La Porte D'Or [2000] QBCCMCmr 197 (18 April 2000)

P J HANLYREFERENCE: 0119-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Friston Pty Ltd, the owner of lot 182



I hereby order that the application for an interim order that:

a) the body corporate and/or Building Rectification Services Pty Ltd arrange for the immediate removal of all equipment and scaffolding be removed from the applicant’s property;

b) the body corporate and/or Building Rectification Services Pty Ltd arrange for the removed glass panels in the pool area and outside/court area of the property be immediately reinstated;

c) the body corporate and/or Building Rectification Services Pty Ltd not enter the applicant’s property without providing the notice specified in the Body Corporate and Community Management Act

is dismissed.

I further order that the body corporate has given appropriate notice to the applicant under section 125 of the Act to allow an authorised person/persons to enter the applicant’s lot to carry out work the body corporate is authorised to carry out.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0119-2000

“La Porte D'or” CMS 12681

The applicant, Friston Pty Ltd has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

a) the body corporate and/or Building Rectification Services Pty Ltd arrange for the immediate removal of all equipment and scaffolding be removed from the applicant’s property;

b) the body corporate and/or Building Rectification Services Pty Ltd arrange for the removed glass panels in the pool area and outside/court area of the property be immediately reinstated;

c) the body corporate and/or Building Rectification Services Pty Ltd not enter the applicant’s property without providing the notice specified in the Body Corporate and Community Management Act

The applicant, has also sought an interim order of an adjudicator in similar terms.

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 ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant states, in essence, that

a) the body corporate and/or Building Rectification Services Pty Ltd (BRS) was not given permission to enter the lot and erect scaffolding and equipment

b) the applicant has expressly informed the body corporate that it is not authorised to place scaffolding and equipment on the lot

c) the body corporate has not complied with the requirements of section 125 of the Act as is alleged by its solicitors

d) section 125 of the Act does not apply as the work does not relate to work to be undertaken on the property

e) the body corporate is presently not authorised to undertake the intended works on the building and in fact is expressly prohibited from conducting such works

f) the body corporate has unlawfully placed the equipment and scaffolding on the applicant’s lot

g) the scaffolding and equipment remain on the property despite numerous requests by the applicant for its removal

The body corporate committee was invited to respond to the application. A response was received from the body corporate’s solicitors, in which various allegations of fact in the application were disputed. The solicitors provided some detail as to the areas of disputation. The solicitors commented on the applicant’s conclusions as follows:

a) The body corporate denies the allegation that the applicant did not give permission to the body corporate to place equipment and scaffolding on the applicant’s property

b) The applicant only informed the body corporate of the objections to the scaffolding after the scaffolding was erected, by which time the removal of the scaffolding would have involved considerable expense on the part of the body corporate

c) The body corporate has complied with section 125 of the Act, in that it received permission to enter the lot, and therefore the requirement of seven days notice was waived, and further, the matter is an emergency and therefore does not require notice

d) It is irrelevant that the work does not directly relate to the owner’s lot, as this is not a requirement for the application of section 125 of the Act

e) The body corporate is now authorised to carry out the intended works

f) Because of the above matters, the body corporate is entitled to place the equipment on the applicant’s lot

In addition, the committee provided an affidavit sworn by one Shane Belden, a person contracted by the body corporate to carry out maintenance work. Mr Belden’s affidavit related to a telephone conversation which was alleged to have taken place between Mr Belden and Mr Jack Seaton, a director of the applicant company.

The solicitors for the applicant replied to the committee’s response. The assertions made on behalf of the body corporate were denied generally, and the submissions made in the original application were reiterated. In addition, certain denials were made on behalf of Mr Seaton in respect of the telephone conversation with Mr Belden. Subsequently, Mr Seaton swore an affidavit in respect of these matters.

I do not propose to set out in detail all of the material before me. The background to the application is well known to all parties.

I note that there is some dispute as to the exact nature of the telephone conversation which took place between Mr Belden and Mr Seaton. It is not possible in this forum to properly test such evidence, however, I am satisfied that although there may have been some misunderstanding on Mr Seaton’s part as to the extent of the work involved when Mr Belden sought permission to enter the lot, Mr Seaton did nonetheless give permission to access the lot “for the purpose of patching cancerous concrete on (his) lot”. As the lot extends over three levels, at or about the 33^rd floor of the building, I consider that a reasonable assessment of the equipment required to carry out the work, even if it were limited to the applicant’s lot, would include some form of scaffolding and a hanging stage, since the cancerous concrete was on the exterior surface of the building. I am therefore further satisfied that Mr Belden was entitled to conclude that Mr Seaton had given permission for BRS to enter the lot, and that BRS was entitled to erect such scaffolding and equipment as was necessary to carry out the work. On that basis, I find that the scaffolding and equipment has been lawfully erected on the applicant’s lot.

I also find it difficult to accept the assertion that “at all material times, Mr Seaton believed that the authorised works were of a minor nature ...”. The notice of meeting sent to all owners prior to the extraordinary general meeting held on 17 February 2000 contained a detailed explanatory note and report from the chairperson as to the structural repairs. Furthermore, the expenditure of approximately $460,000.00 tends to suggest works of a significant nature.

The applicant also asserts that the body corporate has not complied with section 125 of the Act, in that it did not give notice of its intention to enter the applicant’s lot after the applicant demanded that the scaffolding and equipment be removed from the lot. The applicant also asserts that BRS ignored the applicant’s express objection to the erection of the scaffolding and equipment. As stated above, I am satisfied that the applicant did give permission, through Shane Belden, for BRS to enter the lot.
I am further satisfied that the scaffolding and equipment was already erected by the time the applicant expressed an objection to its presence (see the letter dated 28 February 2000 from Andersen Legal to the chairperson). I am further satisfied that the body corporate gave notice under section 125 by letter dated 23 February 2000 addressed to Mr Seaton. Section 125(1)(b) does not, in my view, limit “work” to the lot in question, but is, rather, a global reference to work that the body corporate is authorised or required to carry out. In this instance, the body corporate was initially authorised to carry out certain work on the whole building, then, by my order dated 6 March 2000, that work was halted for what amounted to a technical defect in the manner of authorisation, and, subsequently, after owners were afforded the opportunity to vote on separate motions for the work in question, the body corporate was once again authorised to carry out the work which had been commenced. The body corporate sent a further notice under section 125 to the applicant on 30 March 2000. By that time, the body corporate had properly authorised the work in question, and the applicant is not now entitled to obstruct BRS in carrying out that work.

In all of the circumstances, I have dismissed the application. In addition, I have ordered that the body corporate has given appropriate notice to the applicant under section 125 of the Act to allow an authorised person/persons to enter the applicant’s lot to carry out work the body corporate is authorised to carry out.

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 applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.