137 Moray Street [2002] QBCCMCmr 176 (8 April 2002)

DJ ReardonREFERENCE: 0159-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14470
Name of Scheme:	137 Moray Street
Address of Scheme:	137 Moray Street NEW FARM QLD 4005

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

Emanuel Theo Cassimatis, the Owner of Lot 15


I hereby order that the application for the following interim order of an adjudicator, quote-
“The body corporate or its agents are not to gain access to my premises until the order sought in paragraph 10 has been considered”
is dismissed

I further order that the application for the following order of an adjudicator, quote-
“The body corporate to use an alternative method of painting the building, which does not require the use of my premises”
is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0159-2002

“137 Moray Street” CMS 14470

1.	Orders Sought

The applicant, the Owner of Lot 15, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“The body corporate to use an alternative method of painting the building, which does not require the use of my premises.”

The applicant has also sought the following interim order of an adjudicator, quote -

“The body corporate or its agents are not to gain access to my premises until the order sought in paragraph 10 has been considered.”

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The community management statement for the “137 Moray Street” community titles scheme identifies the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) as the regulation module that applies to the scheme.

2.	Matters in Dispute

It is apparent from the material before me that at the annual general meeting of the body corporate held on 11 December 2001, the body corporate resolved to engage OPAT Consolidated Services Pty Ltd (“OPAT”) to carry out significant maintenance and repairs of the common property for the scheme.

In order to carry out this work, OPAT have proposed that a swinging stage scaffold be suspended from the roof. I understand that part of Lot 15, which is located on the top floor of the building, is a large, open patio. As a result, the body corporate wish to access and utilise the patio area for the purposes of carrying out the proposed work, including placing swinging stage hangers on the patio area from which the swinging stage will be suspended. In a letter to the applicant dated 6 March 2002, the body corporate sought the applicant’s consent to the proposed access.

In the supporting grounds to the application, the applicant expresses a view that “it is not practicable for anybody (the body corporate included) to require access to a particular unit in a building, in
order to effect repairs etc to the entire building”. The applicant goes on to state “the reasons for this are obvious...eg absence of owner etc”. The applicant also suggests other means of carrying out the work, such as the use of a cherry picker or abseiler.

3.	Summary of material

This dispute resolution application was made on 12 March 2002. The Body Corporate Manager for the scheme made a written submission about the application on behalf of the committee, which was received by this office on 21 March 2002.

Pursuant to section 196 of the Act, the applicant obtained a copy of the committee’s submission. The applicant has replied to the submission in a letter received on 4 April 2002.

In a letter dated 26 March 2002, I requested further information from the Body Corporate including the notice and minutes of a relevant general meeting. The Body Corporate manager provided the requested information on behalf of the committee under cover of a letter dated 27 March 2002. A copy of this further material was provided to the applicant on 4 April 2002.

4.	Power of entry

Section 125 of the Act provides a person authorised by the body corporate with a power to enter a lot included in the scheme for particular purposes. The purposes for which the power of entry to a lot may be exercised are stated in sections 125(1)(a) and (b) which are outlined below.

“125 Power to enter lot

(1) A person (an “authorised person”) authorised by the body

corporate for a community titles scheme may enter a lot included in the

scheme, or common property the subject of an exclusive use by-law, and

remain on the lot or common property while it is reasonably necessary—

(a) to inspect the lot or common property and find out whether work

the body corporate is authorised or required to carry out is

necessary; or

(b) to carry out work the body corporate is authorised or required to

carry out.”

Section 125(2) allows the power of entry to be exercised at any time in an emergency, and in other cases, after at least 7 days notice of the intended entry is given to the relevant owner or occupier. Specifically, section 125(2) provides the following:

(2) The power of entry may be exercised—

(a) in an emergency—at any time; and

(b) in other cases—

(i) for entry to the lot mentioned in subsection (1)—at a

reasonable time after at least 7 days notice of the intended

entry has been given to—

(A) the owner of the lot; or

(B) if the owner is not in occupation of the lot—the

occupier of the lot; and

(ii) for entry to the common property mentioned in

subsection (1)—at a reasonable time after at least 7 days

notice of the intended entry has been given to—

(A) the owner of the lot to which the exclusive use by-law

attaches; or

(B) if the owner of the lot mentioned in

sub-subparagraph (A) is not in occupation of the

common property—the occupier of the common

property; and

(iii) in compliance with the security or other arrangements or

requirements ordinarily applying for persons entering the

lot or the common property.

Section 125(5) of the Act stipulates, “A person must not obstruct an authorised person who is exercising or attempting to exercise powers under this section. Maximum penalty for subsection (5)—20 penalty units.”

5.	Power of entry and the current dispute

From a reading of the application and supporting grounds, it does not appear that the applicant disputes that the repair and maintenance work proposed by the body corporate is necessary or proper. Rather the applicant’s main objections are that it is unreasonable for the body corporate to require access to an individual lot, and the body corporate should adopt alternate means of carrying out the work that do not require access to Lot 15. In addition, in the applicant’s reply to the committee’s submission, the applicant expresses a concern about the potential damage to tiles on Lot 15 if the work is allowed to be carried out as proposed.

Section 125 of the Act outlined above, clearly contemplates that in some circumstances it is both reasonable, and necessary for the body corporate to require access to an individual lot for the purposes of carrying out work that the body corporate is authorised or required to carry out. However, I do appreciate and acknowledge the concern owners or occupiers of lots may have in allowing persons access to their lots.

In this case, the body corporate manager has confirmed in the further information provided to me that OPAT do not require access to the internal aspects of Lot 15. Rather, access will be to external balconies and patios that form part of Lot 15. Further, in the committee’s submission the body corporate manager has confirmed that the committee has “gone to considerable lengths to ensure all damages that may be sustained during work will be covered by the contractor or their sub-contractors.” I am of the view that generally, if parts of a lot are damaged in the course of carrying out work authorised by the body corporate, it is the responsibility of the body corporate to rectify the damage that is caused. However, I would hasten to add, that this does not of course prevent the body corporate from pursuing a claim against the contractor or tradesperson that actually caused the damage in question.

In this case, I am of the view that the disruption that will be caused to Lot 15 (if I allow the work in question to be carried out as proposed) will be relatively minimal, and that any consequential damage caused to tiles or other aspects of Lot 15 will be the responsibility of the body corporate or OPAT to rectify.

The applicant also expresses a view that an alternate means of carrying out the work should be adopted. The body corporate manager (on behalf of the committee) has provided me with a description of the methods investigated by the committee including abseiling, standing scaffolding, scissor lifts and cherry pickers, as well as an explanation on why the swinging stage method is preferred by the committee.

Briefly, the Body Corporate Manager states that the reasons that alternative methods to the swinging stage were not selected are as follows:

•	Abseiling-contractors were reluctant due to safety concerns;
•	Standing scaffolding-the potential cost of $55000-$75000 was prohibitive;
•	Scissor lifts- limitations in height of operation, and potential damage to driveways as a result of the weight of the machine; and
•	Cherry Pickers-potential damage to driveways due to the weight of the machine.

In his reply to the committee’s submission, the applicant states that cherry pickers have been used in the past to carry out maintenance to the building, and further, to the applicant’s knowledge there was no resultant damage to the driveway.

In my view, section 125 of the Act outlined above enables the body corporate to authorise a person to enter a lot where entry is reasonably necessary to carry out work required of, or authorised by the body corporate. The power of entry to a lot is not limited to situations where there is absolutely no alternative way of carrying out the work.

While I accept that cherry pickers may have been used previously to carry out maintenance work, it appears to me that the committee has taken reasonable steps to investigate and consider alternate ways of carrying out the current proposed repair and maintenance work. While methods other than the swinging stage may be possible, I am satisfied that the committee has reasonably relied upon the advice of OPAT that the swinging stage method is an economical way of carrying out the work. While I appreciate and do not wish to detract from the applicant’s concerns about allowing access to his lot, I am satisfied that the body corporate has acted reasonably and in accordance with section 125 of the Act.

6.	Conclusion

In the circumstances, I am satisfied that the access to Lot 15 being sought by the body corporate on behalf of OPAT is reasonable and lawful. As such, I am not prepared to prevent the body corporate from authorising OPAT to access Lot 15 for the purposes of carrying out the repair and maintenance work as proposed. As a result, I intend to dismiss the application for an interim order. This also effectively disposes of the final order sought by the applicant, which was an order that the body corporate use an alternative method of painting the common property.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then he should appeal the interim order.

I would however remind the body corporate of its obligations under section 125 to provide the applicant with at least 7 days notice of the intended entry to the lot, which I consider must stipulate the time and duration of the intended entry.