Riviera Sands [2009] QBCCMCmr 56 (20 February 2009)

Last Updated: 9 March 2009

REFERENCE: 0819-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2960
Name of Scheme:	Riviera Sands
Address of Scheme:	85 The Esplanade GOLDEN BEACH QLD 4551

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

Roger Smith and Anne Regan, the Owner(s) of lot 3

I hereby order that the application for an order to overturn votes against a motion “that the driveway carpark upstands be pressure cleaned to remove mould” is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0819-2008

“Riviera Sands” CTS 2960

Application

Riviera Sands Community Titles Scheme (Riviera Sands) is a 9 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes and lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by Roger Smith and Anne Regan, owners of lot 3 (applicants) seeking orders against the body corporate for Riviera Sands (respondent). The applicants seek to overturn the result of voting at the annual general meeting where a motion proposing “That the driveway carpark upstands be pressure cleaned to remove mould” failed to pass.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the applicants, were to the effect that:

• The driveway is dirty, untidy and unsafe;
• The body corporate will be liable for damages if someone falls and injures themselves; and
• The driveway has not been professionally cleaned in the six years they have been there.
  

All owners were given an opportunity to provide written submissions. The main submissions by other owners were to the effect that:

• We do not belief that the cleaning of the concrete area is a workplace health and safety issue as we do not believe the concrete is unsafe;
• Votes were received and accepted at the annual general meeting and I would submit that the alternate opinion by the three votes cast against the motion represents a more ‘reasonable’ view;
• I am of the opinion that the property has been adequately maintained;
• It is well known that concrete becomes discoloured over time due to natural aging and there are many examples of this in public areas maintained by the Caloundra City Council. These examples are in many cases similar or worse than the Riviera Sands driveway;
• I am not aware of any instance where a person has slipped, fallen or injured themselves in the 16 years the building has been occupied and there has never been a personal damages claim made against the body corporate; and
• The body corporate made a legitimate decision. If people still wish to have the concrete areas cleaned then a proposal should be resubmitted to the body corporate.
  

The applicants exercised the right to inspect the submissions and then replied to those submissions to the effect that:

• Those who consider green and black mould growing on the driveway to be clean and safe clearly have questionable standards on both issues;
• We have had two instances of friends and family who have slipped on the driveway when wet;
• We have no intention of waiting until somebody slips and injures themselves; and
• We have arranged a risk assessment by GHU Insurance.
  

Applicable law

Legislation relevant to the present dispute has provisions to the effect that:

• Subject to some exceptions, the body corporate must maintain common property in good condition (Standard Module, 159(1));
• The body corporate must act reasonably in carrying out is functions. This includes in making or not making a decision regarding administering the common property for the benefit of owners (Act, 94); and
• An adjudicator may make an order that is just and equitable to resolve a dispute (Act, 276). This includes an order giving effect to a motion that failed to pass because of opposition that was in the circumstances unreasonable (Act, Schedule 5 – Item 10).

Requirement to act reasonably

Individual owners who vote at a general meeting are not under any statutory obligation to act reasonably or to provide any reasons why they voted in a particular manner. However, section 94 provides a statutory obligation that the body corporate act reasonably in making a decision. This statutory requirement is only satisfied if the ultimate decision is objectively reasonable.[1]

Reasonableness is a question of fact. The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.[2] The question is not whether the decision was the "correct" one but whether it is objectively reasonable.[3]

Findings

Having read the submissions, the first impression is that owners simply have a difference of opinion on whether the driveway is appropriately maintained in good condition. There is nothing in the original submissions to suggest the driveway is towards either of the extremes of ‘perfectly well maintained’ or ‘very poorly maintained’. In these circumstances, a decision by the body corporate regarding the cleaning of the driveway is likely to be objectively reasonable regardless of whether that decision was to ‘perform cleaning’ or ‘not perform cleaning’.

In fact, it is arguable the application should be dismissed under section 270(1)(c) on the basis it is frivolous, vexatious, misconceived or without substance. This is particularly as the cost of hiring a water blaster to clean the driveway is likely to be less than the fee paid for lodgement of the present application.

However, the applicants’ reply to submissions reports two recent instances of friends and family who have slipped on the driveway when wet. No detail is provided of whether these persons were actually fell over or sustained any injury, the type of footwear worn, or whether they were running or walking. However, it does raise concerns regarding whether the driveway is in an unsafe condition contrary to the requirement the body corporate maintain common property in good condition (Standard Module, 159). In these circumstances it is necessary to look in more detail at the reasonableness of the decision of 26 July 2008.

The motion of 26 July 2008 was "That the driveway carpark upstands be pressure cleaned to remove mould". It is not readily apparent to me what "carpark upstands" are and whether they are bollards, barriers or other parts of the driveway. I note further that no quotations for performing the work were required and there was no attached documentation from a tradesperson supporting the view that all or part of the driveway required pressure cleaning.

In all the circumstances, it is not apparent that driveway was in an unsafe condition or, even if it was, that the adoption of the motion of 26 July 2008 would have properly addressed those concerns. In fact, the applicants have failed even to establish that the driveway is not in good condition given differences of opinion reflected in the submissions regarding whether concrete can suffer some mould and discolouration but still be in good condition.
The applicants have a further difficulty in that their initial motion of 26 July 2008 was of such a general nature, and lacking in any supporting quotations or documentation, that it is very difficult to conclude that the failure to pass the motion was unreasonable. The application is also lacking in supporting information such as photographs or reports from tradespersons who viewed the driveway. It is potentially a matter I could investigate by asking the applicants or the body corporate to provide an expert report. However, the cost of an expert report would be likely to exceed the cost of cleaning the driveway and there would still be difficulties in determining the relevant condition of the driveway at the time the body corporate decided not to proceed with the applicants’ motion.

I am satisfied that the application should be dismissed both on the basis that the motion of 26 July 2008 was so devoid of clarity and supporting information that it was not unreasonable for the body corporate to fail to pass it and that the application itself is frivolous, vexatious, misconceived or without substance.

If there is a legitimate concern that the driveway requires cleaning at the present time then the obvious course of action is to obtain a quotation and present a new motion to the secretary proposing that the committee adopt the quotation obtained. If the quotation also contained some description of the condition of the driveway then that may be of use if the committee decides the cleaning is unnecessary and the applicants wish to challenge that decision.

Order

For these reasons, the application is dismissed.

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[1] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.
[2] 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 paragraph 61.
[3] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at pages 34, 38.