Huntington Apartments [2000] QBCCMCmr 36 (28 January 2000)

RA MeekREFERENCE: 0612-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11170
Name of Scheme:	Huntington Apartments
Address of Scheme:	10 Marine Parade, Southport QLD 4215

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

Janet Alice Hill, the co-owner of lot 49

RA MeekI hereby order that the application by Janet Alice Hill, the co-owner of lot 49 for an order as to whether the body corporate committee could enforce the 3^rd level BBQ pool and garden area to be closed at 6 pm when the by law states 10 pm, is dismissed for the reasons set out in the Statement of Adjudicator’s Reasons for Decision. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0612-1999

“Huntington Apartments” CTS 11170

The applicant, Janet Alice Hill, the co-owner of lot 49, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Can the body corporate committee enforce the 3^rd level BBQ pool and garden area to be closed at 6 pm when the by law states 10 pm.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). 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 that –

The chairman sent out letters to all owners and residents advising 3^rd level BBQ Pool and garden area will be closed 6 pm new years eve. When the body corporate by-law 43 states “the outdoor swimming pool shall not be used between the hours of 10 pm – 7 am”. There was no mention in the minutes of the committee meeting held 21^st September 1999. Yet the chairman’s letter said the committee wish to convey a decision. How can the committee close the BBQ 3^rd level at 6 pm?

In response to the application, I have received submissions from all committee members, excepting Mr N Stoddart, who I understand is no longer a member of the committee.

There are two issues. Firstly, did the committee make a determination regarding the issue. Secondly, is this determination inconsistent with by-law 43, and consequently invalid.

On the first issue, I consider that the evidence, including confirmation by all current committee members, supports the view that the matter was discussed extensively at the committee meeting held on 21 September, which the applicant did not attend, but was then inadvertently not mentioned in the minutes of that meeting. This omission was corrected in the minutes of the committee meeting held on 19 October 1999. I note that there is no information provided by the applicant in her reply to submissions to rebut this conclusion. I consider that the applicant might have sought to clarify the matter with other committee members, before resorting to her action of writing to all owners and residents, as she did.

The second point of the applicant is that the determination by the committee is contrary to by-law 43, and consequently invalid. I disagree with this view. That by-law provides that the outdoor swimming pool shall not be used between the hours of 10 pm and 7 am. This by-law should not be interpreted as entitling owners and occupiers to an absolute right to use the pool during all other hours. It is a by-law regarding standard pool usage hours.

It is my view that a decision of the committee could override the requirements of the standard by-law, if common sense or practicality required such determination. For example, if the pool filter had failed, and the use of the pool became hazardous to health, on the applicant’s argument, the by-law would prevent its closure. The body corporate (which includes the committee) is charged with the administration, management and control of the common property, reasonably and for the benefit of owners (see section 114 of the Act). On the basis of this duty, I take the view that the body corporate committee might restrict use of the pool contrary to the standard use hours, if circumstances rendered it reasonable and necessary that this be done. In the circumstances, this application is dismissed. n