Maria Creek Estate [2002] QBCCMCmr 503 (16 August 2002)

C G YOUNGREFERENCE: 0038-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	25253
Name of Scheme:	Maria Creek Estate
Address of Scheme:	51 Rebecca Jane Parade KURIMINE BEACH

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Melivan Pty Ltd, represented by Ivan and Carmelina Andrijevic, as the owner of Lot 4,

C G YOUNGI hereby order that the application for an order to declare invalid the committee resolution of 27 November 2001 to issue a notice or notices against the applicant Melivan Pty Ltd for Continuing Contravention of a Body Corporate By-law, is dismissed on the ground that the body corporate committee has itself determined not to implement the resolution. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0038-2002

“Maria Creek Estate” CTS 25253

The applicant, Melivan Pty Ltd, represented by Ivan and Carmel Andrijevic, of Lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

“That the resolution passed by Mr & Mrs P Hablethwaite at the Committee meeting held on 27^th November 2001 be declared invalid as it is not for the benefit of the land hol;ders. The resolution was that a Continuing Contravention notice be issued to Lot 4. Minutes of the meeting enclosed. ”

JURISDICTION:
This is a dispute between an owner, the applicant Melivan Pty Ltd of Lot 4, and the body corporate, the respondent, concerning the validity of a committee resolution to issue a Notice of Continuing Contravention of a Body Corporate By-law. This is a matter that falls within the disputes resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

Section 223(1) of the Act 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:
Under the provisions of section 194 of the Act, a copy of the application was provided to the respondent body corporate, and copies were caused to be provided to all other owners, with an invitation to all recipients to respond to the matters raised in the application.

The only response received was from Peter and Marcia Hablethwaite, the body corporate secretary and chairperson respectively, presumably for the committee on behalf of the respondent body corporate.

The response by the body corporate puts an end to the application, quote –

“Mr Marsh who was chairman of the 27/11/01 meetings denied a Body Corp committee meeting had been held. We deny the truth of their statement however advices were not sent to the other lot owners, nor had they ever been previously & no-one complained. As we wish there to be no doubt of the legality of the issue of the s.144 notice, it will be submitted to a future meeting.”

Accordingly, the body corporate committee has itself decided the by-law contravention notices may be based on an invalid meeting and will not be relying on them in any action against the applicant.2n It states that the subject matters of the notice will be properly re-presented to a further meeting for decision.


DETERMINATION:
I accept the submission by the respondent as an undertaking that it will not be pursuing any alleged breaches of by-laws by the applicants, based on the Notice of Continuing Contravention of a Body Corporate By-law issued in respect of decisions made at the disputed committee meeting of 27 November 2001.

My order is therefore to dismiss the application.

Having said that, there are some general comments I wish to make concerning the application.

The applicant Melivan Pty Ltd (which I shall refer to as “the Andrijevic’s”) has not provided this office with a copy of any notice being served on them, if indeed one was ever issued or served. However, in the grounds to the application, they refer to the complaints as being the following: the noise from their air conditioner; the presence of their greenhouse (“shadehouse”); the noise by their mini-fox terrier dog; the noise from their pool filter pump and the shine of reflected sunlight from the Colourbond roof of the pump housing.

I do not propose to canvass either the reasons why the committee decided to act against the Andrijevic’s, or the responses put forward by the Andrijevic’s in their application. But on the basis that it is likely the committee will again put these same matters in motion, I will offer some points to guide both parties.

Section 114 of the Standard Module regulations requires that owners wishing to effect an improvement to the common property for the benefit of their lot (eg erection of a shed, installation of a air conditioner) must have the prior approval of the body corporate by way of a special resolution (unless the installed cost is $200 or less when the committee may approve it). Owners seek approval by submitting a motion to that effect to the secretary for inclusion on the next general meeting’s agenda. The same procedure applies where the site is an area of common property over which the owner has exclusive use (see section 124 of the Standard Module). If the improvement has been effected without prior approval, then a motion to ratify it should be submitted by the relevant owner.

If in either case the body corporate refuses to approve the improvement, then the owner may make application to an adjudicator for the refusal to be overturned where good reason exists.

In regard to the body corporate (though its committee) serving notice on an owner for an alleged breach of a by-law (eg keeping a dog) or contravention of the legislation (eg reflected sunlight from roof being an interference with another owner’s enjoyment of their lot), then in both cases the owner may make application for the committee (or general meeting) resolution to issue a Notice of Continuing Contravention of a Body Corporate By-law, or some other committee resolution (eg a simple letter notice to remove or darken the reflective roof), to be invalidated.

Such applications to repudiate a body corporate action should be supported by the best evidence possible, including photographs, copies of relevant documents, statements by witnesses, opinions from experts (eg statement from an expert in the field as to the level of motor noise, structural integrity of a structure etc).

I note a statement by some owners that for some 18 months they have wanted to construct garages “on their properties” (perhaps referring to exclusive use areas) but have been rebuffed when putting their case to the committee. Owners should put any such request for body corporate approval in motion form and deliver the written motion to the secretary who is then obliged to include it in the agenda of the next general meeting (ie either extraordinary or annual general meeting). A general meeting can be requested by service of a Notice of a Requested Extraordinary General Meeting under section 61 of the Standard Module.

Of course the body corporate’s duty to administer, manage and control the common property for the benefit of owners, and to act reasonably in doing so (see section 114 of the Act), means that it must take into consideration such matters as: the siting of the improvement; its size, colour and the materials it is made of; whether it complements existing buildings of the scheme; whether it is going to be professionally constructed; its purpose, and the like. Owners need to provide sufficient information so that the body corporate may make an informed opinion – owners cannot complain if a refusal is chosen because of uncertainties.