20181085-ASC11 - North Point Brisbane [2012] QBCCMCmr 355

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         [83]   The applicants note the Body Corporate does not have a noticeboard. There is no legislative
                requirement for a body corporate to maintain a noticeboard. If a body corporate does have a
                noticeboard, notices of committee meetings should be posted on the noticeboard 21 however
                there is no similar provision regarding general meetings. The existence or otherwise of a
                noticeboard at North Point is irrelevant to the validity of notice of the EGM.
         [84]   Finally, while they do not suggest that they were confused as to where to send their own votes,
                the applicants claim the EGM notice was misleading as to where to send voting papers. This is
                not explained and I am at a lost to understand where any confusion could arise. The voting
                instructions clearly direct owners to send their votes to the secretary care of SSKB, via mail,
                fax or in person. While the covering page for the notice package included multiple SSKB this is
                simply letterhead. The EGM agenda and the voting paper provide only one address and one
                facsimile number. The instructions are eminently clear.
              Validity of the EGM motions
         [85] It is apparent that the original air-conditioning system, including the cooling tower and the pipes
              connecting to the system to lots, is utility infrastructure providing a utility service. The definition
              of ‘utility infrastructure’ includes “…cables, wires, pipes, sewers, drains, ducts, plant and
              equipment by which lots or common property are supplied with utility services.” A ‘utility
              service’ includes (in part) water supply, air conditioning, drainage or another system or service
              designed to improve the amenity or enhance the enjoyment of lots or common property. 22
         [86]   Section 20 of the Act provides that all utility infrastructure contained within the scheme is
                common property, except in specified circumstances. In general terms section 115(1) of the
                Commercial Module requires a body corporate to maintain common property. Section
                115(3)(b) obligates a lot owner to maintain utility infrastructure (including where on common
                property) where it only supplies a utility service to the owner’s lot. Additionally, section 126(4)
                of the Commercial Module specifies that “The owner of a lot … must maintain the utility
                infrastructure within the boundaries of the lot, and not part of common property, in good
                condition and, if it is in need of replacement, must replace it.”
         [87]   Because the cooling tower and pipes are on common property and service multiple lots, they
                are a Body Corporate responsibility. For as long as the original air-conditioning system exists
                (that is, until it is entirely decommissioned and removed) the Body Corporate must maintain it.
                The proper maintenance of the system includes an obligation to upgrade or replace with an
                equivalent alternative if that is appropriate.
         [88]   The applicants comment that there was no engineering report on the air-conditioning system
                and no life-cycle costs. However through Motion 6, the Body Corporate has engaged
                consulting engineers to oversee the project. The applicants have not specifically asserted that
                the upgrade to the Body Corporate’s infrastructure was not required or should have been
                undertaken in some different manner. Therefore, there is simply insufficient evidence to
                determine that the Body Corporate’s decision to upgrade was unreasonable.
         [89]   While the individual air-conditioning units in each lot are the responsibility of the lot owner, they
                are joined to the cooling tower system. The Body Corporate has decided that the cooling tower
                system is no longer effective and should be decommissioned. It has decided the best course
                of action is to replace that system with just individual units in each lot without a central system.
                The air-conditioner units currently in each lot would not function without the cooling tower and
                so must be replaced to enable the cooling tower to be decommissioned. Because of the
                current integration to the main system, the replacement of the air-conditioners cannot occur on
                a lot by lot basis. The proposed approach was a staged one, starting with level one and two.
                As the replacement of the air-conditioning units in each lot is caused by the decommissioning
                of the whole building system, it is a necessary part of the replacement of that system. I agree
                that it is appropriately funded by the Body Corporate.



         21
              Section 20 of the Commercial Module
         22
              As defined in the Dictionary in Schedule 6 of the Act


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4GVTKGXGFHTQO#WUV.++QP/CTEJCV                                                              8GTKH[XGTUKQP


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Signed by AustLll

{83} The applicants note the Body Corporate does not have a noticeboard. There is no legislative
requirement for a body corporate to maintain a noticeboard. If a body corporate does have a
noticeboard, notices of committee meetings should be posted on the noticeboard*' however
there is no similar provision regarding general meetings. The existence or otherwise of a
noticeboard at North Point is irrelevant to the validity of notice of the EGM.

(84) Finally, while they do not suggest that they were confused as to where to send their own votes,
the applicants claim the EGM notice was misleading as to where to send voting papers. This is
not explained and | am at a lost to understand where any confusion could arise. The voting
instructions clearly direct owners to send their votes to the secretary care of SSKB, via mail,
fax or in person. While the covering page for the notice package included multiple SSKB this is
simply letterhead. The EGM agenda and the voting paper provide only one address and one
facsimile number. The instructions are eminently clear.

Validity of the EGM motions

(85) It is apparent that the original air-conditioning system, including the cooling tower and the pipes
connecting to the system to lots, is utility infrastructure providing a utility service. The definition
of ‘utility infrastructure’ includes “...cables, wires, pipes, sewers, drains, ducts, plant and
equipment by which lots or common property are supplied with utility services.” A ‘utility
service’ includes (in part) water supply, air conditioning, drainage or another system or service
designed to improve the amenity or enhance the enjoyment of lots or common property.”

{86} Section 20 of the Act provides that all utility infrastructure contained within the scheme is
common property, except in specified circumstances. In general terms section 115(1) of the
Commercial Module requires a body corporate to maintain common property. Section
115(3)(b) obligates a lot owner to maintain utility infrastructure (including where on common
property) where it only supplies a utility service to the owner's lot. Additionally, section 126(4)
of the Commercial Module specifies that “The owner of a lot ... must maintain the utility
infrastructure wthin the boundaries of the lot, and not part of common property, in good
condition and, if it is in need of replacement, must replace it.”

(871) Because the cooling tower and pipes are on common property and service multiple lots, they
are a Body Corporate responsibility. For as long as the original air-conditioning system exists
(that is, until it is entirely decommissioned and removed) the Body Corporate must maintain it.
The proper maintenance of the system includes an obligation to upgrade or replace with an
equivalent alternative if that is appropriate.

(88) The applicants comment that there was no engineering report on the air-conditioning system
and no life-cycle costs. However through Motion 6, the Body Corporate has engaged
consulting engineers to oversee the project. The applicants have not specifically asserted that
the upgrade to the Body Corporate’s infrastructure was not required or should have been
undertaken in some different manner. Therefore, there is simply insufficient evidence to
determine that the Body Corporate’s decision to upgrade was unreasonable.

(89] While the individual air-conditioning units in each lot are the responsibility of the lot owner, they
are joined to the cooling tower system. The Body Corporate has decided that the cooling tower
system is no longer effective and should be decommissioned. It has decided the best course
of action is to replace that system with just individual units in each lot without a central system.
The air-conditioner units currently in each lot would not function without the cooling tower and
so must be replaced to enable the cooling tower to be decommissioned. Because of the
current integration to the main system, the replacement of the air-conditioners cannot occur on
a lot by lot basis. The proposed approach was a staged one, starting with level one and two.
As the replacement of the air-conditioning units in each lot is caused by the decommissioning
of the whole building system, it is a necessary part of the replacement of that system. | agree
that it is appropriately funded by the Body Corporate.

2" Section 20 of the Commercial Module
2 As defined in the Dictionary in Schedule 6 of the Act

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