Capricorn Pacific Apartments [2002] QBCCMCmr 28 (24 January 2002)

RA MeekREFERENCE: 0357-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5587
Name of Scheme:	Capricorn Pacific Apartments
Address of Scheme:	91 The Esplanade, Bargara

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

Joseph Botros, a trustee for the late Nahida Fahmy estate

I hereby order that the application for the following orders

“An order setting aside resolution of motion in dispute (see attached copy)

An order restraining any action against the applicant

An order to permit the applicant to exercise rights of exclusive use or special privileges in relation to section of common property”

is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0357-2001

“Capricorn Pacific Apartments” CTS 5587

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

“An order setting aside resolution of motion in dispute (see attached copy)

An order restraining any action against the applicant

An order to permit the applicant to exercise rights of exclusive use or special privileges in relation to section of common property”

This application was made on 6 June 2001. The Commissioner for Body Corporate and Community Management invited the committee for the body corporate, and all owners of lots in the scheme to make a written submission in response to the application.

Departmental records indicate that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

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)).

Applicant’s details

As a preliminary issue, there appears to be some concern regarding the capacity of the applicant to bring this application.

The application has been made in the name of Joseph Botros. Departmental records indicate that the registered owners of Lot 4 are Wissa Botros and Adrianna Botros, with Wissa Botros also appointed as the personal representative of a deceased estate. I have viewed a Deed of Appointment of Additional Trustee signed by Wissa Botros and Wassef Botros, appointing Wassef Botros as an additional trustee. In a letter to the Commissioner for Body Corporate and Community Management dated 30 October 2001, the applicant, Joseph Botros confirms that he is Wassef Botros.

On the material before me, I am satisfied that the applicant has proper standing to bring the application.

Matters in dispute

This application is primarily concerned with whether or not a “For Sale” sign can be displayed on the external surface of the balcony railing of Lot 4.

It appears from the material before me that the issue of signage was discussed at the annual general meeting for the scheme held on 23 April 2001. While the motion relating to signage was ruled out of order at the meeting (motion 8), the following comments were recorded in the minutes of the meeting:

“NOTE: This motion was ruled out of order as it did not provide sufficient information to enable the meeting to vote. A discussion was held and it was agreed that existing For Sale signs be removed pending an application being made by the respective lot owners to the Committee for such approval. It was also agreed by the owners present at the meeting that they were not in favour of For sale signs being placed on the outside of the balcony railings.”

In a letter dated 24 April 2001, the applicant requested approval to display a “For Sale” sign on Lot 4. In a letter dated 15 May 2001, the body corporate manager for the scheme indicated to the applicant that the committee approved the display of a “For Sale” sign of particular dimensions on the front fence of the property. In the same letter the body corporate manager requested that the sign displayed on the balcony railings be removed before a sign is displayed on the front fence of the property.

In the application the applicant makes a number of statements in support of an order allowing a sign to be displayed on the balcony railing. In summary these statements include:

• One particular owner initiated the dispute, however, this owner has previously displayed similar signs in a similar location;

• The owners of Lot 7 are displaying a similar sign (the applicant included a photograph of the sign displayed by Lot 7);

• The previous owner of Lot 8 has installed awnings without body corporate approval;

• It is common practice in Bargara to display similar signs to that in question, and selling pace is slower in Bargara than in other regions (the applicant has provided a number of photographs of other buildings with similar signage); and

• The applicant spoke on the telephone and in person to five owners who expressed no objection to the sign being displayed

By-laws

Issues such as signage in a community titles scheme are usually dealt with in the by-laws for the scheme.

Departmental records indicate that the by-laws contained in Schedule 3 of the Building Units and Group Titles Act 1980 (“the BUGT Act”), and a number of further by-laws recorded on 12 May 1990 apply to the Capricorn Pacific Apartments community titles scheme.

By-law 8 in Schedule 3 of the BUGT Act provides the following:

“8 Appearance of building

In the case of a building units plan, a proprietor or occupier of a lot shall

not, except with the consent in writing of the body corporate, hang any

washing, towel, bedding, clothing or other article or display any sign,

advertisement, placard, banner, pamphlet or like matter on any part of his

or her lot in such a way as to be visible from outside the building.”

I note that the Capricorn Pacific Apartments community titles scheme was created under a building unit plan of subdivision, therefore the above by-law is applicable.

From a reading of the material before me, it is evident that the applicant has not obtained the written consent of the body corporate to display the “For Sale” sign in question. On this basis, the applicant does not have a right to display the sign on the balcony railing of Lot 4.

Therefore, to be successful in this application, the applicant must demonstrate that the body corporate is acting unreasonably in its application of the by-laws in this instance. I intend to consider each of the applicant’s grounds in turn.

• One particular owner initiated the dispute, and this owner previously displayed similar signage

In the application the applicant states that one owner initiated the dispute regarding signage. The applicant goes on to state that this owner has previously displayed similar signage to that now in dispute.

In the submission made on behalf of the body corporate, the body corporate manager for the scheme states that the owner in question was the original owner of lots in the scheme and removed the signage when the majority of lots in the scheme were sold.

In any event, I do not think that it is necessarily unreasonable for a body corporate to change its position regarding issues such as signage over time, provided that decisions made regarding these types of issues are equitably applied to owners and in the interests of owners generally. It would seem to me unreasonable that the body corporate be bound permanently to historical decisions and policies on issues such as signage particularly when the use and nature of a community titles schemes and the interests of owners of lots in the scheme can change over time.

The more relevant consideration is whether or not the body corporate’s current position regarding signage is reasonable and in the interests of owners. I will consider this issue throughout this statement of reasons.

The applicant also states that the owner in question resides in Brisbane. I am of the view this is an irrelevant consideration to the matters currently in dispute. An owner of a lot in a community titles scheme has a right to participate in the administration of a body corporate whether or not the owner occupies the lot.

• The Owners of Lot 7 display a similar sign

The applicant raises concern that the owners of Lot 7 also display similar signage to that displayed by the applicant. I consider that it is essential that the body corporate apply by-laws equitably and consistently between different owners of lots in the scheme.

In the submission made on behalf of the body corporate, the body corporate manager states that the body corporate was going to issue contravention notices to the owners of both Lot 4 and Lot 7. The body corporate manager goes on to state that the issue of these notices has been delayed, pending the outcome of this application. I have been provided with a copy of a facsimile from the body corporate manager to Coastline Realty (apparently the letting agent for Lot 7) requiring the sign displayed on Lot 7 be removed. I have also viewed a letter from the body corporate manager to the owners of Lot 7 dated 13 June 2001 requiring the removal of the sign displayed on the balcony railing of Lot 7.

In light of this material, I am not satisfied that the body corporate is acting in a discriminatory manner by allowing one owner to display particular signage, while denying another owner approval to display similar signage without any reasonable grounds. Therefore, I do not intend to allow the applicant to display the signage as requested on this basis.

• Awnings have been installed outside Lot 8 without approval

In the application, the applicant raises an issue regarding awnings that have been installed on the verandah outside of Lot 8. The applicant includes photographs of the awnings. The applicant states that these awnings were installed without approval. In raising this issue it appears that the applicant is arguing that it would be inequitable for another lot owner to make an alteration visible from the outside of the building without approval while he is being denied the ability to display a “For Sale” sign.

It appears to me that by-law 8 does not cover the installation of awnings as described by the applicant. Rather, by-law 8 refers to washing, towels, bedding, clothing or other articles and signs, advertisements, placards, banners, pamphlets and like matter. I consider that awnings are by their nature quite distinct from the items mentioned in by-law 8, therefore I do not consider it reasonable to conclude that awnings are intended to be covered by by-law 8.

As a result, I do not consider that the existence of the awnings outside of Lot 8 is relevant to the body corporate’s application of by-law 8 in relation to “For Sale” signs.

• Owners of Lots in nearby buildings display similar signs to that displayed by the applicant

I do not consider that this is a relevant issue to the matters currently in dispute. The Act enables the owners of lots in a community titles scheme to make decisions regarding the administration and management of the scheme that suits their individual circumstances. It is of little relevance what other bodies corporate decide is appropriate in their individual circumstances.

• Sale of properties in region is slow

The applicant argues that the rate of sales of properties in the area is significantly slower than in larger cities and other towns. Presumably, the applicant makes this statement to support a view that owners should be given more opportunity to advertise their properties than perhaps would be necessary in a larger town or city.

I find this argument unconvincing, particularly given the fact that the body corporate has given approval for the applicant to display a sign on the front fence of the scheme land. While the applicant may prefer to display the sign on the balcony railing, I have not been presented with any argument as to why the displaying of a sign on the balcony railing is significantly more effective than on the front fence of the scheme land.

Secondly and perhaps more importantly, the Act does not prescribe owners with any right to breach the by-laws on the basis that the breach would make selling the lot more expeditious.

• The applicant has contacted five other owners who do not object to the sign

The legislation establishes a framework for the decision making process of a body corporate. If the applicant considers that a majority of owners would support his request to display a “For sale” sign on the balcony railing of Lot 4, he is free to submit a motion for consideration of the body corporate at the next general meeting. If the body corporate resolves to give the applicant permission to display the sign as requested, the body corporate’s decision would overrule any contrary earlier decision of the committee.

In summation, I consider that the body corporate has acted reasonably in the manner that it has applied the by-laws in this instance. In making this decision I am mindful of the decision of the body corporate to allow the owner of Lot 4 to display a sign on the front fence of the scheme land, which I believe overcomes a number of the applicant’s concerns relating to advertising his lot. However, I would remind the applicant that in granting this approval, the committee imposed a time limitation. It may be necessary for the applicant to seek a fresh approval from the body corporate to display the sign on the front fence of the scheme land.

For these reasons I intend to dismiss the application.


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