Spinnaker [2001] QBCCMCmr 569 (14 November 2001)

P J HANLYREFERENCE: 0400-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11573
Name of Scheme:	Spinnaker
Address of Scheme:	85 Mooloolaba Esplanade MOOLOOLABA QLD 4557

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

John Geehan Cox and Daphne Gwen Cox, the owners of lot 9


I hereby order that the body corporate shall permit the owners of lot 9, John Geehan Cox and Daphne Gwen Cox, to retain the glassed-in balcony of lot 9, authorised by the body corporate at the annual general meeting held on 5 June 1982.

I further order that the owners of lot 9, John Geehan Cox and Daphne Gwen Cox, shall be permitted, at their own expense, to renew the glassed-in balcony of their lot to update it in keeping with the new look of the scheme.

I further order that the owners of lot 9, John Geehan Cox and Daphne Gwen Cox, shall continue to be responsible for all repairs and maintenance to the glassed-in balcony, in accordance with the previous authorisation of the body corporate given at the annual general meeting held on 5 June 1982.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0400-2001

“Spinnaker” CTS 11573

The applicants, John Geehan Cox and Daphne Gwen Cox, the owners of lot 9, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We are seeking an opinion from you of our rights regarding the request from the body corporate to remove our balcony and our request to upgrade the balcony.

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 applicants state that they purchased their lot from the original owner on 22 December 2000. The applicants further state that the contract of sale included a disclosure statement which revealed that the glassed-in balcony had been approved by the body corporate on 5 June 1982, and the owner advised them that the balcony was allowed to stay. The applicants further state that at the annual general meeting held on 2 June 2001, their motion to upgrade the glassed-in balcony in keeping with the new look of the building was defeated. The applicants further state that the body corporate has now requested that the glassed-in balcony be restored to its original state.

The body corporate manager, the body corporate committee and all owners were invited to respond to the application.

In her submission the body corporate manager stated that “the body corporate submits that the owners of lot 9 be ordered to remove the glassed-in section of the balcony and restore to its original condition in accordance with the instructions and intent of the body corporate recorded in the minutes of the previous annual general meetings (specifically 1980, 1981 and 1982), to allow the body corporate to upgrade the balcony so that it will be in keeping with the rest of the building.”

Numerous owners also responded by signing a pro-forma letter prepared by the body corporate manager. The essence of the joint submission was that a great deal of money had been spent in recent years to bring the building to a certain standard and the belief that the glassed-in balcony detracts from the appearance of the building and thereby lowers the value of all units. The further submission was that “it was always (the signatories) belief that this balcony would be removed when the previous owner sold and the upgrade of (all) balconies has consequently been timed to coincide with her departure.”

It is not contested that the minutes of the meeting held on 5 June 1982 record that Mrs Stone, the then owner of lot 9, was granted permission to leave her balcony glassed in. The resolution was expressed in this manner because Mrs Stone had proceeded to have the balcony glassed-in, notwithstanding that on two previous occasions the body corporate had denied permission. It is also not contested that the minutes record that no further balconies were to be glassed-in. In addition, the minutes record that owners were requested to advise new or potential owners as to that resolution. It is this last notation in the minutes upon which the committee, and a large number of owners, apparently rely to lend support to their view that the permission given to Mrs Stone was limited to Mrs Stone, and was to be withdrawn upon the sale of the lot by Mrs Stone. I do not agree. The minutes record unequivocally that Mrs Stone was granted permission to leave her balcony glassed-in as it by then was. If the body corporate had intended that the permission was to be limited to Mrs Stone, then the motion should have stated as much. I do not regard the fact that the motion mentioned Mrs Stone by name as imposing such a limitation. Furthermore, if it was intended that Mrs Stone (or any purchaser) return the balcony to its original state upon the sale of the lot, the motion should have also stated that intention. It did not do so, and the applicants are, in my view, entitled to take the plain-english meaning of the resolution. The request that owners advise new or potential new owners as to the resolution that no further balconies were to be glassed-in was obviously made in order to emphasise the fact that a precedent had not been set by virtue of the permission given to Mrs Stone.

The applicants have also referred to the disclosure statement included in their contract for the purchase of the lot from Mrs Stone. The statement accurately records what is contained in the minutes of the annual general meeting held on 5 June 1982. It also records the other authorisations affecting common property. I note with interest that none of the owners (and particularly not the new owner of lots 4 and 7) is suggesting that the authorisations given to install air-conditioners in lots 4 and 7, for example, might have been limited to the period of ownership of the then owners of the lots in question.

I therefore propose to order that the body corporate shall permit the owners of lot 9 to retain the glassed-in balcony for which the body corporate gave permission on 5 June 1982.

Turning then to the question of whether the applicants should be permitted to upgrade the glassed-in balcony of their lot, I note that the motion considered at the annual general meeting held on 2 June 2001 described the work as being “to update it in keeping with the new look of the building” with “all sections ... in grey powder coating ... at no cost to the body corporate.” Based upon the photographs provided in the body corporate manager’s submission, I consider that upgrading the enclosure with sections in grey powder coating will ensure that the work blends in as well as possible with the surrounding balconies, upon which new safety rails have recently been installed. I have therefore ordered accordingly.2y