Kalang [2001] QBCCMCmr 245 (10 May 2001)

RA MeekREFERENCE: 0750-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13869
Name of Scheme:	Kalang
Address of Scheme:	Allambi Rise NOOSA HEADS QLD 4567

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


RA MeekI hereby order that the application by the Body Corporate for Kalang, for an order that within one month of the date of the order of the adjudicator, the occupier of unit 2 “Kalang” at its expense, and in a proper and workmanlike manner, using proper materials shall reinstate the external appearance of unit 2 as closely as possible to its original colour scheme and appearance, so that the external appearance of unit 2 is consistent with the external appearance of all other units in the building, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0750-2000

“Kalang” CTS 13869

The applicant, the Body Corporate for Kalang, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Within one month of the date of the order of the adjudicator, the occupier of unit 2 “Kalang” ... at its expense, and in a proper and workmanlike manner, using proper materials shall reinstate the external appearance of unit 2 as closely as possible to its original colour scheme and appearance, so that the external appearance of unit 2 is consistent with the external appearance of all other units in the building.

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)).

The applicant summarises its position in the following terms –

... it is submitted ... that the proprietor of unit 2 is in direct contravention of by-law 5 of the Third Schedule By-laws in the Building Units and Group Titles Act 1980 as the proprietor of unit 2 did not seek the consent of the Body Corporate prior to attending to the work on the external appearance of that unit. As outlined above, By-law 5 is incorporated as a by-law that was current at the time of the work attended to by the owner of that unit.

One aspect I wish to correct immediately is that the by-laws which applied to this body corporate under the previous legislation (the Building Units and Group Titles Act 1980) continue to apply to the body corporate notwithstanding the commencement of the current legislation, the Body Corporate and Community Management Act 1997. There is no three year period, after which the standard by-laws contained in the Act commence to apply. The original standard by-laws continue to apply to this body corporate unless and until the body corporate records a new CMS which adopts new or amending by-laws.

The by-law on which the body corporate seeks to rely is by-law 5 which provides relevantly that “a proprietor ... shall not mark, paint, drive nails ... into ... any structure that forms part of the common property except with the consent in writing of the body corporate”. The body corporate had formerly sought to rely on the terms of by-law 8 of the Schedule 2 by-laws to the Act headed “Appearance of lot”. I suggest that this by-law is far more apposite to the circumstances of which the body corporate now complains in that it refers to changes in the external appearance of a lot. However it is the terms of by-law 5 and not by-law 8 which apply.

By-law 5 refers to “any structure that forms part of the common property”. I consider that no part of the improvements effected by the owner of lot 2, Garnett Holdings Pty Ltd, forms part of the common property. The plan shows that the terrace for lots 1 and 2 forms part of those lots. The external boundary of lot 2 and common property is the front half wall of the terrace. It is not the wall separating the terrace from the rest of the lot, as the body corporate appear to have assumed. As well, in respect of the covering of the wooden patio eaves, this area is located against the boundary separating lots 2 and 4. The boundary of a lot with another lot is the centre of the floor, wall or ceiling. The white covering has been attached to the very underside of the ceiling of lot 2. It is well below the centre of the slab floor or roofing structure separating lots 2 and 4. Again it is within the boundaries of lot 2, and does not include any part of the common property.

For the above reasons, no part of the improvements made by the owners of lot 2 affects any structure that forms part of the common property. By-law 5 has no application, and this application is dismissed.




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