Mermaid Villa [2011] QBCCMCmr 479 (31 October 2011)

Last Updated: 2 December 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Mermaid Villa [2011] QBCCMCmr 479
PARTIES:	Jonathon Johnstone, owner of lot 3 (applicant) The Body Corporate for Mermaid Villa (respondent)
SCHEME:	Mermaid Villa CTS 11605 (Mermaid Villa)
JURISDICTION:	Sections 227(1) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0475-2011
DECISION DATE:	31 October 2011
DECISION OF:	S Zeidler, Adjudicator
CATCHWORDS:	GENERAL MEETING RESOLUTION – whether motion 2 of the extraordinary general meeting dated 27 May 2011 should be declared invalid.

ORDERS MADE:

I hereby order that the application is dismissed.

REASONS FOR DECISION
Introduction

[1] This application relates to Motion 2 of the Extraordinary General Meeting (EGM) dated 27 May 2011 (Motion 2). Motion 2, a motion with alternatives, sought body corporate permission to repair the balustrades of lots 3, 4, 6 and 7. Alternative 1 sought permission for Topline Home and Property Maintenance to perform the work at a cost of $6,204.00. Alternative 2 sought permission for Sharp Enterprises (Aust) Pty Ltd to perform the work at a cost of $6,736.40.
[2] The applicant disputes the reasonableness of Motion 2 on the basis that it appears neither of the quotations presented were from individuals or companies licensed with the Building Services Authority (BSA). The applicant says the BSA requires any work over $3,300.00 to be performed by a licensed individual or entity. Accordingly, the applicant requests that Motion 2 be declared invalid.
[3] In determining this application I will consider the arguments raised by each party in relation to the balustrade issues.

Jurisdiction

[4] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] It is a dispute between a lot owner and the body corporate about a claimed contravention of the Act. An adjudicator’s order may require a person to act, or prohibit a person from acting, in a way stated in the order.[2] Further, an adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]

Procedural Matters

[5] This application was lodged on 23 May 2011, seeking an interim order that Motion 2, if passed, not be implemented by the body corporate pending a final order. On 26 May 2011, I made the following interim orders:

“I hereby order that pending a final determination on this matter, the Body Corporate for Mermaid Villa must not implement or put into effect Motion 2 if purportedly passed at the Extraordinary General Meeting scheduled for 27 May 2011.

I further order that this interim order expires when the application is finally determined or discontinued, or upon the expiry of 12 months from the date of this order, whichever is the earliest.”

[6] Under section 243 of the Act, a copy of the application was subsequently provided to the body corporate, with an invitation to the Body Corporate Committee (the committee) and all owners to respond to the matters raised by the application. A submission was received from the committee. A dispute resolution recommendation was then made referring the dispute to departmental adjudication.

Analysis

[7] The applicant questions the reasonableness of Motion 2 on the basis that it appears neither of the quotations presented are from individuals or companies licensed with the BSA.
[8] The BSA website says:

“A licence is required when an individual or company wants to carry out, undertake to carry out or supervise building work valued over $3,300 (including labour and materials) in Queensland.”

[9] On 26 May 2011 I conducted an Online BSA Licence Search regarding the individuals/entities named in the quotations.[4] Firstly, I undertook a search using the name ‘Topline’. Although several entries were listed, none of the entries were for ‘Topline Home and Property Maintenance’. Further, none of the entries showed an address in Labrador as set out in the quotation provided.
[10] Secondly, I undertook a search using the name ‘Sharp Enterprises Pty Ltd’. No entries were listed under this name. I then conducted a search using the name ‘Sharp Enterprises’. One entry did appear under the name ‘Sharp Enterprises Qld’ however the information presented stated that this entity was ‘not currently licensed’.
[11] In the interim order decision dated 26 May 2011 I stated:

“At this stage it is unclear whether the quotations presented in Motion 2 are from individuals/entities registered with the BSA. However, I note that no BSA licence numbers are listed on the quotations presented. Further, I was unable to locate either ‘Topline Home and Property Maintenance’ or ‘Sharp Enterprises Pty Ltd’ using the Online BSA Licence Search.

Section 94 of the Act says that the body corporate must act reasonably in anything it does including making, or not making, a decision. Based on the information presented, I am satisfied that the applicant has raised a serious legal issue regarding the reasonableness of Motion 2.”

[12] The minutes of the EGM dated 27 May 2011 indicate that Topline Home and Property Maintenance was selected to perform the balustrade repairs. However, on 10 June 2011 the committee informed our Office that Topline Home and Property Maintenance had withdrawn their quotation. Accordingly, the committee said they would be sourcing new quotations for the balustrade works and holding another EGM.
[13] On 26 August 2011 the body corporate held a subsequent EGM wherein they resolved to appoint Southern Sky Constructions at a cost of $18,810.00 to repair the balustrades of lots 3, 4, 6 and 7. The quotation attached to the EGM notice showed the company was licensed with the BSA.
[14] On 31 October 2011, I requested that a member of our Office contact the body corporate manager and ask whether the balustrade works (per Motion 2 of the EGM dated 26 August 2011) had commenced. The file note of the conversation indicated that the manager was unsure whether the works had physically commenced. However, the file note stated that the body corporate had signed a contract for the works and paid a deposit.
[15] As the body corporate are no longer considering appointing either entity submitted per Motion 2 and have subsequently engaged another contractor to do the work, I am not satisfied a dispute remains regarding the reasonableness of Motion 2. Rather, I consider subsequent events have overtaken any issues regarding Motion 2 such that it is now no longer appropriate or necessary to make an order regarding this issue.

Conclusion

[16] On this basis, I am dismissing the application.

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[1] See sections 227, 228, 276 and Schedule 5 of the Act
[2] Section 276(2) of the Act
[3] Section 284(1) of the Act
[4] See the investigation powers of an adjudicator as set out in section 271 of the Act.