Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

GENERAL MEETING MOTION; MAINTENANCE; IMPROVEMENT - where a general meeting motion that passed by ordinary resolution gave owners a choice between three quotations for new balustrades, but the quotations differed with respect to the spacing of the balusters; where the existing balustrades are timber but the new will be aluminium; whether the quotations should all have offered balusters with the same spacing; whether the new balustrades are an improvement to common property requiring authorisation by special resolution; whether the resolution was invalid.

Act, ss 10(2)(b), 94(1), 95, 106; Standard Module, ss 173(1)-(2),180(1), 180(2)(a)(i), 186.

1. The resolution in favour of motion 2 at the extraordinary general meeting held on 7 August 2024 was always void.
2. The application is otherwise dismissed.

• [1] As set out in the interim order,[1] Motion 2 of an extraordinary general meeting (EGM) held on 7 August 2024 proposed replacing the existing timber balustrades at 35 Jamieson Street with new powder-coated aluminium balustrades. Owners were given a choice between three quotations.
• [2] Ms Milbourne of lot 9 points out that the spacing of the balusters on the new balustrades varied between quotations, with one offering 50mm, another 16mm, and the last 9mm. The existing balusters are reportedly spaced at 25mm intervals. The 9mm option succeeded, passing by ordinary resolution with 4 votes in favour and 3 against. Ms Milbourne is concerned the closer spacing will reduce light entering her balcony.
• [3] Ms Milbourne does not dispute that the balustrades require maintenance, but she says the quotations should have been "for the same specification of work". She also believes the new balustrades are an improvement to common property and therefore required authorisation by special resolution. She seeks final orders in the following terms:

1. I would like the resolution passed by ordinary resolution declared invalid

2. I would like the proposal to be properly quoted so all contractors are quoting for the same specification of work, and for the work to be like for like (specifically with reference to Lot 9 screens)

3. lf the proposals for work are like for like, then to be put again as an ordinary resolution

4. If the scope of work represents a material change to the nature of the structures, (as per the work purportedly authorized) then to be put properly as a special resolution proposing significant changes/Improvement (even if I consider them to be damaging and harmful to lot 9 rather than an "improvement")

Should the quotations have been for "the same specification of work"?

• [4] My views on this argument remain as expressed at the interim stage. Namely:

[6] Where a motion proposes carrying out work that will cost more than the "relevant limit for major spending", owners must be given a choice between at least 2 quotations for the work.[2] At a scheme with 10 lots like 35 Jamieson Street, the relevant limit for major spending is $10,000 by default.[3] Motion 2 proposed expenditure ranging from $88,297 to $171,187.61.

[7] There is no explicit requirement for the quotations to offer an identical scope of works. Anecdotally, minor differences in methods and materials are common. The requirement is only that all quotations are for the work proposed by the motion. In this case, the replacement of the balustrades.

[8] All three quotations proposed to replace the same balustrades with new, powder-coated aluminium balustrades. The contractors were apparently given no instructions as to the desired spacing of the balusters, resulting in some variation between them (which was brought to the attention of owners prior to the EGM)... The quotations all seem to have been for the work proposed by the motion.

• [5] Ms Milbourne argues that the new balustrades would be an improvement to the common property. At a 10 lot scheme, a body corporate improvement to common property costing more than $20,000 requires authorisation by special resolution.[4] With four votes in favour and three against, motion 2 would not have passed by special resolution.[5]
• [6] The Act says that an improvement includes:

(c) a non-structural change, including, for example, the installation of air conditioning.

• [7] Mr Dorney KC of the former Queensland Commercial and Consumer Tribunal said an improvement should add "to the quality and/or usefulness of the common property in a sense of enhancement whether in value or utility".[6]
• [8] Motion 2 proposed changing the existing timber balustrades to powder-coated aluminium balustrades. The committee said "it was not practical or economical" to retain timber balustrades, but did not elaborate. At face value, metal balustrades will be a more durable product. In that sense, they will be a non-structural change that adds to the utility of scheme land and can be characterised as an improvement.
• [9] However, as I pointed out at the interim stage, the balustrades do not appear to be on common property. Ms Milbourne and her legal representative were surprised by that observation. I will try to clarify.
• [10] Common property is scheme land that is not part of a lot.[7] Registered plan SP 161365 shows that the balconies are part of the lots. The plan indicates that the lots continue to the edge of the balconies, while Ms Milbourne's photographs show that the balustrades are installed just inside those edges. There is nothing to indicate that there is a thin strip of common property bordering the balconies as would be the case if the lots terminated at or before the balustrades.
• [11] Building format plans of survey like SP 161365 define land according to structural elements of buildings. The Registrar of Titles' Directions for the Preparation of Plans says an acceptable structural element for the "edge of a floor or a concrete base not abutting a wall" is its "outer edge".[8] Alternatively, the outer face of a balustrade can be an acceptable structural element, but as noted above, there is nothing on the plan to indicate the lots terminate at the balustrades. Even if they did, that would mean the bulk of the balustrades (up to their outer face) would still be within the lots.
• [12] The body corporate must maintain in good condition "railings, parapets and balustrades on, whether precisely, or for all practical purposes, the boundary of a lot and common property".[9] But that does not those balustrades common property. If they were, there would be no need for this provision, as the balustrades would already come within the body corporate's general obligation to maintain the common property in good condition.[10]
• [13] I dismissed the application for an interim order partially on this basis. I did not accept that the new balustrades were likely to be an improvement to common property requiring authorisation by special resolution because they would not be installed on the common property. That largely remains my view, except for two considerations that I did not appreciate at the interim stage:
  1. Ms Milbourne points out that some of the railings that are to be replaced pursuant to motion 2 are on the common property, such as on the stairs leading up to her balcony. Those stairs are clearly marked as common property on the plan. I accept that a new aluminium railing in that location would be an improvement to the common property.
  2. The body corporate has no power to make an improvement to a lot. The body corporate has the powers necessary to carry out its functions, but none of its functions relate to improving the lots.[11]

• [14] For those reasons, I accept that the resolution in favour of motion 2 was invalid. I will declare it void, but will not make the other three orders sought by Ms Milbourne because:
  1. As discussed, I do not accept that all quotations needed to be for identical scopes of work provided they were all broadly for the work proposed by the motion.
  2. The body corporate might seek approval by ordinary resolution to carry out maintenance to the balustrades, but it has not been established via this application that it is obliged to do so. The application largely focussed on whether the proposed work was an improvement. Little attention was given to the current state of the balustrades, whether the body corporate's obligation to maintain them in good condition has been engaged, and what work might be necessary to restore their condition. I cannot order the body corporate to seek approval for repairs in these circumstances. I also do not know what repairs the body corporate might contemplate now that it has been prevented from replacing the balustrades with something different, or whether the cost of repairs will exceed the committee's spending limit and require authorisation by ordinary resolution.
  3. The body corporate lacks the power to make an improvement to a lot even if authorised by special resolution.

[1] 35 Jamieson Street [2024] QBCCMCmr 372.

[6] O'Neill v Perrins & Body Corporate for Bayview Mansions CTS 9302 [2008] CCT KA003-08 at [33].