Henley [2001] QBCCMCmr 287 (29 May 2001)

RA MeekREFERENCE: 0111-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5588
Name of Scheme:	Henley
Address of Scheme:	25 Imbros Street NUNDAH QLD 4012

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

Anthony Marcus Paul and Anne Carse Paul, the owners of lot 26

RA MeekI hereby order that the application by Anthony Marcus Paul and Anne Carse Paul, the owners of lot 26, for an order that the Body Corporate lodge a request with the registrar of titles for the recording of a new CMS to remove by-law 51 from the Community Management Statement for Henley CTS 5588 on the grounds that it is oppressive, unreasonable and / or discriminatory, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0111-2001

“Henley” CTS 5588

The applicants, Anthony Marcus Paul and Anne Carse Paul, the owners of lot 26, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We seek an order pursuant to section 223 of the Body Corporate and Community Management Act 1997, that the Body Corporate lodge a request with the registrar of titles for the recording of a new CMS to remove by-law 51 from the Community Management Statement for Henley CTS 5588 on the grounds that it is oppressive, unreasonable and / or discriminatory.

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 do not intend to restate the applicant’s grounds. There are known to the body corporate who is the respondent to this application. On behalf of the respondent, the committee has made a submission opposing the application.

Briefly, relevant facts appear to be that the applicants became owners in the scheme in 1994, but did not occupy in their lot until 2000. In 1999, the body corporate recorded a new CMS which included a by-law 51. It is this by-law to which the applicants object, and seek an order that the body corporate lodge a new CMS which does not incorporate the by-law. Its appears to be accepted that the applicants did not object to the motion which proposed the new CMS containing the by-law, at the time the motion was considered by the body corporate in general meeting. I do not consider it necessary to restate the terms of the by-law.

The applicants are relying on the terms of the section 223(3)(i) which provides that an adjudicator may, if satisfied a by-law is, having regard to the interests of all owners and occupiers of lots included in the scheme, oppressive or unreasonable, order the body corporate to lodge a request with the registrar for the recording of a new CMS removing the by-law. Any order of an adjudicator is subject to the overriding proviso in section 223(1) that it “just and equitable in the circumstances to resolve a dispute”.

There are various technical arguments put to me by the committee including that the application is out of time, and that the provisions of section 193 are applicable. The applicants in their reply deny this, and say that the application is not caught by the section. I don’t consider it necessary to descend to technical aspects of this type in determining this application.

Having considered all the material placed before me relating to this application, I have come to the conclusion that it should be dismissed. In essence, the applicants, who have the onus of establishing that the by-law is oppressive or unreasonable, not only to them, but having regard to the interests of all owners and occupiers of the scheme, have failed to persuade me that the by-law is so.

The motion, proposing the CMS, which included the by-law the subject of this application, was approved by resolution without dissent (not unanimous as has been suggested to me – this form of resolution no longer exist). Given this, it is difficult to contemplate how the by-law could be said to be oppressive or unreasonable having regard to the interests of all owners and occupiers of the scheme. Whilst it might (my emphasis) have been open to me to find on the applicant’s material that the by-law was oppressive or unreasonable so far as it applied to them, I consider the applicant’s material fails to objectively establish that the by-law is oppressive or unreasonable having regard to the interests of all owners and occupiers. In fact, very specific by-laws like by-law 51 are usually included so as to protect the interests of all owners. This line of argument is strengthened in my view by the fact that owners at Henley specifically voted to adopt a CMS incorporating this by-law. It is not a by-law inherited from the developer.

There are two other major lines of argument run in the applicant’s material. Firstly, that there is no form of covering other than carpet that would satisfy the standard established in the by-law, quote –

There does not appear to be any IIC tested, commercially available, non-fibre floor product in Australia that will achieve IIC 65 at Henley.

The applicants express a clear and singular preference for timber flooring.

The committee’s submission contradicts this finding to the extent that it contends that the applicants have not considered all available floor covering alternatives to carpet. The body corporate submits that –

... the Paul’s application ... also overlook the availability of carpets which claim to be suitable for eradicating dust mites, and synthetic carpets and cleaning techniques which are shown to be an effective therapy for prevention of asthma in patients allergic to dust mite excreta.

I note that in their reply to the submission of the committee, the applicant’s do not respond to this aspect of the application. In my view, based on the material provided by the committee, I consider this aspect to be very relevant. I conclude that the applicants are single minded in the desire / intention to install timber flooring, and consequently have not fully considered other possible alternatives.

The second line of argument run by the applicants is the health implications of having carpet floor coverings. The applicant’s evidence on this aspect is strongly challenged in the committee’s submission. The committee has sought a report from an Ian Frazer, Clinical Immunologist, and Professor of Medicine at the University of Queensland. The report challenges the medical evidence provided by the applicants, and certain conclusions regarding the applicant’s medical condition. I acknowledge that the applicants have responded that “Anthony Paul’s medical condition has not been examined by Professor Frazer, nor any other third party doctor on behalf of the body corporate committee. Accordingly, our clients do not accept that any doctor (other than Anthony Paul’s own doctor) is able to comment on what measures are appropriate.”

I disagree with the above statement to the extent that I consider I am able to rely on several aspects of the expert evidence provided by Professor Frazer. Certainly, Professor Frazer appears to considerably downplay the significance of carpets as the habitat of dust mites. He states –

The major source of house dust mites is the mattress of a person’s bed, as the mites feed on skin scales shed by the person sleeping in the bed. Carpets can also be a source, if they are unclean. The mites need food to survive, and the food they need is the shed skin of people living in the house.

The report concludes with –

As a compromise to removal of carpets or rugs, patients often use synthetic carpets, and have them cleaned regularly. A medical survey of recent research literature demonstrates that this is an effective therapy for prevention of asthma in patients allergic to house dust mite.

Based on the evidence available to me, I am simply not convinced that the only solution to the applicant’s medical condition is the removal of carpets.

I am not satisfied that the application is either oppressive or unreasonable, and accordingly, I intend to dismiss this application.