Elanora Court [2002] QBCCMCmr 675 (19 November 2002)

P J HANLYREFERENCE: 0572-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15211
Name of Scheme:	Elanora Court
Address of Scheme:	14 Jenaya Place LABRADOR QLD 4215

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

Pauline Valerie Powell, the owner of lot 1



I hereby order that the owners of lot 2, Charles Anthony Reading and Lucille Joan Reading, shall within 14 days of the date of this order, advise the owner of lot 1 (whether Pauline Valerie Powell or her successor in title) of the name and address of the person who installed the air conditioner in lot 2 in August/September 2002.

I further order that the owners of lot 2, Charles Anthony Reading and Lucille Joan Reading, shall within 2 months of the date of this order, seek from the owner of lot 1 (whether Pauline Valerie Powell or her successor in title) written authorisation for the installation of the air conditioner in lot 2, as required by by-law 3.

I further order, in the event that the owner of lot 1 (whether Pauline Valerie Powell or her successor in title) does not authorise the installation of the air conditioner in lot 2, that the owners of lot 2, Charles Anthony Reading and Lucille Joan Reading, shall within 3 months of the date of this order, and at their own expense, remove the said air conditioner from lot 2, and restore the common property to its original state prior to the unauthorised installation.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0572-2002

“Elanora Court” CTS 15211

The applicant, Pauline Valerie Powell, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), in relation to certain unauthorised improvements, namely the installation of an air conditioner, made by the owners of lot 2, Charles Anthony Reading and Lucille Joan Reading.

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)).

The applicant initially sought various orders relating to the unauthorised installation of the air conditioner, noise, building work, the dividing fence, dogs and a motorbike. However, by letter dated 5 November 2002, she advised that, because of the impending sale of her lot, she only remains concerned about the air conditioner.

In the supporting grounds, the applicant stated that the owners of lot 2 have installed an air conditioner into their lot without prior discussion or consent. The applicant expressed concern that the installation may have been done by someone other than a licensed electrician. In support of this statement, the applicant explained that on the day of the installation the tradesperson with whom she spoke was unable to provide her with a business card, and his van did not have any markings on it to indicate the name of his business. The applicant further stated that she has been advised by her insurer that if the installation has been carried out by an unlicensed tradesperson, then the body corporate insurance could be void, especially if the work has been performed in an unworkmanlike manner, or if there are any defects in the wiring.

The respondents were invited to make a submission in relation to the application. The submission received stated:

“We believe mediation to be the best course of action to address each and every complaint made by Miss Powell. Both parties will have a greater understanding of the issues at hand thus leading to a harmonious conclusion to this dispute.”

On 18 November 2002, at my direction, a member of the Commissioner’s staff telephoned Mrs Reading, one of the respondents, and requested the name and telephone number of the electrician who had installed the air conditioner into their lot. Mrs Reading refused to provide the information, stating that she would only provide it at a mediation session between the parties. Mrs Reading appeared to be of the view that as settlement of the sale of the applicant’s lot was imminent, the application would then lapse.

By-law 3 provides that no structural alteration, including the installation of air conditioning, shall be made to any lot without the prior permission in writing of the body corporate committee. The applicant has stated that she did not give the respondents permission to install the air conditioner in their lot. The respondents have not denied that assertion. The applicant has also stated that she is concerned that an unlicensed person may have carried out the work. The respondents have not taken the opportunity to set the applicant’s mind at rest by providing the name and address of their installer. The respondents have refused to provide that information to this office, in spite of the fact that section 221 of the Act provides that an adjudicator may require a party to an application to give information to the adjudicator in the course of the adjudicator’s investigation of an application.

Although the applicant has sold her lot, she is entitled to be concerned about the installation of the air conditioner, particularly if, in the event of faulty workmanship, it impacts upon the body corporate building insurance. 2n

The respondents have breached the by-laws by failing to obtain written permission to install the air conditioner. I would have thought that it might also be of concern to them if the body corporate insurance were to be compromised by their installation. If in fact the installer was a licensed electrician, then I am at a loss to understand why they would not have disclosed that information to the applicant, in the first instance, or to this office upon being requested to do so. However, in view of their stance, I have made various orders to address the applicant’s concerns.

If, upon receipt of the information required under order 1, the applicant or her successor in title is satisfied that the installation has been carried out by a licensed tradesperson, then the applicant or her successor in title may be minded to give retrospective approval to the installation, in which case the air conditioner can stay. However, it will be open to the applicant, or her successor in title, to refuse permission, thereby activating order 3.

I note that there is an air conditioner in the applicant’s lot, for which she states that she obtained the respondents’ permission. As the respondents did not deny this assertion, I have taken it to be accurate.

The respondents should be aware of the provisions of section 235 of the Act, which states:

235 Failure to comply with adjudicator’s order

(1) A person who contravenes an order under this chapter (other than an

order for the payment of an amount) commits an offence.

Maximum penalty—400 penalty units.

(2) A proceeding for an offence under subsection (1) (other than a

proceeding taken by the Attorney-General) may only be taken by the

applicant for the application for the original order, or the body corporate.

(3) Costs awarded against a defendant in a proceeding under this section

may include the amount of the fee paid to the commissioner on making the

application for the original order.

(4) In subsection (3)—

“application for the original order” means the application for the order

of an adjudicator for the purposes of which the order mentioned in

subsection (1) is made.

(One penalty point is worth $75.00)