Twelve Maiala [2002] QBCCMCmr 67 (11 February 2002)

P J HANLYREFERENCE: 0373-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7600
Name of Scheme:	Twelve Maiala
Address of Scheme:	12 Maiala Close Paradise Point GOLD COAST QLD 4216

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

Jean Winifred Jensen, the Owner of lot 2



I hereby order that the application for orders:

1. Screen half erected and stopping air & light to my lounge – taken down.

2. Already constructed carport – without discussion with me – I will await your decision on this.

3. Dual drive widened on his side in unmatching colour – I would like this to be changed to match existing colour of drive.

4. My freshly painted garage door was splashed with cement whilst above was being constructed – sanded down and repainted.

is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0373-2001

“Twelve Maiala” CTS 7600

The applicant, Jean Winifred Jensen, the Owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. Screen half erected and stopping air & light to my lounge – taken down.

2. Already constructed carport – without discussion with me – I will await your decision on this.

3. Dual drive widened on his side in unmatching colour – I would like this to be changed to match existing colour of drive.

4. My freshly painted garage door was splashed with cement whilst above was being constructed – sanded down and repainted.

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

In the supporting grounds, the applicant states that her primary concern is in relation to a solid mineral board barrier constructed by the adjoining owner next to her main window. The applicant further states that this barrier prevents airflow into her lot, and has also diminished the light, which is able to enter her lounge room. The applicant further states that the owner of lot 2 has also constructed a carport on his side of the common property without having first discussed it with the applicant. In addition, the applicant states that the owner of lot 2 has added a section of driveway to the side of the existing driveway which does not match the existing driveway. The applicant also complains that her garage door was splashed with cement during the construction of the additional section of driveway.

The owner of lot 2 was invited to respond to the application, and, in turn, the applicant replied to that submission.

On 1 February 2002 I visited the site, and noted the matters in respect of which the applicant has sought orders. My inspection was conducted from the front of the scheme, and did not involve entry into the fenced areas of either lot. I did not consider it necessary to meet with the parties.
On 1 February 2002 a member of the Commissioner’s staff contacted the applicant by telephone to enquire if any body corporate meetings have ever been held, and if there are in existence any body corporate records. The applicant advised the staff member that as far as the applicant is aware, there have never been any body corporate meetings held, and there are also no records held in relation to the body corporate.

The building units plan (now referred to as a building format plan) registered on 31 December 1986 under the provisions of the previous Act, the Building Units and Group Titles Act 1980 (BUGTA). The by-laws applicable to the scheme were the standard by-laws contained in Schedule 3 of BUGTA. Those by-laws did not contain any exclusive use by-laws. On 13 July 1997 the present Act, the Body Corporate and Community Management Act 1997 (BCCM Act), commenced.

My inspection of the scheme revealed that lots 1 and 2 have each annexed a large portion of common property, which has been fenced off adjacent to each lot. The fenced area is essentially for the exclusive use of each of the lot owners. On the basis of the information provided to me by the applicant, there would appear not to have been a body corporate meeting to approve such exclusive use, as was required under BUGTA and is similarly required under the BCCM Act. Similarly, there appears to have been no consent given for the carport constructed by the owner of lot 2, the additional section of driveway constructed by the owner of lot 2, the pergola erected to the side of lot 2, the pergola erected in front of lot 1, and the mineral board barrier erected near the front door of lot 2. As all of these items are on common property, the provisions of section 114 of the Standard Module, by which this scheme is regulated, apply. The section provides as follows:

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.

It also appears that the owners (who comprise the body corporate) have not held body corporate meetings, as required by the Standard Module. Section 60 of the Standard Module states that an annual general meeting other than the first annual general meeting) must be called and held within 3 months after the end of each of the scheme’s financial years. Part 4 of the Standard Module contains all of the provisions in relation to general meetings. Part 7 of the Standard Module contains all of the provisions in relation to financial management. In particular, section 94(3) requires that the sinking fund budget, one of the budgets required to be adopted by the body corporate each year, must allow for the raising of a reasonable capital amount to provide for necessary and reasonable spending from the sinking fund for the financial year, and also to reserve an appropriate amount to be accumulated to meet expenditure over at least the next 9 years after the financial year.

It appears that neither the applicant nor the respondent is fully conversant with the requirements of the Act and the Standard Module, and that they would therefore benefit from some professional assistance to place the body corporate back on a proper footing by holding regular annual general meetings; to have the exclusive use areas defined and then approved by resolution without dissent; and to have all of the unauthorised improvements authorised. There are professional body corporate managers who can assist with such matters. In addition, the Commissioner’s office provides an information service, which can be accessed by calling FREECALL 1800 060 119.

In the meantime, I do not consider it equitable to make the first three orders sought by the applicant, because she too has annexed an area of common property and made unauthorised improvements. As to the cement splashed onto her garage door, the owner of lot 1 stated in his reply that he intended to have the contractor rectify the problem. I did not notice any cement on the door at my inspection. I have dismissed the application in its entirety.2n