18 Griffith Street [2002] QBCCMCmr 7 (8 January 2002)

C G YOUNGREFERENCE: 0761-2001

INTERIM 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 Andrew Mark Giles, the owner of Lot 1, 2nmust immediately cease carrying out any further renovation work to his lot pending the determination of this application by final order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0761-2001

“18 Griffith Street” CMS 10580

The applicant, Susan Whitford of Lot 2, 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 has also sought the following interim order of an adjudicator, quote -

Due to internal and external work having been commenced, that Mr Giles be ordered to cease all renovation work immediately.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. 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 the respondent Giles sought permission from the body corporate committee to effect certain internal renovations to his lot. The committee scheduled a meeting to discuss the matter in early January 2002, however members observed that work had begun on the lot and that work included a renovation of certain external areas of the lot.

By-law 14 of the body corporate by-laws (similar to that set out in the standard by-laws of Schedule 2 to the Act) prevents interference by an occupier with common property structures, with certain specified exceptions for the installation of insect screening and security devices.

Additionally, while all owners own the common property as tenants in common, it is the body corporate which has the legislative duty to administer and control it for the benefit of owners. Owners have a right to use the common property for general purposes (access to their lot, storage of garbage bins, fixing of a mail-box, use of communal facilities, etc) providing the use does not unreasonably interfere with another’s use of it, but that does not include the unauthorised alteration or interference with the common property building structure.

A copy of the application was forwarded to Giles who was invited to respond to the application for an interim order to halt the renovation work. He has responded, apologising for proceeding with the work without proper authorisation and advising that he has caused all work to cease until the matter is resolved.

I have issued an interim order for the renovation work to cease until this application is resolved by final order. This order will only be made after Giles has provided the body corporate committee with a comprehensive explanation and description of the work proposed, including any working plans, product literature and professional reports. I note that in this respect the applicant, and perhaps the committee of which she is the chairperson, seeks an alternative engineering opinion to that of Giles’ engineer. Neil McKenzie & Assoc Pty Ltd, on the basis that the engineer is a friend of Giles. This carries with it the implication that, because of friendship, the engineer’s opinion may be biased in Giles’ favour. I do not consider that the committee can impose such a condition, and additional cost burden, on Giles. Assuming the engineering firm is properly qualified to give an opinion in building renovation, then unless there is some evidence to the contrary, its engineering opinion must be accepted as an objective professional one. Accordingly, unless the body corporate has some such evidence, I shall not be requiring an alternative professional opinion if I need to rely on such an opinion in my final order. I would mention that Giles has advised in his submission to this interim order application, that his relationship with Neil McKenzie is more as an acquaintance than a friend.

If Giles has not already provided full documentation to the committee on the proposed works, then he should do so to enable the committee to meet and consider what is and what is not acceptable. I shall make no determination of this application until such time as that process is completed and either the parties have resolved acceptable renovations or are in dispute. That should be done as soon as possible so that the injunction under this interim order can be lifted, or the matter adjudicated, as the case may be. If necessary, a teleconference between myself and the parties may be thought necessary to resolve differences or seek directions. Further submissions will shortly be sought from the respondent and other owners, with the applicant being able to respond to those submissions if she wishes. An appropriate final order will then be made in due course.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.

C G YOUNGREFERENCE: 0761A-2001

INTERIM 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,

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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0761-2001

“18 Griffith Street” CMS 10580

The applicant, Susan Whitford of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

3. 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.

4. 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. 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.

The respondent Giles has made a submission for the interim order to be lifted in respect of proposed internal renovations. In support of that request he has included a written opinion from Peter Mackay of Crichton Engineering Pty Ltd, Consulting Civil and Structural Engineers, that the proposed renovations as detailed in plans by Neil McKenzie & Assoc Pty Ltd, engineer, will not compromise the adequacy of the structural integrity of the building.

Today, 11 January 2002, I conducted a teleconference with the applicant Whitford and the respondent Giles concerning the request. Whitford stated that, in the circumstances, she had no objections to only internal renovations proceeding.

It seems to me that the structural engineering opinion by Mackay should allay any concerns of the applicant and other owners, as to the effect the proposed renovations may have on the structural integrity of the building. Accordingly, the internal renovations proposed are of no concern to the body corporate, providing they do not involve any interference with the common property or alter the external appearance of the lot building. “18 Griffith Street” was registered as a building unit plan, now termed a building format plan, and the lot boundaries are the centre of the floor, ceiling and external walls. The outer half of those boundary structures form part of the scheme common property.

Of course the fact that the external renovations, which will involve some interference with the common property, will not affect the structural integrity of the building, is only the initial but necessary step in the process of obtaining the approval of the body corporate to the proposal.

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.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

e) has effect for a period (not longer than 3 months) stated in the order; and

f) may be extended, renewed or cancelled by the adjudicator until a final order is made; and

g) may be cancelled by a later order made by the adjudicator; and

h) if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2n
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