Hillside Place [2000] QBCCMCmr 9 (13 January 2000)

C G YOUNGREFERENCE: 0538-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17852
Name of Scheme:	Hillside Place
Address of Scheme:	9 Chester Street HIGHGATE HILL QLD 4101

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

Fiona BUCKNALL, a co-owner of Lot 6,

C G YOUNGI hereby order that the application for an order that the body corporate upgrade the common property antenna, is dismissed.2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0538-1999

“Hillside Place” CTS 17852

The applicant, Fiona Bucknall of Lot 6, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) for the common property television antenna to be repaired to a standard where it provides effective reception for all television channels.

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 supporting grounds, the applicant states that the common property television antenna only provides effective reception for 3 television channels. She telephoned the Body Corporate Manager, Barard Management Pty Ltd, in March 1999 complaining of the problem. In response the Body Corporate Manager obtained a written quote from Brisbane Aerial Services Pty Ltd dated 29 March 1999, quoting a cost of $360 to rectify the problem by attaching the existing antenna to a 15 foot mast and moving the extended antenna to a different roof location. The Body Corporate Manager telephoned the Chairperson who decided against upgrading the antenna on the grounds that, (1) all other owners have installed their own antennae and would derive no benefit from the upgrade, and (2) the applicant could alternatively have her own antenna repaired or upgraded to the standard she required.

The applicant states that she installed an individual antenna after originally being told by the Body Corporate Manager that the common antenna was not going to be fixed. I note that the applicant and Kevin Bucknall became the registered owners of Lot 6 on 28 September 1998. “Hillside Place” comprises 11 lots and was registered as a building units plan on 9 November 1994.

It appears to me that the common antenna has not provided the quality of reception to owners that can be considered satisfactory. Individual owners have over a period of time installed their own antenna to overcome the problem, and perhaps to extend the scope of their reception to include stations such as SBS and Briz 31 which require UHF antenna enhancement. The situation now is, from the evidence before me, that all owners have their own antenna.

The addition of the mast to the common antenna is not merely a repair of existing common property but an improvement. Such a decision would require either the approval of the committee (the cost falls within the committee’s statutory expenditure limit of $1100) or the body corporate in general meeting (see section 114 of the Standard Module). In view of the use made of individual antennae it seems unlikely this course will be adopted.
In the circumstances I do not believe that a case exists for me to order that the body corporate must upgrade the common antenna. The Body Corporate Manager has advised in its submission that a motion on the question of upgrading the common antenna is to be put to the annual general meeting being held next month. This will also remedy the informality of the decision of the chairperson. The proposal for a motion on the matter to be considered by owners is the appropriate manner in which to resolve this issue. My order is therefore that the application be dismissed.