Cooee Bay Gardens [2010] QBCCMCmr 40 (3 February 2010)

Number of Scheme:	27937
Name of Scheme:	Cooee Bay Gardens
Address of Scheme:	29 Melaleuca Street, COOEE BAY QLD 4703

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Heath and Heather Sanders, the owner of Lot 11

I hereby order that the application for an interim order by Heath and Heather Sanders, the owner of Lot 11 that the body corporate for Cooee Bay Gardens community titles scheme 27937 not proceed with the installation of a security gate, is dismissed.

The scheme
“Cooee Bay Gardens” community titles scheme 27937 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 dated 25 January 2010 (amended 29 January) is by Heath and Heather Sanders, the owner of Lot 11 (Applicants) against the Body Corporate seeking an outcome that works involving the purchase and installation of a security gate be stopped until owners vote for or against the project. The Applicants have sought an interim order to stop the work progressing. This decision deals only with the application for an interim order.

The Applicants submit that the cost to purchase and install the gate will be above the committee’s spending limit. They state the quoted cost of the gate was $2900, the electrical contractor quoted costs of approximately $3500 (includes a security camera, recording device and electrical works), and Steve’s Home Maintenance (the installer) has said his daily rate is approximately $720 and it may take 2 days to do the work. The Applicants claim there has been no disclosure to owners. The Applicants provided a copy of the minutes of a committee meeting dated 21 August 2006 held pursuant to section 33(1) of the then applying Accommodation Module (now section 54) indicating that the committee resolved to give approval to the resident manager to purchase a boom gate for $2900 excluding GST. The Applicants have shown that the committee confirmed these minutes on 13 September 2008. The Applicants also provided a copy of an email dated 15 December 2009 addressed to Jim of Strata BCS outlining concerns and questions about “the security gate which is supposed to be being installed”.

Jurisdiction
In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me even though affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application.

Section 276(1) of the Act provides that an adjudicator may make an order to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act.

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 1 February 2010 I asked that the committee be contacted to ascertain if a gate has been delivered to the complex and if it has, when it is anticipated that the gate will be installed. Mr Duncan (committee member) informed a member of the Commissioner’s Office that the gate has been purchased and is booked for installation at approximately 1pm on 3 February.

For this reason, I invited the committee to make a submission about the interim order application by 12pm on 2 February. Mr Duncan made submissions that a boom gate is to be installed, not a security gate. He submits the committee decided to install the gate to deal with speeding vehicles, parking issues and to create the perception of a gated community. He states the gate was purchased in the second half of 2009. Mr Duncan referred to the abovementioned committee decisions stating the Applicants had not commented until the December 2009 correspondence and no other owners have voiced any concerns. He says the committee ratified the installation on 16 January 2010 and there was no objection to any approved motion. Mr Duncan states the total outlay for the purchase and installation of the gate is within the committee’s spending limit of $200 per lot as the contractors have confirmed a maximum amount of $2100 to complete the job. He adds that the security camera is a separate issue being investigated by the committee and the swipes are included in the initial purchase of the gate.

On 2 February, in response to my request Mr Duncan stated the gate cost $2900 excluding GST, and that the amount of $2100 included the electrical and installation costs and was inclusive of GST.

I also requested that the Body Corporate provide a copy of the minutes of the committee meeting dated 16 January 2010. On 2 February, Stansure Strata provided the requested documentation indicating that the committee voted to install the gate. Stansure also provided a copy of Quote No. 338 from Steve’s Home Maintenance to install swipe box and gate box for $1000 plus GST.

Determination
Section 279(1) of the Act provides that an adjudicator may make an interim order “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”. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the Applicants need to establish that the circumstances of the application warrant the making of an interim order.

It is evident that work to install the gate is anticipated to commence today. In my view, the Applicants have demonstrated urgent circumstances to warrant consideration of the interim order application.

It is apparent that the gate is proposed to be installed on common property for the scheme. A body corporate must administer common property for the benefit of lot owners (s 94, Act). It has all the powers necessary for carrying out its functions (s 95, Act). A decision of the committee is a decision of the body corporate unless it is a decision on a restricted issue for the committee (s 100(1) and (2), Act). Restricted issues for the committee are stated in section 42 of the Accommodation Module. I note that the Applicants expressed concerns in December 2009. However, I do not consider the Applicants have demonstrated that given matters of this nature the committee would necessarily be restricted from deciding to install the gate. I am satisfied from the material that the Body Corporate had the power to make a decision to install a boom gate and that the committee had the power to act for the Body Corporate with respect to this issue.

The primary issue raised by the Applicants is that the cost of the installation of the gate exceeds the relevant limit for committee spending. Ordinarily, a committee may only authorise spending provided it is not more than the prescribed relevant limit for committee spending. Unless the body corporate has set another amount (not argued), this limit is the amount worked out by multiplying $200 by the number of lots included in the scheme (s 149(1) and dictionary, Accommodation Module). The community management statement for the scheme indicates there are 27 lots included in the scheme. Therefore, the relevant limit for committee spending for the scheme is $5400. The amounts stated by the Applicants suggest the relevant limit would be exceeded should the installation work be carried out. This is because the Applicants have referred to costs which relate to the installation of the gate. If a series of proposals form a single project, the cost of carrying out any 1 of the proposals is taken to be more that the relevant limit if the cost of the project as a whole is more than the relevant limit (s 149(2), Accommodation Module). However, the Applicants have not substantiated the stated amounts. For example, they have not provided any material from the contractors verifying their claims. Mr Duncan has questioned these submissions. In addition, Stansure has provided a copy of the quote from Steve’s Home Maintenance. On balance, while there may be a question about the effect of the goods and services tax I am inclined to accept the submissions made by Mr Duncan on the question of expenditure.

Taking into consideration the possible effects of the goods and services tax, on the basis of the submitted amounts, the installation cost would seem to be no more than $5390 (purchase cost of $3190 plus electrician $1100 plus Steve’s Home Maintenance $1100). In the absence of any information to the contrary, this amount is not above the relevant limit for committee spending.

To the extent the work may be an improvement to common property by the Body Corporate, the committee’s power to authorise it is not limited by section 161 of the Accommodation Module.

While the 16 January minutes indicate that quotes were to be obtained and sent to the committee for approval, the Applicants have not shown that this did not occur. Neither have they demonstrated that the committee acted unreasonably in obtaining a quote to do the work. In contrast, Mr Duncan submitted the electrician has previously carried out work on scheme land, the installer is familiar with the complex, and a committee member will be present for the installation.

The minutes also state a quote is to be obtained for the installation of a security camera beside the gate. Given the anticipated cost of this work, the relevant limit for committee spending and section 149(2) of the Accommodation Module, this proposal may require authorisation in general meeting or another way contemplated by section 149(1)(a). However, there is nothing to suggest that this work is fundamental to the installation of the gate or that it will be carried out today.

It is clear that on at least 2 occasions the committee has made specific decisions about the installation of the gate (it is noted that in 2008 the committee approved minutes of the 2006 decision). There is nothing to suggest that prior to the gate being purchased, owners had questioned a committee decision or that a subsequent (and contrary) Body Corporate decision had been made. It would be reasonable to expect further costs to install the gate. The committee has, in my view, taken appropriate steps to have the gate installed. I do not consider the time taken to purchase the gate to be significant. While the Applicants claim there has not been disclosure to owners, there is nothing to suggest the minutes of committee decisions had not been properly given to owners or were not available for inspection by owners. It is relevant that the committee is not required by the legislation to delay implementing a resolution until such time as owners have for example, been notified of the resolution or been given opportunity to oppose the resolution.

In my view, the Applicants have not raised a serious legal question that will need to be determined. While they may prefer this matter to be considered by owners, I do not consider they have provided a legislative basis which would prevent the committee from now proceeding with the proposed work that is within its prescribed spending limit in the absence of an authorising general meeting resolution.

For these reasons, the application for an interim order is dismissed. This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders