2012 Shade sail request unit 09 As per the last meeting further information was requested by the committee. This was provided via email. I would like to finalize this request on behalf of the lot owner.
Extends into common property should not be approved
Lot owner 44: Drainage issue may need to be discussed. Awaiting correspondence from lot owner.
Dec 2015
Lot 81 – Pavers to back yard approved
Extends into common property should not be approved
Lot 34 – shed with temporary flooring approved
On common property should not be approved
Lot 64 – front gate & side gate approved
Creates exclusive use of common property should not be approved
Lot 68 – Shed with temporary flooring approved Lot 68 – wooden deck at rear approved
Extends into common property should not be approved
Lot 68 – Play fort approved (trial bases – strict conditions) Lot 14 – Front Gate and Side Gate approved
Creates exclusive use of common property should not be approved
Lot 42 – Shed with temporary flooring Lot 42 – Gazebo temporary flooring
Lot 26 – wooden deck to rear
approved
approved (trial bases – strict conditions)
approved
Extends into common property should not be approved
Lot 81 – White shutters Pending (refer to by-laws) Lot 19 – Driveway extension (2x pavers) Pending (rectifying original breach) Lot 36 – Retaining wall Pending
Extends into common property should not be approved
Lot 36 – Wooden decking Pending
Extends into common property should not be approved
Lot 36 – Paving/concrete to bin area Pending Lot 80 – concrete slab rear of property Rejected (concerns for future BC expense)
Apr 2016
Lot 36 – has rectified the termite barrier and alterations to exclusive use areas now comply and have been approved. Lot 80 – new request for pavers, garden beds and dividers, details to be discussed at meeting.
Extends into common property should not be approved
Lot 77 – request for sound proofing fence – pending (awaiting committee approval of the deed for improvements between lot owners and Somerset Gardens).
Sept 2016
Unit 58 – shed and privacy screens to rear of lot
Unit 59 – privacy screens to rear of lot
Unit 77 – shed, pavers, gate
– approved
– approved
– approved
Extends into common property should not be approved
Unit 26 – awning to side of property – approved Unit 37 – 2x gates – approved
Extends into common property should not be approved
Unit 74 – garden shed
Unit 42 – Request of variations Unit 77 – Bin cubby *committee to discuss items visible from the road front
Unit 80 – request of variations – deed of variation
April 2017
Unit 38 – fence extension (rear of property visible from road) – approved
Creates exclusive use common property should not be approved
Unit 62 – pavers to the side of property, plant hedges at front – approved Unit 30 – Fence, gates, paint inside of fence – approved
Creates exclusive use common property should not be approved
Unit 29 – Side fence and gate – approved
– approved
– pending – pending
Creates exclusive use common property
Unit 17 – Install a shed and gate
Creates exclusive use common property
Unit 21 – Glass sliding door Unit 42 – bin chubby Unit 37 – Plant hedging alongside access
Creates exclusive use common property
Unit 19- gardens shed (concert slab) Owner is to provide more information
Aug 2017
Unit 32 – Fence, gate and pavers Unit 80 – Patio Unit 62 – fence and side gate Unit 71 – rear garden edging and side gate Unit 81 – Awning
Extends into common property should not be approved
Unit 27 – side gates and garden edging
Creates exclusive use common property should not be approved
Unit 19- gardens shed
Extends into common property should not be approved
Conditions- must be at least 1m from neighbouring fence and rectify any drainage or excess water issues to lot 18 if become Unit 38 – front garden Visible from the road front
Creates exclusive use common property should not be approved, could be use of garden
Unit 30 – rear fence extension
Boundary fence part owned by Royston Heights Waiting on signed variations form
Unit 35 – solar panels
Waiting on signed variations form
Jan 2018
Unit 38 – side gates
– pending – pending
– approved
Creates exclusive use common property should not be approved
Unit 87 – fence extension – approved Unit 29 – side gate – approved
Creates exclusive use common property should not be approved
History of decisions at Somerset Gardens at where member(s) of the committee has breached a stated provision of the code of conduct
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 18nd March 2016 show the following people were elected as voting members,
Jenifer James (Chair Person)
Janet Rawleigh (Secretary)
Madge Brown (treasurer)
John Spooner
Jennifer Stratford
Margaret Laybourne
Dean Scharke
Dean Scharke and Lynne Smith were tied 7 votes each and won on a second ballet 7 to 5 votes.
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 2nd March 2017 show the following people were elected as voting members,
John Spooner (Chair Person)
Janet Rawleigh (Secretary)
Madge Brown (treasurer)
Ora Whaanga
Jennifer Stratford
Melinda Ross
Lynne Smith
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 25th October 2017 show the following people were elected as voting members,
Jennifer Stratford (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
David Jones
Ian into
Melinda Ross
John Spooner
At the Annual General Meeting of Somerset Gardens CTS 25221, held on the 24th October 2018, item 13 was passed 31 votes to 13 and item 13 resolved that:
“The Body Corporate to take the steps including:
“the committee must put into effect the lawful decisions of the body corporate.”
Retain a surveyor to properly identify on the new exclusive use plans the area being occurred by owners
Engage a lawyer to draft a motion (resolution without dissent) to be considered at the next AGM to alter the exclusive use allocation in accordance with the plans prepare by the surveyor.”
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 24th October 2018 show the following people were elected as voting members,
Ora Whaanga (Chair Person)
Sara Butcher (Secretary)
Lynne Smith (treasurer)
Tanya Lund
Lisa Ross
Barbara Spooner
Jennifer Stratford
The minutes of the committee meeting on 15th November 2018 the following voting committee members were present at the meeting:
Ora Whaanga (Chair Person)
Sara Butcher (Secretary)
Lynne Smith (treasurer)
Lisa Ross
Barbara Spooner
Jennifer Stratford
Tanya Lund attended by proxy to Lisa Ross
1.12.11
The motion resolved was that the committee resolves day to day item such as minor renovations, minor variations to common property, pet application and breach letter dealt with on a daily basis via email agreement and not wait for a forma VOCM. Only legal requirements will be presented via VOCM or wait until the next committee meeting for agreement and will be organised via the strata manager
Fencing and Exclusive use By-Laws
“during the audit it was found that the occupation of common property by a majority of owners is not consistent with the exclusive use in the CMS.
the committee understands …many owners are using common property as exclusive use areas and have erected (under past committee’s approval) items such as decks”
“A motion was passed at the General Meeting”
The resolution passed that the organises for two quotations from suitably qualified surveyors present to the committee[1]
The resolution passed that the start manager send a letter with draft by-laws to all owner who voted “no” at the AGM that they can have inut to the changes of these by-laws”
The following members resigned from the committee after 15th November 2018
Ora Whaanga (Chair Person) lot 21
Sara Butcher (Secretary) lot 42
Lynne Smith (treasurer) lot 44
Lisa Ross lot 37
Barbara Spooner lot 51
There was an extraordinary general meeting
The minutes of the committee meeting on 11th March 2019, show the following voting committee members were present at the meeting:
Shane Brett (Chair Person)
Madge Brown (treasurer)
Sarah Brown
Jenny James
Tanya Lund
Jennifer Stratford
Fencing and Exclusive use areas
“having obtained quotes[2], the committee delay Motion 1.26 ‘fencing and exclusive use areas …until allocation of funds is consider in the 2019-2020 budget meeting”[3]
The minutes of the committee meeting on 16th May 2019, show the following voting committee members were present at the meeting:
Sarah Brown (Chair Person)
Shane Brett (secretary)
Madge Brown (treasurer)
Jenny James
Tanya Lund
Jennifer Stratford
The minutes of the committee meeting on 15th August 2019, show the following voting committee members were present at the meeting:
Sarah Brown (Chair Person) proxy to Jacqui Kerr
Leigh Moana (secretary)
Madge Brown (treasurer) proxy to Jenni James
Jenny James
Jacqui Kerr
Jennifer Stratford
Minor breaches of by-laws have been sent to the secretary on a regular basis as agreed,. Those residents have been contacted via email and/or phone to ratify the breach
No resolution passed
Engagement of surveyor
Previous discussion regarding exclusive use areas and encroachment on to common property and engagement of a surveyor and it is believed that this should be included in the by-law amendments
Resolved that a surveyor not be engaged and no provision for a surveyor include in this years budget[4]
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 10th October 2019 show the following people were elected as voting members,
Jacqui Kerr(Chair Person)
Leigh Moana (secretary)
Lynne Smith (treasurer)
Shane Brett
Garry Fox
The minutes of the committee meeting on 20th January 2020, show the following voting committee members were present at the meeting:
Jacqui Kerr(Chair Person)
Leigh Moana (secretary)
Lynne Smith (treasurer)
Shane Brett
Garry Fox
Resolved that the building manager seek quotations for garden works based on the vegetation management plan
Strata manager to send a continuing contravention notice to the lot owner 21 and if not resolved to make application to the commissioner office for conciliation
The minutes of the committee meeting on 6th May 2020, show the following voting committee members were present at the meeting:
Jacqui Kerr (Chair Person) proxy to Leigh Moana
Leigh Moana (secretary)
Lynne Smith (treasurer)
Garry Fox
Jacqui Kerr resigned and was replaced by Leigh Moana
Leigh Moana resigned as secretary and Sara Brown appointed (this is in error)
Shane Brett resigned and was replaced by Ora Whaanga
Currently not the funds to implement the complete plan.
Resolved that the trees behind units 69 and 70 be trimmed and the height reduced
Alteration to exterior unit 21
Strata manager to send a continuing contravention notice to the lot owner 21 and if not resolved to make application to the commissioner office for conciliation.
The minutes of the committee meeting on August 2020
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 14th October 2020 show the following people were elected as voting members,
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
The minutes of the committee meeting on 3 December 2020
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Motion re Les Blackstock – a non voting member is a member
Action Pango not attend unless directed
Reduce spend limit of caretaker
Quote approval not in accordance with section 60
Motion 13 AGM one pers voted against owner acting – lot 42
Formal complaint re caretaker
The minutes of the committee meeting on 10th Feb 2021 (not attended by Violet – not asked)
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Resolved to issue a remedial notice if not action by 12th Feb 2021
Application to extend council approval John Wirth to follow with council
Relace trees but in front of lots 21 and 27 and remedial action notice
The minutes of the committee meeting on 12th May 2021 (Michelle went)
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Let the plan expire and “prepare a maintenance plan using some parts of the VMO not completed and discarding other which are no longer relevant
Special consultant to assess agreement 50% cost by caretaker
The minutes of the committee meeting on 25th August 2021
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Remove vegetation management plan with garden maintenance
Change green waste fee from $66 to 72 cents per kiloometer (not a requirement of caretaker agreement)
Lot 20 final notice
Resolved to include the above motion on the annual general meeting agenda
Election of ordinary required as Sandra Ferguson nominated
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 13th October 2021 show the following people were elected as voting members,
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Sandra Ferguson
The minutes of the committee meeting on 8th December 2021 ,
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Sandra Ferguson
Chair wanted to record and treasured objected (not lot of problems with minutes in next meeting motion to record)
Gardening plan “some bed with the owners preferred to maintain themselves”
V and R repainted – past discussion that R nd V not reflect on DA applciaiton.
The body corporate manager advised the meeting that in order for an email vote to be confirmed by the chairman, if was import that coting should ensure all other committee member are copied in on their vote, The chairman must declare at a schedule committee meeting whether an email vote is confirmed on not and cannot do so unless be has written evidence that a majority voted with for of against he motion.
Change green waste fee from $40
request to replace screen
The minutes of the committee meeting on 24th January 2022
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Sandra Ferguson
Dispute on minutes
Ora taking over unapproved
Motion to introduce by-law at next general meeting
Committee correspondence will need to be approved by all committee members (stupid motion as include non voting)
The minutes of the committee meeting on 11th May 2022
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Danilee Jones
Sandra Ferguson
Motion 3.11 conflict of interest as Ora has an unapproved structure
3.11 Alterations and improvements
Ora Whaanga has obtained information from Gold Coast City Council on this matter and advised it could prove an expensive exercise obtaining information from Council and/or other sources as to which structures meet/require Council approval. It was stated that if these structures meet Australia Standards in retrospect, they could be approved so it is legal. Ora will work with Michelle to create a list of unapproved alterations so the Committee can decide what further action to take. ACTION: Ora Whaanga
Approvals
Miscellaneous approvals
The minutes of the committee meeting on 24th August 2022,
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Da
Garry Fox
Danilee Jones
Sandra Ferguson
Ora taking over unapproved
“there are unapproved structure installed on the shceme ladn and the committee wil discuss the matter further
Minuntes showed the committee resolved that “the committee call and convene the AGM for 10:30am, 12th October 2022 at Kings College”
The notice for the Body Corporate of Somerset Gardens CTS 2522 was that the meeting would occur on the 16th October 2022 at the office of Archers (BCM) Gold Coast in Southport.
No notice of motion or minuted of the motions complying with section 76 calling the general meeting, were given to lot owners and no confirmation of the motion was in the 28th November 2022 committee meeting.
At the Body Corporate Committee meeting held on the 24th August 2022 Ora Whaanga (Secretary),
Did not present correspondence to the committee meeting from Ora Whaanga, Lynne Smith (treasurer) and Danelle Jones requesting motions be submitted to the next body corporate meeting
Did not comply with section 93(1) of the regulations in the preparation of the agenda for the body corporate meeting with motions submitted Ora Whaanga, Lynne Smith (treasurer) and Danelle Jones
Between the 24th August 2022 and the 26th October 2022, Ora Whaanga (Secretary)
failed to not comply with conflict of interest requirements, as required under section 58 of the regulations, with regard her actions motion she had presented to the body corporate that were not presented to the meeting of the 24th August 2022.
made a decision to call the general meeting that was not made under authority of a resolution of the committee, section 72 of the regulations, on a date that was different to that was decided by resolution in the 24th August 2022 committee meeting.
made a decision that was not the decision of the committee and was unreasonable in terms of section 110(5) of the BCCM Act to allow the publication of potentially defamatory material related to motions 11 to 20 with the Agenda, of the Annual General Meeting of Somerset Gardens CTS 25221
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 26th October 2022 show the following people were elected as voting members,
Sandra Pergason (Chair Person) lot 39
Ora Whaanga (Secretary) lot 21
Lynne Smith (treasurer) lot 44
Daniel Jones lot 32
Margaret Day lot 37
Brian Arnold lot 55
Angeal Bertand lot 13
The minutes of the committee meeting of the 28th November 2022,
The following people attended
Sandra Fergason (Chair Person) lot 39
Ora Whaanga (Secretary) lot 21
Lynne Smith (treasurer) lot 44
Daniel Jones lot 32
Margaret Day lot 37
Brian Arnold lot 55
Angeal Bertand lot 13
Alterations and improvement
The secretary explained that mail correspondence has been sent to the caretaker and a responds is awaiting in relation to the matter.
Showed the committee received a dispute notice from Mr John Wurth on the 10th November 2022.
Mr Wurth has indicated that this was concerning motions 11-20 in the Body Corporate of Somerset Gardens CTS 2522 and was incorrectly identified in the minutes (a copy is attached)
The minutes of the committee meeting of the 28th November 2022 stated that “the committee had considered the correspondence and written to John Wurth acknowledging the receipt of the correspondence and confirming that no further action will be taken”,
The minutes of the committee meeting of the 28th November 2022 show no motion reflecting the above resolution of the committee decided by a vote at the 28th November 2022
The minutes of the committee meeting of the 28th November 2022 so no motions passed by way of a vote outside of committee meeting that were confirmed at the 28th November 2022 committee meeting.
The minutes of the committee meeting of the 20th February 2023
[1] This motion is not consistent with motion 13 at the AGM, the motions neglects the legal appointment
[2] The mentioned quotes were not discussed, or tabled I the minutes, compared to engineering report provided by Solutions Engineering that, the minutes report “owners are welcome to see the report on the Community Hub portal”
[3] This motion is not consistent with motion 13 at the AGM, the motions neglects the legal appointment
[4] This motion is not consistent with motion 13 at the AGM,
I. Pango Holdings attended the committee meeting on the 19th August 2020.
J. The committee sent an agenda of the meeting to Pango Holdings Pty Ltd.
K. There was not correspondence sent to Pango Holdings between the 10th August 2020 and the general meeting 14th October 2020 and the meeting of 3rd December 2020, not motions were recorded in the meeting of the 3rd December 2020 that a Vote outside of committee meeting had been made as such.
L. At that meeting Les Blackstock presented a letter of representation as a nominee of Pango Holdings Pty Ltd.
M. Les Blackstock was nominated as a nominee of Pango Holdings Pty Ltd and welcome by resolution of the committee on the 14th February 2018.
N. The minutes of the committee meeting on the 18th April 2018 identified the build manager as Les Blackstock attending the committee meeting.
O. Violet Blackstock, the director of Pango Holdings Pty Ltd attend the meeting at XXX (photographic evidence available) and was refused entry.
P. The code of conduct for committee voting members states
“1 Commitment to acquiring understanding of Act, including this code
A committee voting member must have a commitment to acquiring an understanding of this Act, including this code of conduct, relevant to the member’s role on the committee.
2 Honesty, fairness and confidentiality
(1) A committee voting member must act honestly and fairly in performing the member’s duties as a committee voting member.
(2). A committee voting member must not unfairly or unreasonably disclose information held by the body corporate, including information about an owner of a lot, unless authorised or required by law to do so.
3 Acting in body corporate’s best interests
A committee voting member must act in the best interests of the body corporate in performing the member’s duties as a committee voting member, unless it is unlawful to do so.
4 Complying with Act and this code
A committee voting member must take reasonable steps to ensure the member complies with this Act, including this code, in performing the member’s duties as a committee voting member.
5 Nuisance
A committee voting member must not—
(a) cause a nuisance on scheme land; or
(b) otherwise behave in a way that unreasonably affects a person’s lawful use or enjoyment of a lot or common property.”
Q. Les Blackstock was a non-voting member of the committee of Somerset Gardens and had a lawful use or enjoyment of a lot to attend a meeting in a lot where the meeting of the committee was duly called and an agenda dispatched.
Consequently, on resolution of the acknowledgment, the committee will take the following actions:
The committee prepares an item for the agenda of the next general meeting under section 83(1) of the Body Corporate & Community Management (Accommodation Module) Regulations 2020, to satisfy section under 83(2)(a)(i) of the Body Corporate & Community Management (Accommodation Module) Regulations 2020 that:
The body corporate by ordinary resolution issue a written notice to Ora Whaanga[1] that meets all requirements of section 37 (2) of the BCCM (accommodation module) regulations 2020 in her failing to comply with Schedule 1A of the BCCM Act 1997 (specifically point 1,2(a) ,3, 4, 5(a) and 5(b) in not taking reasonable steps to ensure as a member they complies with the Act in performing the duties as a committee member), relating to actions:
At the Body Corporate Committee meeting held on the3rd December 2020, there is evidence in item the first item of business that she made a decision exclude the nominee of the caretaker from the committee meeting that was unreasonable and demonstrated that they had :
not made a commitment to acquiring an understanding of this Act,
not act honestly and fairly in performing the member’s duties as a committee voting member, by excluding a committee member from a committee meeting and from following committee meetings when they had been welcomed by the committee on the 14th February 2018 and attend as the nominee of the caretaker at a committee meeting on the 18th April 2018
not act in the best interests of the body corporate, by reducing governance in the actions of the committee, by excluding a committee member from a committee meeting and at the 3r December meeting reducing the spending limit of the caretaker that was an unreasonable action, that was restored by the committee on the 11th March 2019
not take reasonable steps to ensure the Ora Ora Whaanga complied with this Act, by physically preventing Les Blackstock from entering the meeting and cause a nuisance on scheme land, that was the subject of a police report.
[1] John Wurth, Lynne Smith, Margaret Day, Garry Fox, Joshua Punch, Barbara Spooner, Jason Boatswain
However, on the 15th June 2023 the motion is still seen in the minutes in the body corporate records., with it’s derogatory implication.
The body corporate manager may have complied and the letter may not be in the body records, what was need was a motion to redact the minutes of the item.
From 15th November 2018
Then in the meeting 11th March 2019
This is an example that the committee should take action against past motions if they do not comply with the BCCM Act.
All references are to the agreement appointing Archers BCM (Gold Coast) Pty Ltd ABN 29088272913 and The body corporate for Somerset Gardens CTSS25221 signed on the 14th October 2020.
It is worth noting that the second sentences after listing the parries to the agreement the appointing Archers BCM (Gold Coast) Pty Ltd to provide for the engagement of a professional manager by the body corporate says:
This agreement is may only be used by professional manager hold a practice certificate issued by SCA (QLD)”
SCA (ALD) list membership categories, that presumably allowed the issue of a practice certificate issued by SCA (QLD), as either a corporation or individual and corporate can have nominees. There is the ability to complain about members of SCA[1] if members do not adhere to the SCA code of conduct[2]. This is relevant to the categories that are applied to schedule C & D charges.
In term 4.5 of the agreement it states:
“The manager will at all times comply with:
The Act
the module,
the code of conduct in the Act applying to professional manager and
the Code of Ethical Conduct published by SCA (QLD).”
In term 4.6 of the agreement it states:
“the body corporate will use it’s best endeavours to ensure the voting committee member at all times (are) aware of their obligation under and shall comply with the code of conduct in the Act applying to voting committee members”
The agreed, under section 6.1(a) fees for service in item B, is that for payment of 4 x fees instalments of (excluding GST) for $11,550, per year indexed by CPI that was 3.0% in October 2021, and was 7.3% in October 2022. It is worth noting that the caretaker agreed to cap their contract increase in 2022 to only 5%.
For that $11,550, per year indexed by CPI, the body corporate gets,
“Receive and administer routine correspondence (ie simple request and providing general information)”
“Maintain and keep records”
“attend committee meeting based on 4 meetings up to 3 hours each meeting”
“prepare and distribute the notice of AGM and ancillary documents for statutory motions”
That figure is not unreasonable. However, why is the amount that is paid to Archer each year so much more?
Look at the contract. Section 6.1(b) state, the body corporate must pay Archers BCM (Gold Coast) Pty Ltd
:
“for the performance of the additional service – the fee stated in items C & D (as reviewed in accordance with this agreement) payable at the end of each month or as otherwise agreed between the parties”
There is no cap on what Archer’s can charge for and they can changed without approval by the committee. The things they charge for are:
Archive and data storage fee per lot $4.70, that is $455.90, for what exactly?
On charging of expense per invoice $20.50
Item D states Archer is entitled to an “Hourly rate / additional professional services” , and lists what it can charge those rates for:
“any reasonable and lawful request of the Body Corporate which is not stated in item B as an agreed service”
“provide advice to individual lot owners”
“enforcement of by-laws including preparation of breach notices”
“prepare and issue ballet papers (associate community manger rate)
“received and administered non routine correspondence (in circumstance where we must obtain committee instructions)
Item D lists the scheduled hourly rate for additional professional service as
Associate Community Manager at $132.00 per hour
Stata Community Manager as $193.00 per hour (46% increase from an associate)
Senior Strata Community Manger $214.00 per hour (10/8% increase from a manager)
Remember how Archer’s use SCA documentation. Would it surprise anyone if the people they employed do not hold the SCA (QLD) has levels of accreditation[3] possible for it’s member as being:
Accredited Strata Community Manager/Associate.
Certified Strata Community Manager.
Fellow Strata Community Manager.
It appears that every person that works for archer’s is a “senior strata community Manager” because that is what the body corporate is charged. Even David Burke, who started his first role at Archer before he was “let go”. It is worth noting that It is noted that section J “special condition” of the agreement states
“the nominated body corporate manager for somerset gardens within Archer the Strat Professional will be Jason Boatswain. No change will be made to the nominated body corporate manager with the written approval of the committee which will not reasonable be withheld.”
Such approve was never sought or given by the body corporate.
However, there are more charges that we have to pay.. Schedule E on the contract is for “disbursements” the. This charge is for administrative services, like scanning $0.71 cents per page, $0.52 for each call (presumably made and received) and $1.00 pre recipient for each email sent! But again look at the fine details. The contact says “flat rate” of $7,760 per year. So why at the last committee meeting was the Archer representative telling the meeting that there was a fee of approximate $500 to send out the caretaker’ report when it was able to go with the minutes for free?
For that mater, why also was a “per item disbursement” being considered as charge when the contract say we have a “flat rate of $80 per lot of $7,760”per year. Notice again that amount was not disclosed on the motion to appoint Archer’s
But that is note the worst of it. You could reasonably think that “a flat rate” meant that. IT would not change. Sorry, look at the contract further:
Notice that the increase is not by CPI, and Archers dose not even have to tell the body corporate or negotiate the increase with the body corporate. Archer can make the increase what ever it wants. Look at the figures on the statement of accounts for 1/8/21 to 31/7/22 the there was “$7,762.42” charged for disbursements and an additional “$3,404.30”, 43.8% extra charged as “Disbursements – additional”. That is a total of $11,166.72 for the year.
Was that an exception situation. The figures for this financial year suggest it is a way for Archer’s to get more out of the body corporate. Till the 19th June this year the Disbursements have been $14,038.47. That is up another 25% for only 10 ½ months.
Did anyone in the body corporate vote for this?
To make it worse the committee would not disclose who it was speaking to about the next body corporate manager engagement.
Question that are reasonable to answer from Archers BCM (Gold Coast) Pty Ltd are:
Is a request sent to Archers BCM (Gold Coast) Pty Ltd from an owner or the caretaker asking for communication attached be sent o the Secretary of the committee a “non routine correspondence”, under Item D of the agreement?
What would be an example of “non routine correspondence”, under Item D of the agreement?
Would the action of the service for “non routine correspondence”, be charged at the rate of Stata Community Manager?
For a single email with one attachment that was “non routine correspondence”, what portion of an hour would that be charge to the body corporate?
Has Archers BCM (Gold Coast) Pty Ltd charged the body corporate for the preparation and issue ballet papers at $132 per hour for the 2022 AGM under item D?
Concerning the commination that was sent to Violet Blackstock on the 24th May 2023, and to the owner of lot 77, as they were not a “any reasonable and lawful request of the Body Corporate, since there was not motion passed to send it to Violet Blackstock” can Archers BCM (Gold Coast) Pty Ltd assure the body corporate that no charge will be made to it for the communication?
Has Archers BCM (Gold Coast) Pty Ltd ever charged the body corporate for “advice to individual lot owners” under item D?
If asked, as the service for “advice to individual lot owners”, listed under item D, would Archers BCM (Gold Coast) Pty Ltd provide that service?
Would Archers BCM (Gold Coast) Pty Ltd charge the body corporate for advice provided by it to members or any member of the body corporate committee?
Would Archers BCM (Gold Coast) Pty Ltd provide “advice to individual lot owners” under item D without the approval of the committee?
Does Archers BCM (Gold Coast) Pty Ltd charge the body corporate Archive and data storage fee of, per lot $4.70, being $455.90? and what time frame is that charge applied for, or each access to the data or yearly?
How much data does Archers BCM (Gold Coast) Pty Ltd store under item 13.3 for the body corporate?
Is Archers BCM (Gold Coast) Pty Ltd aware that there is 15GB of free storage available on google drive?
Is Archers BCM (Gold Coast) Pty Ltd aware that the cost of storage on google drive is 100 GB. $1.99 / month, 200 GB. $2.99 / month, 2 TB. $9.99 / month ?
Noting
All care no responsibility, in these condition on the agreement
There is the condition to keep things Electronically
Both parties or Archers alone can terminate the agreement.
What happens if a committee member does not do their job?
All voting committee member should be aware of:
section 101B(2) that says
“On becoming a committee voting member, the person is taken to have agreed to comply with the code of conduct.”, and
schedule 1A of the BCCM Act, particularly point 4 , that reads
“A committee voting member must take reasonable steps to ensure the member complies with this Act, including this code, in performing the member’s duties as a committee voting member.”, and
schedule 1A of the BCCM Act, in point 3 that reads
“A committee voting member must act in the best interests of the body corporate in performing the member’s duties as a committee voting member, unless it is unlawful to do so.”
schedule 1A of the BCCM Act, in point 2(1) that reads
“A committee voting member must act honestly and fairly in performing the member’s duties as a committee voting member.”
section 101B(3) of the BCCM Act that says
“If a committee voting member breaches the code of conduct, the member may be removed from office in the way prescribed under a regulation.”
Section 37(1) of the BCCM (accommodation module) Regulations 2020, that says
“For section 101N(3) of the BCCM Act section prescribes the way a voting member may be removed from office for breaching the code of conduct.”, and
Section 37(2)(a) of the BCCM (accommodation module) Regulations 2020, that says,
“A body corporate may begin the process to remove a member only by deciding, by ordinary resolution, to give the member a written notice stating each of the following matters (a) that the body corporate believes the member has breached a stated provision of the code of conduct”.
Under section 97 of the BCCM Act , the body corporate cannot delegate any decisions that require resolution of the body corporate, Therefore, as section 37(2)(a) requires an ordinary resolution, if cannot be decided by the committee and has to be decided by a motion at a general meeting the body corporate.
The way that a committee puts a motion before a general meeting is detailed in section 76 of the BCCM (accommodation module) Regulations. Those regulations require that the committee MUST, under section 83(2)(a)(i) of the Regulations, prepare and agenda with any motions submitted by the committee, and the secretary MUST prepare voting papers for all open motions to be decided at the general meeting, under section 78(1) of the Regulations
Practically this means is that an allegation of a contravention of the code of conduct could come to the attention of the committee in the following ways:
A lot owner send discussion to the secretary, who raise a motion at a meeting (remembering in the case of the decision not being made relating to issuing a section 182 or 183 notice, any lot owner still can submit form 1 under section 185(2)(a) and the decision is back before the committee, and failing to make the decision, send it to the commissioner, who would then make any decision about having a general meeting to decide if a section 37 notice should be given,)
A committee member raises a motion about such an allegation in a meeting,
A lot owner send a section 50 motion to be considered by the committee
A lot owner puts the a motion for a section 37 notice to a body corporate meeting under section 76
If any of these reports presents:
the circumstances of the contravention of the code and
details sufficient to identify the contravention of the code.
The committee has to make a decision. Under the section in 100(5) of the BCCM Act:
“The committee must act reasonably in making a decision.”
The reasonable action is to put a motion for a section 37 notice to a body corporate meeting.
If the committee fails to do so a dispute can be raised, an application made under chapter 6 with the commissioner, and the likelihood is that an order would be made by the commissioner to submit such a motion to a general meeting to decide if a section 37 notice should be given.
Any committee member who vote against such a motion would be contravening points, 3, and 4 of the code of conduct, and under section 101B(3) of the BCCM Act, should have action taken to be issued a notice under Section 37 of the BCCM (accommodation module) Regulations 2020
That could lead to any another committee member lodging a dispute with the committee (under the definition of what a dispute is under section 261(1)(e) and an application under chapter 6 to the commissioner.
There is no doubt that the areas that are the common property that are within the fenced area of lots that are not exclusive use areas. An example is lot 1
There is first the issue that by making any approval for a fence or gate to be built that the result would be the decision would be changing the rights and privileges to the owner who then would have restricted access to part of the common property, thus the decision is a restricted issue for the committee.
Additionally under section 177, an improvement can’t make the owner breach a by-law:
As there are fences at the back of lot 1 create a by-law contravention
Lot 1 has plants in the ground and gardens in the area that is common property, this creates a by-law contravention
Lot 1 may have contravened a by-law if it has benches and items stored on the ground that is common property, this creates a by-law contravention.
By-law 11
The owner of lot 1 has a dog, that leaves the lot into the area (fenced) and will then bi on common property, thus causing viloations of the condition of approval to keep a pet.
The wording, “installed by the occupier of the lot” means when the person who made installed the fixture or fitting is no longer the occupier, the body assumes responsiblty for maintenance, as the things installed are no longer for “the occupiers” benefit, as that occupier has left..
At the committee meeting on the 8th December 2021, the motion was passed under “General Business”, titled “Committee nominee with Archers”
That motion was
If Lynne Smith was to give instruction to the Body Corporate manager, but not without formal instruction from the committee. There is an argument that if she were to do such, she would be acting negligently and be in contravention of the code of conduct.
The only way that the committee can make a decision, which is a formal instruction, is under section 57 or 60 and 61 of the BCCM (accommodation module) Regulations 2020,
As will be shown the body corporate manager was instructed to produce the agenda, voting papers and explanatory papers of the 2022 AGM without motions passed by the committee. Because, the “response from committee” sent on the 11th May 2023, , acknowledges that 5 people agreeing to a motion. Such agreement is not a decision of the committee as the process of section 57 or 60 and 61 of the BCCM (accommodation module) Regulations 2020, would not be followed and the rest of the body corporate would be denied an opportunity to be aware of decision before they were made and to have an input to those decisions.
Let’s look at the facts.
Motions passed on General Meeting and Roof Cleaning
From notifications in the future, this minute is not a “full and accurate” minute as defined in section 63.
There is apparently an audio recording that shows 3 quotes were discussed and tabled at the meeting. If there was an agreement who was to do the roof cleaning work it would be on the tape and it raises the possibility that a motion was passed to resolve to use one company or to outline the “due process” of assessing the company to do the work. HOWEVER, that motion is not recorded in the minutes!
The tape is not a part of the body corporate records and has no validity.
The responsibility for this is with the committee, as such all the committee members that authorised this minute at that meeting, as well as those at that meeting who then on the committee meeting of the 28th November 2022, vote that the minutes were a true record, did so in breach of their code of conduct.
The motion that was actually passed was:
Note, the motion only call for a “same issue motion” it did not call which contractors were to be on the motions.
It is also worth noting that the spending on the quotes that were above the spending limit of the committee, and would have required body corporate approval, but if the quote form AAA Goodfellars for $32,010 was discussed at the meeting, that amount was not above the committee’s spend limit (change at the 2018 AGM) and could have been approved at the meeting.
Much of what happened at the committee meeting of the 24th August 2022 was done not in accordance with the Act or Regulations.
Look at motion 10.3, then look at section 72, The committee does not call general meeting it is called by a committee member who the committee authorised. Further look at the date that was called for, the 12th October and the Venue, then realise that the date and venue both changed. It is worth noting that the venue is not compliant with section 82, so the whole AGM could have been challenged as being void.
This motion of committee in 10.1 is possibly compliant with section 83(1), but motion 10.2 looks nothing like the agenda of that was produced. There is also a strong argument that what should have happened was a motion that “instructed the body corporate manager to prepare an agenda with the following items …”, but leave the whole task to the body corporate manager.”
Motion 10.2 just list 3 committee motions, but there were more in the agenda and is not compleant , with section 83(2)(a)(iii) of the regulations, that require:
“the substance of the following motions—
(iii) a motion submitted under section 76 by a member of the body corporate and required to be included on the agenda, other than a motion stated on the agenda as an original motion under a group of same-issue motions;
However, an agenda and voting papers and explanatory schedules create and sent to owners.
Item in the agenda
Any explanatory statement in a general meeting has to comply with requirements of section 80, this statement does not.
A statement of the committee has to be made by the committee, by way of section 57 or section 60. The regulations are clear, under section 57(1),
“This section states how motions are decided at a meeting of the committee.”
or by way of vote outside of committee meeting (VOCM).
This explanatory statement was printed by Archers. The only person that was authorised, by the motion of the 8th December 2021, titled “Committee nominee with Archers”, to instruct the Body Corporate manager what to print, was Lynne Smith, and she could only give such “formal instruction from the committee”.
There was no instruction to print this explanatory statement from the Committee, There were not such motions at the committee meetin of the 24th August 2022 and no VOCM between the committee meeting of 24th August and the AGM agenda and voting papers were distributed.
Archers printed this under instruction from individuals preparing an agenda not the committee
This was confirmed in the response from Archer on the 11th May , that is claimed to be from the “committee” that 5 members of the committee, “authorised” the agenda, voting papers and the explanatory schedule.
However, that clai has been disputed by at least one member that is not currently on the committee.
There are other factors in the agenda, voting papers and explanatory schedules do not comply with the legislation:
There is listed as one explanatory schedule, but section 80(7) is clear that explanatory material given by the committee must be contained in “a schedule of the committee explanation” that is sperate to the from the “explanatory schedule” , also the agenda makes no references any lot owner was sent “scope of works or quotations” with the agenda.
Items in the agenda that are “same – issue motions”
schedule, but section 83 (2)(c)(i) could be argued that, as the section has an example “
The title “Roof Cleaning” may not meet the requirements, and should have been “Motions about Roof Cleaning”
The voting paper
The motion to be voted on, makes references “scope of works or quotations”, but as noted these are not in the agenda, but were “circulated with this meeting notice”.
This is section 78 of the legislation that applies to voting, that is the responsibility of the secretary section 78(1)
And what must be on the voting paper, section 78(4), and the voting papers do not give instruction on electronic voting, that may be elsewhere not it is not on the voting paper and does not indicate that there is an explanatory note available.
The explanatory schedules
Putting aside that the explanatory schedule was not from the committee, For the legislative requirements, Section 80 (2), the submitters name is required for each explanatory statement, that is not provided.
Also, as the motions are a same group motion, Section 80(4), as requirements, which muct ALL be include and are not.
The substance of the explanatory schedule notes:
the same statement for each section.
No discussion of the pressure wash company
The statement “please see before and after photos” with no photos attached”
The statement
is not a true statement as the approval had not been given by the body corporate and the qualifier “however” if not applicable. This gives the impression that people were not making the decision to approve either of the contractors but to approve the spending.
It is questioned that if the committee spending limit was $350 per lot for 97 lots that is $33.950, this spend was below the committee spend limit so the motions were not necessary.
These are the results of the voting:
This people attended the November meeting of the committee,
The roof cleaning was mention as an item.
Lot 77 on the 5th February 2023 sent an email to the body corporate manager, the text of which is:
“Lesley, Could you please include the following motion and explanatory notes as an agenda item. Next scheduled Somerset Gardens committee meeting 20th Feb. 2023
Motion –
That the committee :
Confirm that the soft wash cleaning process as carried out by T&S Maintenance for the pool area roof clean trial, as presented to the AGM along with before and after photos, was identical to that carried out by committee preapproved contractor AAA Goodfellas t/a First Class Cleaners Queensland who actually carried out the work.
Confirm that due diligence was carried out on the contractor ( refer explanatory note ).
Confirm that an anti-fungal spray was used by the contractor and if not the likely impact on the time frame before roof’s need to be cleaned again.
Confirm that roof inspection was done by the committee upon completion of the job, as part of final approval process, and that a warranty is in place.
Confirm that a roof inspection will now be carried out due to reports of roof tile damage and tile displacement, and further confirm whether rectification costs ( if problems are uncovered ) will be covered by the contractor or a cost to owners.
Explanatory Note
SOFT WASH – Use of rotating scrubbing brushes may have produced reasonable results, but I doubt that it qualified as soft wash. Intensive scrub may have been just as damaging and possibly even more so than the high pressure wash that everyone was keen to stay away from. If the contractor was using a different process ( ie : other than that agreed to ) they should have been stopped by committee, and told to get it right or bugger off.
DUE DILIGENCE – Google search AAA Goodfellas t/a First Class Cleaners Qld. – Red Flags.
ANTI-FUNGAL SPRAY – Information presented was that by anti-fungal being applied as part of the three step approved process, would likely see results lasting for four and possibly five years.
FINAL INSPECTION – Standard business practice – Review quotes, select the best one, action written confirmation covering scope of work, start and expected completion dates, price, payment terms, and that upon completion, work is subject to inspection with contractor attending to any issues identified, prior to final approval and payment. ( commonly referred to as terms and conditions ).”
These people attended the February committee meeting
The roof cleaning was an item carried over:
It roof cleaning was mentioned in the caretaker report, but not discussed at the meeting.
3.1 Common property tap
3.2 termite inspection
3.3 installation of security cameras
The comment “it was noted that this item is covered under the caretaker’s report is not factually true as it is an “owner’s motion that is not in the caretaker report.
Section 78(6)(a) of the BCCM (accommodation module) regulations says that, for a general meeting, “the voting paper must, for each motion, state (a) the motion in the form in which it was submitted without amendments”
This principal should be applied to section 50 motions.
The motions minuted is NOT was not what was submitted by lot 77, as there is an “explanation” that were not printed, which is relevant to the requirements to minute properly
The issue is that:
What was put up as the motion from lot 77 may have NOT been the motion submitted and was minuted correctly, or
What was put up as the motion from lot 77 may have been the motion submitted and was NOT minuted correctly,
The relevant legislation parts are:
Section 63 of the BCCM (accommodation module) regulations
Correct minuting of the motion was not done, as section 63(6)d) applies to motion submitted under section 50and requires that it is minuted when the motion was submitted to the secretary, which was the 5th February 2023, that is not in the minutes.
That is relevant, as section 50(2) (a) (below) indicates that committee must decide the motion with in the 6 week period that it was submitted. So the resolution to issus is if voting on the motion is “deciding” or the secretary taking the action that was resolved,
The secretary did not “provide a formal response to the owner of lot 77 withint he decision making period of 6 weeks”, which would have been from the 5th February 2023 would have been the 20th March 2023.
The actions required of the committee if an owner submits a motion are in Section 50 of the BCCM (accommodation module) regulations
I assert that what was asked for the committee to do, is not a function of the body corporate under section 94 Act , nor a function of the committee of the body corporate acting for the body corporate under section 100 of the BCCM Act, to “confirm” events.
Lot 77 sent an email to body corporate manager on 16th April 2023, that I assert was again not a motion that was a function of the committee or body corporate.
However, a response came from the body corporate manager, on 11th May.
Procedurally the response from the body corporate manager has issues.
The committee can only make a at a meeting, under section 57(1) or by way of vote outside of committee meeting (VOCM), that require steps to be done under section 60(1). There was no motion at the meeting of the 20th February 2023 to respond to a letter date the 17th April 2023 and there was no notice to non-voting member sof the committee or lot owners of a section 60 VOCM, to do so. Thus,
the Body Corporate Manger had no authority to write to the owner of lot 77
the response was not a “response from the committee” as purported.
The only person who can correspond with the body corporate manager is the Lynne Smith, by virtue of the motion on the 8th December 202, to send the letter to lot 77.
4.1 The manager must supply the agreed service stated in Item B to the Body Corporate in accordance with the terms of this agreement
4.5 The manager will at all times comply with (a) the Act (b) the module (c) code of conduct
Agreed Service Administration
“Establish and maintain the roll and registers”
Minutes in committee meeting
6th May 2020 BCS body corporate manager
19th August 2020
3rd December 2020 – caretaker excluded from meeting as non-voting member
Mention of register of improvements to lot
10th February 2021 caretaker excluded from meeting as non-voting member
No mention in meeting of register of improvements to lot
12th May 2021
25th May 2021 caretaker excluded from meeting as non-voting member
8th December 2021
No mention in meeting of register of improvements to lot
24th January 2022
register of improvements not noted specifically however,
11th May 2022
register of improvements not noted specifically however,
24th August 2022
register of improvements not noted specifically however,
28th November 2022
register of improvements not noted specifically however,
Not in correspondence list , no motions as to what the alleged correspondence was
20th February 2023
register of improvements not noted specifically however,
Caretaker asserts that they did not make this statement in the meeting and sought discussion to address, offered then delayed and not forthcoming, dispute raised with committee
The caretaking agreement requires, us to do duties, behave to a code of conduct and communicate with the body corporate, through the committee to an individual called the body corporate representative
In 2017 the caretaking agreement was from 2008,
In 2022 the agreement was changed, but with no change in the requirements.
Before Pango Holdings Pty Ltd took over as caretaker the function of a body corporate representative was not being fulfilled and many people on the committee were giving instruction to the caretaker, sometimes in conflict with each other and also in conflict with the legislation.
There also appeared to have been a lack of application by the previous caretaker to act to the code.
The elected members of the committee at the AGM on the 25th October 2017 were
Jennifer Stratford (chair) who out votes Dean Scharkie for the position 30 to 10 votes)
The caretaker sought to address this at the committee meeting on the 18th April 2018 and the following resolution was passed:
Lynne Smith was elected unopposed as Treasurer
Ora Whaanaga was elected unopposed as secretary
The ordinary members were elected as
David Jones (33 votes)
Ian Litton (33 votes)
John Spooner (33 votes)
Melinda Ross (31 votes)
The other members who sought election were
Dean Scharkie (13 votes)
Pete Dungdale (9 votes)
Caroline Carsten (7 votes)
At the first meeting of the committee on the 14th February 2018
David Jones resigned and the committee vote 3 to 3 to decide a person to appoint to the committee. The decision was then made by chance
At the time the body corporate manager should have advised the committee that motion was not resolved in accordance with the BCCM (accommodation module) Regulations 2008 as there had to be a majority decision and there was not allowance for a chance decision. Such allowance was for votes at a General Meeting of the Body Corporate.
At the same meeting, Jennifer Stratofrod, resigned as chair and, though not explicitly stated as a motion the committee “accepted that she stay as an ordinary member”
There were not VOCM passed, other than the assignment of the caretaking agreement to Pango Holdings Pty Ltd, distributed on the 15th February 2018 to
Jennifer Stratfford
Lynne Smith
Ora Whaanaga
Ian Litton
John Spooner
Melinda Ross
The assumption is that David Jones had resigned before the 15th February 2018 when the VOCM was sent to committee members.
And was voted on in the affirmative by
Lynne Smith
Ian Litton
John Spooner
Melinda Ross
Noting that Ora Whaanaga and Jennifer Stratfford, did not take the time to vote on the matter.
Then at the committee meeting on the 18th April 2018
The committee was:
Dean Scharkie as chair, but there is no record of his having been appointed as such. The result of this was that a person who achieved 25% of the vote for chair and 33% of the votes for committee was in the position)
Lynne Smith (who had taken on the role of Treasure and Secretary, though there is no record of Ora Ora Whaanaga’s resignation or her appointment as an ordinary member of the committee)
Lisa Ross (noting that Melinda Ross was elected to the committee in 2017. The assumption is that “Lisa” is the accepted name of “Melinda” of it was an error. It is surprising that this errors was not detected by the committee responsible for the keeping of full an accurate minutes or the body corporate manager as part of their duties who is required to be diligent and professional in doing those duties.)
Shaun Bartly (who had replaced John Spooner, who had resigned and the committee appointed Shaun, who did not stand for election at the 2017 AGM)
Ora Whaanaga
Margaret Leybourne
It is worth noting that there is an annotation in the minutes that says “NOTE: after the meeting BC received a resignation from Jennifer Stratford, therefore the members agreed by email that Tanya Lund will replace Jennifer Stratford for the Casual vacancy and that this appointment will be ratified at the next formal committee meeting” . No such ratification was made in the 20th June 2018 committee meeting. Equally, there is no record that as the decision made was contrary to the BCCM (accommodation module) Regulation and the body corporate manager did not inform the committee of the process nor that the actions of the committee contravened that Act.
It is noted also that Tanya Lund who did not stand for election at the 2017 AGM.
At the committee on the 18th April, the committee passed a motion with regard communication with the caretaker:
The caretaker noted to the committee problems that had been discovered, that it was required to do both under the agreement and the code of conduct.
On going by-law issues
Fencing issues
use of car park in variation to the by-laws
chemical storage issues
issues with water from drainage and guttering
“register required to properly manager the complex were either not maintained, incomplete or out of date”
It was note that the committee asked the caretaker to do task that were not in the caretaking agreement and were the “the building manager will update all registered and present update copies to the strata manager to update the body corporate records”, when these tasks were a contracted duty of the body corporate manager to meet the requirement on the committee from the Act.
The caretaker informed that would do the task that were not in the caretakers agreement to assist and looked forward to changes needed to the agreement to be supported for this extra unpaid work.
The caretaker constructed a website www.somersetgardens.com,au and offered the use of that website to assist the body corporate with notices and display of by-laws.
The body corporate manager advised that the actions the caretaker was suggesting was possible
but gave advice that they did not want the services offered by the body corporate manager to be supplemented. They then gave advice that was not accurate:
At the meeting on the 20th June 2018 the caretaker addressed directions from the committee from the body corporate representative and practice that had been in place by the previous caretaker
Action from the body corporate representative were done though making little sense to the caretaker.
The committee was critical of the caretaker supply detailed reports
And as noted above took the position that “rules outside the complex did not apply in the scheme”.
The caretaker supplied, a required vegetation management report and made recommendations
The committee’s action was indecision:
Noting that is was not till 15th November 2018 that the committee resolved to accept and act on the report
At the meeting on the 20th June 2018 the caretaker addressed and directions registers.
At the meeting on the 20th June 2018 the committee passed resolutions on the advice of the body corporation manager, indicating that the committee would act in ways that were not consistent the Act:
By way of VOCM, that was not distributed to all lot owners as required under the Regulations the committee too punitive actions against the caretaker required it
to do task on in the caretakers agreement
To task in time frames that are not consistent with the GCCC regulations and not in the caretakers agreement
Reduced the spending limit of the committee to by 75%
To mow the grass at a level that the committee decided
Attend to specific gardening in proximity to committee members lots
This VOCM was voted on by only by Dean Scharkie, Lynne Smith, Melinda Ross
The caretaker subsequent raised a dispute with the committee and made application to the commissioner. This was only resolved by the committee
On the 27th September 2018, knowing well that he had entered into a contract to sell his property, the chair Dean Scharkie, produced, apparently without the authority of the committee, and the body corporate manager circulated a “chairman’s’ message” with the agenda to the proposed general meeting to be held on the 24thOctober 2018.
That “chairman’s’ message” contained derogatory and possibly defamatory assertion agisnt the caretaker.
The chair Dean Scharkie, resigned with the sale of his property, some tie before the 17th October 2018 and Ora Whaanaga was by VOCM appointed as chair on the on the 17th October 2018.
At the AGM on the 24th October 2018,
Ora Whaanaga was elected unopposed as chair
Lynne Smith was elected unopposed as Treasurer
Sara Buthcer as elected as secretary (12 votes to 7 votes over Melinda Ross)
The ordinary members were elected as
Tanya Lund
Barbara Spooner
Melinda Ross
And from the floor Jennifer Stratford was elected over Shane Brett, though there was no provision in the Act for voting from the floor if nominations were received before the meeting.
At the committee meeting of the 15th of November 2018, the committee resolved.
The committee at this meeting was
Ora Whaanaga (chair)
Lynne Smith (Treasurer)
Sara Buthcer (secretary)
Barbara Spooner
Melinda Ross
Jennifer Stratford
Tanya Lund did not attend but gave proxy to Lisa Ross
The caretaker provided the required newsletter but at the committee meeting of the 11th March 2019 it was resolved
Other motions resolved at the 15th November 2018 in response to unreasonable action taken against the caretaker were
In January 2019
Lynne Smith resigned as Treasurer
Sara Butcher resigned as secretary
Barbara Spooner resigned as an ordinary member
Melinda Ross resigned as an ordinary member
These resignation meant that only Ora Whaanaga, Tanya Lund and Jennifer Stratford remained on the committee and those 3 people were not a forum.
Between the 15th November 2019 and when a notice of an extraordinary General meeting was given on 25thJanuary 2019, there were no VOCM to appoint any committee members. The committee members remaining, were not able to form a forum to authorised a person to call a general meeting, as required under the regulations
Repeating the fact that there are no VOCM between the committee meeting of the 15th November 2019 and the VOCM of the 19th February 2019 that appointed Sara Brown as a committee member.
However, on the 19th February 2019 a VOCM was sent to committee member, expect the caretaker and not to lot owners, it was voted on by Ora Whaanaga, Sara Brown, Tanya Lund and Jennifer Stratford however, it is uncertain how this VOCM was actioned under section 54 of the regulations as the secretary had resigned and there were only three members of the committee, and there is no evidence of an authorisation of from other committee members
This would suggest that the authorised the spending of $2000 of legal fees was no reasonably actioned.
At the same meeting the 3 remaining committee members and the person who was not appointed under regulation, gave instructions that specifically went against the motions, the 3 same committee members resolved on the 15th November 2019 to (a) wipe the slates clean and (b) to things not in there caretaking agreement
At the general meeting on for the 25th February 2019.
Ora Whaanaga, chaired the meeting
Shane Brett was appointed to secretary
Madge Brown was elected 11 votes compared to Lynne Smith 5 votes for treasurer
A motion was passed to fill the ordinary member position
The votes were
Lynne Smith 3 votes
Leigh Moana 0 votes
Barbara Spooner 1 vote
Jenny James 12 votes
Sara Butcher withdraw her nomination at the meeting
Sarah Brown was appointed an ordinary member.
These actions raise the questions:
why would Lynne Smith resigned as Treasurer then reapply for the same position one month later,
Why would Sara Butcher resigned as secretary and Barbara Spooner resigned as an ordinary member, then reapply for the committee position one month later,
The postulations were that, despite voting for motions on the 15th November 2018, the individual that reigned want to disrupt the working relationships the committee wanted to make with the caretaker.
At the AGM there was a motion put by the committee (that were Ora Whaanaga, Tanya Lund and Jennifer Stratford) that were included on the agenda sent to the body corporate on the on 25th January 2019 that were not passed as resolution of the committee in any previous meeting or VOCM. The motions was sensibly resolved to be out order:
The fact that this motion was put up only 4 months after a motion at an AGM and confirmation by vote at committee on the 15th November 2018 in ways that were not displayed to the body corporate by appropriate methods by individuals on the committee is perplexing in that the 3 committee members how out the motions to stop the action, voted for the actions previously.
Before the committee meeting of the 11th March 2019 Ora Whaanaga, resigned as chair.
At the meeting on the 11th March 2019, Sara Brown, to whom there is no evidence that she was ever appointed to the committee was appointed as chairperson.
At the meeting on the 11th March 2019 the committee resolved
The caretaker faced no conflict with the committee.
At the AGM on the 10th October 2019 Lynne Smith was elected unopposed to treasure.
At the committee meeting on the 6th May 2020 Ora Whaanaga, was appoited to the committee to replace Jackiie Kerr leaving the committee with selling per property
At that meeting it was resolved
At the meeting of 19th August 2020 the micro management had returned
Caretaker could have act, but wanted to work harmoniously with the committee, but made recommendation to the committee:
3rd December 2020
This was an ill-informed motion (not based on the Act or regulations and taken as a retaliatory action to the caretaker to avoid criticism for the return of actions outside of the agreed undertaking to act under the Regulations.
At that meeting the committee the were the following people who had previous demonstrate behaviour to specifically disrupt and dictate the behavious ot the committee
And Margaret Day had a close personal relationship with Lynne Smith and Ora Whaanga.
The motions at the 3rd December meeting that were made without the caretaker being present were:
Directions of the committee that are not in the caretaking agreement
Actions that were the source of the caretakers issue of the behaviour of the committee that are not in accordance with the regulations.
Motions aimed to hurt the operation of the caretaker
Motions aimed to hurt the reputation, that were never actions but are represented in the minutes
The caretaker was exclude from the meeting of the 10th February 2021
Making false statements against the caretaker, and unreasonable action to issue a notice 2 days after a meeting when it would not be practical to for the committee to meet the caretaker, when they were not at the meeting. No such notice was actioned, but the reputation of the caretaker was damaged
The reversal of actions reasonably in place by the caretaker reversed at the meeting of the 12th May 2021
Pressure placed on the caretaker, it is worth noting that the caretaker was forced into a position to pay for a report that eventually showed that there was no basis for the caretaker to be issued with an notices and that the caretaker’s contrac represented fair renumeration for the duties.
25th August 2021, the caretaker was again exclude from this meeting
Notation was made but the report noted has never been put on the hub by the committee.
8th December 2021
Micromanagement continued
The caretaker was asked to leave the meeting are giving a report. Changes were made to the engagements with the caretaker without the caretaker being present
After the caretaker left and the discussion and motions moved again to action the were not done in accordance with the regulations
At the 8th December 2021 the following behaviour occurred from
The treasurer Lynne Smith and the secretary Ora Whaanaga,
It should be noted that behaviour of the committee was the source of a dispute in late 2018 and let to a commissioners application.
In 2019 the committee denied an owner to inspect the body corporate records
The most recent events stem from the committee meeting on the 3rd December 2021 and efforts of the chair to hold accountable people on the committee for their behaviour.
The chair reasonable wanted to record the committee meeting of the 3rd December 2021. This was because the caretaker and lot owners had raised concerns. Some of those concerns in previous disputes, that the minutes of meeting were not true and accurate. The concern were exacerbated by the fact that at subsequent committee meeting a block of voters would influence the committee to accept inaccurate minutes that favoured position taken by the committee.
This behaviour had been made worse because during 2021 the caretaker had been excluded from all but one meeting where a representative was allowed to attend.
Question were asked of the treasurer at the 3rd December 2021 committee meeting:
Later in the 8th December 2021 committee meeting, the following behaviour occurred
It should be noted that Lynne Smith, the treasured who from the minutes initiated the verbal attack, has a history of actions towards people against the by-laws, this was noted in a meeting 16th May 2019, that the committee did not act on as requried under the Act to issue a contravention notice.
Also, Lynne Smith has acted in a way that was unreasonable and not in the best interest of the committee when she resigned as a “block” in January 2019, then reapply for the position she resigned from in February 2019.
After their action of the treasures and the secretary in the meeting of the 8th December 2021, at meeting of the 24th January 2022, the Treasures and the secretary made statements, and had them recorded in the minutes (as they were the only people who as secretary and the nominee to the body corporate manager had that authority) that were defamatory, as indicated below:
In May 2022
The committee was in dispute as two minutes created and the vote was only off by (suggesting two fractions)
Moving forward in time, at the 24th August 2022, the treasurer indicated and had recorded in the minutes:
The secretary put the following motion to the committee from a person who had “allegedly had already sent a members motion for the next AGM” and was aligned with the secretary and the treasure to remove the chairperson at the next election.
The reasonable response would have been, if the behaviour of the chair, if identified as being details sufficient to identify a code of conduct that had been breach, in following the code of conduct, other committee members would have had an obligation to place a section 37 notice on the agenda of the next general meeting. Not to pass a motion on an unsupported letter from a lot owner, who had motivation for placing the motion.
Ora Whaanga behaviour over time should be noted for her behaviour between the 31st July 2022 and the general meeting on the 26th of October 2022.
Ora Whaanga is the owner of lot 21
At the committee meeting on the 16th May 2019
At the committee meeting on the 15th August 2019
At the committee meeting on the 20th January 2020
At the committee meeting on the 6th May 2020, Ora Whaanga was appointed to the committee to fill casual vacancy.
Ora Whaanga voted on the motion despite conflict of interest.
At the committee meeting on the 19th August (Ora Whaanga had proxy from Sarah Brown secretary), Sarah Brown the secretary, did not put onto the agenda motions from last meeting related to lot 21. Sarah brown resigned after the meeting and Ora Whaanga appointed secretary
At the committee meeting on the meeting of the 10th February 2021
An item on lot 21 blocked drain was discussed and the outcome was to have gutter guard on her property. There being no recommendation from caretaker and no consideration of such improvement being offered to the other owners of the motions put to the general meeting as required under section 176 of the BCCM (accommodation module) regulations 2020.
Ora Whaanga voted on the motion despite conflict of interest.
It should be noted that at the committee meeting of the 15th November 2018 it was resolved:
At the committee meeting on the 24th January 2022 meeting Ora Whaanga discussed the motion
At the committee meeting on the 11th May 2022 meeting Ora Whaanga discussed the motion
At the committee meeting on the 24th August 2022 meeting Ora Whaanga discussed the motion
At the committee meeting on the 28th November 2022 meeting Ora Whaanga discussed the motion
No correspondence was presented to meeting separately to support the assertion and the caretaker has raised a dispute with regard this assertion.
At the committee meeting on the 20th Feb 2023 meeting Ora Whaanga discussed the motion
The result is that Ora Whaanga put up unaothorised altarions to common property that she uses as an exclusive use area, when it is not. When this was raised and conteaventin ntice were issued, she ignored them and “conciliation” was undertaken he people who Ora Whaanga had affiliations with and the committee did not act in accordance with the Act. Then Ora Whaanga joined the committee and discussion on her contravention stopped.
When the issues of unauthorised construction was raised in the committee, Ora Whaanga nominated to investigate and no action was taken. Ora Whaanga made claims that the caretaker is disputing to end any investigation and action on unauthorised construction in the scheme, that Ora Whaanga has been identified as having on her lot.
Returning to the behaviour of between of Ora Whaanga between the 31st July 2022 and the general meeting on the 26th of October 2022.
Any lot owner that was to submit motions for consideration at a general meeting had to do before the 31st of July to the secretary, Ora Whaanga.
No such correspondence was in the committee meeting of the 24th August 2022.
However, the lack of correspondence could have be due to the failure of the committee and the caretaker to record the minutes in according to section 63 of the Regulations.
The correspondence from a lot owner to the secretary had to be sent to the though the body corporate manager.
From the committee meeting on 15th November 2018 it was resolved:
Ora Whaanga was present at the meeting on the 15th August 2022 and was not asked to leave the meeting when the following was discussed where in response to an owners motion a legal opinion was obtained.
Ora Whaanga was sent a motion as a vote outside of committee on the 19th February 2019, it was voted for the motion to
Ora Whaanga was on the committee that met on the 15th August 2018 where the body the committee vote on a motion recorded and Ora Whaanga voted by proxy for the motions that complied with section 74(2)(a)(iii) in the BCCM (accommodation module) Regulations 2008 that required “the substance of the motions submitted by body corporate members”,:
At the general meeting on the 25th February 2019, Ora Whaanga was the chairperson who ruled a motion 6 out of order for and the reason give was
However, with this knowledge, and as the secretary at the meeting on the 24th August 2022, Ora Whaanga did not do any of the following reasonable ations:
Discuss the owner’s motions that were sent to her as the secretary of the committee meeting, particularly as motions 11.1, 12.1, 13.1, 14, were from her as a lot owner.
Put a motion on the agenda of the committee meeting to seek legal advice on the owner’s motion that she had received,
Place on the agenda of the committee meeting an agenda item to have the agenda of the general meeting to reflect the motions of the owners to comply with section 83(2)(a)(iii) in the BCCM (accommodation module) Regulations 2020. that requires “the substance of the motions submitted by body corporate members”, similar to the motions made at the committee on the 15th August 2018.
Allow the treasure, Lynne Smith, who was the nominee of the committee to the body corporate manager, to instruct the body corporate manager publish the agenda, voting papers and explanatory notices (much of which had errors against the regulations), especially sine many of the motions were from the Lynne Smith
At the general meeting on the 26th October she vote to overturn the ruling of the chairman that ruled the motions out of order.
Addition behaviour of the Ora Whaanga and Lynne Smith that is concerning.
There action from the committee meeting of the 24th August 2022 to the publishing the agenda for the 26thOctober 2022 AGM in relation to the roof cleaning.
This has been covered in much detail in another report so a summary will be given without attached motions that are in the minutes and other communication
The minutes of the 24th August 2022 committee meeting reflect that 2 quotes, for $55,290 and $39,879.50, were discussed in motion 2.6 related to the roof cleaning. The minutes reflect that the quote were tabled and were then part of the body corporate records
It has been alleged that 3 quotes were discussed at the meeting, this can not be substantiated independently, and the minutes were subsequently resolved as true and accurate.
The caretaker recommended at the 24th August 2022 committee meeting the quote of T&S Maintenance ($39,879.20) as that company planned to use a methodology that would result in less possible roof damage, rather than the quote from Pressure Wash Co ($55,290).
The motion was resolved to make provision in the sinking fund and put a motion to the next AGM as a same issue motion.
Individuals, Ora Whaanga, Lynne Smith and Daniele Jones, not the committee, took authority to approve the wording of the agenda, voting papers and explanatory material that was to be published. Lynne Smith contacted a contractor AAA Goodfellas trading as First Class Cleaners Queensland and made representation to Ora Whaanga and Danilee Jones, to support the quote of AAA Goodfellas trading as First Class Cleaners Queensland.
When the motion was published as motion 9 in the voting papers and the explanatory notes, of the AGM, the body corporate was asked to decide between, quotes of Pressure Wash Co ($55,290) and AAA Goodfellas trading as First Class Cleaners Queensland ($32,010). The quote of the contractor recommended by the caretaker was not put to the body corporate.
Additionally in the explanatory notes made it was alleged that “the committee” made the statements:
Subsequently, AAA Goodfellas trading as First Class Cleaners Queensland cleaned the roofs with a pressure wash, at a lower pressure, and there has been resultant damage to the roof that a later audit asserts that “70% of tiles have been damaged in the last 12-18 months, a large proportion of these tiles would have been damaged due to the roof cleaning “. The resultant cost of roof repair is approximately $95,000 so the result of the selection of the contractors resulted in approximately $71,250 in damages.
When the above action subject to a complaint and request for an owners motion, from the owner of lot 77, to be decided at the 20th February 2023 committee meeting, Ora Whaanga would not allow a vote on the motion and a response was to be sent to the owner.
Sara Ferguson resigned after the meeting making scathing remarks to the behaviour of other committee members in her resignation.
That “response” sent to the owner of lot 77, was not formulated by a resolution of the committee. It was sent as an unauthorised communication by the body corporate manager as an unprofessional and unidentified note. That note attempted to shift blame asserting that
The decision to publish the quotes was made by Ora Whaanga, Lynne Smith and Daniele Jones as well as Kohn Wirth and Sandra Ferguson. The later two deny the accusations.
The people making the decision were not able to (or did not try) to get the quote for T&S Maintenance ($39,879.20) from the body corporate manager or the body corporate records (which any committee member can inspect for no fee)
The people making the decision received the quote from T&S Maintenance ($39,879.20) on the 16th September 2022 and that was insufficient time to adjust the agenda, voting papers of the explanatory notes that was not sent to the body corporate till the 5th October 2022.
No responsibility or remorse for the actions was shown by Ora Whaanga, Lynne Smith and Daniele Jones.
Section 101B of the Body Corporate and Community Management Act 1997, reads:
The code of conduct in schedule 1A applies to each person (a committee voting member) who is—
(a) a committee member for a community titles scheme; and
(b) a voting member of the committee under the regulation module applying to the scheme.
(2) On becoming a committee voting member, the person is taken to have agreed to comply with the code of conduct.
(3) If a committee voting member breaches the code of conduct, the member may be removed from office in the way prescribed under a regulation
Point 4 of Schedule 1A Code of conduct for committee voting members to the Body Corporate and Community Management Act 1997, states
“A committee voting member must take reasonable steps to ensure the member complies with this Act, including this code, in performing the member’s duties as a committee voting member.’
Section 101(2) of the Body Corporate and Community Management Act 1997, states
“the committee must put into effect the lawful decisions of the body corporate.
History of decisions at Somerset Gardens at where member(s) of the committee has breached a stated provision of the code of conduct
At the Annual General Meeting of Somerset Gardens CTS 25221, held on the 24th October 2018, item 13 was passed 31 votes to 13 and item 13 resolved that:
“The Body Corporate to take the steps including:
“the committee must put into effect the lawful decisions of the body corporate.”
Retain a surveyor to properly identify on the new exclusive use plans the area being occurred by owners
Engage a lawyer to draft a motion (resolution without dissent) to be considered at the next AGM to alter the exclusive use allocation in accordance with the plans prepare by the surveyor.”
Motion 11 That the major spending limit for the scheme be $350 per lot $33,950
Motion 12 relevant spend limit of the committee “for the sole and specific purpose of renewing the insurance policy to $33,623.70”
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 24th October 2018 show the following people were elected as voting members,
Ora Whaanga (Chair Person)
Sara Butcher (Secretary)
Lynne Smith (treasurer)
Tanya Lund
Lisa Ross
Barbara Spooner
Jennifer Stratford
The minutes of the committee meeting on 15th November 2018 the following voting committee members were present at the meeting:
Ora Whaanga (Chair Person)
Sara Butcher (Secretary)
Lynne Smith (treasurer)
Lisa Ross
Barbara Spooner
Jennifer Stratford
Tanya Lund attended by proxy to Lisa Ross
1.2 Breach of By-Laws have been monitored by the caretaker and whenever possible any breaches shave been pointed out to the person breach. At request of the previous committee these have been sent to the body corporate representative in an email on a weekly basis with evidence where appropriate.
The motion resolved was nil further action
1.12.11
The motion resolved was that the committee resolves day to day item such as minor renovations, minor variations to common property, pet application and breach letter dealt with on a daily basis via email agreement and not wait for a forma VOCM. Only legal requirements will be presented via VOCM or wait until the next committee meeting for agreement and will be organised via the strata manager
Fencing and Exclusive use By-Laws
“during the audit it was found that the occupation of common property by a majority of owners is not consistent with the exclusive use in the CMS.
the committee understands …many owners are using common property as exclusive use areas and have erected (under past committee’s approval) items such as decks”
“A motion was passed at the General Meeting”
The resolution passed that the organises for two quotations from suitably qualified surveyors present to the committee[1]
The resolution passed that the start manager send a letter with draft by-laws to all owner who voted “no” at the AGM that they can have inut to the changes of these by-laws”
The following members resigned from the committee
Ora Whaanga (Chair Person) lot 21
Sara Butcher (Secretary) lot 42
Lynne Smith (treasurer) lot 44
Lisa Ross lot 37
Barbara Spooner lot 51
The minutes of the committee meeting on 11th March 2019, show the following voting committee members were present at the meeting:
Shane Brett (Chair Person)
Madge Brown (treasurer)
Sarah Brown
Jenny James
Tanya Lund
Jennifer Stratford
Fencing and Exclusive use areas
“having obtained quotes[2], the committee delay Motion 1.26 ‘fencing and exclusive use areas …until allocation of funds is consider in the 2019-2020 budget meeting”[3]
The minutes of the committee meeting on 16th May 2019, show the following voting committee members were present at the meeting:
Sarah Brown (Chair Person)
Shane Brett (secretary)
Madge Brown (treasurer)
Jenny James
Tanya Lund
Jennifer Stratford
The minutes of the committee meeting on 15th August 2019, show the following voting committee members were present at the meeting:
Sarah Brown (Chair Person) proxy to Jacqui Kerr
Leigh Moana (secretary)
Madge Brown (treasurer) proxy to Jenni James
Jenny James
Jacqui Kerr
Jennifer Stratford
Minor breaches of by-laws have been sent to the secretary on a regular basis as agreed,. Those residents have been contacted via email and/or phone to ratify the breach
No resolution passed
Engagement of surveyor
Previous discussion regarding exclusive use areas and encroachment on to common property and engagement of a surveyor and it is believed that this should be included in the by-law amendments
Resolved that a surveyor not be engaged and no provision for a surveyor include in this years budget[4]
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 10th October 2019 show the following people were elected as voting members,
Jacqui Kerr(Chair Person)
Leigh Moana (secretary)
Lynne Smith (treasurer)
Shane Brett
Garry Fox
Motion 10 relevant spend limit of the committee “for the sole and specific purpose of renewing the insurance policy to $39,008.23”
The minutes of the committee meeting on 20th January 2020, show the following voting committee members were present at the meeting:
Jacqui Kerr(Chair Person)
Leigh Moana (secretary)
Lynne Smith (treasurer)
Shane Brett
Garry Fox
Resolved that the building manager seek quotations for garden works based on the vegetation management plan
Strata manager to send a continuing contravention notice to the lot owner 21 and if not resolved to make application to the commissioner office for conciliation
The minutes of the committee meeting on 6th May 2020, show the following voting committee members were present at the meeting:
Jacqui Kerr (Chair Person) proxy to Leigh Moana
Leigh Moana (secretary)
Lynne Smith (treasurer)
Garry Fox
Jacqui Kerr resigned and was replaced by Leigh Moana
Leigh Moana resigned as secretary and Sara Brown appointed (this is in error)
Shane Brett resigned and was replaced by Ora Whaanga
Currently not the funds to implement the complete plan.
Resolved that the trees behind units 69 and 70 be trimmed and the height reduced
Alteration to exterior unit 21
Strata manager to send a continuing contravention notice to the lot owner 21 and if not resolved to make application to the commissioner office for conciliation.
The minutes of the committee meeting on August 2020
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 14th October 2020 show the following people were elected as voting members,
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Motion 8 relevant spend limit of the committee “for the sole and specific purpose of renewing the insurance policy to $44,832.26”
The minutes of the committee meeting on 3 December 2020
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Motion re Les Blackstock – a non voting member is a member
Action Pango not attend unless directed
Reduce spend limit of caretaker
Quote approval not in accordance with section 60
Motion 13 AGM one pers voted against owner acting – lot 42
News letter
Formal complaint re caretaker
The minutes of the committee meeting on 10th Feb 2021 (not attended by Violet – not asked)
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Resolved to issue a remedial notice if not action by 12th Feb 2021
Application to extend council approval John Wirth to follow with council
Relace trees but in front of lots 21 and 27 and remedial action notice
Contravention notice to lot 20
The minutes of the committee meeting on 12th May 2021 (Michelle went)
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Let the plan expire and “prepare a maintenance plan using some parts of the VMO not completed and discarding other which are no longer relevant
Special consultant to assess agreement 50% cost by caretaker
Lot 20 continuing contravention form 10 notice
Asset register body corporate manager to check
The minutes of the committee meeting on 25th August 2021
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Barbara Spooner
Remove vegetation management plan with garden maintenance
Change green waste fee from $66 to 72 cents per kiloometer (not a requirement of caretaker agreement)
Fencing standard (this should be body corporate issue)
Motion that “when complete, inspected by committee and caretkar, signed off by committee”
Lot 20 final notice
Resolved to include the above motion on the annual general meeting agenda
Election of ordinary required as Sandra Ferguson nominated
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 13th October 2021 show the following people were elected as voting members,
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Sandra Ferguson
The minutes of the committee meeting on 8th December 2021 ,
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Sandra Ferguson
Chair wanted to record and treasured objected (not lot of problems with minutes in next meeting motion to record)
Gardening plan “some bed with the owners preferred to maintain themselves”
V and R repainted – past discussion that R nd V not reflect on DA applciaiton.
The body corporate mamager aevised the meeting that in orde for an email vote to be confirmed by the chairman, if was iport that coting should ensure all other committeemember are copied in on their vote, The chairman must declare at a schedule committee memeting wheterh an email vote is confirmed on not and cannot do so unless be has written evicen that a majority voted with for of against he motion.
Lynne Smith as committee nominee to BCM
Change green waste fee from $40
42 request to replace screen
The minutes of the committee meeting on 24th January 2022
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Joshua Punch
Sandra Ferguson
Dispute on minutes
Fee taken away on 24th August put back
Garden plan circulated
Ora taking over unapproved
Motion to introduce by-law at next general meeting
Pavers 36 now did it fail if 3 vote yes a vote no and nil abstentions
Committee correspondence will need to be approved by all committee members.
The minutes of the committee meeting on 11th May 2022
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Danilee Jones
Sandra Ferguson
Motion 3.11 conflict of interest as Ora has an unapproved structure
3.11 Alterations and improvements Ora Whaanga has obtained information from Gold Coast City Council on this matter and advised it could prove an expensive exercise obtaining information from Council and/or other sources as to which structures meet/require Council approval. It was stated that if these structures meet Australia Standards in retrospect, they could be approved so it is legal. Ora will work with Michelle to create a list of unapproved alterations so the Committee can decide what further action to take. ACTION: Ora Whaanga
Approvals
Miscellaneous approvals
The minutes of the committee meeting on 24th August 2022,
John Wurth (Chair Person)
Ora Whaanga (Secretary)
Lynne Smith (treasurer)
Margaret Day
Garry Fox
Danilee Jones
Sandra Ferguson
Ora taking over unapproved
“there are unapproved structure installed on the shceme ladn and the committee wil discuss the matter further
Minuntes showed the committee resolved that “the committee call and convene the AGM for 10:30am, 12th October 2022 at Kings College”
The notice for the Body Corporate of Somerset Gardens CTS 2522 was that the meeting would occur on the 16th October 2022 at the office of Archers (BCM) Gold Coast in Southport.
No notice of motion or minuted of the motions complying with section 76 calling the general meeting, were given to lot owners and no confirmation of the motion was in the 28th November 2022 committee meeting.
At the Body Corporate Committee meeting held on the 24th August 2022 Ora Whaanga (Secretary),
Did not present correspondence to the committee meeting from Ora Whaanga, Lynne Smith (treasurer) and Danelle Jones requesting motions be submitted to the next body corporate meeting
Did not comply with section 93(1) of the regulations in the preparation of the agenda for the body corporate meeting with motions submitted Ora Whaanga, Lynne Smith (treasurer) and Danelle Jones
Between the 24th August 2022 and the 26th October 2022, Ora Whaanga (Secretary)
failed to not comply with conflict of interest requirements, as required under section 58 of the regulations, with regard her actions motion she had presented to the body corporate that were not presented to the meeting of the 24th August 2022.
made a decision to call the general meeting that was not made under authority of a resolution of the committee, section 72 of the regulations, on a date that was different to that was decided by resolution in the 24th August 2022 committee meeting.
made a decision that was not the decision of the committee and was unreasonable in terms of section 110(5) of the BCCM Act to allow the publication of potentially defamatory material related to motions 11 to 20 with the Agenda, of the Annual General Meeting of Somerset Gardens CTS 25221
The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 26th October 2022 show the following people were elected as voting members,
Sandra Pergason (Chair Person) lot 39
Ora Whaanga (Secretary) lot 21
Lynne Smith (treasurer) lot 44
Daniel Jones lot 32
Margaret Day lot 37
Brian Arnold lot 55
Angeal Bertand lot 13
The minutes of the committee meeting of the 28th November 2022,
The following people attended
Sandra Pergason (Chair Person) lot 39
Ora Whaanga (Secretary) lot 21
Lynne Smith (treasurer) lot 44
Daniel Jones lot 32
Margaret Day lot 37
Brian Arnold lot 55
Angeal Bertand lot 13
Alterations and improvement
The secretary explained that mail correspondence has been sent to the caretaker and a responds is awaiting in relation to the matter.
Showed the committee received a dispute notice from Mr John Wurth on the 10th November 2022.
Mr Wurth has indicated that this was concerning motions 11-20 in the Body Corporate of Somerset Gardens CTS 2522 and was incorrectly identified in the minutes (a copy is attached)
The minutes of the committee meeting of the 28th November 2022 stated that “the committee had considered the correspondence and written to John Wurth acknowledging the receipt of the correspondence and confirming that no further action will be taken”,
The minutes of the committee meeting of the 28th November 2022 show no motion reflecting the above resolution of the committee decided by a vote at the 28th November 2022
The minutes of the committee meeting of the 28th November 2022 so no motions passed by way of a vote outside of committee meeting that were confirmed at the 28th November 2022 committee meeting.
? taken off the Feb 2023
The minutes of the committee meeting of the 20th February 2023
Summary
The role of the body corporate manager , then Body Corporate Service in 2018 and Archers in 2022 have significant responsibility in the non compliance of the voting body corporate members with the BCCM Regulations, due the standard in the code of contact for the body corporate manager being high in there knowledge of the BCCM Act and Regulations.
The following people are people are responsible for motion 13 of the 2018 AGM not being implemented, people stuck through have left the body corporate.
At the 15th November 2018 committee meeting
Ora Whaanga (Chair Person) lot 21
Sara Butcher (Secretary) lot 42
Lynne Smith (treasurer) lot 44
Tanya Lund lot 73
Lisa Ross lot 37
Barbara Spooner lot 51
Jennifer Stratford lot 41
Michelle Gabriel of Body Corporate Service as strata manager (Body Corporate Manager)
The resignation of the following contributed as these people were elected to the committee but resigned within 4 months
Ora Whaanga (Chair Person) lot 21
Sara Butcher (Secretary) lot 42
Lynne Smith (treasurer) lot 44
Lisa Ross lot 37
Barbara Spooner lot 51
At the 11th March 2019 committee meeting
Shane Brett lot 4
Madge Brown (treasurer)
Sarah Brown lot 77
Jenny James lot 15
Tanya Lund lot 73
Jennifer Stratford lot 41
Jason Tripplett of Body Corporate Service as strata manager (Body Corporate Manager)
At the 16th May 2019 committee meeting
Sarah Brown (Chair Person) lot77
Shane Brett (secretary) lot 4
Madge Brown (treasurer) lot 76
Jenny James lot 15
Tanya Lund lot 73
Jennifer Stratford lot 41
At the 15th August 2019 committee meeting
Sarah Brown (Chair Person) proxy to Jacqui Kerr
Leigh Moana (secretary) (lot 69)
Madge Brown (treasurer) proxy to Jenni James
Jenny James lot 15
Jacqui Kerr lot 27
Jennifer Stratford lot 41
The above people have not actioned contravention of by-laws in accordance with the BCCM (Accommodation module) regulations.
Ora Whaanga has a long history of blatant actions that breached a stated provision of the code of conduct and actions that show spite an ill will. She has had years to meet the requirements of the code of conduct and has been on committees in 2018 that gave undertaking to act in accordance with the regulations.
Lynne Smith has a long history of actions that breached a stated provision of the code of conduct. These actions may not blatant. The evidence that she acted with spite an ill will is only circumstantial, but disclosure of emails between Ora Whaanga and Lynne Smith may support such assertions. She has been on committees in 2018 that gave undertaking to act in accordance with the regulations.
A section 37 notice should be issued to
Ora Whaanga lot 21
Lynne Smith lot 44
Sara Butcher lot 42
Tanya Lund lot 73
Barbara Spooner lot 51
Jennifer Stratford lot 41
Jenny James lot 15
Leigh Moana lot 69
It is understood that under section 37(2)(a) an ordinary motion of the body corporate has to pass to assert that “body corporate believes the member has breached a stated provision of the code of conduct”, as part of the decision to give the member a written notice under 37(2).
If the facts assert that the member has breached a stated provision of the code of conduct and details sufficient to identify the breach a notice should be given
The process that follows is that on the agenda of the next general meeting the body corporate must include a motion to remove the member from office with the notice given to the member attached.
The relevance is that at the next general meeting, if the member is not on the committee, there are two consequences:
Under section 88(1)(a)(ii) the motion would be unenforceable and should be ruled out of order by the chairperson.If the member present and entitled voted to reverse the ruling of the chairperson under section 88(3) disagreeing with the ruling section, the motion under section 94(2) of the BCCM Act, it would be contrary of the requirement of the act that the body corporate must act reasonably in anything it does, and the body corporate should vote against the motion.
However, the process is useful for transparency to the body corporate to enable it to judge the future possible performance on the past performance of any committee member.
The situation could exist that a committee member who had in the past breached a stated provision of the code of conduct and details sufficient to identify the breach, was not on the committee when the notice or motion to remove the member from office is considered, but after the motion is considered, even at the same meeting, could seek election to the committee.
The existence of the motion would give valuable information to the body corporate on facts how to vote. The natural justice of an person alleged to have breached a stated provision of the code of conduct and details sufficient to identify the breach, is they can, at the body corporates expense, give a written response to the body corporate members about the breached a stated provision of the code. Such a response could reasonably be:
Yes, I breach the code
It was because I was ill advised by the body corporate manager
I have done training since that time.
In the same circumstances now I would act differently and abide by the code.
[1] This motion is not consistent with motion 13 at the AGM, the motions neglects the legal appointment
[2] The mentioned quotes were not discussed, or tabled I the minutes, compared to engineering report provided by Solutions Engineering that, the minutes report “owners are welcome to see the report on the Community Hub portal”
[3] This motion is not consistent with motion 13 at the AGM, the motions neglects the legal appointment
[4] This motion is not consistent with motion 13 at the AGM,
The past members of the committee are still member of the body corporate who were on the committee that did not action the motion 13 at the AGM of 2018, were Leigh Mona, Jenni James and Jennifer Stratford
What has to be taken into consideration to allow improvement to common property
Somerset By-laws till 2020
By-law 5 “an owner shall not obstruct common property by any person”
By-Law 15 “An owner of a lot shall not paint or re paint or carry out any work to or altern the exterior of any lot”
27.1(i) the prosed work shall only commence upon the written approval of the committee and on execution of such written documentation required by the committee (including but not limited to a deed of undertaking binding the applicant and its successors in title to the conduct and condition required by the committee’s approval
27.1(e)(ix) the installation of the prosed works be subject to any approval required and /or condition imposed by the Gold Coast City Council and/or such relevant government body having responsibly for the matter.
27.1(e)(xii) the applicant makes the proposed works at completion available for inspection by a qualified. Inspector approved by the body corporate and the applicant completes such additional works as may be necessary by the qualified inspector
27.1(e)(xii) “reference to the applicant, includes the applicant assigns, attorney, agents and successor in title (including but not limited to future owners of the lot)
27(k) it shall remain the obligation of the applicant and it’s successors in title to ensure any potential purchasers and/or successors are informed and understand to condition of any approval given.
27(o) if the applicant fails to refuses to attend to a conditions of an approved application, the then the body corporate may supply or engage another person to remedy any incomplete work
By-Law 27(q) any monetary liability imposed as consequence above including but not limited to maintenance or other condition associated with the proposed works, constitute a debt recoverable against the applicant (and successors in title) in accordance with section 173 of the accommodation module.
Note section 173 was repealed by section 184 in amendments in 2020 and apply to exclusive use by-laws and not common property.
Allocations made from 2018 till the 2020 are listed: It is asserted that many if not all of the allocations been made in accordance with 177(c) in as by-law in CMS as of 2017
18th April 2018
Not discussed
20th June 2018
No VOCM were held between meetings
Note no discussin of unit 17 application
15th August 2018
16th November 2018
Lot 45 had previously lodged a dispute with the commissioner
11th March 2019
No approvals
16th May 2019
15th August 2019
No approvals
20th January 2020
20th May 2020
19th August 2020
3rd December 2020
Not approve lot 35 but lot 77 gate obstructs common property. By-law 3
New By-Law 11th December 2020 by laws.
The Present by-law 20, has removed the conditions from by-law 27 that were stated and provided protection to the body corporate
Protection to the body corporate lost in the 11th December 2020 By-Laws
27.1(i) the prosed work shall only commence upon the written approval of the committee and on execution of such written documentation required by the committee (including but not limited to a deed of undertaking binding the applicant and its successors in title to the conduct and condition required by the committee’s approval
27.1(e)(xii) “reference to the applicant, includes the applicant assigns, attorney, agents and successor in title (including but not limited to future owners of the lot)
27(k) it shall remain the obligation of the applicant and it’s successors in title to ensure any potential purchasers and/or successors are informed and understand to condition of any approval given.
27.1(e)(ix) the installation of the prosed works be subject to any approval required and /or condition imposed by the Gold Coast City Council and/or such relevant government body having responsibly for the matter.
27.1(e)(xii) the applicant makes the proposed works at completion available for inspection by a qualified. Inspector approved by the body corporate and the applicant completes such additional works as may be necessary by the qualified inspector
27(o) if the applicant fails to refuses to attend to a conditions of an approved application, the then the body corporate may supply or engage another person to remedy any incomplete work
This section of the by-law is lost but would have not been enforceable.
27(q) any monetary liability imposed as consequence above including but not limited to maintenance or other condition associated with the proposed works, constitute a debt recoverable against the applicant (and successors in title) in accordance with section 173 of the accommodation module.
Changes to the by-laws after 11th December 2020 mean that
that work on an alteration can start before approval with not recourse against an owner
there is not a stated requirement that
any works is required to be subject to any approval required and /or condition imposed by the Gold Coast City Council and/or such relevant government body having responsibly for the matter .
, at completion the work will be available for inspection by a qualified. Inspector approved by the body corporate and the applicant completes such additional works as may be necessary by the qualified inspector
if the applicant fails to refuses to attend to a conditions of an approved application, the then the body corporate may supply or engage another person to remedy any incomplete work
before written approve a lot oner had to give a deed of undertaking binding the applicant and its successors in title to the conduct and condition required by the committee’s approval.
the obligation of an approval do not pass to a lot owner’s it’s successors in title to ensure any potential purchasers and/or successors are informed and understand to condition of any approval given. That means any requirement for maintenance , that imposed by section 177 on the owner making the application.
As there is no stated requirement the making of such condition would be a requirement of the committee and if they do not make them, the condition do not exist.
The application of any such conditions, that were in by-law 27 to protect the body corporate may not be enforceable as they would not be “appropriate and reasonable in the circumstances to ensure that the renovations” to the conditions listed in by-law 20.4(a) to (f). That is because the conditions that were stated in the old by-law 27 would not “ensure” that (a) the visual amenity of the scheme land, (b) adversely affect any structural elements , does not compromise safety of person or property, (d) affect the body corporate insurance (e) promote breach of the Act or By-laws or (f) damage or reduce the effectiveness of the termite barrier.
The issue is the application of section 177
Approvals after new by-laws
There were no motions approving Lot 8’s alterations
12th May 2021
The minuting of the word “approved” is not a resolution, section 163 requires resolution to be recorded int eh minutes.
15th August 2021
Correspondence
How can letters be sent on the 4th August 2021 for approvals that were not granted till 15th August 2021?
8th December 2021
The approval is for the body corporate manager to write to owners? So who wrote the letter in corresponcence?
How can a letters be sent on the 4th September 2021 for an approval that was not granted till 8th December 2021?
How can a letter be sent on the 27th September 2021 for an approvals that was not granted till 8th December 2021?
How can letters be sent on the 6th October 2021 for approvals that were not granted till 8th December 2021?
How can a letter be sent on the 26th October 2021 be sent for approval of “fence and gate” when approval granted till 8th December 2021 was for “reinstate security screen over crime screen”?
How can a letter be sent on the 3th November 2021 for an approval that was not granted till 8th December 2021?
24th January 2022
The approval is for the body corporate manager to write to owners? So who wrote the letter in correspondence?
How can letters be sent on the 12th January 2022 for approvals that were not granted till 24th January 2022 for?
11th May 2022
7 people were in attendance at the meeting
How can there be vote a vote tally that is less than 7?
24th August 2022
No correspondence noted (clai was tabled but nil table attached) Valley Terraces Echohamlets [2012] QBCCMCmr 314 521that:.
“The requirement is simply that if an item of correspondence is tabled then it should be listed in the minutes.”
28th November 2022
This is the first time any such wording have been applied to a consent with regard indemnity
No correspondence noted (clai was tabled but nil table attached) Valley Terraces Echohamlets [2012] QBCCMCmr 314 521that:.
“The requirement is simply that if an item of correspondence is tabled then it should be listed in the minutes.”
20th February 2020
Why were the wording regard indemnity given to these approvals?
As a general principal maintenance of common property is the body corporate responsibility.
However, from above if the common property is to a single lot owner then it is the responsibility of the lot owner.
So,for example, work maintenance of tap to the back of a lot is the cost of the owner, because (1) is a utility (water) supplied to one lot.
A lot owner is responsible for maintenance for of there lot, they own the lot.
Lot owners can get improvement they get authority to make on common property (from the regulations)
Note that this applies
If authority has been given
To the “an owner who is given authority”
The implication are that (1) if authority has not been given or (2) the owner of the lot is not the owner who is given authority, that being that the owner give authority ahs sold, then the liability is not passed to the next owner, unless it was a condition on which the owner was given authority (which to be help in law would require a signed deed and notification to the next owner, and signing if another deed).
This has been supported in adjudicator’s decision, in Belle Court [2006] QBCCMCmr473 (29 August 2006) (‘Belle Court’) the adjudicator noted:
“there was nothing to be found in the body corporate records (as now shown to me) which shifted responsibility for it onto the Applicant. … even if the purchaser could see that the railing was falling apart, it still remains a body corporate responsibility”
Like wise adjudicators have consistently held that bodies corporate are entitled to issue contravention notices to the current owner of a lot for breaches caused by a previous owner. This would then allow the body corporate to impose condition on approval.
For example, in The Peninsula [2021] QBCCMCmr 121 (17 March 2021), the Adjudicator relevantly stated:
“[139] I agree with the applicant’s arguments that a lot owner may ‘inherit’ a situation that may constitute a by-laws [sic] contravention. My position is formed after considering the earlier precedents. My position is also formed on the basis of logic.
[140] There is no logic to an argument that if one lot owner is found to breach a by-law today by erecting an unapproved fence (where approval is required), for example, but another who purchases a neighbouring lot tomorrow with an identically unapproved fence already in place could enjoy its use without sanction. That would be contrary to the spirit and intent of the legislative regime. Owners need to be treated equally, for what they might see as good and bad. When owners purchase properties in such circumstances they are taken to be cognisant of the provisions of the CMS and by-laws and if their property, as in this instance, is non-compliant, they must remedy the situation”.
However, in Somerset Gardens the condition that can be put on an authorisation are governed by relevant by-law, 20.4 that states:
If would be a reasonable argument that any condition that passes responsibility of maintenance from one owner to the next does not ensure any of the factors listed in by law 20.4 (a) to (f).
Such an argument would have strength in the fact that the condition of responsibility of maintenance cost was considered relevant enough to be specifically addressed in that the by-laws in force before 2020, at the relevant parts, when those by-law state:
(e) As a condition of the Applicant, the Applicant consents to the following terms:
(xiv) reference to the Applicant, includes the Applicant’s assigns, attorneys, agents, and successors in title (including, but not limited to future owners of the lot).
27.1(i) The Proposed Works shall only be commenced upon the written approval of the Committee, and on execution by the Applicant of such written documentation required by the Committee (including, but not limited to a Deed of Undertaking, binding the Applicant and its successors in title to the conduct of the conditions required of the Committee’s approval of the Application).
27.1(j) If the Committee approves the Application, the Committee shall record a copy of the written approval with the Body Corporate records.
27.1(k) It is and shall remain the obligation of the Applicant and its successors in title to ensure any potential purchasers and/or successors are informed and understand the conditions of any approval given.
27.1 (l) Any costs or financial obligations imposed by the Committee on an Applicant (or its successors in title) shall be limited to reimbursement of expenses or amounts incurred by the Body Corporate in dealing with the Applicant (such as advisor, inspector, certifier and Council fees) and/or rectifying (such as trade persons, products and alike) damage or impairments to the Body Corporate caused by the Proposed Works.
271.(q) Any monetary liability imposed as a consequence of the above, including but not limited to maintenance or other conditions associated with the Proposed Works, constitute a debt recoverable against the Applicant (and its successors in title), in accordance with section 173 of Accommodation Module.
However, the by-laws that relace it n 2020 did not include the relevant conditions.
Section 197(3) of the BCCM (accommodation module) Regulations 2008 required the body corporate to keep
“keep a register for recording each authorisation for the owner of a lot included in the community titles scheme to make an improvement to common property for the benefit of the owner’s lot.”.
Then section 197(4) (c)
“any conditions, including conditions as to use of the common property by other persons, stated in the authorisation”
The approval of any work in by-law 27.1(e) was conditional on factors, but none of those factors were the execution of the deed mentioned in by-law 27.1(i). The situation was that if, the committee did not asked for the Deed of Undertaking, binding the Applicant and its successors required in by-law 27.1(i) the work on the improvement should have not started. As it did start the only action would have been a notice of contravention under section 182 at the time. After that fact, when the work has been completed. This only “evidence” a “Deed of Undertaking, binding the Applicant and its successors”, was made. Would be the recordint in the “Register of authorisations affecting the common property”.
As, if it was a requirement of the Regulations to the Act and the by-laws to record any authorisation in the “Register of authorisations affecting the common property” it can only be assumed that the body corporate sought to comply with the Act and the committee acted to it’s code of condition to do the same.
This means that if “the register has a record of the authorisation”, but not record of any conditions of deed of “Deed of Undertaking, binding the Applicant and its successors”, then such a condition or deed was not requested and is not a condition of the approval.
The failure of the “the register has a record of the authorisation”, to not record of any conditions of approval could also be such that if a condition was made that the body corporate gave approval for the improvement to contravene certain by-laws, then the approval given would be in contravention of section 177(2)(c)
“ the body corporate is satisfied that use and enjoyment of the improvement is not likely to promote a breach of the owner’s duties as an occupier”.
Specific to the by-laws of Somerset gardens, the owner or occupier where there was an improvement , would be in contravention with the by-laws being
By-law 11 Garbage
Thus there be a challenge to any approvals that were made that without those body corporate approvals.
The situation can be complicated if “the register has a record of the authorisation” has not record of any authorisations.
Therefore any such improvements that are in existence are not authorised and the owners would have to have action to either (1) remove or (2) seek approval. That brings the body corporate back to the situation that in giving approval is cannot ask for conditions of a Deed of Undertaking, binding the Applicant and its successors, as that would be contrary to the existing by-law.
A lot owner may rely on any prior approval granted by the Body Corporate in relation to the removal of the palm tree and stumps.
Relevantly:
section 101 of the Body Corporate and Community Management Act 1997 (Qld) provides that the committee must put into effect the lawful decisions of the Body Corporate.
in West Court [2004] QBCCMCmr 589 the adjudicator provides:
“As the body corporate has resolved to have the footpath repaired at the recent annual general meeting, there is no longer a dispute and therefore no order is necessary. I would remind the body corporate committee that section 101(2) of the Act requires that “…the committee must put into effect the lawful decisions of the body corporate.” That is, the committee must proceed to have the footpath repairs carried out within a reasonable time”
In instances that previous owner has contravened the by-laws and installed structures and/or made alterations without prior approval, with these structures/alterations remaining in place following the sale of the lot. As the contravening party is no longer an owner or occupier in the scheme, the body corporate’s only option is to take enforcement action against the current owner.
Adjudicators have consistently held that bodies corporate are entitled to issue contravention notices to the current owner of a lot for breaches caused by a previous owner. For example, in The Peninsula [2021] QBCCMCmr 121 (17 March 2021), the Adjudicator relevantly stated:
“[139] I agree with the applicant’s arguments that a lot owner may ‘inherit’ a situation that may constitute a by-laws [sic] contravention. My position is formed after considering the earlier precedents. My position is also formed on the basis of logic.
[140] There is no logic to an argument that if one lot owner is found to breach a by-law today by erecting an unapproved fence (where approval is required), for example, but another who purchases a neighbouring lot tomorrow with an identically unapproved fence already in place could enjoy its use without sanction. That would be contrary to the spirit and intent of the legislative regime. Owners need to be treated equally, for what they might see as good and bad. When owners purchase properties in such circumstances they are taken to be cognisant of the provisions of the CMS and by-laws and if their property, as in this instance, is non-compliant, they must remedy the situation”.
