Lake View Park [2003] QBCCMCmr 170 (16 October 2003)

Last Updated: 17 May 2005

REFERENCE: 0168-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20751
Name of Scheme:	Lake View Park
Address of Scheme:	Lake View Park Waimarie Street KELLYS BEACH BARGARA

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Lakeview Park

I hereby order that within two (2) weeks of the date of this order, the owners of lot 26, Ian Ronald McColl and Jillian Rae McColl shall remove, or cause to be removed, from the exterior wall of their lot the sign they have affixed to the wall which reads "LAKEVIEW PARK Holiday Town Houses INQUIRE AT UNIT 39", and thereafter shall not affix any signage to any part of the common property or their lot which is visible from outside their lot unless they first obtain the written consent of the body corporate to such signage being so affixed in accordance with by-law 17A(4).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0168-2003

"Lake View Park" CTS 20751

The applicant, the body corporate for Lakeview Park, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order that the respondents and / or their company, Ian McColl Real Estate Pty Ltd ...

1.	Remove and / or paint over, signs, signage, and / or notices constructed within the Scheme Land and / or on the common property in contravention of by-law 17A(4);
2.	Cease now and not in the future, contravene by-law 17A(4), more particularly not to construct, display and / or paint any sign, signage and / or notices within the scheme land without derogating from the generality of the foregoing, within the common property, or on any body corporate assets or on any lot or within any lot where the sign, signage and / or notices is visible from outside the lot.

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)).

I am in receipt of the District Court appeal decision of Judge McGill relating to the decision of the adjudicator in application 240 of 2002. In their submission in respect of this application, the respondents, Ian Ronald McColl and Jillian Rae McColl, the owners of lot 26, state that the current application should not be entertained "because the issues which arise for determination are included in the issues which fall to be determined in the ... appeal". The outcome of the appeal was that the respondent’s appeal of the adjudicator’s decision was dismissed. The judge relevantly found that –

1. The by-law in question (17A) was not an exclusive use by-law; and
2. That the motion in question therefore did not required a resolution without dissent.

The appeal decision concluded that the motion proposing the CMS which included by-law 17A was validly carried by special resolution. To this extent, the respondents’ sixth point in their submission to this application is incorrect.

The respondent’s further state that -

... the subject matter of this application cannot be properly considered in isolation from a proper resolution / determination of the respondents’ rights as previously mentioned. ...

The respondents seek an order that the above application be stayed until the DC appeal is fully heard and determined and further an order that the respondents be permitted to make further submissions if at a later time the present application is proceeded with.

I am satisfied that the appeal of the earlier application has been concluded, and the determination of the appeal is clear. In the circumstances, I now intend to proceed with the determination of this application. I note that the respondents requested to be permitted to make a further submission. However, given the nature of the matter to be determined, I do not consider that the provision of a further submission from the applicant would alter the outcome of this application.

The matter for determination is a relatively straightforward one in my view, particularly now that I have the benefit of the appeal decision determining both the validity of the relevant by-law, and further, that "there is no error in law involved in an adjudicator’s deciding simply whether or not to grant the particular relief sought by the applicants, and not seeking to broaden the issue into other underlying or background disputes which have not been specifically raised".

The application sought the removal of three signs erected by the respondents on common property, on the basis that the erection of these signs by the respondents contravened by-law 17A(4) which relevantly provides –

An occupier of a lot must not, without the prior written consent of the body corporate, construct display and /or paint any signs, signage and / or notices within the scheme land and without derogating from the generality of the forgoing, within the common property, or any body corporate assets or from any lot or within any lot where the sign, signage and / or notice is visible from outside the lot.

I am informed in submissions that two of the three signs in question have already been removed, and that the remaining sign is the one affixed to the external wall of lot 26 which reads "LAKEVIEW PARK Holiday Town Houses INQUIRE AT UNIT 39".

The applicant body corporate, in its grounds, states that the respondents have, "without the consent of the body corporate constructed, displayed and / or painted the signs, signage and / or other notices within the scheme land". The body corporate states that it has given notice to the respondents to remove the signs, but that at the date of the application "the respondents ... have failed to comply with the demand set out in the letter and the signs remain within the scheme land in contravention of by-law 17A(4)".

This office sought submissions from the respondents and all owners regarding the application. The respondents were afforded the opportunity to respond fully to the terms of the application. Their response was however limited, essentially to the matters mentioned above. The defence of the respondents was essentially the district court appeal, which the respondents believed would overturn the validity of the by-law in question. It did not. In fact, the judge concluded –

The appeal in my view was plainly misconceived. The appeal is dismissed with costs.

A majority of other owners who made submissions support the application, and seek an order compelling the respondent to remove the remaining sign. Some owners in fact request that I go further and enforce the terms of by-law 17A(3). This aspect was not part of the original reference by the applicant and I do not propose to consider it.

Determination

The respondent’s lot is lot 26 in group title plan (now a standard format plan) 2210. The significance of a standard format plan, is that the exterior walls of the lot are in fact part of the lot and not common property. The sign in question therefore has been affixed to an external wall of the lot.

I conclude that the terms of the by-law are sufficiently wide to cover this aspect. The by-law refers to displaying any signs "within the scheme land" which comprises both lots and common property. Moreover, it goes on to include the specific words "or from any lot or within any lot where the sign ... is visible outside the lot". I conclude that the action of the respondents in affixing the sign to the exterior wall of their lot to be in contravention of the by-law. I intend to order the respondents to remove the sign within two (2) weeks of the date of this order.

I further conclude that, aside from the issue of lack of body corporate approval, it is no longer appropriate for the respondents to display the sign in question in any event. The respondents are no longer the letting agents for the scheme. In these circumstances, I conclude that there is no reasonable basis on which the respondents might have argued that, notwithstanding the failure to obtain body corporate committee approval for the affixing of the sign, they should be allowed to retain the sign. I consider that on the determination of their appeal, the respondents should have realised the implications of that decision for this application. Consequently, this order should come as no surprise to the respondents.