Ellenmac [2001] QBCCMCmr 113 (23 February 2001)

RA MeekREFERENCE: 0683-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16423
Name of Scheme:	Ellenmac
Address of Scheme:	150 Swann Road TARINGA QLD 4068

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

William Raymond Stone, the company nominee of Belmoree Pty Ltd, the owner of lot 13

RA MeekI hereby order that the application by William Raymond Stone, the company nominee of Belmoree Pty Ltd, the owner of lot 13, for orders, in effect, that -

1. Consent by the body corporate committee to the rooftop pergola;

2. Reimbursement for painting to weather proof the pergola and walls of unit 13,

is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0683-2000

“Ellenmac” CTS 16423

The applicant William Raymond Stone, the company nominee of Belmoree Pty Ltd, the owner of lot 13, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1.	Consent by the body corporate committee to the rooftop pergola;
2.	Reimbursement for painting to weather proof the pergola and walls of unit 13.

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)).

I consider that the background to this application is known to both parties, and I do not intend to restate it in any detail. Suffice to say, the applicant, who is the owner of lot 13, is seeking two orders. The first that the committee consent to the rooftop pergola. It is noted that the committee is being asked to consent to the construction following its completion and approval by the Brisbane City Council. Approval by the BCC is irrelevant to the inquiry of whether the committee should be ordered to consent to the construction.

The applicant provides three reasons for why the original pergola was taken down –

1. For rust removal treatment of the steel beams carrying the timbers;

2. Beams were badly warped due to lack of timber spacers, and

3. “Most importantly the owners whilst fixing the pergola’s defects wished to vary the structure on re assembly allowing fall for water run off if a tarpaulin cover was used to stop water falling upon and penetrating the deck slab”.

The body corporate view of the construction is that the applicant “against the clear and expressed wishes of committee members ... proceeded to remove existing common property pergolas and construct his own elevated and obviously special purpose roofing framing inconsistent with existing original common property structure”.

Whilst I do not have absolute confirmation that the roof involved is common property, it seems clear that it is, and I intend to assume this based on the fact that in the case of a building format plan as here, the boundary of a lot with common property is the centre of the floor, wall or ceiling. Consequently, in the case of most building format plan buildings, the roof forms part of the common property for which the body corporate is responsible. The body corporate statement above is emphatic on this aspect.

The standard module provides that improvements to common property for the benefit of a lot requires a special resolution of the body corporate in general meeting (see section 114). It is not within the power of the committee to authorise the roof structure constructed by the applicant, even if it wanted to.

The matter must be referred to the body corporate in general meeting for determination. As I indicated a special resolution is required. If a special resolution is not obtained, it is then for each party (ie. the applicant and the body corporate) to consider their position. The application for approval of the committee to the structure is therefore dismissed.

The second part of the application relates to reimbursement for painting to weather proof the pergola and walls of unit 13. It seems that the applicant seeks $500 in respect of this aspect. The applicant states –

As the paint work on the reinstated structure has a guarantee to the year 2004, long beyond the time were the original structure would have been repainted, and given that the Dogbone Beams were rusting and in need of painting by the body corporate I should like to be reimbursed the $500 for this work as per the invoice supplied.

The body corporate has responded in respect of the painting that -

The fact remains that the painting was not authorised and moreover those costs were associated with Mr Stone’s unauthorised actions. All costs, including painting are properly the responsibility of Mr Stone.

I agree. The applicant is not entitled to be reimbursed for work it undertook on a unilateral basis. If the work was properly the responsibility of the body corporate, then the applicant should have sought that the body corporate undertake the work. I therefore dismiss this second aspect of the application.


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