Mactaggarts Place [2002] QBCCMCmr 41 (29 January 2002)

RA MeekREFERENCE: 0511-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16563
Name of Scheme:	Mactaggarts Place
Address of Scheme:	53 Vernon Terrace TENERIFFE QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Mactaggarts Place

RA MeekI hereby order that the application by the Body Corporate for Mactaggarts Place, for an order has that the owners of lot 131 be directed to remove the hard floor covering that have inadequate insulation and relay carpet to the lot or take such other action that will insure that the noise transference to the lot below is reduced to an acceptable level and will meet Australian Standards, is dismissed.
n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0511-2001

“Mactaggarts Place” CTS 16563

The applicant, the Body Corporate for Mactaggarts Place, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the owners of lot 131 be directed to remove the hard floor covering that have inadequate insulation and relay carpet to the lot or take such other action that will insure that the noise transference to the lot below is reduced to an acceptable level and will meet Australian Standards.

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)).

I have considered the applicant’s grounds and conclude that there are serious flaws in this material which require that I dismiss this application.

To begin with, the grounds refer to a complaint from the owners of lots 77 and 78 (the lots below lot 131) made on 11 July 2001, which was tabled for consideration at a meeting held on 28 August 2000. The most obvious irregularity is the date. The correct reference should have been to a complaint of 11 July 2000 (a year previous). I appreciate that this was a transcription error, however the fact that the date was 2000 and not 2001 has a significant bearing on the dispute in my view.

I note that the complaints of the two owners of lots 77 and 78 which appear to form the basis of this application were made in mid 2000, and at the latest, by a new owner of lot 78, in October 2000. I assume that had there been more recent complaints, I would have been provided with copies of those complaints, as I have been with the earlier ones. The application was not made however until August 2001, some ten months after the last complaint. Further, whilst there is correspondence regarding the noise from the body corporate to the previous owner of lot 131, there is no correspondence to evidence that the body corporate has addressed the issue with the current owner of lot 131, Paul Gregory Francis Hopkins (Hopkins) who became registered as the owner of the lot in November 2000. Hopkins submission states in part –

First and foremost this is the first official notice I have had of a problem as you will note that all previous correspondence has been with the previous owner. Secondly there have been no tests performed on my property. Nor have I had any complaints whatsoever. ... As I am the sole occupant whereas previously there were people living here, I believe I make much less noise. ...

I repeat, I have had no complaints that have been made against my floor in the time I have lived here (nearly 12 months) so I don’t think it necessary to do anything until I move out.

The body corporate would have been aware of the change in ownership of the lot, given that it would have been required to record the details. A number of conclusions can be drawn, including –

• That the application is based on old complaints, and there is no evidence provided of fresh compliant;

• That there was a considerable delay in bringing the application, which is not explained;

• That given the date of the complaints, they relate to how the previous owners or occupiers occupied lot 131, not the current occupant, Hopkins;

• Given that Hopkins only entered occupation after the making of the last complaint, the lack of complaint since this time to the time of the making of the application suggests that his occupation of the lot creates no unreasonable interference with the use or enjoyment of other lots;

• It would be a denial of natural justice in my view for Hopkins to be the subject of an adverse finding in this application when the subject matter of this dispute has not been referred to him prior to the making of this application.

The body corporate states in its grounds that the “hard floor coverings that have inadequate insulation”. There is no evidence provided to me of “inadequate insulation”. Hopkins states that there have been no tests performed on his property. No evidence was provided to substantiate “inadequate insulation” of the flooring of lot 131. The mere fact of complaints regarding noise does not substantiate this aspect.

The grounds further state that the body corporate has “commissioned noise tests of the lot and the results are attached”. The only evidence of noise testing which has been provided as part of the application relates to noise transference from lot 125 to 71, and 71 to 21. The testing undertaken by Palmer Acoustics (Australia) Pty Ltd does not relate to lot 131.

The body corporate cannot rely on testing for another lot and assume that the results would be the same for all lots. The level of noise transference would depend on the material used, and the method of installation. This might vary considerably in each case. I am not prepared to accept the technical evidence tendered in respect of lot 125, as being relevant to the question of noise transference for lot 131.

More generally, there is evidence of poor noise insulation qualities in this complex. This aspect was referred to by the adjudicator in the order for application 0505-2000, and more recently, the committee, at its meeting on 19 June 2001 resolved that the secretary correspond with Baulderstone Hornibrook requesting rectification of the noise transference as a defect in construction. The resolution suggested possible application to the Building Services Authority regarding this.



In his submission, Hopkins states –

If I sell or rent the unit out, I will recarpet the floor to ensure it complies with the standards mentioned in this submission.

Hopkins also states that –

If directed I will install another rug to ensure noise transference is minimised.

Given the lack of complaint since Hopkins commenced occupation of the lot, I consider that this is a possible basis for the resolution of the dispute in the future, should the occupier change. I recommend that the body corporate, and the owners of lots 77 and 78 request of meeting with Hopkins to discuss this offer. Whilst I have no intention of requiring this solution, I suggest that the offers made by Hopkins in his submission show a willingness on his part to act reasonably and in consideration of the needs of his fellow owners. In the circumstances, the failure of the body corporate to approach Hopkins regarding the matter of noise before submitting the application, is poor. n