Tamborine Plaza [2000] QBCCMCmr 261 (6 June 2000)

C G YOUNGREFERENCE: 0019-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9039
Name of Scheme:	Tamborine Plaza
Address of Scheme:	PO Box 141 NORTH TAMBORINE QLD 4272

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

C G YOUNGI hereby order that the application for an interim order that 2nthe owners of Lots 9 and 10 are to restore to its former condition that part of the common property verandah roof adjacent to the lots, by the removal of the paint from the underside of the roof, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0019-2000

“Tamborine Plaza” CMS 9039

The applicant is the body corporate and has sought the following interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote –

It was agreed at the AGM held on 17-11-99 that the structure be returned to its original state. We would like this order reinforced. Helen South has advised she will not restore the structure.

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)).

Before proceed to the substance of the dispute, there is a jurisdictional matter that I need to deal with initially. The respondent, Helen South, has correctly pointed out that the applicant has only named herself as respondent in the matter though she owns Lots 6 and 9 co-jointly with Ian Garth Graham as tenants in common, while he alone owns Lot 10. The business of “Lane Realty” operates from Lots 9 and 10. As the dispute concerns the rectification of paintwork done adjacent to these lots it therefore is a matter involving both owners and both should have been named as respondents. She seeks the matter be struck out on that ground.

This office did initially contact both the secretary and chairperson as representatives of the applicant body corporate, to review this nomination. Most of the delay in addressing this application is attributable to our difficulty in obtaining a satisfactory response. Even now the most recent inquiry of the office on 10 April remains unanswered. Regardless, I am of the opinion that in accordance with the provisions of section 220(3)(b) of the Act, I should assume jurisdiction and determine the application. This provision requires that an adjudicator “must act quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application”.

The body corporate wants the respondent to remove the yellow and brown paint applied to the underside of the verandah roof attached to the subject lots. The verandah consists of bullnose corrugated metal roofing supported by wooden rafters and battens. The yellow roofing was originally unpainted and the woodwork was a lighter brown than it is now painted. The original raw metal roof and light brown woodwork still feature for the remainder of the building.

The body corporate has attached copies of correspondence in support of its application. A reading of these shows that the primary concern of the body corporate is that all of the scheme buildings should have their original uniform appearance. The body corporate submits that: the painted verandah surfaces outside the subject lots are clearly visible from Main Street and detract from the overall façade of the buildings; if owners wish the underside area painted then it should be a matter for the body corporate to decide the appropriate colours, not just the respondent; and it does not want to bear the cost of having to paint all of the underside roof area to match the respondent’s colours.

The body corporate has given notice to the respondent to remove the paint but the respondent has refused to do so. As supporting authority for its notice, the body corporate has relied on two by-laws, By-law 8 concerning the appearance of a scheme building, and By-law 5 concerning damage being done to the common property in various ways, including painting. Both of these by-laws are part of the statutory by-laws set out in Schedule 1 to the Act.

However the body corporate is in error in believing Schedule 1 to be its by-laws. As a building units plan in existence at the commencement of the new Act on 13 July 1997 (having been registered on 14 June 1984), the transitional provisions of the Act provides that its former by-laws are preserved. That is, the by-laws set out in Schedule 1 of the new Act do not replace the former by-laws of “Tamborine Plaza”. Its current by-laws are those that were passed in general meeting on 22 June 1984 and subsequently recorded by the Registrar on 11 July 1984. The body corporate should obtain a copy of these by-laws (and a further additional by-law recorded on 1 November 1990 which concerns water charges).

By- law 14 is identical to the incorrect “By-law 5” quoted by the body corporate, but there is no equivalent to “By-law 8”.

By-law 14 states in part –

“ 14 Damage to common property.

A proprietor or occupier of a lot shall not...paint...any structure that forms part of the common property except with the consent in writing of the Body Corporate...”.

The fact that the body corporate quoted the wrong by-law in its notice to the respondent is of no real consequence in my consideration of this dispute as a breach of a by-law occurs whether or not the offender knows of the existence of the by-law (section 53 of the Act simply provides that owners are bound by the by-laws of their body corporate).

Apart from the breach of By-law 14, the respondent has also interfered in the maintenance of common property (the verandah) which is the responsibility of the body corporate. Section 37 of the Act provides that common property is owned by all of the owners as tenants in common. Section 114 then provides that it is the body corporate which must administer, manage and control it, reasonably and for the benefit of owners. Accordingly, only the body corporate, and not individual owners, can make decisions regarding maintenance work such as painting of its external surfaces.

Section 109 of the Standard Module regulation (which is the regulating module for the scheme) requires that the body corporate, “must maintain common property in good condition”. That is, the body corporate has a duty to maintain the common property.

The body corporate has offered copies of correspondence between the respondent and the secretary as supporting evidence for its grounds. It did not inspect or reply to the respondent’s submission to its application.

In particular, it has not offered any evidence to rebut certain allegations of the respondent contained in two of the letters it attached to its application. These allegations concern the lack of maintenance work and planning carried out by the body corporate over the past few years. While the letters, and the respondent’s submission to the application, also refer to other areas where maintenance is required, the requirement for painting of the verandah areas is a repeated claim. Her letter dated 21 September 1999 addressed to the secretary, and her submission to the application with attached minutes, both deal in length with the state of the verandah roof and the need for maintenance by painting. Her submission is supported by photographs of both the painted area and adjoining verandah areas, from which the rusting of the roof on both the upper and under surfaces is clearly evident.

The respondent has also referred to other breaches of by-laws by other occupiers and asks why she has been singled out for attention. These matters include the alternative use of a disabled toilet area, chairs and tables on the common property, sale goods displayed on the common property, installation of equipment on common property without proper approval, and replacement of common property tiles with ones of a different colour. I do not intend to deal with these matters as they are not part of the application and the respondent has seemingly only raised them in seeking to establish that she has been unfairly discriminated against by the committee.

In summary, it appears to me that the body corporate is correct in its contention that the respondent (and her co-owner in Lot 9, Graham, and Graham as the owner of Lot 10) had no authority to paint the roof and in doing so both interfered with common property and breached By-law 14.

It is also my opinion that maintenance of the roof has been necessary for some time and that the body corporate has failed in its duty under the legislation to maintain the roof in “good condition”. The records show that at least the committee members were aware of the need for maintenance, namely some rectification of the rust problem and protection against it reoccurring by the application of paint or some other treatment. The respondent only acted to paint the roof in the absence of any response by the body corporate to her request to rectify and maintain it. Although wrong her action is understandable – her proper course was to have lodged an application against the body corporate to discharge its duty.

In the circumstances I have not ordered that the respondent, or Graham, must restore the veranda to its original state by removal of the paint. However, the body corporate has the statutory authority to determine how the maintenance of the roof must be carried out and in doing so it may determine to remove the paint or to paint over it with a different colour. The whole of the roof is in need of maintenance and the body corporate should make an early decision in this regard.

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.