Warrawong [2002] QBCCMCmr 233 (23 April 2002)

M.F.MorganREFERENCE: 0015-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12493
Name of Scheme:	Warrawong
Address of Scheme:	44 Station Road INDOOROOPILLY Q 4065

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

Mrs Mary Rachel Burbidge, the Owner(s) of lot 1


M.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganM.F.MorganI hereby order that the application for an order for the front door and panel to lot 6, to be restored and for an order against the respondent for not making an application for authorisation to the body corporate for work done on common property, is dismissed. nn
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0015-2002

“Warrawong” CTS 12493

The applicant Mrs Mary Rachel Burbidge, the Owner(s) of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“I seek an order for the door and panel to be restored to the attractive varnished state as was.”

On 15^th January 2002, the applicant requested an amendment to the application, for an order against Richard Ebbott, who is one of the co-owners of lot 6, (“the respondent”) for not making application to the body corporate, for work he has done on the common property. Mosaic tiling has been removed and replaced with 12 inch white tiles. The applicant also understands that the respondent intends erecting an iron grill door to be attached to the wall of the common property across the entrance of the vestibule leading to the respondent’s front door. The applicant seeks for an order that no further work is to be done until an order is made.

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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).


In support of the application the applicant has advised that:

“The front door has been painted a bright yellow and also a panel 7’10’’ by 2’3’’ outside of his unit has also been painted bright yellow.”


I have physically inspected the building and disagree with the applicant’s claim that the respondent’s front door and side panel have been painted a bright yellow. It is more in the nature of a light creamy colour.


I can understand that both the applicant and the respondent might have differing views about what is attractive and what is not attractive. However, except for unanimous resolutions, a community is bound by an appropriately passed resolution of a body corporate even if sometimes not all owners agree.


Motion 9 as set out in the minutes of the Annual General Meeting held on 28 February 2002, was as follows:

“Common Property Improvements

That the body corporate approves the following improvements erected or to be erected, at the individual lot owners cost, to the common property.

A.	The improvements to the common property carried out by the proprietor of Lot 6 at his cost, adjacent to the entry of Lot 6, being repainting and retiling.

B.	The installation by a former proprietor of Lot 3 at her cost of a white steel security gate at the front of the entrance to Lot 3.

C.	The installation by a former proprietor of Lot 1 at their cost of an aire conditioning unit in the window of Lot 1 at the front of the building

.

D.	Improvements by any Lot owner, at their cost, adjacent to the entry to their Lot, being repainting and/or re-tiling.

E.	The installation by any Lot owner, at their cost, of a steel security gate or security screen at the front of the entrance to their Lot or at the front door of the lot.

F.	The installation by any Lot owner, at their cost, of an air conditioning unti in a window of the Lot.

Yes 5; No 1; Abstain 0”

The primary object of the Act is to provide for flexible and contemporary communally based arrangements (see section 5 of the Act). One of the secondary objectives is the balancing the rights of individuals with responsibility for self-management.

Given that:

• there is no evidence of bad faith on the part of the respondent in failing to obtain the Body Corporate authorisation prior to carrying out the improvements to the common property;and

• the Body Corporate has now considered this matter and has authorised the works;

• the decision of the Body Corporate at the Annual General Meeting held on 28 February 2002, is not unreasonable or unlawful;

and having regard to the primary and secondary objects of the Act which heralds self management and community based arrangements, I consider that it is inappropriate for me to usurp the role, powers and duties of the Body Corporate and make a determination about the improvements to the common property, when the Body Corporate has now approved them.

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