Zenith [2011] QBCCMCmr 50 (14 February 2011)

Last Updated: 18 March 2011

REFERENCE: 1119-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10343
Name of Scheme:	Zenith
Address of Scheme:	20 The Esplanade SURFERS PARADISE QLD 4217

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

Michael Cass on behalf of Maria Cass, the Owner of Lot 30

I hereby declare that motion 12 of the ‘General Business’ of the committee meeting dated 23 October 2010 is not sufficient to authorise the body corporate for Zenith to undertake any works to the airlock. I further declare that motion 13 of the ‘General Business’ of the committee meeting dated 23 October 2010 is not sufficient to authorise the body corporate for Zenith to undertake any works to the concrete wall in front of the airlock or the grassed area within the pool enclosure, other than the gathering of three quotations not exceeding $4,000.00 for these works. I hereby order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1119-2010

“Zenith” CTS 10343

Zenith community titles scheme 10343 (Zenith) consists of 91 lots and common property. The Community Management Statement (CMS) for Zenith indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme. The Department of Environment and Resource Management records show the scheme is registered as Building Units Plan 4847.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Michael Cass on behalf of Maria Cass[1], owner of Lot 30 (applicant) on 2 December 2010. The applicant sought orders against the Body Corporate for Zenith (the respondent) in the following terms:

1. That the Committee cease engaging their desired contractors to upgrade the foyer/airlock and that motion 18 passed at the AGM held 12 June 2009 be carried out in accordance with the direction of the body corporate in that Robert Henderson Consultant complete the works.
2. That the Committee cease any further landscaping and building works on the southern/eastern sides of Zenith until quotations and plans have been presented to owners at a general meeting for Body Corporate consideration.
   

The application also sought the following interim orders:

1. That in the interim all foyer upgrade works cease until the final resolution is determined by the adjudicator.
2. That in the interim the Committee cease any further landscaping and building works on the southern/eastern sides of Zenith until a final resolution is determined by the adjudicator.
   

On 14 December 2010 I made an interim order in the following terms:

I hereby order that pending a final determination on this matter, the Body Corporate for Zenith must not implement or put into effect Motion 13 as purportedly passed at the Committee Meeting dated 23 October 2010.

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.

I further order that the interim application is otherwise dismissed.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was 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. Several submissions were received in this matter. The applicant did not make a written reply to the submissions received.[2] A dispute resolution recommendation was then made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

This application relates to works involving the airlock as well as landscaping and building works. The circumstances of the dispute are as follows:

Airlock Works

Pursuant to motion 18 of the Annual General Meeting (AGM) dated 12 June 2009 (Motion 18) the body corporate resolved to engage Robert Henderson Design Studio Pty Ltd to complete foyer and pool upgrade works at a cost of $175,135.99. The 2009-2010 committee engaged Mr Henderson (per Motion 18) and he completed the pool area upgrade in September 2010 and part of the foyer works in April 2010.

However, the applicant says that the new committee (as elected at the AGM dated 11 June 2010) engaged their desired contractor in or around November 2010 to complete the remaining airlock works. The applicant argues that the appointment of a contractor other than Mr Henderson is invalid and in breach of Motion 18.

Landscaping and Building Works

Further, the applicant says that the committee is undertaking landscaping works on the southern side of the scheme without proper body corporate authorisation. The applicant requests that all such works be stopped due to the following:

• The cost of the landscaping works to date has exceeded $30,000.00. Works have not yet been completed and the total cost is expected to escalate above $40,000.00.
• The committee should present a complete proposal of the works to a general meeting.
• The committee have already completed landscaping works to the northern and western sides of the scheme without obtaining proper quotations or landscaping plans.
  

Submissions

In response to the application (both the interim and final orders) the committee makes the following comments:
Airlock Works

• After the 2009 AGM, the committee engaged Robert Henderson to perform numerous works at the scheme. After the 2010 AGM, the new committee made a decision that they would re-quote all the works per Motion 18 and get the best possible prices. It became very clear to the 2010 committee that Mr Henderson’s prices were outrageously overpriced.
• The committee has resolved to perform work to the airlock pursuant to motion 12 of the committee meeting dated 23 October 2010 (Motion 12). Motion 12 resolved, “to replace existing aluminium framed glass doors and panels to the value of say $10,000.00”.
• The substance of Motion 12 was resubmitted to a committee meeting on 22 December 2010 (per motion 3) where the committee resolved that, “of the 3 quotes for the supply and installation of aluminium framed toughened glass to the Airlock, to accept and proceed with the quote from T.B. Glass for $9,800.00”
• A motion has been placed on the agenda of the Extraordinary General Meeting (EGM) scheduled for 4 February 2011 to rescind Motion 18.

Landscaping and Building Works on the Southern/Eastern Side of the Scheme

• Landscaping and building works were discussed in motion 13 of the committee meeting dated 23 October 2010 (Motion 13). Motion 13 and its associated notes are set out below:

“To remove existing concrete wall in front of the Air Lock and the raised grass area within the pool enclosure and replace with lawn. This will enhance the entrance of Zenith and open up the area in that the pool area will be visible from the Air Lock. At present, the outlook is to a brick wall.

Motion: - To obtain 3 quotes. The works not to exceed $4,000.00”

• Motion 13 was passed with six votes in favour, no votes against and no abstentions.
• The substance of Motion 13 was resubmitted to a committee meeting on 22 December 2010 (per motion 4) where the committee resolved that, “of the 3 quotes received for the removal of the block walls, excess soil and the supply and laying of turf, to accept and proceed with the quote from B&B Bricking for $3,825.00.”
• The work as set out in Motion 13 (and in turn Motion 4 of the committee meeting dated 22 December 2010) are not connected with any other approved works at the scheme.
• The applicant’s allegations that the cost of landscaping to date exceeds $30,000.00 and is expected to go beyond $40,000.00, is unfounded.
  

Submissions were received from Maxene Jackson, Kevin Nixon and Warren Brash, Elaine Accornero, Lynne Rockett, Florence Pidgeon, Karen Cripps and Morris Smith opposing the application. These submissions state the following:
Airlock Works

• The quotation approved per Motion 18 was excessive.
• Motion 18 does not comply with section 152 of the Standard Module.

Landscaping and Building Works

• The applicant suggests that the works per Motion 13 should be presented to a general meeting. However, the costs of the works are under the committee spending limit and are therefore not required to be submitted to a general meeting.
• The applicant suggests that plans should be drawn up regarding the works in Motion 13. However, plans are not required for the limited works proposed in Motion 13.
• The applicant has provided no evidence to support his assertions that, to date, $30,000.00 has been spent on landscaping and that the total cost is expected to exceed $40,000.00.
  

No submissions were received supporting the application.

INVESTIGATION

Pursuant to the investigation powers of an adjudicator in section 271 of the Act, on 4 February 2011, I requested that a member of our Office contact the Body Corporate Manager and obtain a copy of the following documents:

• The notice and minutes of the AGM dated 12 June 2009;
• The notice and minutes of the EGM dated 4 February 2011; and
• The committee minutes dated 22 December 2010;
  

This information was provided on 11 February 2011. Motion 5 of the EGM dated 4 February 2011 (Motion 5) sought body corporate permission to rescind Motion 18. Motion 5 passed with 43 votes in favour, 32 votes against and 1 abstention.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[3] 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 CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about -

(i) the engagement of a person as a body corporate manager or service contractor; or

(ii) the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[4] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[5]

DETERMINATION

Airlock Works – Motion 18 of AGM dated 12 June 2010

The applicant seeks an order that the body corporate conduct the airlock works in accordance with Motion 18. However, since the lodgement of this application the body corporate has purportedly resolved (per Motion 5) to rescind Motion 18.

There is nothing in the Act which prevents the body corporate from rescinding a motion passed at a previous general meeting provided the rescinding motion is passed in a like manner at a subsequent general meeting. Therefore, it seems that Motion 18 is no longer an enforceable resolution of the body corporate. Accordingly, I am of the opinion that the body corporate is no longer required to perform any work in accordance with this motion.

Airlock Works – Motion 12 of Committee Meeting dated 23 October 2010

In the interim submission, the committee suggested they had authority to perform work to the airlock pursuant to Motion 12 which resolved to “replace existing aluminium framed glass doors and panels to the value of say $10,000.00”.

As identified in the Interim Decision, Motion 12 does not specify what (if any) quotations were considered by the committee, the cost of any such work to be undertaken and/or the contractor to be engaged. Accordingly, I am of the opinion that Motion 12 is not sufficient to authorise the body corporate for Zenith to undertake any works to the airlock.

However, I note that since the making of the interim order, the committee has resolved (per Motion 3 of the committee meeting dated 22 December 2010 (Motion 3)) to engage T.B. Glass at a cost of $9,800.00 to supply and install glass to the airlock. The validity of Motion 3 is not the subject of this application and consequently I have not considered this issue further.

Landscaping and Building Works – Motion 13 of Committee Meeting dated 23 October 2010

In the interim submission, the committee suggested they had authority to undertake works to the concrete wall in front of the airlock and the grassed area within the pool enclosure pursuant to Motion 13.

While the minuted notes surrounding Motion 13 mention the works which the committee seek to perform, the motion itself, only resolves for body corporate to obtain three quotations not exceeding $4,000.00 for these works. Further, the motion does not actually consider any quotations obtained or contain any specific information regarding the cost of any such work and/or the contractor to be engaged. Consequently, I am of the opinion that Motion 13 is not sufficient to authorise the body corporate to undertake any works to the concrete wall in front of the airlock or the grassed area within the pool enclosure, other than the gathering of three quotations not exceeding $4,000.00 for these works.

However, I note that since the making of the interim order, the committee has resolved (per Motion 4 of the committee meeting dated 22 December 2010 (Motion 4)) to engage B&B Bricking at a cost of $3,825.00 for the removal of the block walls, excess soil and the supply and laying of turf. The validity of Motion 4 is not the subject of this application and consequently I have not considered this issue further.

Ceasing Landscaping and Building Works

Further, I refer to the applicant’s request that the committee be ordered to cease any further landscaping and building works on the southern/eastern sides of the scheme until quotations and plans have been presented to owners at a general meeting.

While I note the applicants concerns, the applicant has raised no specific landscaping or building works which have either occurred, or are yet to occur, to which he objects. An adjudicator can only make an order where there is evidence of a claimed or anticipated contravention of the Act or CMS.[6] In this instance, the applicant has provided no evidence (apart from Motion 13 which has been considered above) that the body corporate has breached the Act or CMS regarding any landscaping or building works. Nor has the applicant provided any evidence to suggest that the works considered per Motion 13 (or subsequently Motion 4) are connected to, or part of, any other larger project within the scheme. Accordingly, based on the material provided, I am not prepared to make the order sought.

CONCLUSION

On this basis, I am making the orders as set out above.

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[1] Initially pursuant to a Power of Attorney dated 17 August 2007 and subsequently as executor of her estate.
[2] See sections 246 and 244 of the Act respectively.
[3] See sections 227, 228, 276 and Schedule 5 of the Act.
[4] Section 276(2) of the Act.
[5] Section 284(1) of the Act.
[6] Section 276(1)(a) of the Act.