18 Griffith Street [2002] QBCCMCmr 307 (16 May 2002)

C G YOUNGREFERENCE: 0761-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10580
Name of Scheme:	18 Griffith Street
Address of Scheme:	18 Griffith Street NEW FARM QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Susan Elizabeth WHITFORD, as the owner of Lot 2,

C G YOUNGI hereby order that the owner of Lot 1, Andrew Mark Giles, shall be deemed to have been given approval by the body corporate for the installation of sliding doors in replacement of the front window and door, adjacent to the courtyard, as contained in his proposal put to the body corporate committee at its meeting on 14 January 2002. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0761-2001

“18 Griffith Street” CTS 10580

This is the final order to an application by Susan Whitford of Lot 2 who has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1. Request that renovations that have commenced to Lot 1 by Mr Giles be halted immediately until the committee has been fully informed of all such intended renovations works and held a meeting to decide whether renovations will be permitted.

2. We understand that the Consulting Engineers are personal friends of Mr Giles & we request Mr Giles to provide an independent engineering report with regard to the effects of the structural integrity of the building.

The applicant also sought an interim order to halt the renovations until the dispute is decided, and on 8 January 2002, I issued the following interim order –

I hereby order that Andrew Mark Giles, the owner of Lot 1, must immediately cease carrying out any further renovation work to his lot pending the determination of this application by final order.

That interim order was varied by the following Interim Order 716A-2001 issued on 11 January 2002-

I hereby order that Interim Order 761-2001 dated 8 January 2001 is cancelled and is replaced by the following interim order -

C G YOUNGI hereby order that Andrew Mark Giles, the owner of Lot 1, 2nmust immediately cease carrying out any further renovation work to his lot which interferes with the common property or alters the external appearance of the lot building, pending the determination of this application by final order.

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)).

Since that last order was made, the body corporate held an extraordinary general meeting on 2 April 2002 at which a motion to allow the respondent Giles to install a sliding door in the rear bedroom (in replacement of a window) was defeated on a vote of 2 votes in favour and 3 against.

In respect to the other alterations proposed by the respondent, the matter was discussed at a committee meeting held on 14 January 2002. There were four members present at this meeting, being owners of Lots 2 (Whitford), 4 (Herse), 5 (Classen) and 8 (Jenkins), as well as Giles. The meeting considered the two proposed renovations to Lot 1, namely the sliding doors in the rear bedroom and the front door and window (facing the courtyard) being replaced by sliding doors.

The rear bedroom changes were not supported and it was determined that this proposal should be put to a general meeting for consideration by all owners. This was done and, as already mentioned, the proposal was refused at the meeting on 2 April 2002..

In regard to the committee approval for the front door, as I pointed out in my teleconference with the parties this morning, Thursday 16 May 2002, the committee has no power to authorise improvements to a lot that involve common property. As I said in the reasons to the last interim order –

“Ultimately, the respondent will need to obtain the formal approval of the body corporate in general meeting by way of special resolution. This is provided for in section 114 of the Standard Module regulations which states –

Improvements to common property by lot owner—Act, s 121

114.(1) The body corporate may, if asked by the owner of a lot, authorise

the owner to make an improvement to the common property for the benefit

of the owner’s lot.

(2) The improvement must be authorised by special resolution of the

body corporate unless—

(a) the improvement is a minor improvement; and

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the

authorised improvement is not likely to promote a breach of the

owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the

body corporate considers appropriate.

(4) The owner of a lot who is given an authority under this section 24 —

(a) must comply with conditions of the authority; and

(b) must maintain the improvement made under the authority in good

condition, unless excused by the body corporate.

(NOTE: A “minor improvement” is defined as one valued at no more that $200 and therefore not applicable here.)

A special resolution, as defined in section 98 of the Act, is therefore necessary to approve the proposal so far as it affects common property. Having eight lots of equal lot entitlements in the scheme, three dissenting lot votes means the motion will fail. However, before the respondent submits a motion to the body corporate for consideration, it will be in his interest to reach an agreement with at least the committee in the first instance, otherwise its submission will be a waste of time. Accordingly, the respondent needs to provide full information to the committee, and owners, and attempt to reach a settlement for acceptable renovations/improvements and then submit a motion for a meeting to consider.”

The front door proposal was not put to a general meeting, and both the committee and Giles appear to have mistakenly relied on the committee approval as being sufficient. Clearly that is not so.

However, in view of the length of time this application has taken, I am satisfied that the four owners at the committee meeting, and of course Giles, are in favour of the proposal and therefore there are only two owners who could possibly oppose it. If that were the vote in respect of a properly put motion, then a special resolution would pass. Accordingly, in order to allow Giles to proceed to make the front renovations as soon as possible, I have ordered that the proposal is approved. This then is the end of the matter so far as this application is concerned.2n2n