Valbrass Court [2010] QBCCMCmr 30 (22 January 2010)

Last Updated: 19 March 2010

REFERENCE: 0057-2010

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1293
Name of Scheme:	Valbrass Court
Address of Scheme:	Scriha Street NORTH MACKAY QLD 4740

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

Isabella Galea, the Owner of Lot 2

I hereby order that the application for an order - “prevent them from doing cementing until I get what I want in section 7 and the final order is made.” is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0057-2010

“Valbrass Court” CTS 1293

APPLICATION

This is an application dated 15th January 2010 and amended on 19th January 2010 by Isabella Galea (the Applicant) owner of Lot 2 against the body corporate for the scheme (the body corporate) for orders as follows –

1. that the body corporate considers paving – easy access to pipes;
2. that the body corporate replaces grey bends in piping at back of building;
3. that the body corporate removes dirt behind units 3 and 4 and replaces it with sand and crusher dust;
4. that the secretary obtains from Peter Hodges a revised quotation stating step-by-step his procedure on his quotation;
5. that “proceeding” will comply with Uretek’s warranty;
6. that a 12mm bar is not inserted from the cement to the footings as it will cause friction and the cement to crack
   

The Applicant also seeks an interim order that the body corporate does not start cementing until the Applicant’s requests as stated above have been satisfied and the final order in this application is made.

JURISDICTION

“Valbrass Court” CTS 1293 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are four lots in the scheme created under a Building Unit Plan of subdivision.

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)).

Section 247(3) of the Act allows the Commissioner to refer an application to an adjudicator for consideration for an interim order even though proper notice of the application has not been given to the body corporate or other affected persons, and despite the fact that parties to the application have not been given an opportunity to make a submission about the matters in dispute. It seems to me that the Act allows this process because applications for interim orders often relate to emergency or otherwise urgent circumstances, where it is simply impractical or impossible to allow a period for submissions prior to the consideration of the application for interim orders. It is also relevant that generally the purpose of an interim order is simply to maintain the “status quo” of a situation, and not finally to resolve the matters in dispute.

Section 279(1) of the Act allows an adjudicator to issue an interim order in response to an application “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”. Read together with section 247(3), section 279(1) appears to allow an adjudicator to issue an interim order without any reference to other parties to the dispute.

Notwithstanding that the Act allows for interim orders to be issued without reference to other parties, I am of the view that when possible, it is far preferable and more consistent with the principles of natural justice, to allow affected persons to make a submission about an application (even if the time allowed for submissions is necessarily brief) prior to the determination of an application for an interim order.

This Office understood from the body corporate that it intends to start work on paving on Saturday, 24th January 2010 and was reluctant to give any undertaking that work would not commence because of this application. I therefore sought a submission from the body corporate (all owners) by close of business on Thursday 21st January 2010.

SUBMISSIONS

The Applicant says that the units have in the past suffered structural damage and were repaired in November 2008 by Uretek, a firm which pumped resin under the units to level them. The resin is to be protected by keeping “moisture in and out from under the building”. To this end, Uretek recommends putting surrounding path around the building. The body corporate has had the same suggestions that the Applicant is making put by professional and experienced persons.

The Applicant provides a copy of the minutes of an extraordinary general meeting held on 7th January 2010 (the EGM) and a copy of a notice of the EGM. The explanatory notes on the agenda said that that following the annual general meeting on 16th October 2009 when the body corporate decided to obtain quotations for a path around the units, the body corporate had obtained quotations including termite proofing which was a government requirement when constructing new paths

Motion 1 in the alternative proposed that a pest control operator would be engaged to “treat the units” with Termidor. The motion was carried 3 – 0 with Mackay Pest Control being the preferred contractor. Motion 2, also in the alternative, was that a path be constructed around the units in accordance with an attached plan. The motion was carried 3 – 0 with P. Hodges being the preferred contractor. P. Hodges had provided a quotation for this work “58 27/10/09” at a cost of $4,900 inclusive of GST.

A sketch plan was attached to the voting paper.

On 16th October 2009, the body corporate held its annual general meeting, and a motion that the path be completed was carried.

There has been correspondence between the Applicant and chairperson/secretary (Mr Buckley) about the proposed works.

On 2nd November 2009 Mr Buckley advised the Applicant that three quotations had been received for the path but he was looking into termite protection which was a legal requirement when constructing a path.

On 3rd November 2009 the Applicant asked Mr Buckley about the dirt placed behind units 3 and 4 before the laying of a path. She said that Uretek require sand and crusher dust. She asks: “What happened to the idea of getting pavers?” Pavers are more easily removed if there is a problem than cement. She said that grey pipe bends “have to be replaced” before cement is laid. “Dates of when laying are to be given to me in advance as I would like to be present.”

On 23rd November 2009, Mr Buckley wrote to all owners that two quotations had been received each for pest control and the construction of a path, and gave the quotations. Other quotations sought were “outlandish” or had “not yet arrived.” Mr Buckley asked owners to indicate their preference.

On 29th November 2009, Mr Buckley sought a response from the Applicant.

On 30th November 2009 Mr Buckley wrote to all owners that units 1, 3 and 4 had indicated that they accept the tenders from Mackay Pest Control for pest treatment and for Mr Hodges to construct the path. There had been no reply from the Applicant. He said he would advise the two contractors that they had won the tender and get back to owners when there was a date for the pest control.

On 1st December 2009 Mr Buckley put a copy of his email in the Applicant’s letterbox saying that pest treatment would commence on 4th January 2010.

On 11th December 2009, the Applicant asked Mr Buckley what was happening with pest control. She complained about having very little notice of having to decide whether she wanted pest control, when she had difficulty receiving and responding to emails. She asks “Doesn’t new work have to be approved by each owner?” She said that she had not approved anything. She wanted to know what had “been approved by everyone else but me...” She asked for details of the size of the path, the materials it would be made of, where it would be, if sand was to be used, what the fall was, if the grey pipe bends were to be replaced, if the water supply had been laid through units 3 and 4; and what was happening to the dirt laid behind units 3 and 4 instead of sand. She said: “I do not approve anything till this is done.” She demanded answers to her questions.

On 15th December 2009, the chairperson Bob Buckley wrote to the Applicant telling her that he had “dropped a pamphlet” about how Thermidor was to be applied, and that a trench would be dug round the units, and the carport cement would be drilled. He explained that a 12mm bar would be used to connect to footings, that the path would be 900mm wide at the eastern, northern and southern ends and 850mm wide at the western end; that 62 mesh would be used for the rest of the path; that sand would be used as fill where necessary; and that the fall would be “ the standard 1 – 50”. He confirmed that nothing would be done to void the Uretek warranty. Mr Buckley quoted from a letter sent to the Applicant from Uretek’s Mike Burrows which said that the warranty offered by Uretek had nothing to do with what the body corporate subsequently did, and that the warranty covered only materials used by Uretek for 10 years.

On 4th January 2010 the Applicant said that she was “not advised of availability for a date for a meeting” and could not attend the meeting as she was working. She explained that she had difficulty receiving emails, and that she had not received emails on 23rd November from Mr Buckley as he had said but that original quotes were put in her mailbox. She referred to the Uretek “Conditions and Responsibilities” a document from Uretek marked “caution”. She had given a copy of this document to all owners. She does not agree that nothing the body corporate does will void the warranty. She also mentioned that Uretek’s Mike Burrows had suggested how to build the path and that the “ground moisture variation” be kept constant, which had not been done since Units 3 & 4 “disapproved” the path being laid in December 2008.

She pointed out that she wanted the dirt from Units 3 & 4 to be removed. She also said that “several concreters” had recommended to her that a 12mm bar should not be used to connect to the footings as that would not allow for flexing.
She also said that she wanted the grey bends in the piping replaced. She said: “I want this done”. She also wanted a detailed quote from Peter Hodges stating a step by step process and materials, since the quotation provided by him did not clearly show this. The details stated in the letter of 12th December 2009 are not on Mr Hodges’ quotation. She also said that she had not seen quotations for body corporate management fees, “only figures given.” “This has to happen before work proceeds.”

She decided not to vote because she did not feel that her wishes had been respected. Her emails are “not being completely answered and I am being ignored with my requests. I am not happy with the way things are being handled.”

On 7th January 2010 Mr Buckley advised the Applicant of the results of the voting at the EGM by email. He told her that the pest treatment would start on 16th January 2010.

On 9th January 2010 the Applicant asked Mr Buckley for a copy of the minutes of the EGM and asked him 6 questions as follows –

1. when is Valbrass going to put in body corporate management?
2. is Peter Hodges going to redo his quote detailing the step by step process he is going to do?
3. Is the dirt behind Units 3 & 4 going to be removed before laying down the cement?
4. Are the pipe bends going to be changed to white so no painting and future maintenance has to be done?
5. Is the 12mm bar going to be connected to the footings?
6. Are the body corporate management quotes going to be given to me before proceedings start?
   

The Applicant said that she did not oppose “any workings” but wanted to know that the job was going to be done properly.

Mr Muller representing Joy Muller, owner of Lot 4, made a submission by telephone to this Office. He said that the path must be correctly tied onto the building and there will be no friction because that is the purpose of the bar. The Applicant was secretary twelve months ago and has always preferred pavers but the rest of the body corporate did not want pavers which would in any event require a concrete base. The Applicant has not put a motion to a general meeting that the body corporate adopts pavers as far as Mr Muller can recall. The Applicant had 21 days notice of the EGM but did not attend or vote. Mrs Muller would like the work to go ahead whilst her lot is currently unoccupied and the weather is good. Further delay will cause further expense, and it was the decision of the body corporate at a general meeting that this work goes ahead with the chosen contractor.

Tanya Jahn, owner of Lot 1, says that the restoration needs to be completed so that owners can rent out the units at competitive rates. Owners have now spent thousands of dollars on the repairs and it is her understanding that the cement is needed to complete the process started more than a year ago. The likely wet season makes immediate finalisation imperative.

Mr Buckley, as secretary for the scheme, says that following the worsening of the subsidence, Uretek pumped resin under the lots and recommended, as did CSIRO, that a path be put around the perimeter of the building to keep water away. The work now proposed follows their recommendations.

It has taken the body corporate some time to find suitable quotations for the work. Lot owners could not agree on what was required and the Applicant, who was previously secretary, did not get quotations as directed by the committee. The path should have been laid shortly after Uretek finished in November 2008.

The body corporate is satisfied that the proposed work will have no effect on the Uretek warranty and the advice of the chosen contractor P.Hodges is that there should be a 12mm bar to anchor the path to the foundations. The warranty from Uretek does not guarantee that there will be no more subsidence, and the delay in having the path constructed increases the risk of subsidence. There could be difficulty if the work is delayed as contractors are busy and the rainy season causes further problems. Any further delay will continue to expose the units to rain.

The interim application appears mischievous to Mr Buckley as it is intended to frustrate the body corporate from carrying out a decision of a general meeting for no good reason, but that the Applicant wants something else.

DETERMINATION OF AN APPLICATION FOR AN INTERIM ORDER

In this matter, the Applicant seeks an interim order that cementing work will not take place “until I get what I want in section 7” of the application form, that is, the final outcomes sought by her.

An application for an interim order is in the nature of an injunction in the civil court registry. The applicant must demonstrate that there is a serious legal issue to be decided, and that he or she can make out a prima facie case that he or she is likely to be successful when the issue is finally determined, even though all evidence has not yet been produced, and all matters not yet considered in any depth.

The Applicant has asked the chairperson/secretary for information over a period of time since a general meeting on 16th October 2009, and it seems that she has not been satisfied with the replies given by him, as set out in brief under “Submissions.”

Whilst aware of the EGM on 7th January 2009, the Applicant decided not to vote, in order to indicate her displeasure at not having her emails replied to and/or sufficient information being given to her. She failed to propose motions to this general meeting, and there is no evidence that she put motions to any previous general meeting eg, to have the path constructed by a different contractor and/or in a different way.

I have some concern that the Applicant can demonstrate any dispute with the body corporate when the things she wants have not been proposed by her to the body corporate in any formal way, but that may be a matter for consideration at the final order stage.

The Applicant relies upon the Uretek warranty and “Conditions and Responsibilities”. She also refers to the views of “several concreters” and “professional and experienced persons.” The Applicant has not provided copies of these documents or any of these opinions in her application. Consequently, and in the circumstances stated, the Applicant has failed to provide any prima facie evidence that the body corporate has acted in any way unreasonably or unlawfully.

The Applicant asks Mr Buckley on 11th December 2009 - “Doesn’t new work have to be approved by each owner?” The answer to that is :“No, it does not.” An improvement to common property must be approved in accordance with section 163 Standard Module, that is, by ordinary resolution (a simple majority vote) if it costs up to $2,000 x the number of lots in the scheme ($8,000), or by special resolution (two thirds of those voting in favour and not more than 25% lots against) if it costs more than that. A 3 - 0 vote would have satisfied a special resolution in any event.

In the circumstances, the Applicant is not entitled to her interim order. This application is now returned to the Commissioner in accordance with section 279(4) Act.