Lahaina [2002] QBCCMCmr 232 (23 April 2002)

DP GardinerREFERENCE: 0013-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10694
Name of Scheme:	Lahaina
Address of Scheme:	17 The Esplanade KINGS BEACH Q 3101

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

Corporate

DP GardinerI hereby order that:

1. the respondents remove at their expense:

• all building work that has been performed on common property at, and/or adjacent to, the entrance to lots 9 and 10, including but not limited to:

• any work enclosing, or designed to enclose the top flight of stairs and the top landing within lots 9 and 10.

• any work which places the entrance door to lots 9 and 10 and the landing at the bottom of that flight of stairs.

• the emergency light which is to be re-located to ensure that satisfactory illumination of the stairwell is provided at all times.

2. the respondents are restrained from performing any building work on common property unless a resolution permitting such work has been passed at a general meeting of the body corporate without dissent.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0013-2002

“Lahaina” CTS 10694

The applicant, Body Corporate for Lahaina CTS 10694 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -
“ The body corporate for Laihana requests that the Commissioner for Body Corporate and Community Management order the respondents to return the common property at the entrance to lots to its original state.”

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)).

In the supporting grounds, the applicant states that:

1. on 20/1/01, Mr. Healy indicated to the lot owners who were present at the annual general meeting that he was considering plans to install a door on part of the common property. As shown in the attached copy of the minutes he was advised that approval at a general meeting would be required.

2. during 27-29 August, Mr. Healy submitted plans to the body corporate manager and was advised once again that his proposed works would require approval at a general meeting.

3. on 6/9/01, an e-mail was received from the chairperson, Lourelle Heintjes, indicating that Mr. Healy had instructed the builder to proceed with alterations.

4. during12-13/9/01, letters were received from a number of lot owners advising objection to the commencement of the works resulting inn a fax to Mr. Healy to restore the common property.

I have carefully read all the information provided to this office in the course of this adjudication. Whilst I do not intend to refer to this information in any detail, I have given due weight to all the submissions received.

This is a scheme to which the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies. The applicable by-laws are those in force as at 13 July 2000. Perusal of the standard by-laws reveals there is no by-law authorising the allocation of common property by attachment to a lot. Thus, section 134 of the Body Corporate and Community Management Act 1997 requires that an exclusive use by-law can only be created by the passing of a resolution without dissent regarding the recording of a new community management statement.
As no such resolution has been passed, and therefore no grant of exclusive use has occurred which would permit the construction performed by the respondents. I therefore order that the respondents remove whatever work has been done and otherwise comply with the orders made.

When considering the orders that were appropriate in the circumstances, I have carefully assessed the conduct of the respondents and the scope of the work undertaken and proposed to determine the order that was just and equitable in the circumstances.

In light of the facts as presently explained, there can be little doubt that the respondents were given clear notice that the approval of a general meeting of the body corporate was required for such construction. Moreover, the respondents have been lot owners since 1980 and the male applicant was a member of the body corporate committee following his election on the 20^th January 2001.

In the result, the only appropriate outcome is the removal of whatever construction has been completed in accordance with the orders made, the expense to be borne by the respondents.

In the event that removal does not occur as ordered, the applicant and the respondents should be mindful of section 121 of the Body Corporate and Community Management Act 1997 which permits the body corporate to carry out work required of owners and recover the attendant costs from the lot-owner.