Libertine [2010] QBCCMCmr 69 (17 February 2010)

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

I hereby order as follows –

1. that within 14 days of the date of this order the body corporate pays to the Applicant Gordon Young the sum of $204.19 in satisfaction of his claim for reimbursement of that sum for repairs to the front gate on scheme land pursuant to the minutes of a committee meeting on 16th December 2008 and the reasons for decision herein;

2. that within one month of the date of this order the body corporate corrects the minutes in relation to Motion 1 of a decision taken outside a committee meeting on 5th February 2009, to remove the word “unanimously”;

3. that within one month of the date of this order, the body corporate enters onto the records of the body corporate, documents, if any, which exist in respect of the notification to the body corporate manager of events the subject of a continuing contravention of a body corporate by-law notice sent to Ms N. J. Young as owner of Lot 4, on 17th February 2009; and

4. that within one month of the date of this order the body corporate provides to Gordon Young a note of items purchased, or reasons for sums spent, by the body corporate in respect of the following amounts on the dates stated:

01.08.08 - $84.00

25.08.08 -$10.75

03.11.08 - $309.21

03.11.08 -$89.25

26.11.08 - $29.26

In all other respects this application is dismissed.

This is an application dated 22nd June 2009 and amended on 4th August 2009 by Gordon Young (the Applicant) as a committee member, against the body corporate for the scheme (the body corporate) for orders as follows –

[The Applicant set out some of the outcomes sought as dot points under numbered clauses. These have been set out above as re-numbered outcomes sought where appropriate. The Applicant also partly included his grounds in the outcomes sought which grounds are set out under the heading of “Submissions.”]

“Libertine” CTS 30480 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Regulation) Module 2008 (Standard Module). There are 7 lots in the scheme created under a Building Format 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

(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 242 Act requires that an application to declare void a resolution of the body corporate is made within 3 months of the meeting at which that resolution was passed or purportedly passed. An adjudicator may waive the requirement if the applicant provides a good reason why the section was not complied with.

The application seeks several outcomes where an adjudicator is asked to require that the body corporate “acknowledges” that it acted wrongly in some way. I can make no orders as to the state of mind of the body corporate, but only declare that the body corporate has or has not contravened the legislation, and/or the community management statement, and make appropriate orders to remedy any such contravention(s).

I note that there has been a previous conciliation by this Office. I have no access to, or knowledge of, any material or matters which occurred during the conciliation process which must remain confidential. In this application, the Applicant must present his claims “de novo” and they will be each assessed on their merits.

In respect of the first outcome sought, the Applicant says that at an extraordinary general meeting on 24th February 2009, he proposed that a motion passed by the body corporate at an extraordinary general meeting on 18th February 2008 be rescinded. The motion was -

“ that the body corporate treasurer Greg Paddle, be nominated as the only office bearing position who makes contact with the body corporate manager to ensure that an amicable relationship is re-established.” The motion was passed 4 – 3.

The Applicant’s motion to rescind, motion 4, was accompanied by explanatory notes, but was defeated 4-2.

The Applicant says that this policy should not be continued because it was not working; the chairman should be the person from whom the body corporate manager takes instruction; Greg Paddle (Mr Paddle) will not always be on the committee and the contact individual should not be named in person; it invites the body corporate manager to refuse to communicate with other owners; and an interim order dated 13th October 2008 (0843-2008) of an adjudicator said that if this motion was not rescinded, it could be challenged as unreasonable, and possibly contrary to section 119 Act which says that a body corporate must not prevent an executive member of the committee from directing the body corporate manager.

Furthermore, the Applicant alleges that a non-committee member, Ann Absolon (Ms Absolon) is in fact communicating with the body corporate manager.

In respect of the second outcome sought, the Applicant says that this matter was the subject of an application to this Office, 0843-2008. Mr Paddle was the only committee member with authority to instruct the body corporate manager and so he should be responsible for motions and committee nominations being left off the agenda which resulted in the adjudicator requiring that another extraordinary general meeting be held. Mr Paddle also made a submission in that application without any ”documented approval from the committee”. Mr Paddle has not explained or apologised for his actions although asked to do so.

“the body corporate require the treasurer Mr Greg Paddle, to reimburse the Body Corporate for all costs incurred by the body corporate related to the wrongful omission of valid motions and nominations from the agenda of the 2008 AGM, including costs associated with the official adjudication, and the costs associated with the calling and holding of this EGM”.

He also provided explanatory notes to the meeting. This motion was defeated 4 – 1.

In respect of the third outcome sought, the Applicant says that at a committee meeting held on 16th December 2008, it was agreed that the Applicant should organise a handyman to repair the front gate of the complex. The repair, completed by Christian’s Property Maintenance, cost $204.19 and the bill was made out to the Applicant who paid by cheque. The Applicant has been refused reimbursement by the treasurer, saying that he needs to see a “formal receipt.”

On 15th January 2009, he says that the sum of $204.19 was debited to the body corporate bank account but the funds were never paid to him. The Applicant sought reimbursement by motion 8 at the general meeting of 24th February 2009 but the motion was defeated 3 – 2. The treasurer has since written to the Applicant saying that because of the defeat of the motion, he feels unable to make the reimbursement.

It respect of the fourth outcome sought, the Applicant says that Motion 2 of a “flying minute” circulated on 5th February 2009 was that - “the committee formally request Mr Gordon Young Lot 4 to supply a copy of a paid invoice or alternatively a receipt for the payment he made directly to the contractor Christian’s Property Maintenance”. This was carried.

The Applicant says that explanatory notes sent out with this motion (that the treasurer had received nothing from the Applicant other than his email advice that the account has been paid and a cheque has been presented) were untrue and misleading since by that date the Applicant had provided the treasurer by email on 23rd December 2008 with a copy of the invoice from the contractor.

The Applicant “believe[s] the untrue nature of this information was likely to mislead Committee members and owners as to the true situation” and that the motion should be invalidated and owners “informed that it contained untrue and misleading information.”

In respect of the fifth outcome sought, the Applicant says that “between March – December 2008”, and “into January 2009” S & S Garden Maintenance (S & S) was the regular supplier and also cleaned the foyer at a cost of $280 per month. There were no “comparative quotes” for this work “as required under the Act” and it was carried out without the approval of the body corporate. The previous gardener was cheaper at $80 per month. S & S was also engaged to trim trees “in early 2008” at a cost of $350 without approval, the trees having been previously trimmed by the previous gardener. On 4th July 2009, the Applicant wrote to the secretary pointing out the high cost and lack of formal approval.

At the committee meeting on 16th December 2008, a motion to appoint a new gardener at $200 per month was passed, but by January 2009, S & S was again carrying out the gardening at $280 per month.

The amount he “believes reasonable” for the body corporate to claim back from the body corporate manager, or committee member who authorised the body corporate manger, is the equivalent of ten months work at $280, less $800 which it would have been with the former gardeners, plus the $350 unnecessary trimming plus $80 in reference to January 2009.

The Applicant proposed this as Motion 6 to a general meeting on 24th February 2009 -,

that the body corporate requires the body corporate manager or a committee member responsible to repay to the body corporate the sum of $2,430 for garden maintenance costs incurred during 2008 and early 2009 without body corporate approval, that is overturning motion 6 of the extraordinary general meeting held on 24th February 2009;

It was defeated 4 – 1.

A “flying minute” of 5th February 2009 requested retrospective approval for the appointment of S & S engaged on 10th March 2008. The Applicant says that retrospective approval is not valid after 12 months. The committee was made aware of the deficiency 7 months earlier.

In respect of the sixth outcome sought, the Applicant says that minutes from the “flying minute” of 5th February 2009 were incorrect as they stated that the resolution was unanimously carried when the Applicant voted against the motion, and one “no “ vote was recorded. At the extraordinary general meeting held on 24th February 2009, Ms Absolon apologised for this error but it was alleged that the Applicant had made an error in his voting paper.

In respect of the seventh, eighth, ninth and tenth outcomes sought, the Applicant says that on 17th February 2009, a notice of a continuing contravention of a body corporate by-law (BCCM Form 10) was sent to the owner of lot 4, Ms N.J.Young, under cover of a letter signed by the body corporate manager.

The letter said that the residents of Lot 4 had breached the “noise” by-law, the “behaviour of invitees” by-law and the “damage to common property” by-law. Residents were observed drinking alcohol on common property and pouring drink into the fishpond.

The notice explained that the by-laws had been breached in the following manner :

“The committee have (sic) reported that the residents of Lot 4, and their invitees continue to create unnecessary noise and damage to common property, which is interfering with the peaceful enjoyment of other residents of the scheme.”

The Applicant says that the committee has not reported this since there is no committee record of the decision. He is also of the view that the notice was unmerited. He wrote a letter to the chairman on 20th February 2009, asking him to ask the body corporate manager to withdraw this notice, and wanting to know who had asked the body corporate manager to send the notice. He also asked for further details of the alleged contraventions, and in what way the residents of Lot 4 continued to damage common property, and failed to take reasonable steps to control their invitees. There was no reply.

He wants the body corporate to be ordered to withdraw the notice, and to advise owners that it was improperly issued on insufficient grounds; that the body corporate manager is required to advise who asked for the contravention notice to be issued; that the body corporate instructs the manager “and others involved” copied to all owners that it is not to issue such notices without consultation with the committee;

In respect of the eleventh and twelfth outcomes sought, the Applicant says a by-law contravention notice was also received by the owners of Lot 1 on 16th December 2008. This concerned a complaint by the owners of Lot 3 which was referred to the police, and there is a civil action pending. The point of concern to the Applicant is that the body corporate manager issued the notice without being so authorised by the committee or any committee member, but was asked to do so by Ms Absolon. He provides a copy of Ms Absolon’s email to the chairperson Paul Walker (Mr Walker) with copy to the body corporate manager.

The thirteenth outcome sought is to invalidate a committee meeting of 16th December 2008 for want of being chaired by the chairman.

In respect of the fourteenth outcome sought, the Applicant says that false and misleading information was spread by the committee about him and his son in minutes of meetings. The statements objected to were made in the minutes of a meeting held on 16th August 2008. The Applicant wants these statements corrected. He wrote to the chairman on 7th September 2008 pointing out that the previous gardening contractor was not offering a reduced rate as stated in the minutes, nor had the relationship between the previous gardener and the previous committee broken down (at the time when the Applicant was chairman of the committee.) He asked the chairman to “issue a statement to all owners” to correct this impression.

In addition, he says that the minutes cast the Applicant’s actions as chairman in respect of a dispute lodged with this Office “in a negative light”. The letter again required that all owners be advised of the Applicant’s rights to obtain information in respect of that dispute and the illegal actions of the body corporate manager

The Applicant also says that the minutes “infer that the difficulties between the previous committee and [the body corporate manager] had irretrievably broken down”. Again the Applicant required the chairman to “note that there are differences of opinion with regard to relationships with [the body corporate manager]” and to make owners aware of specific facts.

He also took issue with the words: “outstanding issues from the previous committee” ,which he says “can be interpreted to mean the immediate preceding committee failed to act.” He again required the chairman to inform owners that issues were left over from the committee preceding the former committee. The former committee was only in office for two and a half months before an extraordinary general meeting was called to remove the chairman and secretary from office.

In respect of the fifteenth outcome sought, the Applicant says that Motion 3 of a “flying agenda” on 23rd March 2009 – “that the committee of Libertine Body Corporate resolve to seek compensation to the amount of $625.85” - with no explanation about ‘from whom’, or ‘for what’, should be declared invalid. The Applicant says that the motion presumably refers to the previous motion, that the body corporate authorise a quote for repairs to the front door of Unit 3 for $625.85.

The Applicant says that this is a fire door “for which the owners of Unit 3 are trying to blame my son (owner of Unit 1...)...” The Applicant’s son denies causing the damage, and the Applicant who was present at the time of the incident also refutes it. The committee was not in receipt of “sufficient (and true) supporting information” to vote on this matter. The Applicant says that the motion should be invalid because of this. The Applicant says that especially for decisions made outside committee meetings by “flying minute” there should be “full explanatory information.”

In respect of the sixteenth outcome sought, the Applicant says that owners and committee members are not treated alike. The chairperson allows Ms Absolon, who is not a committee member, to communicate with the body corporate manager despite the motion of the general meeting of 18th February 2008 that only the treasurer Mr Paddle should be the link. When the Applicant, as a committee member has asked for additional information from the body corporate manager, he has received an angry response. The chairperson ignores the Applicant’s communications.

In respect of the seventeenth outcome sought, the Applicant says the insurance claim relating to the alleged damage to Unit 3’s door which occurred on 8th December 2008 is highly prejudicial to the owner of Lot 1 against whom there is no evidence. The claim states that the door was kicked and fist-hammered which is incorrect as the Applicant was an eye-witness. The Applicant also disputes that the door was dislodged from its hinge or that screws were sheared. Further the person signing the insurance claim purportedly submitted by the body corporate, was not a committee member, but the owner of Lot 3 and was therefore not independent.

The treasurer has since said that the claim is nothing to do with the body corporate.

Left uncorrected, the claim is “biased and defamatory against the owner of Lot 1”. The body corporate should advise the insurance company that “unsubstantiated, misleading and even false claims have been made.”

In respect of the eighteenth outcome sought, the Applicant says that on 16th January 2009 he asked the treasurer for information about certain stationery and postage charges. The treasurer replied that information would be provided at the next committee meeting. No date for a committee meeting has been set. The Applicant believes that he has a right to such information apart from his role on the committee.

In accordance with section 243(2)(b) Act, submissions were invited from all lot owners.

There was a submission only from Daniel and Helen Kelly, (Mr and Mrs Kelly) owners of Lot 6, who are non-resident. They can see no reason why motions carried at the general meeting on 24th February 2009 should be overturned at the Applicant’s request. They are of the view that, in respect of the repair to the front gate, a receipt should be provided before the Applicant is entitled to reimbursement from body corporate funds.

In response to the submission from Mr and Mrs Kelly, he said that he has a right to seek to overturn motions which “are contrary to the Act, or otherwise prejudicial to the normal rights of owners.” He believes that their comments about the receipt demonstrates that owners have been misled by the “false information contained in the explanatory notes.”

The Applicant also provided an “update” on clause 14 (18th outcome sought) that the treasurer on 10th September 2009 says he put the requested information in the Applicant’s “street letterbox” on 16th January 2009. His street letterbox is not the address for notices on the body corporate roll. He has not received this information, and was refused a copy when asked for a duplicate on 10th September 2009. The body corporate has had no opportunity to respond to this allegation.

On 20th January 2010, at my request, the Applicant provided a copy of the cheque stub for the gate repair. The stub is dated 24th December 2008 and made out to “Christian’s Property Maintenance for $204.19.

The Applicant makes this application as a committee member, listing many grievances against the body corporate. For some of these grievances, he wants a remedy, but for others he seeks an acknowledgment by the body corporate of its wrongdoing and that public statements are sent to lot owners vindicating him, and/or admitting that the body corporate was wrong.

Whilst it is a matter for the Applicant how he presents his application, the role of an adjudicator is to assist in the resolving of disputes within the framework of the legislation. It is not within the general ambit of the legislation that public confessions or apologies are to be required of those who have (even deliberately) flouted the law.

“The very detailed provisions of the standard module regulation to which I have referred above make it almost inevitable that from time to time there will be non-compliance. Equally though the provisions of the Act make it clear that non-compliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.”[1]

Historically, there is certain leeway given to committees and to bodies corporate which make minor errors with no intention of flouting the legislation. Previous disputes have required that the applicant shows that some detriment has been suffered when the committee errs, in order for an order to be made in his favour.

Taking the Applicants grievances in order, the first outcome seeks to overturn the resolution of a general meeting on 24th February 2009. The motion was to rescind a motion previously passed just over a year earlier on 18th February 2008. The motion was defeated 4-2.

1. The Applicant says that to allow this motion to stand is impractical and possibly unlawful. The standing motion nominates treasurer Mr Paddle “as the only office bearing position” to make contact with the body corporate manager. In an interim order made on 13th October 2008 in application 0843-2008, the adjudicator said that this practice might contravene section 119 Act.

Section 119 Act says –
119 Schemes for which there is a committee for the body corporate
(1) This section applies if there is a committee for the body corporate.

(2) The body corporate, in writing, may authorise the body corporate manager to exercise some or all of the powers (authorised powers) of an executive member of the committee.
(3) However, the body corporate must not prevent the executive member from—

(b) directing the body corporate manager about how an authorised power is to be exercised.
(4) The body corporate, in writing, may revoke the authorisation at any time.

Section 119(3) Act prohibits the body corporate from preventing an “executive member” of the committee, that is the chairperson, the secretary or the treasurer, from exercising “an authorised power” of an executive member, or from directing the body corporate manager “about how an authorised power is to be exercised.”

The powers of the chairperson, secretary and treasurer as stated in the legislation are in fact quite narrow. Section 44 Standard Module requires the secretary to call committee meetings and the chairperson may do so in the secretary’s absence. The secretary’s duties also include accepting delivery of motions (section 69(3)), preparing voting papers (section 71), and accepting votes (section 86)(2)(b)). Section 48 Standard Module requires the chairperson to chair committee meetings unless he or she is absent; and general meetings if he/she is present (section 80 Standard Module). The treasurer must draft reconciliation statements only if there is no body corporate manager and the body corporate has voted to require reconciliation statements. (Section 149(2) Standard Module.)

The body corporate may ask a body corporate manager to do some or all of these things, for example, prepare reconciliation statements and call meetings, and it is common for a body corporate manager to be paid for such administrative duties under a contract of engagement. These are the “authorised powers”, and the body corporate may not prevent the chairperson, treasurer or secretary respectively from doing these jobs themselves if they wishes to, or prevent any of them from telling the body corporate manager how they wish that job to be done.

I am of the view that the motion that - “body corporate treasurer Greg Paddle, be nominated as the only office bearing position who makes contact with the body corporate manager...” has the capacity to prevent the chairperson and the secretary from directing the body corporate manager if they wished to do so. At the same time, I have some doubts as to the enforceability of this decision of the body corporate. ( See determination re. Twelfth outcome sought below.)

However, in order to overturn a motion of a body corporate, an applicant must show that the vote is unreasonable and therefore contrary to section 94(2) Act which requires the body corporate to act reasonably in anything it does to administer the common property. A democratic vote being exercised in favour of a motion properly put to a general meeting, an applicant must bring convincing evidence of the unreasonableness of the body corporate in so voting.

In Zenith[2], the adjudicator found that the courts have held that where a statute expressly provides that a decision is to be made ‘reasonably’ or upon ‘reasonable grounds’, the test is an objective one that requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’. In the decisions made to resolve disputes in Q1[3] and Allen Court[4], respective adjudicators also stated –

“In determining whether votes against a motion constitute opposition that in the circumstances is unreasonable it is necessary to consider all the material facts. What is material will vary from case to case but typically the requirement for an adjudicator to make a just and equitable decision involves some balancing of the interests of the majority and minority and raises questions of fairness.”

The question whether the body corporate has acted reasonably or unreasonably is one of fact to be decided by an adjudicator. Whilst it is understandable, and even advisable, that the body corporate manager (whoever he is) should takes instruction from only one person on the committee, the preferable wording would be along the lines, that the “the treasurer /secretary/chairperson for the time being be the committee representative from whom the body corporate manager takes instruction.” In many schemes this is simply something decided by the committee as a matter of convenience.

This is a scheme of only 7 owners, and therefore all owners could be on the committee. Various personalities with differing ideas could easily wear out a body corporate manager if each owner said that he or she represented the committee viewpoint, and gave instructions to the manager. It is true that Mr Paddle might not always be treasurer, or might not always be on the committee. At that time, if necessary, another motion might be put to a general meeting about whether the contact person is to be Mr Paddle, or the treasurer for the time being, or someone else.

The Applicant has not shown that either the secretary or chairperson have in fact been prevented from exercising any of their powers. If either of them were so prevented, then it is likely that their respective complaints would be upheld. I do not find in the circumstances of this small scheme that the vote was unreasonable although the motion might have been better worded.

2. The second outcome sought seeks reimbursement from the treasurer Mr Paddle of costs incurred by the body corporate. The Applicant alleges that Mr Paddle left motions and nominations off the agenda of the annual general meeting in 2008, and therefore another general meeting had to be held. He also seeks reimbursement of the cost of a previous adjudication (0843-2008) relating to the matter of the reconvened meeting.

The Applicant proposed to a general meeting on 24th February 2009, that Mr Paddle be liable personally for these expenses, but the motion was defeated 4 – 1. There is no amount claimed.

The Applicant has provided no evidence whatsoever why the resolution of the body corporate at a general meeting should be overturned.

A committee member is not generally liable personally to the body corporate for errors made in carrying out his or her voluntary duties as a committee member. I also note that the adjudicator in that matter made no order about the costs of the re-convened general meeting which would have been the time when such costs would have been discussed.

There is no provision in the legislation for the costs of the adjudication to be recovered by a successful applicant, save in the circumstances where a conciliation has been ended by the Commissioner because the respondent has failed without reasonable excuse to participate in the conciliation (Section 280 Act). In this application, such costs, if applicable, would be sought from the body corporate, and not a committee member or body corporate manager.

The costs, if any, of the reconvened meeting were those of the body corporate. The Applicant, making this application as a committee member, would appear to have no interest in this outcome sought. There is no detriment suffered by the Applicant about the calling of a second meeting.
If he made the application as attorney for Narelle Young, owner of Lot 4, for whom I notice that he holds, or previously has held a power of attorney, then there is some basis for his complaint. As a committee member, there is no impact on the Applicant at all in respect of the additional expense of the second meeting.

Further the Applicant has not submitted a figure claimed. This outcome appears to stem from a personal dispute with Mr Paddle and to be retribution for Mr Paddle leaving the Applicant’s motions off the agenda in October 2008, now well over a year ago.

3. By the third outcome sought, the Applicant seeks repayment of the sum of $204.19 paid by him for the repair of the front gate. He provides evidence that at a committee meeting on 16th December 2008, the committee authorised him to organise a handyman for this work. The body corporate has not repaid him despite him asking on several occasions. The body corporate has required a copy of the receipted invoice, which he does not have.

The Applicant’s motion proposing that he be reimbursed was put to the general meeting on 24th February 2009 but was defeated 3 – 2.

In this resolution I find that the body corporate has not acted reasonably. Section 94 Act requires the body corporate to act reasonably in all things it does in the administration of the scheme. There is no submission from the body corporate, and no reason given why the body corporate should not repay the Applicant for monies expended by him at the body corporate’s request. Whilst it appears for some reason that proof of payment has never been furnished by the Applicant to the body corporate and/or the treasurer, I consider that this might have easily been achieved if the body corporate had wished to be more co-operative.

It is evident that there is a personal dispute between the Applicant and the treasurer and/or the committee.

I have asked the Applicant for a copy of the cheque stub, which has traditionally been accepted in satisfaction of a receipt. He has provided a cheque stub dated 24th December 2008 made out to Christian’s Property Maintenance for $204.19. I am satisfied that the Applicant made this payment on behalf of and at the request of the body corporate, as a committee member, and that the body corporate should reimburse him within 14 days of the date of this order.

The Applicant provides no evidence at all that any committee member was misled. The alleged misleading material was that the accompanying explanatory notes alleged that the Applicant had not produced “a copy of a paid invoice or alternatively a receipt”. The submission in the Reply that Mr and Mrs Kelly as readers of the minute, were misled, is extraordinary in view of the fact that Mr and Mrs Kelly made their submission after reading the Applicant’s entire exhaustive application. The explanatory material that the Applicant had not provided a receipt is strictly true. The Applicant had provided the treasurer with a copy of an un-receipted invoice.

As stated above I consider there was some pettiness on the part of the body corporate in this matter. However, I do not intend to invalidate the “flying minute.”
As stated at length in Liberty[5] there is no legislative obligation on the committee to circulate explanatory notes that are fair, or even accurate.

5. By the fifth outcome sought, the Applicant claims that the sum of $2,430 should be reimbursed to the body corporate by the body corporate manager or “committee member responsible” for authorising the body corporate manager, to engage a more expensive gardening company than previously used. The Applicant claims that there was no authority for the committee/the body corporate manager to engage the new gardener, and that two quotations were not provided as required by law. Further, that retrospective approval after 12 months is invalid.

The sum is loosely calculated as being the difference between the former company and the new company over a period of ten months inclusive of some trimming which he alleges was unnecessary.

The Applicant also proposed this as a motion to the same general meeting on 24th February 2009 but it was defeated 4 – 1.

6. By the sixth outcome sought, the Applicant seeks to have the minutes of a decision made outside a committee meeting (a “flying minute”) of 5th February 2009 corrected. The minutes record a vote “3 yes, 1 no” (the Applicant’s vote) on Motion 1 but state “unanimously carried.”

This is clearly an error and should be corrected in the body corporate records. However, the error is obvious to any observer and a matter of very minor significance.

7, 8, 9, 10. By the seventh, eighth, ninth and tenth outcomes sought, the Applicant seeks that a continuing contravention of by-law notice sent to Ms N.J.Young, the owner of Lot 4, be “withdrawn”, that the body corporate advises owners that the notice was issued on insufficient grounds, and that the body corporate acknowledges that contravention notices “must be issued following agreement with the committee.” Further, he wants an order for disclosure as to who requested that the notice be sent.

The Applicant found the issue of a continuing contravention notice on 17th February 2009 re. noise, behaviour and damage to common property was unmerited, and advised the chairperson of that, asking for more details and the name of the informant. The Applicant does not say why the Notice is of interest to him, but I am assuming him to have been at that time a resident of Lot 4.

Section 182 Act requires the committee to issue a continuing contravention notice if it “reasonably believes that a person who is the owner or occupier of a lot ... is contravening a provision of the by-laws” and “the circumstances of the contravention make it likely that the contravention will continue.”

Where a by-law contravention notice is issued by a body corporate manager, the manager should act under instruction from the committee, or from the person on the committee who is authorised by the committee to instruct the body corporate manager. In certain circumstances, it may be that the contravention notice needs to be issued swiftly in order to be effective, without waiting for a committee meeting or decision to be made outside a committee meeting. (“flying minute.”)

However, the committee, or its representative must believe that a by-law contravention is or has taken place and will continue. A person in receipt of a notice must comply with it, but does not commit an offence if when he or she is given the notice, he or she is not contravening the by-law in the way detailed in the notice. (Section 182(6) Act.)

I am of the view that the records of the body corporate should be transparent so as to show the name of the complainant. Indeed, Form 1 BCCM, requires the name of the complainant to the body corporate to be known. If it was the committee or a member of the committee who asked the body corporate manager to send the notice, then again, the records should show on whose authorisation the notice was sent.

If the body corporate did not take proceedings further, this does not mean that the breach(es) did, or did not, occur. In my view, the notice was sent by the body corporate manager under instruction and if the body corporate was wrong or wrongly informed, there is no reason why such a notice should be “withdrawn” even if there was a process by which that could be done. This is a record of the body corporate. The letter dated 20th February 2009 from the Applicant is also a matter of record. The breaches were denied and no action taken.

The legislation is not served if the body corporate (and any owner) is required to prove beyond any doubt that a breach is being committed. It requires only the belief by the committee (or the authorised representative) that action should be taken.

There is no point in requiring the committee to act within the law. That is already legislated. If the committee acts outside the law, then any owner can bring a dispute resolution application in this Office.

I am not satisfied that the Applicant has demonstrated that the committee has acted outside the legislation, that is, he has not shown that there was an absence of belief in the committee or its representative to authorise the body corporate manager to send the notice.

However, the records of the body corporate should contain any documents which exist which notify the committee or committee members of the alleged contravention, and I order that any documents which exist which give instruction to the body corporate manager to issue the notice, are placed on the body corporate records, save that the body corporate is protected from allowing access to a public record if the body corporate reasonably believes that it contains defamatory material. (Section 204(3) Standard Module.)

A committee member about whom an allegation is made should still be informed of committee meetings and decisions taken outside a committee meetings in respect of that allegation, even though he may have a conflict of interest in any committee motion on the action to be taken and be unable to vote. (Section 53 Standard Module.)

11. By the eleventh outcome sought, The Applicant seeks that the contravention notice dated 9th December 2008 and sent to the owner of Lot 1, should be withdrawn and that owners are advised that it was issued improperly. I note that the owner of Lot 1 has made no submission in this application. Since neither the body corporate nor the owner of Lot 1 has wished to raise this issue, I am of the view that the Applicant is not a person who is “a party to, and is directly concerned with”, this outcome sought pursuant to section 238 Act.

The request is also made more than six months after the event which does not reflect any genuine ground for complaint or detriment suffered on the part of the Applicant.

He has sought by the first outcome sought, to overturn that Mr Paddle, treasurer, be the only point of contact with the body corporate manager, but in any event, the body corporate manager can only be instructed by the committee which represents the body corporate. I see no benefit to the scheme in requiring that the committee’s error or casual approach is publicly castigated in a letter to all lot owners.

In this small scheme, if Ms Absolon makes a complaint or contacts the body corporate manager or asks him to take some action, then that is something which the body corporate manager should clarify with the committee. The duties of the body corporate manager are a matter between it and the body corporate.

An owner cannot be forbidden to contact the body corporate manager (or anyone else) save by adjudicator’s order and then possibly only for a specific period of time. It is a matter for the body corporate manager to deal with the request or complaint by the processes set up by the committee. If an owner contacts the body corporate manager to the point of harassment, then the body corporate may lose the body corporate manager, or the body corporate might make an application to this Office for an order that the owner not contact the body corporate manager.

Since this scheme has made a point of deciding that Mr Paddle is to be the sole link, at least for the time being, it would be more sensible if others refrained from contacting the body corporate manager directly; and/or if the body corporate manager, if contacted, made immediate reference to Mr Paddle. However, I do not find that such arrangements are something which might be made a part of an order. There is no law requiring a body corporate to act in this specific way. If the body corporate has voted to act in this way, and I have found that in the circumstances it is reasonable for it to do so, then it is a matter of common sense that it sticks to its own decision.

The allegations relate to minutes created over a year before this application was lodged, and seek to correct inferences or an interpretation which might be put on the minutes by owners. Further, the Applicant has provided no evidence whatsoever that any owner misunderstood or incorrectly interpreted the minutes.

15. By the fifteenth outcome sought, the Applicant seeks to invalidate motion 3 of a decision made outside a committee meeting on 23rd March 3009. He says that the motion, “to seek compensation ...of $625.85” did not specify from whom the compensation should be sought, nor for what, even though he presumes that it relates to the immediately previous motion about a quotation for $625.85 for repairs to the door of Lot 3. He also wants the committee to be advised that “full and honest supporting information must be supplied” prior to a committee vote.

Whilst better details would not have gone amiss, any committee member who did not understand the motion could easily have asked for more information, and perhaps did so. The ultimate danger of not making a motion clear is that the voter votes against the motion. However, in this small scheme, it can be assumed that “the events that occurred at Libertine on December 8, 2008” as referred to in Motion 1, were known, and that the body corporate was holding the owner of Lot 1 responsible for damaging the door. It does not matter whether that view is true or not. In my view, committee members would have known what the motion was about whether they voted for or against it.

The Applicant also provided comment on the motions at the time, asking them to be distributed with the minutes. Although this may not have been done, the committee had the benefit of the Applicant’s reasons for voting.

There is no requirement in the legislation that “full and honest supporting information must be supplied” with any motion put to the vote of either the committee or a general meeting.

If Ms Absolon, a non-committee member is contacting the body corporate manager, it seems that the purpose of the body corporate appointing one point of contact, treasurer Mr Paddle, is defeated. However, the Applicant has provided no evidence that the chairman “allows” Ms Absolon to contact the body corporate manager, nor proposed any steps by which the body corporate might stop any lot owner from contacting the body corporate manager.

It seems to me that as set out above, the body corporate manager must be instructed by the committee or a representative of the committee. If Ms Absolon is not on the committee, the body corporate manager should get authorisation for her requests from the committee or its representative Mr Paddle. The Applicant has provided no evidence whether the body corporate manager does or does not do so.

Committee members should be treated in accordance with the legislation whether they are owners or not. However, the reactions of the body corporate manager to the Applicant’s requests are not something which can be the subject of an order, nor is the control of Ms Absolon by Mr Walker.

The Applicant wants the insurers to be advised that the claim was lodged without body corporate approval and that references to damage being caused by the owner of Lot 1 should be removed by the body corporate manager. The Applicant seeks explanations, apologies to the body corporate and “resulting costs” from Ms Absolon.

The Applicant has provided no evidence of any costs involved in this exercise. It also seems to me that this matter does not concern him other than as a member of the committee perhaps. He was a witness to the events which led to the insurance claim, but his application and standing in this application relate only to him as a committee member.

His sole interest in this matter therefore must be that a non-committee member signed a claim form on behalf of the body corporate. The words “ for body corporate of Libertine’ have been added at the signature section of the form perhaps by Ms Absolon, but there is nothing at all unusual or outstanding in a lot owner in a Building Unit Plan making a claim on the body corporate’s insurance. The signatory on the form was the person claiming that the details provided were true. In my view that can only have been the lot owner and not the body corporate. There was no need for anyone to have added the words: “For body corporate of Libertine.”

The treasurer’s statement that this claim has nothing to do with the body corporate would appear to be correct, in as much as the body corporate is not the claimant, nor involved in the process of the claim in any way.

I have no power to adjudicate on matter claiming to be defamatory, but find that the Applicant has no interest or legal standing as to what might be defamatory to the owner of Lot 1. It is noted that the owner of Lot 1 has made no submissions in this application.

This grievance is also well past its use-by date relating to an incident which occurred in December 2008. The outcome sought is therefore dismissed.

All committee members are entitled to reasonable access to body corporate records gratis on reasonable notice being given, again subject to any record being defamatory, or the subject of privilege. A copy of a record photocopied is 50c per page. (Section 204 and section 205 Standard Module; section 205 Act). The Applicant, as a member of the committee would be an “interested person” in accordance with section 205(6)(c) Act, even though he is not an owner.

That does not mean that committee members or the body corporate manager/treasurer are required to account for each item of expense, but must provide a reconciliation statement within 21 days of the last day of each month as per the legislation (section 149(2) Standard Module). The balance to find is always what is reasonable for the knowledge and concerns of the lot owners/committee members against such a plethora of demands that the body corporate manager cannot do his job or the body corporate is put to additional expense.

Again, I notice that these items requested relate to August 2008 and November 2008, and the Applicant has given no reason for his interest in these figures. It is most unlikely that this expenditure of long ago will now be considered as a part of any dispute. It might assist the Applicant to look at bank statements relating to those months. In any event, I order that the Applicant is advised by the body corporate of the particular items of expense requested by him.

Conclusion
In this matter, the Applicant has made a “shopping list” of his grievances without any real evidence of how the behaviour of the body corporate or its committee has affected him detrimentally as a member of the committee, or has affected the body corporate detrimentally. Most of his outcomes sought have been to correct petty errors or minor infringements on the part of the body corporate committee and/or to have the committee reprimanded and the Applicant’s blamenessness circulated to the seven owners in the scheme.

I have considered, in the circumstances where the outcomes sought have been dismissed, to dismiss them for being frivolous, vexatious, misconceived or without substance. In such a case, costs may be awarded in favour of the respondent body corporate. (Section 270(4) Act). I also note that the Applicant or his principal, have made four previous applications since 2007.

The body corporate did not make any submission in this matter, perhaps because it is entirely weary of responding to the mostly minor allegations of the Applicant and his voluminous correspondence.

This application has little merit in it. In the circumstances that the body corporate has erred in not reimbursing the Applicant for payment of the repair to the gate, the claim was not entirely without substance, but the Applicant should note that further applications by him which are similarly dismissed may lead an adjudicator to invite the body corporate to seek costs against him.

[1] His Honour Judge Boulton DCJ District Court Brisbane, 29 May 2001

[2] Zenith (2007) QBCCMCmr 115
[3] Q1 [2007] QBCCMCmr 131 (8 March 2007).
[4] Allen Court [2007] QBCCMCmr 297 (21 May 2007).
[5] Batwing Resorts Pty Ltd –v- Body Corporate For Liberty CTS 27241 [2008] CCT KA004-08 paras 55–56; 65-66
[6] Section 152(1) Standard Module

Number of Scheme:	30480
Name of Scheme:	Libertine
Address of Scheme:	23 Musgrave Road INDOOROOPILLY QLD 4068

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Libertine [2010] QBCCMCmr 69 (17 February 2010)