 12 at the Annual General Meeting of the body corporate for Teneriffe Hill Apartments community titles scheme 24567 dated 25 March 2009 (AGM) is void to the extent it consented to recording a new community management to include the following amendment to By-Law 3: “and any costs associated with such removal shall be borne by the offending party if the offending party is an invitee or by the owner or occupier of whom he is an invitee. The owner indemnifies the Body Corporate against any claim or demand which may arise out of the Body Corporate’s actions to remove the vehicle” (“the voided provisions”).

I further order that By-Law 3(b) stated in schedule C of the community management statement recorded by the registrar of titles on 11 June 2009 (No.712461893) is invalid to the extent it includes the voided provisions.

I further order that within two months of the date of this order, the Body Corporate must lodge a request to record a new community management statement for the scheme to amend By-Law 3(b) by omitting the voided provisions.

I further order that the resolution passed on Motion 15 at the AGM is void.

I further order that application made by Yates Nominees Pty Ltd as trustee, the owner of Lots 1, 2, 53, 54, 59, 65 and 66 against the Body Corporate seeking an outcome that Motion 22 lost at the AGM be declared passed, is dismissed.

The scheme
“Teneriffe Hill Apartments” community titles scheme 24567 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).

Application
This application made on 27 April 2009 is by Yates Nominees Pty Ltd as trustee, the owner of Lots 1, 2, 53, 54, 59, 65 and 66 (Applicant) against the Body Corporate seeking an outcome that the resolutions passed on Motions 12 and 15 at the Annual General Meeting dated 25 March 2009 (AGM) be declared invalid and that Motion 22 lost at the AGM be declared passed.

Submissions to the Commissioner
On 30 April 2009, the Commissioner provided a copy of the application to Teys Strata Management (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). Twenty five owners and the committee made submissions. The Applicant made a written reply to submissions.

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 to resolve a dispute about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (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 AGM 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 20 October 2009 I asked Mr Yates to confirm the location of the toilets mentioned in Motions 15 and 22.

Decision
AGM
The Applicant has questioned particular decisions made at the AGM. The Applicant has not disputed the way the meeting was called and has not raised specific questions about the voting on the disputed Motions. For these reasons, I do not propose to investigate or to give consideration to legislative provisions relating to procedures for calling and conducting a general meeting.

Motion 12
The minutes of the AGM indicate that Motion 12 was proposed by the committee and was passed by special resolution:

“That...the Body Corporate consents to the recording of a Community Management Statement whereby it amends existing by-law number 3 by including the following:

The Body Corporate may take any such steps as may be necessary to remove any vehicle which has been parked in breach of this By-law and any costs associated with such removal shall be borne by the offending party if the offending party is an invitee or by the owner or occupier of whom he is an invitee. The owner indemnifies the Body Corporate against any claim or demand which may arise out of the Body Corporate’s actions to remove the vehicle.

Further, the Committee is authorised to prepare the community management statement incorporating the new by-law, having it...lodged for recording...as soon as practicable.”

On 11 June 2009, the registrar of titles recorded a new community management statement for the scheme (No.712461893) which includes By-Law 3(b) in terms consistent with the resolution passed on Motion 12. The By-Law came into force on the day the registrar recorded the statement (s 179, Act).

The implementation of the resolution does not affect the determination of the outcome sought. Neither does the fact that the By-Law did not have force at the time the application was made when the Applicant’s main argument is that the new by-law passed breaches section 180(6) of the Act. The Applicant is questioning the power of the Body Corporate to make the By-Law. “The power to make by-laws must be construed in the context of the authorized functions of the body in question and the legislation conferring the power. It follows that such a power cannot be invoked to extend the powers or functions of the body or to contradict a provision of the Act in question, at least in the absence of express or necessarily implied authority to do so” (Re:The Hastings (Group Title Plan No. 1154), No. 826 0f 1993, The Supreme Court of Queensland, Dowsett J., 7 March 1994, page 7). At the time the application was made, the Applicant could only dispute the resolution passed on Motion 12. While making of the application did not prevent the Body Corporate from lodging the request to record a new community management statement, the Body Corporate had notice of the dispute when it took this action. There was the prospect that any order made in the terms sought would affect the By-Law in force. In my view, it is appropriate to test the validity of the resolution as there is the question that it made a by-law that is inconsistent with the Act.

Section 180(6) provides: “A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.” The Applicant questions two parts of the resolution passed on Motion 12: firstly, “any costs associated with such removal shall be borne by the offending party if the offending party is an invitee or by the owner or occupier of whom he is an invitee”; and secondly, “The owner indemnifies the Body Corporate against any claim or demand which may arise out of the Body Corporate’s actions to remove the vehicle” (both “the disputed provisions”).

The Applicant cites adjudications previously made under chapter 6 of the Act: Liberty [2004] QBCCMCmr 570 (19 November 2004)); The Lakes Coolum [2007] QBCCMCmr 218 (19 April 2007)); and O’Quinn Street Apartments [2008] QBCCMCmr 427 (17 November 2008).

Liberty concerned the validity of a by-law that: firstly, required a lot owner to pay body corporate costs and expenses incurred to recover levies or monies payable to the body corporate and in proceedings; and secondly, provided where the body corporate expended money to make good damage caused by a breach of the Act or the by-laws, the body corporate could recover the amount as a debt in any action in any court of competent jurisdiction from the lot owner. The adjudicator found the disputed by-law to be invalid stating at page 4 of the reasons for decision:

“Whilst “monetary” might be considered a specific term, the term “liability” is in my view capable of wide interpretation. The New Shorter Oxford English Dictionary, Thumb Index Edition defines “liability” to mean:

The collective term “monetary liability” appears to me to be capable of reasonably wide meaning or scope. I consider that the effect of [the] by-law...is to render owners liable, in the sense of being liable for or subject to the possibility of costs being imposed against them, which “costs” I consider to be within the meaning of the term “monetary”.”

The Lakes Coolum related in part to a provision of a by-law requiring an owner or occupier to lodge a security deposit when applying for committee approval to carry out any construction, improvements, renovations, alterations, additions or landscaping on the person’s lot. The by-law provided that the committee could deduct from the deposit any costs (incurred or anticipated) in rectifying any breach of a by-law relating to the construction of the proposed works. In relying on section 180(6), the adjudicator found that the body corporate was not entitled to forfeit the security deposit. In applying Liberty, the adjudicator stated at page 8 of his reasons for decision: “...section 180(6) prohibits the imposition of a monetary liability by means of a by-law, which I believe is wide enough to preclude the recovery of costs incurred by the body corporate pursuant to the by-laws of the scheme. While there may be other means by which a body corporate may recover costs which it has incurred, it may not do so by means of a by-law and any such by-law is invalid to the extent that it purports to do so. I believe this interpretation is consistent with the intention of that provision of the Act as applied in previous decisions of Adjudicators.” The adjudicator also referred to an earlier decision made under the dispute resolution provisions of the Act in Chiara Sands [2005] QBCCMCmr 683 (5 December 2005).

The adjudicator in Chiara Sands also referred to Liberty when deciding that two by-laws were contrary to the legislation. The first by-law provided: “Where the Body Corporate spends money or incurs any costs as a result of a breach of the Act, the Standard Module or of these by-laws by any Owner, Occupier or Invitee of a Lot then the Body Corporate is entitled to recover the amount spent or cost incurred (including solicitor and own client costs) as a liquidated debt in any court action from the Owner of the lot.” The second by-law contained similar provisions to part of the by-law invalidated in Liberty relating to an owner paying body corporate costs incurred in for example, recovering contributions payable and legal proceedings. At page 4 of his statement of reasons and applying section 180(1) and (6) of the Act, the adjudicator stated: “I am concerned that these by-laws purport to make any owner in dispute with the body corporate liable for all the body corporate’s expenses, whatever they may be. This is contrary to the usual position in litigation where a court considers whether costs should be payable and any costs are usually awarded with reference to the court scale of costs”.

In O’Quinn Street Apartments the adjudicator stated (at pages 6 and 7 of the statement of reasons): “The only objection I have to proposed by-law 2 is its attempt to make an occupier liable for any damage caused to common property by tradesman or removalist vehicles. Any assertion of liability pursuant to the by-law would be wrong at law as a by-law of this nature is invalid as seeking to impose a monetary liability”.

The Applicant argues the cited decisions make it clear the words in the first disputed part of the resolution are void. With respect to striking out the words in the disputed second part, the Applicant relies on the Liberty decision, the ordinary meaning of indemnify and indemnity, and statements made in O’Quinn Street Apartments.

The committee members and owners responding to the application did not make detailed submissions about the abovementioned decisions. Most submissions were in a form recommended by the committee in a letter to owners dated 14 May 2008. This letter does not provide any opinion about the relevance of these decisions. However, a standard form signed by most owners states (in part): “I can not understand why a section of the Act that apparently refers to residents rights should be considered, as the offending vehicles are not from visitors to the building or tenants but from outsiders.” The chairperson and secretary submitted Motion 12 was put up to enable the on-site manager to legally act to ensure the health, hygiene and well being of residents is maintained by facilitating the daily collection of rubbish; the majority of vehicles do not belong to residents; the manager intends to approach a vehicle towing company and follow all procedures they provide him with; and the relevance of s180(6) was not considered as the offending vehicles are not from visitors or residents but from outsiders.

In the reply to submissions, the Applicant stated submissions that the Motion is directed at outsiders are misguided and incorrect as the Motion is directed at visitors of occupiers and owners of lots, and the occupiers and owners themselves.

It is apparent that by-laws containing provisions of a similar nature have been previously invalidated on the basis those by-laws were contrary to the legislation. I agree with the reasoning of the adjudicators in the abovementioned decisions. In my view, it is settled that a body corporate cannot decide to make a by-law of the nature of By-Law 3(b). Its purpose is to impose a monetary obligation which is inconsistent with the legislation. In my view, the Applicant has mounted a persuasive argument with respect to the application of section 180(6) of the Act to the disputed provisions of the resolution passed on Motion 12.

As identified by the Applicant, the excision of the disputed provisions from the resolution leaves the words: “The Body Corporate may take any such steps as may be necessary to remove any vehicle which has been parked in breach of this by-law”. By-Law 3(a) provides that an owner or occupier shall not park a vehicle on common property without the consent of the Body Corporate. The Applicant submits that the remaining portion of the resolution should also be struck down as leaving this sentence adds little to the operation of By-Law 3 and the Body Corporate may already take by-law enforcement steps. A function of a body corporate is to enforce the community management statement, including the by-laws (s 94(1)(b), Act). Sections 182 to 188 of the Act provide a framework for dealing with by-law contraventions. The first part of the resolution relates to the removal of a vehicle from common property. It would seem to relate to the administration, management and control of common property (s 169(1)(a), Act). Even though there are legislated provisions about by-law enforcement, in the circumstances of this dispute I do not consider there is a basis to claim the remaining part of the resolution is similarly inconsistent with the Act. Nor do I consider it is meaningless in the event the disputed provisions are omitted.

For these reasons, I have ordered that the resolution passed on Motion 12 at the AGM is void to the extent that it consented to recording a new community management to include the disputed provisions in By-Law 3.

While the Applicant did not (and could not at the time of making the application) seek an outcome about By-Law 3(b), I consider it is appropriate to make an ancillary order that the By-Law is invalid to the extent it includes the disputed provisions. If a by-law is inconsistent with the Act, the by-law is invalid to the extent of the inconsistency (s 180(1), Act). By-laws are stated in the community management statement for the scheme (s 66(1)(e), Act). However, “it must not be presumed that a community management statement is valid or enforceable, including, for example, that the by-laws for the scheme included in the statement are valid and enforceable, because the registrar records it” (s 115L(2)(b), Land Title Act 1994). If satisfied a by-law is invalid, an adjudicator may require “the body corporate to lodge a request to record a new community management statement to remove the by-law” (s 21, schedule 5). As I have stated, there was a risk that in the event the resolution was declared void, the Body Corporate would have to do something. If an ancillary order is not made, the Body Corporate would need to convene a general meeting proposing consent to recording a new statement to give effect to the order (s 62(3) and 106, Act). Not only will there be an expense incurred but there is also the possibility that the proposed motion will not be passed leading to further disputation. For these reasons, I have made provision for the Body Corporate to lodge a request to record a new statement to have the disputed provisions removed. The continuation of the remainder of By-Law 3(b) is a matter for the Body Corporate to decide. I have provided time to give the Body Corporate the opportunity to make a decision if necessary.

I appreciate the concerns expressed by the committee and owners about the effect of vehicles parking on the loading bay in front of the waste holding area. Given the legislative scope of by-laws, I am uncertain of the basis for making a by-law if the primary objective is to regulate the behaviour of persons who would not seem to own or occupy a lot included in the scheme. As argued by the Applicant, the terms of the By-Law apply to owners and occupiers. The community management statement is binding on the body corporate, each lot owner and each person who is otherwise an occupier of a lot or common property (s 59(2), Act). It does not specifically bind a person such as a visitor or invitee of an occupier, nor does it bind another member of the public who is not subject to the Act.

Motion 15
The minutes of the AGM indicate that Motion 15 was proposed by the committee and was passed by ordinary resolution:

“The...Committee propose that the Commercial Units take over responsibility for the Commercial toilets given that they are only used by commercial tenants as they are the only ones with keys to access these facilities. The responsibility should include: key register, purchase of disposables (toilet paper, cleaning chemicals), cost of cleaning. The Body Corporate will continue to maintain the facility when notified of any requirements from the Commercial owners.”

The Applicant argues the resolution is unreasonable, unjust and oppressive and refers to the decision of a specialist adjudicator in Teneriffe Hill Apartments [2005] QBCCMCmr 322 (14 June 2005) to adjust the contribution schedule lot entitlements “as set out in the report of Simpson and Linkhorn dated 24th September 2004.” The Applicant provided a copy of the ‘Proposal for a recommended new contribution schedule lot entitlement for the scheme’ prepared by Scott Simpson and DR Linkhorn which at page 3 indicates that the commercial lots are Lots 1 and 2 and refers to “three, (3), ground floor toilet rooms to serve the staff of the commercial lots and their customers”. The Applicant submits it was pointed out to the chairperson at the AGM that it was paying for the commercial toilets via Body Corporate contributions; something that was accounted for by Simpson and Linkhorn and factored into the lot entitlements. The Applicant argues the resolution creates the situation where the Applicant is paying the Body Corporate for a service to be provided and then is paying for the same service to be provided itself; and the Body Corporate is being unjustly enriched at the expense of the Applicant, and it must carry out the services for which it is receiving contributions from owners. The Applicant submits the Body Corporate has entered into a new caretaking agreement where the caretaker’s duties relating to the cleaning of the commercial toilets were removed. The Applicant states the Body Corporate must make alternative arrangements to carry out the required services despite the new agreement.

Most submissions from owners appear to have been made as a consequence of a committee recommendation dated 14 May 2008. The committee stated the Motion relates to the cost of consumables and cleaning for the commercial toilets and only commercial tenants and their customers can access these facilities. The standard form signed by most owners making submissions states a residential owner cannot access the facilities. The chairperson and secretary submitted ultimately the owners would prefer the toilets become an exclusive use area for the commercial lots; in 2007 Barry Turner from Building Management Consultancy and Services reviewed the on-site manager’s duties and responsibilities and concluded that the manager spent 19.448% of his time on duties relating to the commercial precinct whereas the contributions by the owners of the commercial lots are only 12.4%; and the on-site manager had previously been contracted to clean the toilets daily. The resident manager states the toilets are on the ground floor between the two commercial lots; residents cannot use these facilities; and asks why 66 owners should pay for cleaning and supplies for a facility that is only accessible or available to the Applicant and their tenants.

In the reply to submissions, the Applicant questioned the relevance of the report from Barry Turner; stated that by reducing duties the Body Corporate is indirectly reallocating the lot entitlements in the scheme; and said if an owner feels the current schedule is not fair, just and equitable, an application for a reallocation may be made under section 48 of the Act.

Lots 1 and 2 are situated on Level A of Building Units Plan 106708; the plan of subdivision for the scheme showing lots and common property. A building units plan is now taken to be building format plan of subdivision under the Land Title Act 1994 (LTA) (s 331(2), Act). A building format plan defines land using the structural elements of a building, including, for example, floors, walls and ceilings (s 48C(1), LTA). Except to the extent permitted under a direction given by the registrar, the boundary of a lot created under the plan and separated from another lot or common property by a floor, wall or ceiling must be located at the centre of the floor, wall or ceiling (s 49C(4), LTA). The resident manager has submitted that the toilets the subject of the resolution passed on Motion 15 are on the ground floor between the commercial lots. Sheet 7 of the Plan identifies a ‘Store’, ‘Toilets’ and ‘Stairs’ between Lots 1 and 2. Mr Yates has since confirmed the toilets are those marked on the Plan between Lots 1 and 2. I am satisfied from submissions and from the information stated on the Plan that this part of scheme land is common property.

A body corporate’s functions include administering the common property for the benefit of the lot owners (s 94, Act). The body corporate has all the powers necessary for carrying out its functions (s 95, Act). The body corporate’s 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 157(1), Accommodation Module).

Despite section 157(1), a lot owner may have an obligation with respect to common property. However, no party has relied on the section 157(3) exceptions and there is nothing to suggest that any of these exceptions apply in the circumstances. While a lot owner may be responsible to maintain common property where the body corporate has authorised the owner to make an improvement to common property under section 162 of the Accommodation Module, no material has been presented suggesting that the toilets are an improvement to common property by a lot owner. Further, an owner of a lot to whom exclusive use or other rights are given may be responsible for the maintenance and operating costs for the part of common property to which the rights apply (s 171, Accommodation Module). While it would seem there is some arrangement in place with respect to access to the toilets, the exclusive use By-Laws 41 to 44 and 48 included in the scheme’s community management statement do not allocate this part of common property for the exclusive use of the owner/s of Lots 1 and 2. No submissions demonstrate a legislative basis for an owner being otherwise obliged to maintain this part of common property.

In these circumstances, the Body Corporate must maintain the common property toilets in good condition. A body corporate’s duty to maintain includes “...an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists [Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction [Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis, [162]-[163]]... And it extends to oblige...[it] to do things which could not be for the benefit of the proprietors as a whole or even a majority of them [Proprietors Strata Plan 159 v Blake (1986) CCH Strata Title Cases 30-068 (Yeldham J); Ridis, [166]]. It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the...duty [cf Ridis [177]]”: [Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 at paragraphs 3, 4 and 5].

Goldsborough Place [2006] QBCCMCmr 67 (14 February 2006) concerned (in part) a decision by a body corporate committee to make business lots responsible to share the costs to clean common property toilets. In finding that the body corporate was “required to maintain (including cleaning of) the common property toilets to a reasonable standard, consistent with the level of cleaning undertaken for other areas of the common property, and further, is required to supply on a regular basis a level of toilet accessories (soap, paper and towel) consistent with a reasonable but not excessive level of use of such toilets”, the adjudicator stated (at page 3 of the statement of reasons): “the committee resolution purporting to make the commercial lot owners responsible for the total cost of cleaning the “business lot toilets” is contrary to section 108 of the Accommodation Regulation Module and section 152(1) of the Act” (s 108 is renumbered as s 157).

The resolution passed on Motion 15 requires a lot owner to be responsible for common property toilets including purchasing toilet paper and cleaning chemicals, and the cost of cleaning. While the scope of the responsibility is not specified, in my view the identified work is basic to enable toilets to serve their purpose. It is work which is necessary to maintain the toilets in good condition. There is nothing to suggest the Body Corporate’s legislative obligation to maintain this part of common property has been properly assigned to a lot owner/s and that it is seeking to implement the terms of the particular assignment. The Body Corporate has a duty to administer, manage and control common property reasonably and for the benefit of lot owners. If, as it appears, the ongoing use and maintenance of the toilets is a matter of concern, the Body Corporate may consider its options under the legislation. However, it is not evident in the current circumstances that it can compel a lot owner to take on its legislative obligations. In my view, the resolution is contrary to the legislation and ultra vires the powers of the Body Corporate. For these reasons, I have voided the resolution passed on Motion 15.

Motion 22
The minutes of the AGM indicate that Motion 22 was proposed by the Applicant and was lost by ordinary resolution:

“That the Body Corporate remains responsible for the weekly cleaning (including sweeping, mopping and anything else required to maintain it at a reasonable standard of cleanliness), maintenance, security and management of keys and access for the commercial toilets, security gate next to the commercial toilets and commercial letterboxes.”

The Applicant submits the Motion imposes no more onto the Body Corporate than what it is already responsible for; it reflects the existing position and what the Body Corporate already receives funds from the Applicant for; it is unreasonable of the Body Corporate not to pass the Motion; and it raises uncertainty as to the responsibilities of the Body Corporate.

Most submissions from owners appear to have been made as a consequence of a committee recommendation dated 14 May 2008. The committee stated Motion 22 relates to toilets which only commercial tenants and their customers can access.

It would seem Motion 22 proposed defining the Body Corporate’s obligations with respect to the toilets and a security gate. As I have stated, I am satisfied that the toilets are on common property. There is nothing to suggest that the security gate mentioned in the Motion is not common property. A body corporate’s functions include administering the common property for the benefit of the lot owners (s 94, Act). The body corporate’s 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 157(1), Accommodation Module).

In my view, the question is whether the Body Corporate acted reasonably in making the decision on Motion 22 (s 94(2), Act). Reasonableness is a question of fact. In determining whether the Body Corporate acted reasonably in deciding the Motion it is appropriate to consider if the decision is objectively reasonable: Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’: Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621 (see also McKinnon v Treasury [2006] HCA 45 per Hayne J at p61).

The Motion specified the work the Applicant considered the Body Corporate should be responsible for with respect to the toilets, and it would seem a general declaration was sought about maintenance of the toilets. I have already found the Body Corporate to responsible to maintain the toilets. Given its legislative duties, the extent and scope of the work to maintain the toilets in good condition is a matter for the Body Corporate. In my view, the Applicant has not provided any material to suggest that, at the time the Motion was considered, the Body Corporate was not maintaining the toilets in good condition and there was a justification for seeking to specify work for the Body Corporate to satisfy its legislative obligations. It is not apparent from submissions that this work is needed to maintain the toilets in good condition. Nor is it proven that it is necessary in the circumstances that the Body Corporate votes to recognise its legislative obligations.

In Goldsborough Place, the adjudicator decided “that where owners of the commercial lots or their tenants require a greater level of cleaning in connection with the carrying on their respective businesses, the cost of such additional cleaning is the responsibility of the commercial lots or their tenants and, with the agreement of the body corporate, should be attended to in conjunction with or in addition to the maintenance undertaken by the body corporate”. The adjudicator applied Brewster Corporation v Allenby (2004) QBCCMCmr 81 stating (at page 3):

“As in the case Brewster Corporation...the evidence suggests the expectation of a level of cleaning / maintenance commensurate with a high level of regular use, and high standard of cleaning to meet the expectations of restaurant and coffee shop clients. In my experience, the availability of toilet facilities is usually necessary for licensing of premises...I do not consider that the obligation of the body corporate extends to such a high level of maintenance...

I believe that the body corporate is obliged to maintain the toilets to the extent that it is required to keep the toilets in a reasonably clean and tidy condition. However, I consider that the toilets are no different to any other part of the common property which must be maintained for the benefit of lot owners...

As was considered by the adjudicator in the case Brewster Corporation v Allenby, I consider that if the owners or occupiers of the commercial lots, in connection with the carrying on of their respective businesses, require or expect a greater level of cleaning (e.g. to meet clients’ expectations or to ensure compliance with legislative hygiene requirements) then this is a responsibility that they will need to attend to in conjunction with or in addition to the maintenance undertaken by the body corporate.

I consider that a similar approach should be applied to the provision of necessary toilet items including soap, paper etc. The body corporate should be expected to supply a reasonable amount of such items, consistent with ordinary and reasonable use, on a reasonably regular basis. However, in my view, this expectation should not extend to an unlimited provision of such items. If the reasonable quantity supplied is insufficient due to waste or excessive demand, then I conclude that it is reasonable that the commercial owners or tenants will themselves contribute to the supply of such items.”

In my view, there is no justifiable basis for concluding the decision to oppose the cleaning system proposed in the Motion is unreasonable.

The Motion also proposed that the Body Corporate is responsible for the security and management of keys and access for the toilets. In my view, these are matters relating to the administration, management and control of the toilets. The Body Corporate must make decisions in accordance with the legislation about the administration, management and control of the toilets. It is a matter for the Body Corporate to decide the extent to which it provides common property security. The Applicant has not provided any material demonstrating for example, that the Body Corporate is obliged to provide security, that it is obligated to manage keys to access the toilets, or that it has acted unreasonably in implementing a particular system. It would seem that if the Body Corporate decided to implement a key system, it would be responsible to put the decision into effect. However, the Applicant has not provided any evidence that the Body Corporate is not acting in accordance with such a decision. A security gate on common property would, in the absence of any other reason, be the responsibility of the Body Corporate to administer, manage and control. Nothing has been submitted to suggest that the Body Corporate is not doing so with respect to the gate mentioned in the Motion and that by opposing the Motion, the Body Corporate is not complying with its legislative obligations. Given its duties about common property under section 152(1) of the Act, it is a matter for the Body Corporate to make decisions about security, management of keys and access to the toilets and about the security gate. While Motion 15 proposed making the commercial owner/s responsible for some maintenance of the toilets and the key register, I do not consider this Motion warrants an order to overturn the resolution on Motion 22. The Applicant has not provided any evidence that the Body Corporate has made a decision contrary to the legislation with respect to the stated matters.

Number of Scheme:	24567
Name of Scheme:	Teneriffe Hill Apartments
Address of Scheme:	29 Florence Street TENERIFFE QLD 4006

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Teneriffe Hill Apartments [2009] QBCCMCmr 424 (28 October 2009)