Maria Creek Estate [2000] QBCCMCmr 112 (29 February 2000)

C G YOUNGREFERENCE: 0719-1999

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	PO Box 108 KURRIMINE BEACH QLD 4871

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Ivan ANDRIJEVIC and Carmelina ANDRIJEVIC, as the co-owners of Lot 4,


C G YOUNGI hereby order that the application for an interim order that Peter Alfred George HABLETHWAITE, a co-owner of Lots 2, 3, 5, 6, 7, 8 and 9, stop hindering and harassing tradespersons carrying out work for Ivan and Carmelina ANDRIJEVIC, the co-owners of Lot 4, is dismissed.2y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0719-1999

“Maria Creek Estate” CMS 25253

The applicants, Ivan and Carmelina Andrijevic of Lot 4, have sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

That P Hablethwaite stop hindering and harassing us and any tradespeople who are or will be carrying out work on our behalf whilst engaged in building our house on Lot 4.

The applicants have not requested a final order that is in substance any different to the above interim order. Item 10 on the application form, where applicants are asked to state the order they are seeking, contains the general statement, “We require an order to stop P Hablethwaite meddling in affairs that are not his concern.” which, from the context of the remainder of the application, is merely a restatement of the behaviour being complained of in the interim order being sought above. I therefore intend to regard the above interim order as the sole matter to be determined in this application. The grounds to the application contain a number of general complaints against the respondent Peter Hablethwaite including harassment, his unreasonable interpretation and application of the by-laws, and his desire to change the by-laws to suit himself.

This is one of two applications concerning “Maria Creek Estate” for which orders are being issued concurrently. The other is a joint application by the applicants and the co-owners of Lot 1, Michael John Taifalos and Shirley Matthews, being Application 515-99. In the “Statement of Adjudicator’s Reasons for Decision” (“the Reasons”) to the order made in respect of that joint application, Order 515-99, I have set out a short history of the issues and disputes concerning this scheme. It also includes an explanation as to the cause of the delay in the current applications being determined.

Many of the comments in the Reasons (to Order 515-99) are relevant to this application, particularly the general complaints referred to above, and should be read in conjunction with these reasons.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain such ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

While the matter in dispute would have been of an urgent nature to the applicants at the time of lodgement, within the meaning of section 225, that is now some 2 months ago. The delay has not been of the applicants’ making and I propose to proceed in issuing an interim order. While the application has been dismissed, it seems likely the problem will re-occur as the applicants continue constructing and making improvements to their house and lot generally, and therefore these reasons may assist the parties generally in understanding their respective positions.

The original and current owners of seven of the nine lots comprising the scheme, Peter and Marcia Hablethwaite, responded to an invitation by this office to address the matters raised in the application.

The applicants state that they had engaged an electrician to install electrical power to their lot, but the respondent Peter Hablethwaite had intervened to prevent him completing the installation, citing By-law 9 as his authority for taking the action. By-law 9 states -

9. The Architectural Garden Review Committee is to supervise and recommend to the Body Corporate on all matters pertaining to the presentation, maintenance and use, interference etc., of the common property including the services thereon, the maintenance of the E.U. areas and the general tidiness of the lots as well as the duties imposed by the CM Statement. The Body Corporate is to consider and decide all recommendations.

The applicants say that the electricity was finally connected after consultation with the respondents however the interruption and subsequent consultation had resulted in an increase in the electrician’s charge. The applicants question Hablethwaite’s professed concern that the connection raised safety issues in view of advice given them by the Safety Inspector that there were no safety issues involved.

The applicants real concern now is that the respondent is going to hinder future construction work on their home, and any improvements to the lot, under the guise of exercising necessary and appropriate restraints as decided by the Architectural Garden Review Committee (hereafter “Review Committee”), a committee which currently comprises Peter and Marcia Hablethwaite.

The respondents have submitted that the connection, which brought power to a water-bore motor installed on the applicant’s lot, had raised safety concerns in the minds of the Review Committee members. The members (the respondents) envisaged the possibility of the body corporate being joined by the applicants in an action against them in consequence of a person being electrocuted because the electrical installation was faulty.

By-law 9 does not have the clarity that is necessary in a by-law and should be reviewed – see the relevant comments regarding a general review of by-laws in my Reasons to Order 515-99. The legislation does not preclude the setting up of special purpose committees such as the Review Committee, which should be more correctly termed a sub-committee, but equally the legislation does not make specific provision for such bodies. However, the fact that the Review Committee is merely a recommending body (see later comments) and has no power to decide or implement matters, makes its status of no consequence.

Because the electricity connection has now been made there is no point in my pursuing this particular matter further. What is important to the applicants, in their words, is that the respondent stops “hindering and harassing us and any tradespeople who are or will be carrying out work on our behalf whilst engaged in building our house on Lot 4.”

The legislation imposes the responsibility of maintaining the common property in a scheme on the body corporate. Section 37 of the Act states that the common property is owned by the scheme owners as tenants in common, but section 87 provides that it is the body corporate which administers the common property (and the body corporate assets) for the benefit of the owners. The body corporate must also enforce the community management statement (including the by-laws), though must “act reasonably” in doing so. Section 114 defines the duties of the body corporate as including one to “administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners.”

Accordingly, the body corporate is charged with the duty to administer the common property and it does so through its elected committee. The committee is restricted by the legislation both as to the amount it may expend (see section 103 of the Standard Module regulations) and with respect to certain matters (see “restricted issues”, section 26 of the Standard Module); the body corporate may also restrict the committee dealing with certain matters (see section 26(c) of the Standard Module). A committee’s decisions are, of course, subject to the paramountcy of the body corporate in general meeting.

By-law 9, as a by-law with subsidiary powers, cannot endow the Review Committee with any power beyond that of the body corporate itself. Therefore the decisions of the Review Committee concerning, for example, the use...of the common property..(and)..the services thereon, must also be, in terms of sections 87 and 114 of the Act, subject to the same requirement of being reasonable and for the benefit of lot owners.

The present situation is that the respondents constitute the voting majority of the body corporate in general meeting, the committee and the Review Committee. The respondents also have a sufficient voting and lot entitlement majority to pass special resolutions, including those required for the changing of general by-laws through replacing the community management statement (“CMS”). The respondent is in effect both the creator and, in the practical experience of the other owners, the interpreter of the by-laws.

The respondents’ dominant position in all three scheme bodies is perfectly legal, however, for example, Peter Hablethwaite would be acting beyond his powers if in applying a by-law, he did not do so in a reasonable manner.

In the instance of the electrician being prevented from installing power for the applicant, it is my opinion that the respondent Peter Hablethwaite, acting apparently in the name of the Review Committee, did not act in a reasonable manner or for the benefit of owners. It would have been in order for the Review Committee to question the owner, and the owner’s service provider, to determine whether the person held the requisite licence, but that should have been the extent of the action when it was found the appropriate licence was held. It is not a reasonable application of the by-law to require an owner to use a particular electrician nominated by the Review Committee. Providing the proposed work is within the law, owners have the right to employ the electrician or other tradesperson of their choice both within their lot and in accessing utility service infrastructure sited on the common property.

If the matter were still a live issue then I would have had no hesitation in ordering the Review Committee, and the respondents, not to interfere further with the applicant’s electrician in his work. While the by-law lacks the clarity by-laws should have, its intention is within power and therefore my order would have been based on its incorrect application and not its validity.

Having said that, I repeat earlier comments that the by-law only permits the Review Committee to make recommendations on the matters provided for in the by-law. The recommendations must then be either approved or dismissed by the “body corporate” which under By-law 8 is defined as the body corporate in general meeting. In using the word “vote”, the by-law does not specify the type of resolution required though presumably it is an ordinary resolution. The Review Committee is therefore not empowered either to make decisions or to enforce by-laws. The legislation obliges the body corporate to enforce its by-laws (see section 87(1)(b) of the Act) and, in providing for the election of a committee to carry out the day to day administration of the scheme, thereby provides for the committee to carry out that duty.

Whether or not the Review Committee on the occasion of the electrician incident did follow the process set down in the by-law, and members actually met, decided the matter and made a recommendation, is unknown, but obviously there was no general meeting called (at least 21 days notice necessary) to approve the course of action that was taken. What is worthy of note here is that the process I have described clearly shows the impracticality of the by-law in operation. The wording in Schedule D of the CMS, “The Body Corporate is to establish an Architectural and Garden Review Committee to oversee the relevant clauses in the By-laws.” does not, and can not, inject the power of by-law enforcement into By-law 9. If the term oversee is meant to imply “enforce” then it is in conflict with the terms of the by-law itself and the actual terms of the by-law prevail.

While I believe the electrician instance was an incorrect application of the by-law, I do not intend to make a general order against either the Review Committee or the respondents in respect of interference which may or may not happen again. An order of such a general nature would do no more than restate what is the duty of the body corporate and its executive bodies. Applications may, however, be lodged to provide relief to an owner where there has been a misapplication of the by-law in a particular instance. The above comments will assist owners (including the applicants and the respondents) in understanding how by-laws must be applied.

My order is therefore a simple dismissal of the application which, as I have previously pointed out, only seeks the one order.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicants, is final in its determination of this matter. If the applicants consider that an appeal of this decision is warranted, then they should appeal the interim order.