Victoria Square [2001] QBCCMCmr 208 (6 April 2001)

C G YOUNGREFERENCE: 0670-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5721
Name of Scheme:	Victoria Square
Address of Scheme:	15 Victoria Avenue BROADBEACH QLD 4218

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

C G YOUNGI hereby order that –

1. the co-owners of both Lot 12 and Lot 13, Offa Australia Pty Ltd and Matsuzaka Restaurant Pty Ltd, must within three (3) months of the date of this order engage a suitably qualified tradesperson or other service provider, to complete the repair (including any necessary replacement of parts, equipment or fixing materials) of the exhaust fan system servicing the “House of India” restaurant situated on the two lots; and

2. the repairs must be carried out in accordance with the requirements specified by EMF Griffiths Pty Ltd, Engineering Consultants, in its report to the body corporate of March 1999; and

3. the co-owners must advise both the body corporate committee and Body Corporate Services Pty Limited, Southport, in writing within one (1) month of the date of this order, of the steps taken by them to engage a tradesperson or other service provider.

I further order that –

4. if the body corporate, in its sole discretion, is not satisfied with the advice given by the co-owners in accordance with part 3 above, or the advice is not given at all; or

5. if the advice is given and accepted but the co-owners do not pursue the work, or the work is not completed within the three (3) months specified,

the body corporate may carry out the work itself to the required standard by engaging such tradesperson or other service provider as it considers capable of carrying out the work, and it and the person or persons engaged in connection with the work may enter upon the two lots at such times as are necessary to carry out the work, after written notice to the co-owners (or their nominee as shown on the body corporate roll) given at least seven (7) days from the commencement of the work but without any further notice until the work is completed; and the full cost of the repair work, including all reasonable administration expenses incurred by the body corporate, must be paid by the co-owners, Offa Australia Pty Ltd and Matsuzaka Restaurant Pty Ltd, to the body corporate, and if unpaid within a reasonable time of being given notice of the amount, being not less than two (2) weeks, may be recovered jointly or severally from the co-owners as a debt owing to the body corporate.2y


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0670-2000

“Victoria Square” CTS 5721

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

“The Body Corporate seeks an order that the owners of Lots 12 and 13 be required to rectify the exhaust fans serving these lots in such a way as to comply with By-law 2 which provides that an occupier must not create any noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or common property.”

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 respondents, Offa Australia Pty Ltd and Matsuzaka Restaurant Pty Ltd, are the co-owners of Lots 12 and 13. The “House of India” restaurant operates from these lots. It is one of four restaurants comprised in the commercial part of the scheme, which were identified as operating exhaust fans at an unacceptable level of noise. Owners of residential lots have complained over a long period about the noise, particularly their operation at night.

The applicant has supplied a copy of an acoustics report dated 25 November 1998 carried out by Palmer Acoustics Pty Ltd, Consulting Acoustic Engineers & Scientists, Brisbane. This report was sought by the body corporate in response to the noise complaints. The report identifies a fan used by the “House of India”, amongst others, as requiring acoustic treatment. The body corporate then engaged consulting engineers, EMF Griffiths Pty Ltd, who investigated and reported on the noise problems. The applicant has also supplied a copy of that report of March 1999. In it the engineering company outlines the steps necessary to rectify the noise problems in four restaurants, Ming Palace, Aztec, Medinas and the House of India. The applicant states that the rectification cost at that time was around $6,000 for each fan. These four shared the cost of the acoustics report.

The nominee for the four restaurant properties, Gerrard Cassar of Ray White Tugun, Real Estate Agents, was, both as nominee and a committee member, a party to discussions on the rectification work necessary. Work was initially carried out to the exhaust fan for Ming Palace in late 1999 and the result is an acceptable noise level. Similar repairs should have been carried out to the exhaust fan system for the House of India, however despite notice being served on the respondents as the owners of the relevant lots, no response has been given to the body corporate.

The body corporate has also supplied a copy of a letter from the Queensland Government Environmental Protection Agency dated 20 March 2000, advising of complaints against the House of India over the noise of the exhaust fan.

A copy of the application was sent to Mr Cassar, as nominee for the respondents, on 30 November 2000 and, upon advice of it not having been received, a further copy was faxed on 26 March 2001. With no response being received by the extended submission date, Mr Cassar was contacted. He advised having made known the application to the respondents but that no response would be made to the application.

It seems to me that, given the history of the matter (including the involvement of the respondent’s nominee) and in particular the reports of experts concerning the equipment, the respondents would in any case not have been able to mount a sustainable defence to the application. It seems to me that the respondents have deliberately delayed the repairs for money reasons and in so doing have caused a continuation of the noise nuisance to other owners. The applicant body corporate has referred to the respondents being in breach of By-law 2 which provides that an occupier must not create any noise likely to interfere with another’s peacefully enjoyment of their lot or the common property. Section 129 of the Act similarly requires that -

ú

Nuisances

129. The occupier of a lot included in a community titles scheme must

not use, or permit the use of, the lot or the common property in a way

that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot

included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common

property by a person who is lawfully on the common property.

I find that the respondents are in breach of the legislation and the body corporate by-laws and therefore have a joint obligation to carry out such repairs as are necessary to the exhaust fan system servicing the House of India restaurant situated on Lots 12 and 13, to remedy the unacceptable noise level. I have allowed the respondents a period of time, reasonable in the circumstances of delay, in which to have the repairs (including any necessary replacement of parts, equipment or fixing items) carried out to the standard described by the consulting engineers, EMF Griffiths Pty Ltd. However, in order that the period is not merely used to further delay the repairs, I have ordered that the respondents are to notify the body corporate committee and the Body Corporate Manager, Body Corporate Services Pty Limited, Southport, of the steps taken to engage a suitable tradesperson within a month of the date of this order. The body corporate must be satisfied that the steps taken are such that the rectification will be completed within the time allowed otherwise the body corporate can have the work carried out and may recover the full cost, including any reasonable administration expenses of its own, from the respondents.

I consider these conditions are warranted in the circumstances. The respondents will need to act quickly if it wishes to avoid incur the additional expenses involved in the body corporate have the work carried out.