Fresh Apartments [2012] QBCCMCmr 181 (26 April 2012)

Last Updated: 10 May 2012

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

INTERIM ORDERS MADE:

REASONS FOR DECISION

Introduction

[1] On 16 March 2012 the committee resolved to repair the stippling coat on two areas of the building[1] at a cost of $7,500.00 plus materials. The applicant disputes this decision and requests that the decision not be implemented pending a final order.

[2] 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.

Jurisdiction

[3] I am satisfied this matter falls within the legislative dispute resolution provisions.[2] This is a dispute between a lot owner and the body corporate. Section 276(1) of the Act provides 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.

[4] 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

[5] 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.[3] 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

[6] The applicant raises several objections to the committee resolution dated 16 March 2012. I will address the key issues in turn.

One project

[7] The applicant says the committee resolved to repair two, of approximately 57, affected areas of the stipple coat. Although the costs of these two areas ($7,500 plus materials) fall within the committee spending limit, the applicant argues the committee cannot approve the repairs pursuant to section 149(2) of the Accommodation Module.

[8] Section 149(2) states that if a series of proposals forms a single project, the cost of carrying out any one 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.

[9] As the cost of repairing the two areas is $7,500.00 plus materials, the applicant says it is likely the cost of the project ‘as a whole’ (that is all 57 affected areas) is above the committee spending limit of $10,000.[4] Accordingly, the applicant argues the repairs can only be approved at a general meeting.

[10] In response, the committee says there is no ‘series of proposals’ in place to repair the stippling coat at this point in time. Rather, the committee says there is currently only the one stippling proposal in place.

[11] While I note the applicant’s comments, he has presented no evidence to suggest that the committee have, or are about to, approve a series of proposals for the stippling work. Further, the applicant has presented no evidence to suggest that all of the areas of stippling work are interlinked or interdependent such that they are ‘one project’. Further investigation, through the submissions process, is required regarding this issue pending a final order. However, based on the material presented, I am not satisfied this issue warrants the making of an interim order.

Workplace health and safety

[12] Included in the application is a workplace health and safety (WH&S) report dated 17 October 2011. The report states that “walkway soffits were flaking and therefore flakes of paint on the floor could cause slips”. The applicant says the committee, by only repairing two areas, are failing to address the WH&S report.

[13] Whether or not the committee is complying with the WH&S report is a separate issue from the validity of the committee resolution dated 16 March 2012. If the applicant has concerns regarding the implementation of any issues contained in the WH&S report he is at liberty to lodge a separate dispute resolution application regarding this issue.

Conflict of interest

[14] The applicant disputes the committee resolution on the basis there is a conflict of interest between the committee member, Sam Vecchio, and Phoenix Drywall (the individual selected to perform the repairs). The applicant says Phoenix Drywall is currently working for Sam Vecchio.

[15] Whether or not there is a conflict of interest is a question for determination in the final order after further information and submissions have been received regarding this issue. Based on the information provided, I am not satisfied the applicant has presented sufficient evidence of conflict or detriment to warrant the making of an interim order on this basis.

Comparative quotes

[16] The applicant disputes the committee resolution on the basis that the cost stipulated in the quotation (namely $7,500 plus materials) is too high. As evidence of this assertion, the applicant has provided alternative quotations from Applied and Decorative Painting Pty for $2,585 (including GST) and PR Painting for $2,024 (including GST).

[17] In response, the committee say “we have conceded that, in view of the new information received, specifically the 2 new quotes that were obtained by the Applicant...we should rescind the VOC [the vote outside a committee meeting dated 16 March 2012]”.

[18] The body corporate must act reasonably in anything it does, including making or not making a decision.[5] Based on the quotations presented and the committee’s response, I am satisfied a serious legal question exists as to whether the costs involved in the resolution dated 16 March 2012 are reasonable.

Inconvenience from an Interim Order

[19] 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.

[20] In this instance, the committee has provided no evidence to show any detriment which may arise should the interim order be made. Rather, the committee say “in view of the new information received...we should rescind the VOC [the vote outside a committee meeting dated 16 March 2012]”.

[21] In light of this statement, I instructed a member of our Office to contact the committee to determine whether they intended to rescind the resolution and, if so, whether a dispute remained regarding this issue.[6] The file note of the conversation states that the committee does not intend to rescind the resolution at this stage.

[22] Given the alternative quotations provided by the applicant as well as the comments of the committee and the absence of any evidence of detriment, I consider the balance of convenience favours the making of the interim order sought.

Conclusion

[23] I will make an interim order that pending a final determination on this matter the Body Corporate must not implement or put into effect the committee resolution to repair the stippling coat on two areas of the building dated 16 March 2012.

[24] I would also note that nothing in this interim order prevents this issue being further considered by the committee or the body corporate in general meeting. Alternatively, the applicant may wish to consider requesting an extraordinary general meeting pursuant to section 65 of the Accommodation Module to consider these issues further.

Effect of an Interim Order

[25] 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.

[26] 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.

[1] Namely the podium level of B block (at the Campbell Street entrance) and level 1 A block.

[2] Sections 227,228, 276 and Schedule 5 of the Act

[3] Section 247(3) of the Act.

[4] On 15 March 2010 the body corporate passed an ordinary resolution setting the spending limit at $10,000.00 per section 149 of the Accommodation Module.

[5] Section 94 of the Act.

[6] See the investigative powers of an Adjudicator in section 271 of the Act.