Aura [2011] QBCCMCmr 46 (11 February 2011)

Number of Scheme:	40509
Name of Scheme:	Aura
Address of Scheme:	Ferry Road, West End QUEENSLAND

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Aura community titles scheme 40509

I hereby authorise the committee of the body corporate for Aura community titles scheme 40509 to engage Eletech Pty Ltd to undertake the rectification works stated in the quotation dated 20 January 2011 at a cost not to exceed $41,930.00 (plus GST).

This application was made to the commissioner on 3 February 2011. It was amended on 9 February. The commissioner has referred the application to an adjudicator under section 243A of the Body Corporate and Community Management Act 1997 (Act) without giving written notice pursuant to section 243(1) of the Act. Section 243A provides the commissioner may refer an application immediately to an adjudicator if he reasonably considers the application relates to emergency circumstances and it is not appropriate to deal with the application under section 247 of the Act.

The application was made as a consequence of the resolution of the committee by voting outside a committee meeting on 7 February 2011 (s 54, Body Corporate and Community Management (Accommodation Module) Regulation 2008). A decision of the committee of this nature is a decision of the body corporate (s 100(1) and (2), Act and s 42(1)(e)(iv), Accommodation Module).

The body corporate seeks immediate authorisation to approve the quotation from Eletech Pty Ltd to rectify the lift. It provided a copy of a quote from Eletech dated 20 January 2011 for $41,930.00 (plus GST).

The body corporate states the quoted work is necessary to rectify defects caused when the scheme was inundated with flood water. The quote details the work required to reinstate the lift as a consequence of water entering the lift shaft. The body corporate also provided a copy of a quotation from ThyssenKrupp Elevator Australia dated 25 January 2011 tendering “on the removal of the existing lift due to flood damage” at a cost of $224,400.00.

The quotations refer to defects in the lift. The survey plan for the scheme (SP 201089) indicates there are 36 lots included in the one building on scheme land, there are nine levels in the building and a common property lift services each of the levels. It is apparent from the material that extensive work is necessary to maintain common property in good condition.

A body corporate has a duty to administer, manage and control common property and body corporate assets reasonably and for the benefit of lot owners (s 152(1), Act). It must maintain common property in good condition, including to the extent that common property is structural in nature, in a structurally sound condition (s 157(1), Accommodation Module).

Given legislative constraints, the amount of spending stated in the quotes exceeds the amount that can be approved by the committee. Unless the body corporate has decided otherwise (which is not argued), the committee spending limit is $7,200.00 or $200 multiplied by the 36 lots included in the scheme (relevant limit for committee spending, defined schedule, Accommodation Module). It would also seem the quoted amounts are also more than the relevant limit for major spending for the scheme of $10,000 (defined schedule, Accommodation Module).

With respect to calling a general meeting, at least 21 days notice of the meeting must be given to lot owners (s 72, Accommodation Module). The body corporate states if the quoted work is delayed until an extraordinary general meeting is convened, there will be further delays ordering parts when there is no operable lift in the building. In my view, this is a significant consideration. I am satisfied the committee has explained why the time delay in convening an extraordinary general meeting would be to the detriment of the body corporate.

Consequently, the committee may only give effect to the proposed spending if an adjudicator is satisfied the spending is required to meet an emergency and authorises it under an order made under the dispute resolution provisions (s 149(1)(c), Accommodation Module). An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory 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 (s 276(1), Act).

On the basis of submissions, I am satisfied an emergency situation has arisen in the scheme and that the quoted spending is required.

The body corporate provided 2 quotations to maintain the lifts: from Eletech and ThyssenKrupp. It would appear given the difference in the quoted amounts that ThyssenKrupp contemplates more work than Eletech. The body corporate states Eletech is the contracted supplier and maintenance firm for the lifts, going to an outside contractor would be more expensive and Eletech would not warrant work carried out by an outside contractor. In my view, the committee has demonstrated it is not practicable to obtain more than 1 quotation for the rectification work. The body corporate relevantly submits the expenditure is to be met from the sinking fund which it anticipates will be reimbursed by contributions fixed at a soon to be held extraordinary general meeting.

In the circumstances, I am satisfied it is appropriate to authorise emergency spending in the terms sought.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Aura [2011] QBCCMCmr 46 (11 February 2011)