Chillawong [2000] QBCCMCmr 389 (1 August 2000)

P J HANLYREFERENCE: 0214-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6098
Name of Scheme:	Chillawong
Address of Scheme:	Coombabah

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

Joy Naomi Jacka, the owner of lot 2

I hereby order that within 1 month of the date of this order the owners of lot 1, John Clarke and Joyce Hazel Clarke, shall, at their own expense, remove the fence constructed by them without body corporate approval on the common property.

I further order that within 1 month of the date of this order the owners of lot 1, John Clarke and Joyce Hazel Clarke, shall, at their own expense, remove the steel spikes from the edge of the common driveway immediately in front of the lattice screen.

I further order that the application for orders that:

•

The proprietor of lot 2 (at her own cost and expense) remove the plants and shrubbery from the northern fence line from her exclusive use area to a point which is approximately ¾ of the total distance from the exclusive use area to the letter box, and that red gravel (or some other material to be agreed upon between the parties) be laid in the area marked in red in figure 4 (at her cost and expense) and that friends and trades persons visiting the proprietor of lot 2 can stand their vehicles in this area.

•

The management of the body corporate be placed with a local body corporate manager (to be chosen at the discretion of the Commissioner) and that representatives of the body corporate manager be appointed to the role of treasurer and secretary.

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0214-2000

“Chillawong” CTS 6098

The applicant Joy Naomi Jacka, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that

•	The proprietor of lot 2 (at her own cost and expense) remove the plants and shrubbery from the northern fence line from her exclusive use area to a point which is approximately ¾ of the total distance from the exclusive use area to the letter box, and that red gravel (or some other material to be agreed upon between the parties) be laid in the area marked in red in figure 4 (at her cost and expense) and that friends and trades persons visiting the proprietor of lot 2 can stand their vehicles in this area.
•	The proprietor of lot 1 be ordered to remove all fencing erected on common property (i.e. the fencing, lattice screen and drop spikes pictured in photograph 2.
•	The management of the body corporate be placed with a local body corporate manager (to be chosen at the discretion of the Commissioner) and that representatives of the body corporate manager be appointed to the role of treasurer and secretary.

Section 223(1) of the Act 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 original supporting grounds the applicant provided a great deal of background information, which essentially highlighted the unsatisfactory relationship between the parties. The applicant then consulted a solicitor, who submitted supplementary grounds and amended orders. In the supplementary supporting grounds, the applicant’s solicitor states that the applicant has difficulty exiting her garage and driving to the road along the common driveway because the owners of lot 1 have constructed a fence along the edge of the common driveway. The applicant’s solicitor further states that the owners of lot 1 have also harassed visitors and tradespersons attending at the applicant’s lot because the visitors and tradespersons have parked their vehicles outside of her lot on the common driveway, although not in a position which would impede the owners of lot 1 if they needed to exit their garage. The applicant’s solicitor concludes by expressing the view that the level of animosity which exists between the parties could be diffused by placing the management of the body corporate with a local body corporate manager, to be chosen at the discretion of this office, and that representatives of the body corporate manager could be appointed to the roles of treasurer and secretary.

The owners of lot 1 were invited to respond to the application. Their separate submissions also confirmed that the relationship between themselves and the applicant is unsatisfactory. Although they were invited to do so, the owners of lot 1 did not respond to the supplementary grounds and amended orders submitted by the applicant’s solicitor.

I inspected the scheme on 15 June 2000 and noted the fence which has been erected by the owners of lot 1 on common property. I also noted the positioning of the garages and the width of the common driveway, as well as the proliferation of plants and ferns along the fence side of the common driveway.

This scheme was registered on 17 May 1989, and the registrar of titles recorded a Change of By-Laws on 8 August 1989. One of the new by-laws was by-law 36 which allocated specified exclusive use areas to each of lots 1 and 2. The area of exclusive use allocated to lot 1 was at the rear of the lot on the southern side, and comprised an area of 30 square metres. The area of exclusive use allocated to lot 2 was at the side and the rear of the lot on the northern, eastern and southern side, and comprised 134 square metres. No further by-laws have been recorded for the scheme, and no community management statement has been lodged. Accordingly, as at 13 July 2000, the interim community management statement, which incorporated the previous by-laws, automatically became the community management statement for the scheme, and still incorporated the previous by-laws.

The owners of lot 1 purchased their lot in February 1991. Accordingly, they should have been well aware that the only exclusive use area allocated to their lot was the area to which by-law 36 referred. The owners of lot 2 at that time were Mervyn Walter Bauer and Shirley May Bauer. On 2 May 1992, shortly before the Bauers sold lot 2 to Herbert Egon Krenkal and Annette Williams, the Bauers agreed to certain improvements being made to lot 1 by the owners of lot 1. I have been provided with a copy of a letter dated 2 May 1992, signed by Mr Bauer, which states as follows:

Re: Construction of Pergola at Unit 1

I the undersigned being owner of lot 2 at above address do hereby declare that I have no objections to erection of pergola to unit 1 where required.

Yours sincerely

M.W. Bauer

Also installation of air conditioner.

M.W.B.

I assume that the pergola which was constructed as a result of this approval was that which appears at the front of lot 1. The trellis screens at the front of lot 1 and adjacent to lot 1’s garage certainly do not fall within the description of a pergola, and are not specified in the letter from Mr Bauer, however, I am prepared to concede that such screens may have been loosely contemplated to be part of the pergola construction to which Mr Bauer agreed. The screens were certainly in place when the applicant purchased her lot. The Building Units and Group Titles Act 1980 (BUGTA), which was the governing legislation at the time that the pergola and the screens were erected, provided for the making of improvements to common property by an owner of a lot in section 37A as follows:

Improvement etc. to common property by proprietor of lot

37A.(1) A body corporate may, upon such terms as it considers

appropriate, at the request of a proprietor of a lot, by resolution without

dissent, authorise the proprietor of the lot to effect improvements (including

erect or install fixtures and fittings) in or upon the common property for the

benefit of that proprietor.

(2) The proprietor for the time being of a lot in respect of which any

improvement in or upon the common property has been effected pursuant

to an authority granted under subsection (1) shall, unless excused by the

body corporate, be responsible for the performance of the duty of the body

corporate under section 37(1)(c) in respect of the improvement.

The only minutes of meetings provided to me by the owners of lot 1 are those of the annual general meetings held on 13 June 1991, 6 September 1996 and 3 May 1999. However, since there are only two lots in this scheme, and since the owners of lot 2 had agreed to the pergola and the air conditioner, then it is apparent that if a motion had been considered at a properly convened general meeting of the body corporate, then it would have been passed by resolution without dissent. I am therefore of the view that the pergola at the front of lot 1, the air conditioner installed in the side wall near the garage of lot 1 and the lattice screens at the front and near the garage of lot 1 have been authorized by the body corporate, notwithstanding that there has not been strict technical adherence with BUGTA.

The same cannot be said of the recently constructed fence, which has effectively annexed a large area of common property to the exclusive use of lot 1. This fence has been constructed since the applicant purchased her lot, and there is certainly no suggestion that her approval was ever sought. The current act, the Body Corporate and Community Management Act 1997, also requires that an exclusive use by-law be passed by a resolution without dissent. This has not occurred. The applicant complains that her ability to exit from her garage has been severely hampered by the lattice screen near the garage of lot 1 and by the newly constructed fence. I have already determined that the lattice screen had been approved by the body corporate (when the body corporate comprised of the Bauers and the Clarkes) and I do not propose to order that the screen be removed, particularly as it was already in place when the applicant purchased her lot.

I do propose to order that the owners of lot 1 remove the fence, at their expense, because no exclusive use has been granted to the area enclosed by the fence, and also because I consider that the fence restricts access on the common driveway, particularly in view of the tight turning circle available to the applicant when she reverses her vehicle from her garage. I do not accept that the owners of lot 1 were compelled to construct the fence because their lives had been threatened, as they have alleged. Furthermore, if a genuine threat had been made, then it is unlikely that a fence with a gate leading to the front door of lot 1 would be regarded as much of a deterrent.

I also propose to order that the owners of lot 1 remove the steel spikes, which they have placed in front of the lattice screen, as I consider that the presence of the spikes is totally unnecessary, and very unsightly. It seems that the spikes have been positioned to ensure that a vehicle exiting from the garages does not damage the lattice screen. If a vehicle exiting a garage damages the lattice screen, then the person causing the damage should be responsible for repairing the damage. However, none of the material before me suggests that the screen has ever been damaged in the past.

The applicant has also sought an order that she be allowed to remove the plants and shrubbery from the northern side of the common driveway, in order to create an area upon which vehicles can stand. I do not propose to make such an order, as I do not consider that it would resolve the issues in dispute between these parties. The area in question is common property, and if the area were to be converted into a standing (or parking) area for the applicant’s friends or tradespersons then the area would effectively become an area for the exclusive use of the applicant. This could not be done unless the body corporate approved of it by a resolution without dissent.
If the area were to be converted to a general visitor parking area I am quite confident that the parties would continue to disagree over it. In any event, I consider that the ability to exit either of the garages would be significantly hampered by a vehicle parked on the northern side of the common driveway.

It should also be noted that the by-laws of this body corporate provide that an owner or occupier shall not park or stand any vehicle upon common property except with the consent in writing of the body corporate. The applicant has referred to an order made by me on 21 May 1999 in application number 0643-1998, in which I dismissed an application made by the owners of lot 1 for an order, amongst other things, that vehicles cannot park or remain unattended in the driveway. The applicant may not have had the opportunity of reading the reasons accompanying my order, in which I stated as follows:

The prohibition on parking or standing vehicles on common property does not extend to the exclusive use area allocated to each of the lots. Accordingly, if the owners of lot 2 wish to drive a vehicle through the newly installed double gates and park on the exclusive use area, they are at liberty to do so. Having done so, they should always ensure that the gates are then closed again, so as to maintain the appearance of the fence. In my view any vehicle parked behind the paling fence would not be visible from the outside to the casual observer. They also must not allow a vehicle to stand or park on the common property area which comprises the driveway leading to both lots. I note, however, that there is no evidence before me that they have been allowing a vehicle to stand or park on the driveway. (emphasis added)

In other words, the only reason that that part of the application was dismissed was because there was no evidence that the then owners of lot 2 were in fact allowing vehicles to stand or park on common property. The order was not intended to, and does not in fact, convey that owners are allowed to park or stand vehicles on common property. However, having said this, I can only observe that the behaviour of the owners of lot 1 in relation to various of the applicant’s visitors, and to the applicant’s gardener, in particular, has been most inappropriate. I have been provided with statements of two of the applicant’s friends, and of the applicant’s gardener. The theme is similar in all instances. The owners of lot 1 need to be aware that no matter what the by-laws may say, they are not at liberty to resort to verbal abuse, or actual violence, in attempting to enforce those by-laws. They are also not at liberty to park immediately behind a vehicle which may be standing on the driveway, thereby preventing it from leaving, as they did to the applicant’s gardener. There is no evidence before me that the owners of lot 1 have ever been prevented from exiting their garage. Under normal circumstances, I would urge both the applicant and the owners of lot 1 to act sensibly in relation to these matters, but it is quite apparent that such a recommendation would be absolutely ineffectual. Having read the material from both sides, even the most casual observer would conclude that relations between these parties have irrevocably broken down. Accordingly, if there are breaches of the by-laws then the remedy available to the parties is to make an application to this office for an order

The applicant has also requested that I order that the management of the body corporate be placed with a local body corporate manager, who could also fulfil the roles of treasurer and secretary. This office does not appoint body corporate managers. Only the body corporate can engage a person as a body corporate manager (see section 87 of the Standard Module). I do consider that it may lessen the acrimony which exists between these parties if a body corporate manager were to be appointed, because then the parties could avoid any contact with each other, and communicate through an objective third party, however that is a matter which must be considered at a properly convened general meeting.

In that regard, I note that there has not been an annual general meeting held for this scheme since 1999. Furthermore, I consider it unlikely that the owners are even aware that the financial year for this scheme is determined by reference to section 276(9) of the Act, which in turn dictates the timing of the annual general meeting (section 60 of the Standard Module). In addition, previous meetings have not dealt with the matters required to be considered under section 45 of the Standard Module, nor, it would seem, has proper notice been given of any meetings which may have been held. These are further reasons that it would be advisable for the owners to consider appointing a body corporate manager to ensure proper compliance with the Act and the Standard Module. (In this regard, I note that the applicant’s solicitor referred to the Small Schemes Module. Although this scheme only comprises two lots, the Small Schemes Module does not automatically regulate it. Upon commencement of the current Act, all existing schemes acquired an interim community management statement, regulated by the Standard Module. A scheme such as this one could then adopt the Small Schemes Module only if it followed the procedure laid down in section 55 of the Act. That procedure has not been followed to date.)

The other issue, which appears to require clarification, is the composition of the committee in this scheme. I note from the material provided to me that Mr Clarke considers himself to be secretary/treasurer of the body corporate, although the minutes of the annual general meeting held on 3 May 1999 do not record whether both lot owners agreed that he should occupy those positions. The minutes also do not record who was to occupy the position of chairperson.

Section 11 of the Standard Module provides as follows:

When committee is chosen

11.(1) The choosing of the members of the committee must happen at

each annual general meeting of the body corporate.

(2) Subsection (1) does not apply for an annual general meeting if, when

the annual general meeting is held—

(a) there are only 2 lots included in the scheme, and the 2 lots are in

identical ownership; or

(b) there are only 2 lots included in the scheme, and the 2 lots are in

different ownership; or

(c) there are 3 or more lots included in the scheme, and all of the lots

are in identical ownership; or

(d) there are 3 or more lots included in the scheme, and there are only

2 different owners for all the lots.

(3) If subsection (2)(a) or (c) applies, the committee is a committee of 1

consisting of the individual who is the owner, or the nominee of the owner,

of the lots, and the individual holds all the executive positions on the

committee.

(4) If subsection (2)(b) or (d) applies, the committee consists of

2 individuals who are owners, or the nominees of owners, of lots, and they

must decide between themselves who are to hold the positions of the

executive members of the committee (and, if they cannot agree, the

positions of the executive members are jointly held by both of them).

(5) If, under subsection (3), at the first annual general meeting of the

body corporate the committee formed at the meeting consists of only

1 individual, the committee may be chosen at an extraordinary general

meeting held before the next annual general meeting after the first annual

general meeting.

(6) This division applies to an extraordinary general meeting mentioned

in subsection (5) as if the extraordinary general meeting was the next annual

general meeting after the first annual general meeting. (emphasis added for ease of reference)

As is evident, the owner of lot 2 and one of the owners of lot 1 shall comprise the committee, and they will jointly hold the positions of the executive members of the committee unless they agree otherwise. Once again, in light of the short but bitter history of the relationship between the parties, I consider it highly unlikely that these parties could work harmoniously. This is an even more compelling reason for the parties to consider appointing a body corporate manager.

The final matter upon which I propose to comment is in relation to the garden which has been established on the common property. Although the owners of lot 1 have established the garden, it belongs to the body corporate because it is located on common property. The applicant has complained that some of the shrubbery on the northern side of the common driveway has scratched her car. In such a case, then the shrubbery obviously requires trimming. The owners of lot 1 cannot prevent this from occurring. Once again, however, care should be taken to ensure that the overall appearance of the garden is preserved. All parties should also note that the maintenance of the garden is a body corporate responsibility. If, as seems unlikely, the parties were able to agree that they should care jointly for the garden, then there would be no problem in maintaining it. However, in the absence of agreement, then it may be necessary for a gardener to be engaged by the body corporate. The cost of a gardener’s wages would be payable from body corporate funds. As the body corporate does not appear to have established a body corporate bank account, the appointment of a body corporate manager would seem to be all the more necessary.