Atlantis East [2011] QBCCMCmr 28 (31 January 2011)

Last Updated: 21 February 2011

REFERENCE: 0066-2011

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9748
Name of Scheme:	Atlantis East
Address of Scheme:	2 Admiralty Drive PARADISE WATERS QLD 4217

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

Ms. Maree Wray, Director of Kayzo Pty Ltd, the Owner of lot 5

I hereby order that the application for an interim order to stop the installation of new balcony balustrades which is scheduled to commence on 1 February 2011 Is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0066-2011

“Atlantis East” CTS 9748

Application

This application was made on 27 January 2011 by Ms. Maree Wray as Director of Kayzo Pty Ltd, the Owner of lot 5, seeking both interim and final orders against the body corporate.

The interim order sought by the applicant is to stop the installation of new balcony balustrades which is scheduled to commence on 1 February 2011:

Background

Atlantis East community titles scheme (Atlantis East) consists of 180 lots and common property. The community management statement (CMS) for Atlantis East indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme.

The building is now approximately 30 years old and in recent years it has become apparent that the balustrades for the building require extensive repair or replacement. The applicant does not dispute that replacement of the balustrades is required but objects to the colour and style of the balustrades which are to be installed. The contractor is scheduled to commence installation on 1 February 2011.

More particularly, the applicant believes that:

• The new balustrades will impact on privacy of lot owners because it is proposed that they will be constructed on the outside of the building and it will be easier to see into neighbouring apartments;
• The building will no longer be aesthetically consistent with a neighbouring tower known as Atlantis West ;
• Although the committee provided a cross-section of the new balustrade for display in the community room, there was no model or artist’s simulation of how the building will look on completion.
• construction of the “prototype” balustrades on the first floor was only completed in early December 2010, which she believes, was insufficient time for owners to consider the prototypes;
• she believes that there is a clash of colour schemes as the balustrades have a silver anodised finish while the existing doors and windows have an bronze finish;
• she is concerned about the use of clear glass as part of the balustrade.
  

This matter was referred to me on Friday 28 January which created obvious time constraints within which further inquiries could be made. Nevertheless I was able to obtain a relatively detailed reply from the body corporate. Submissions made by the body corporate included the following:

• extensive consultation with lot owners was undertaken over a two year period;
• the body corporate was obliged to replace the balustrades because the building’s insurer was of the view that as some of the balustrades were unsafe due to salt corrosion and repairs were of limited effectiveness, the balustrades should be replaced;
• independent engineers advised that fixing the balustrade to the hob was no longer possible because current standards require that the hob be of greater width and depth. The only alternative was to attach the balustrade to the fascia;
• tenders were called and all 5 companies that submitted tenders agreed that the connection should be external to the facia.
• At the AGM held on 27 March 2009, it was resolved by 61 votes to 3 votes that the balustrade be replaced;
• At the AGM held on 29 March 2010 it was resolved by 64 votes to 7 votes that a special levy of $918,540 be imposed for the purpose of meeting part of the cost of replacing the balustrades;
• At the AGM held on 29 March 2010 it was resolved by 64 votes to 5 votes that the relevant limit for committee spending for the body corporate for the purposes of balustrade replacement be increased to $2,416,000.00;
• There was discussion regarding the balustrades at the budget committee meeting on 1 March 2010 and committee meeting on 3 September 2009;
• The applicant failed to vote on this matter at any of the AGM’s referred to;
• Minutes of the above meetings were sent to all owners as well as newsletters containing commentary regarding the balustrade upgrade project;
• On 29 September 2010 the committee approved the signing of a contract with O’Brien Window Maintenance for $2,090,000 but also put a model balustrade on display for two months so that owners had a further opportunity to make further on specific aspects of the installation;
• Two further information sessions were held at which owners could discuss any queries that they had with the architect, engineer and installer;
• The communication with owners has been open, transparent and without fault. The applicant has had ample opportunity to comment on the proposed balustrade;
• The balustrades had reached such an age and state of corrosion that replacement was required for safety purposes and to satisfy the requirements of the building’s insurer. Upgrading the balustrades was of secondary importance;
• The design and colour was chosen after considering the advice of various specialist consultants;
• The applicant is the only person to make a written complaint regarding the proposed balustrades;
• The current balustrades are of an open grill design and therefore the view from the balcony would be the same with the new balustrades.
  

Jurisdiction

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)).

Determination

At this point in time I am considering an application for an urgent interim order. The interim order sought by the applicant is to stop the installation of new balcony balustrades which is scheduled to commence on 1 February 2011:

The making of interim orders is governed Sub-sections 279(1) & (2) of the Act which provide as follows: -
(1) The 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.
Examples
1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.
(2) An interim order
(a) has effect for a period (not longer than 1 year) stated in the order; and
(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; (c) may be cancelled by a later order made by the adjudicator; and
(d) if it does not lapse or is not cancelled earlier, lapses when
(i) the application is withdrawn; or
(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or
(iii) a final order is made by an adjudicator to whom the application is referred. ...

I am reluctant to make an interim order unless is it necessary due to the nature or urgency of the circumstances to which the application relates[1] and any order granted must be just and equitable in the circumstances..[2] In determining whether it is just and equitable to grant interim relief, it is relevant to briefly consider whether the application raises any serious questions for final determination. It is also relevant to consider whether any inconvenience likely to result from the interim order is outweighed by the potential detriment alleged in the application. Any evidence that an interim order is necessary to prevent serious or irreparable harm will be significant.

In this case I have perused minutes of general meetings and note:

• At the AGM held on 27 March 2009 it was resolved by 61 votes to 3 votes that the balustrade be replaced;
• At the AGM held on 29 March 2010 it was resolved by 64 votes to 5 votes that the relevant limit for committee spending for the body corporate, for the purposes of balustrade replacement, be increased to $2,416,000.00;
• At the AGM held on 29 March 2010 it was resolved by 64 votes to 7 votes that a special levy of $918,540 be imposed for the purpose of meeting part of the cost of replacing the balustrades.
  

On the material at hand, I believe that meetings have been called and resolutions made, in accordance with the Act and the Standard Module Regulation. Further, I note from the explanatory schedule accompanying the voting paper for the AGM on 29 March 2010, that owners were made aware that the existing balustrades are to be replaced with modern glass balustrades. There has also since been a considerable amount of consultation with lot owners and clearly, there is popular support for the replacement of the balustrades. To intervene at this late hour would obviously cause significant disruption and on the balance of convenience, I do not believe it is appropriate for an interim order to be made.

This determination does not dispose of this dispute in its entirety as final outcomes are also sought. The dispute resolution application will be further dealt with in accordance with the usual processes undertaken by this office which may include seeking further submissions.

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[1] Section 279 of the Act
[2] Section 276 of the Act