Apartments on the Lakes [2011] QBCCMCmr 509 (18 November 2011)

Last Updated: 9 December 2011

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

CITATION:	Apartments on the Lakes [2011] QBCCMCmr 509
PARTIES:	Janine Greenfield, co-owner of lot 17 (applicant) The Body Corporate for Apartments on the Lakes (respondent)
SCHEME:	Apartments on the Lakes CTS 28652 (Apartments on the Lakes)
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:	0958-2011
DECISION DATE:	18 November 2011
DECISION OF:	S Zeidler, Adjudicator
CATCHWORDS:	COMMITTEE RESOLUTIONS – whether the committee resolutions dated 17 October 2011 are valid resolutions of the body corporate. Standard Module, s151.

INTERIM ORDERS MADE:

I hereby order that pending a final determination on this matter the Body Corporate for Apartments on the Lakes must not implement or put into effect Motion 2 as purportedly passed pursuant to a vote outside a committee meeting dated 17 October 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.

REASONS FOR DECISION
Introduction

[1] Apartments on the Lakes consists of 24 lots and common property. This application relates to three motions passed pursuant to a vote outside a committee meeting on 17 October 2011.
[2] The first motion entitled, ‘Timber Fence Repairs’ resolved to engage Matmil Constructions to repair the southern timber boundary fence at a cost of $2,750.00 (including GST).
[3] The second motion entitled, ‘Soft Landscape Refurbishment of Front Boundary Landscape’ resolved to engage Sutton Contracting to provide landscaping to the front boundary area at a cost of $9,990.00.
[4] The third motion entitled, ‘Causal Landscape Consultancy Service’ resolved to engaged Simon McConnell to supply advice on landscaping issues for the amount of $1,000.00 (including GST).
[5] The applicant seeks an interim order that no works proceed on these motions pending a final order. An interim order is normally only justified when:

1. The application raises a serious legal question that will need to be determined; and
2. The inconvenience likely to result from the interim order is outweighed by the potential detriment if the order is not granted.

Overview

Jurisdiction

[6] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] This is a dispute between a lot owner and the body corporate. Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute in the context of a community titles scheme about a claimed or anticipated contravention of the Act.
[7] Section 279(1) of the Act allows an adjudicator to 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.

Procedural Matters

[8] In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order. The Commissioner has referred the application notwithstanding that affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application.[2] In the circumstances, I have provided the Body Corporate Committee (committee) with a limited opportunity to make a written submission in response to the interim application.

Analysis

Serious Legal Question

[9] The applicant raises several objections to the committee resolutions. I will address the key issues in turn.

One project

[10] The applicant says the proposed works form ‘one project’ with the existing pool landscaping works and therefore need to be voted on by all owners.
[11] The committee however says the works relate to different maintenance issues within the scheme and do not form ‘one project’ with the pool landscaping works.
[12] Section 151(2) of the Standard Module states that if a series of proposals form a single project, the cost of carrying out any 1 of the proposals is taken to be more than the relevant limit for committee spending if the cost of the project, as a whole, is more than the relevant limit. The committee spending limit in this scheme is $10,000.00.[3] Therefore, it is necessary to determine whether the motions dated 17 October 2011 form ‘one project’ with the pool landscaping works.

Motion 1

[13] Motion 1 relates to timber fence repairs along the boundary of the scheme. The committee says the ‘timber fence repairs’ are not ‘one project’ with the pool landscaping works as they relate to the fence which runs along the full length of the front boundary of the scheme. Further, the committee says there was no intention to repair this fence when planning the pool landscaping works as it was not even realised the fence required maintenance until the garden soil was removed.
[14] Based on the information presented, I am not satisfied the applicant has provided sufficient evidence to demonstrate Motion 1 forms part of the pool landscaping project. Rather, as it seems the timber fence repairs were not even considered at the time of the pool project (and only subsequently considered when garden soil was removed and the problem discovered) I consider the fence repairs to be separate from the core pool landscaping works.

Motion 2

[15] Motion 2 relates to the refurbishment of the front boundary garden area. Whether or not Motion 2 forms part of the pool landscaping works is a difficult question.
[16] The committee argues the ‘front boundary area’ works are separate from the pool landscaping works as they pertain to two separate areas. In this regard, the committee says the pool landscaping works primarily relate to land within the pool enclosure whereas the ‘front boundary works’ primarily relate to land outside the pool enclosure along the boundary of the scheme.
[17] The applicant, on the other hand, says some of the works proposed in Motion 2, such as the paving and works to the ‘concrete pad’ form, or are closely associated with, the pool landscaping works.
[18] At this stage, I have insufficient information to make a finding on this issue. However, if the ‘front boundary works’ are found to be part of the larger ‘pool landscaping project’, the costs of the project ‘as a whole’ are likely to be above the committee spending limit of $10,000.00. The committee may only give effect to a proposal above the committee spending limit, if the spending is authorised by ordinary resolution or all owners within the scheme have given written consent for the spending.[4] Given the information presented and the significant amount of spending in Motion 2 (namely $9,990.00), I am satisfied the applicant has raised a prima facie legal question regarding this issue.

Motion 3

[19] Motion 3 relates to the engagement of Simon McConnell (horticulturist) to provide general landscaping advice for the scheme. The committee says Mr McConnell has previously been engaged in December 2010, February 2011 and May 2011 to provide landscaping advice for the scheme, of which, only the May 2011 engagement specifically related to the landscaping of the pool area. The committee says Motion 3 relates to landscape consultancy services for the whole of the property, not specifically the pool landscape area.
[20] Based on the information presented, I am not satisfied the applicant has provided sufficient evidence to demonstrate Motion 3 forms part of the pool landscaping project at this stage. Accordingly, I am not satisfied an interim order should be made on this basis.

Insufficient finances

[21] Secondly, the applicant disputes the proposed works on the basis there is insufficient finance available for the works.
[22] The committee, on the other hand, says there are sufficient funds to perform the work as there were errors in the end of financial year adjustments which are currently being corrected.
[23] At this stage, insufficient information has been provided to determine whether or not adequate finances are available for the works. Further, investigation regarding this issue is required prior to making the final order. However, I draw the body corporate’s attention to section 141(2) of the Standard Module which allows the body corporate to raise a special levy should a liability arise for which no provision or inadequate provision has been made in the budget.

Council requirements

[24] The applicant says Motion 2 does not comply with council requirements as the body corporate requires council approval for the proposed drainage works and the removal of turf from the footpath. To date, the applicant says no council applications have been lodged.
[25] The committee however says there is no requirement to obtain Council approval for the work in Motion 2 as it does not involve drainage under the footpath, but simply a grading of the area to achieve surface drainage with 0.5-1.0% falls while the overall drainage is uninterrupted. Included in the application is an email from Hannah Wright, Technical Support Officer, stating, “footpath is not to be blocked off entirely. No permit is required if the footpath is closed off in stages so that pedestrians always have footpath access and are not pushed onto the road.”
[26] At this stage I consider neither party has provided sufficient evidence to support their arguments. For example, the applicant has provided no information to demonstrate that council approval would be required for such works. Further, while I note the email from Ms Wright, it does not specifically mention ‘which work’ does not require permit should the footpath remain open. Accordingly, I consider further investigation is required regarding this issue.

Inconvenience from an Interim Order

[27] In considering whether to grant the interim order sought, it is relevant to balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted.
[28] On 17 November 2011, I requested that a member of our Office call the Body Corporate Manager and ask if any detriment would be caused to the body corporate if the interim orders were made.[5] A file note of the conversation indicates that no detriment would be caused to the body corporate as no contracts for the works have been signed. However, the file note states the committee have concerns about the seriousness of the fence repairs (Motion 1).
[29] Based on the information provided by the applicant and the committee’s concerns regarding the safety of the fence (per Motion 1) I am not satisfied the balance of convenience favours the making of an interim order in relation to Motions 1 or 3.
[30] However, given the prima facie question raised by the applicant regarding the validity of Motion 2, the absence of information regarding any council approval issues and the significant spending associated with the motion, I am satisfied the balance of convenience favours the making of an interim order that Motion 2 is not to be implemented pending a final order. This is particularly the case given that the committee has not set out any detriment regarding this order.

Conclusion

[31] I am making an interim order that Motion 2 is not to be implemented pending a final order.
[32] However, I note that nothing in this interim order prevents the body corporate holding a general meeting to consider the substance of the motions dated 17 October 2011 and any associated spending issues.[6]

Effect of an Interim Order

[33] The matter will now proceed in accordance with the normal processes undertaken by this Office. In the first instance I intend to refer the application to the Commissioner with a recommendation that conciliation be conducted in respect of the dispute. If conciliation is unable to resolve the dispute, the matter will proceed to the investigation of the final order, including calling further submissions.
[34] I have provided that this interim order has effect for a period of not longer than twelve months. It is the responsibility of the applicant to apply to extend this order if no final determination has been made within that period. This Office will not automatically renew an interim order and the order will automatically lapse upon a final order being made or this application being withdrawn.

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[1] Sections 227,228, 276 and Schedule 5 of the Act.
[2] Section 247(3) of the Act.
[3] On 19 May 2011 the body corporate passed a motion, by ordinary resolution, setting the relevant committee spending limit at $10,000.00.
[4] Section 151(1) of the Standard Module.
[5] See the investigative powers of an adjudicator in section 271 of the Act.
[6] Alternatively, the applicant may wish to consider requesting a general meeting pursuant to section 67 of the Standard Module.