Silva Lake [2003] QBCCMCmr 139 (26 September 2003)

Last Updated: 17 May 2005

REFERENCE: 0132-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4380
Name of Scheme:	Silva Lake
Address of Scheme:	280 Christine Avenue STEPHENS QLD 4380

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Vera Agnes Edwards, the owner of lot 4

I hereby order that the application by Vera Agnes Edwards, the owner of lot 4 (represented in the application by her attorney, Mr LS Simmonds) for orders seeking that the adjudicator direct the owner of unit 1 to remove the unauthorised alteration to the common property area at the rear of unit 1 and that the owner of unit 1 restore pebblecrete over the concrete in this area, and in addition, direct the owner of unit 1 to make payment for the restoration of a pebblecrete coverage, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0132-2003

"Silva Lake" CTS 4380

The applicant, Vera Agnes Edwards, the owner of lot 4 (represented in the application by her attorney, Mr LS Simmonds) seeks an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the adjudicator direct the owner of unit 1 to remove the unauthorised alteration to the common property area at the rear of unit 1 and that the owner of unit 1 restore pebblecrete over the concrete in this area. In addition direct the owner of unit 1 to make payment for the restoration of a pebblecrete coverage.

Section 276(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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The issue in dispute

I consider it necessary to define the issue in dispute to some extent. I say this as in the applicant’s reply, Simmonds states –

I have always been of the opinion that regulation 114 had a bearing on this subject.

Section 114 is headed Improvements to common property by lot owner and deals with a situation where an owner might apply to the body corporate for authorisation to make an improvement to common property for the benefit of the owner’s lot.

I make the observation that Simmonds did not refer to section 114 in the original application. In the original application, the complaint is essentially that the owner of lot 1 Dawn Jeanette Griffiths (Griffiths) failed to comply with the terms of a committee resolution, and further that Griffiths in certain ways mislead the committee as to the nature of the finish of the concrete in question. If Simmonds is now seeking to rely on section 114 as being applicable, then it has not been correctly argued. Section 114 requires a special resolution of the body corporate in order to authorise the improvement. In the circumstances however, only committee authorisation was granted. Moreover, section 114 contemplates that it is the owner of a lot who wishes to make the improvement, and subject to body corporate authorisation, pays for the improvement. However, at no time was it canvassed that this was an improvement proposed by an owner, or that the owner would bear the cost. At all times the body corporate appear to have assumed liability for the concrete rectification.

Section 114 has no bearing on the dispute in my view. The area in question is common property for which the body corporate have ongoing maintenance responsibilities. The body corporate has previous done this for another lot in the complex. I consider that the dispute is at most a question of alleged non-compliance with a committee resolution, and intend to deal with the dispute accordingly.

The other issue of some relevance to me is that this is an application on behalf of one owner seeking compliance by another owner with a committee resolution. Usually, disputes of this nature arise between a body corporate and an owner, where it is the body corporate which is alleging that the resolution has not been complied with. The current position of the body corporate is not known. Individual members of the body corporate have expressed their views, but not the body corporate collectively. What can be said however is that the body corporate, by committee resolution, does appear to have authorised some action, even if individual members are now alleging that the action of Griffiths does not comply with that authorisation. Consequently, it is this aspect which I now intend to focus on.

The original motion (10) on the agenda of the committee meeting held on 12 December 2002 provided –

That the concrete behind unit 1 be replaced owing to subsidence presenting a danger to residents and visitors. The precedent has already been set as unit 8 had the same problem in the past. Two quotes to be obtained.

The minutes of the meeting subsequently record that –

That the concrete behind unit 1 be replaced. D. Griffiths submitted quotes of which one for the amount of $450 was preferred. Moved G Parker seconder A Szilberleitner that the concrete be replaced and that quote of $450 be accepted. All agreed.

The application

The applicant seeks that "a direction should be given to the owner of unit 1 to remove the Terracotta Tile Image and cover the concrete with Pebblecrete". Moreover, "... the owner of unit 1 should be directed to make payment for the restoration of Pebblecrete cost ...".

The application alleges that Griffiths has been "defiant of the item on the agenda and motion 10 ...". The application states –

Instead of the damaged Pebblecrete which was the original coverage, being replaced. The Owner of unit 1 without any authority what-so-ever had the contractor cover the concrete with a spray procedure that created a Terracotta Colour tile image.

In altering the type of concrete the owner of unit 1 completely contradicted motion 10 of the agenda ... and the motion ... approved by the committee which stated REPLACED – the word means replaced by Pebblecrete ...

In conclusion, I wish to advise that in this complex of 8 units all the concrete is covered by Pebblecrete, whereas unit 1 has a Terracotta Tile Image of about 10 square meters (sic) coverage probably more.

It should be recorded that the rear of all units are positioned in an enclosed area which contains the amenities of the complex.

Griffith’s submission

Griffiths, after providing background to the issue in dispute, in particular the events of the meeting, states –

I absolutely refute L Simmonds allegations in his letter they are untruthful and very unfair. I proceeded to have the work done as voted on by the committee and that was the $450 option be accepted, all in favour by the 5 other committee members present at the meeting. ...

In conclusion I wish it to be noted that I would have personally preferred to have the original patio removed and replaced with the pebblecrete even at the much increased cost. The brief discussion at the meeting revolved around the cost and I agreed to a cheaper option. The option 2 was voted on all in favour however, if a decision is made by the commissioner to remove the existing work and restore to the original I have no objection.

I am the innocent party in this matter and I personally feel it is an injustice asking me to pay, as suggested by L Simmonds, for the existing work to be replaced with pebblecrete. This was a committee decision and I would not have proceeded without their approval. ...

Griffiths concludes by alleging a "personal vendetta" being waged against her and her partner by Simmonds and in support of this refers to a statement allegedly made by Simmonds at a meeting held on 21 February 2003 in the form of a threat that unless the committee agreed to another matter, then that he would make an application regarding the patio.

Other submissions

There are 8 lots in the scheme. Six submissions, other than that of the respondent have been received. This means that all owners have responded to the application. Two of the submissions received are supportive of the application, and the remaining 4 oppose the application. The arguments for each are clear. I do not propose to restate these here. However, I have relied on the views provided in submission to inform myself of the matters the subject of the application.

Determination

I intend to dismiss the application. I consider that it is without merit. I find it somewhat unreasonable that a person who, whilst a committee member, fails to attend the relevant committee meeting at which the issue in dispute arose, but then makes this application alleging non-compliance with a resolution, and includes various assertions regarding how a committee resolution should be interpreted. I conclude that if the applicant had truly been concerned with the relevant issue, then perhaps he should have ensured that he was able to attend the relevant meeting, and further, ensured that the relevant resolution carried by the committee did provide as he now alleges that it provided or at least should be interpreted.

I disagree with the interpretation adopted by the applicant and supported by others. I consider that the actions by Griffiths were not in any way intended to deceive. Rather, I consider that Griffiths actions were intended to assist the body corporate, in particular by her willingness to accept a cheaper alternative, thereby saving the body corporate money.

I conclude that the proposed interpretation of the relevant motion and resolution by the applicant and others is not open to them. The motion, and resolution, are couched in wide terms, and should not now be interpreted as referring to Pebblecrete. Messrs Parker and Steele, who both appear to be members of the committee, and who were present at the relevant meeting at which the resolution was carried, and who voted in favour of that resolution, cannot now object to the way the resolution has been implemented. I suggest that if they had the concerns they now do, those concerns should have been ventilated at the meeting, and the resolution carried couched in terms which reflected any concerns. I conclude that these two parties are seeking to alter their position on the issue after the event.

Generally, I consider that the evidence and information provided by Griffiths and others owners supportive of her position is to be preferred to that of the applicant, and supported by Parker and Steele.