Auchen Towers [2010] QBCCMCmr 20 (15 January 2010)

Number of Scheme:	14389
Name of Scheme:	Auchen Towers
Address of Scheme:	364 Milton Road AUCHENFLOWER QLD 4066

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

I hereby order that the Body Corporate for Auchen Towers is authorised under section 151(1)(c) of the Body Corporate and Community Management (Standard Module) Regulation 2008 to spend the sum of $5,150 (including GST) to engage Otis Elevator Company Pty Ltd to repair the lift per the quotation dated 7 January 2010.

The Auchen Towers community titles scheme 14389 (“Auchen Towers”) consists of 12 lots and common property. The community management statement (“CMS”) for Auchen Towers indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (”Standard Module”) applies to the scheme. The Department of Environment and Resource Management records show the scheme is registered as Building Units Plan 692.

Pursuant to the Body Corporate and Community Management Act 1997 (“Act”), this application was made by The Body Corporate for Auchen Towers (“applicant”) on 13 January 2010, pursuant to a resolution passed outside a committee meeting on 14 January 2010. The applicant has sought a declaratory order in the following terms:

“We request urgent permission to approve the quote for $5,150 to repair the lift which is not working.”

Section 243A of the Act provides that the Commissioner may refer an application immediately to a dispute resolution officer, notwithstanding that affected persons have not been given notice of the application and invited to make submissions as would normally be required under section 243(1). This referral can occur when the Commissioner reasonably considers that the application relates to emergency circumstances and it is not appropriate to deal with the application as an interim order under section 247. The example of emergency circumstances provided in section 243A(1)(a) is whether the repair or replacement of a burst water pipe exceeds the Committee’s spending limit.

The application seeks authorisation for emergency expenditure to undertake repairs to the lift. The facts of the dispute can be summarised as follows:

Auchen Towers community titles scheme contains one lift servicing all floors within the scheme. The applicant states that the lift began malfunctioning in late December 2009 just before the Christmas / New Year public holidays. On 7 January 2010 the applicant received a quotation from Otis Elevator Company Pty Ltd (“Otis”) to repair the lift at a cost of $5,150.00. The applicant states that they were not able to obtain a quote sooner due to tradespeople being unavailable on the public holidays over the Christmas period.

On 12 January 2010 the committee passed a resolution supporting the quotation from Otis. The applicant states that there is insufficient time to call an extraordinary general meeting (“EGM”) to approve the spending for the following reasons:

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[1] 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:

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(i) the engagement of a person as a body corporate manager or service contractor; or

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[2] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]

The main issue for consideration in this matter is whether the applicant should be granted authorisation for emergency expenditure to undertake repairs to a malfunctioning lift. Sections 151-153 of the Standard Module provide for the control of spending by a body corporate. A committee is prohibited from authorising spending above the committee spending limit except in certain circumstances. Section 151(1)(c) of the Standard Module states that a committee may give effect to spending above the relevant spending limit if an adjudicator is satisfied that the spending is required to meet an emergency.

The applicant has sought authorisation for emergency expenditure under section 151(1)(c) of the Standard Module because the proposed costs of $5,150 (including GST) to engage Otis to repair the lift per the quotation dated 7 January 2010 exceeds the relevant limit for committee spending.

The applicant argues that the work is urgent as the building has 64 steps and residents are having difficulty climbing the stairs with their heavy shopping and other belongings in the hot and humid weather. Further, one unit on the top floor is to be vacated over the next week and will need the lift to move heavy furniture and other belongings and, in addition, a resident on the top floor is recuperating from a serious operation and requires the use of the lift.

On 14 January 2010 I requested that a member of our Office telephone Ms Lynette Joy Broadway-Hill, secretary of the body corporate, and enquire as to the proposed timeframe for effecting repairs should the order be granted.[4] A file note of the conversation indicates that Ms Broadway-Hill was informed by Otis that upon confirmation of engagement the necessary replacement parts would need to be ordered. Ms Broadway-Hill states that she has been informed by Otis that the parts would be received within 7 days of the order being placed and that Otis would attend the next day (that is, the day following receipt of the parts) to undertake the repairs (a process that would take half a day). Therefore, in total, the process would take approximately 8 days.

In the circumstances, I am satisfied that it is appropriate to authorise emergency spending for the work in question rather than requiring the committee to call a general meeting for owners to vote on the matter.

For these reasons, I consider it is appropriate to authorise the emergency expenditure as above.

[1] See sections 227, 228, 276 and Schedule 5 of the Act.
[2] Section 276(2) of the Act.
[3] Section 284(1) of the Act.
[4] See the investigation powers of an adjudicator pursuant to section 271 of the Act.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Auchen Towers [2010] QBCCMCmr 20 (15 January 2010)