Chelsea Apartments [2003] QBCCMCmr 22 (17 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0670-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7529
Name of Scheme:	Chelsea Apartments
Address of Scheme:	19 Lower King Street CABOOLTURE QLD 4510

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

Maureen Smith (Wooler), the owner of lot 1

I hereby order that the application by Maureen Smith (Wooler), the owner of lot 1 for several orders that -

1. That body corporate undertake regular and proper cleaning of stairwell, car park and all common areas and be made aware that this is not being carried out, and has not for a number of years.
2. That the body corporate undertake maintenance needed to repair fences in the scheme, painting of scheme, and to correct a building defect which has caused cracking externally and internally of units 4, 5 and 9.
3. That the body corporate undertake to reset lighting time switch from 9 pm to 6 pm. This is car park area.
4. That body corporate repair or renew main boxes and renew locks or similar, to disenable anyone rifling through boxes and mail which happen often as boxes are close to footpath and possible move it back closer to car ports.
5. Body Corporate need to remove dangerous metal car stop and replace with something more efficient.
6. That body corporate have visitors car park marked visitors only (maybe on fence) and body corporate mark tenants and owners car parks as such.
7. The body corporate owners who have there units rented out, inform their rental agency’s to supply all new tenants with copies of laws and regulations pertaining to behaviour and rules, while there are residing in a unit complex.
8. That body corporate be made aware of events and occurrences that do happen in regard to complex that I see, because this is my permanent home. These are not getting dealt with and that body corporate know that I would be prepared to attend if it is appreciated by some.

9. That body corporate be made aware that I as an owner living here have need to cleaning etc and that I also have tried to do the right thing in the absence of anyone else undertaking these jobs. They body corporate did not supply anyone else to do this.
10. That if body corporate could agree, I am prepared once again to keep common property in a clean condition, also replant gardens, to help make complex look agreeable.
11. That body corporate dispense with service of currently engaged lawn mowerman, and engage a more efficient and cheaper contractor to do work which needs to include cutting back of trees and bushes down right side of complex;

the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0670-2002

"Chelsea Apartments" CTS 7529

The applicant, Maureen Smith (Wooler), the owner of lot 1 has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

12. That body corporate undertake regular and proper cleaning of stairwell, car park and all common areas and be made aware that this is not being carried out, and has not for a number of years.
13. That the body corporate undertake maintenance needed to repair fences in the scheme, painting of scheme, and to correct a building defect which has caused cracking externally and internally of units 4, 5 and 9.
14. That the body corporate undertake to reset lighting time switch from 9 pm to 6 pm. This is car park area.
15. That body corporate repair or renew main boxes and renew locks or similar, to disenable anyone rifling through boxes and mail which happen often as boxes are close to footpath and possible move it back closer to car ports.
16. Body Corporate need to remove dangerous metal car stop and replace with something more efficient.
17. That body corporate have visitors car park marked visitors only (maybe on fence) and body corporate mark tenants and owners car parks as such.
18. The body corporate owners who have there units rented out, inform their rental agency’s to supply all new tenants with copies of laws and regulations pertaining to behaviour and rules, while there are residing in a unit complex.
19. That body corporate be made aware of events and occurrences that do happen in regard to complex that I see, because this is my permanent home. These are not getting dealt with and that body corporate know that I would be prepared to attend if it is appreciated by some.
20. That body corporate be made aware that I as an owner living here have need to cleaning etc and that I also have tried to do the right thing in the absence of anyone else undertaking these jobs. They body corporate did not supply anyone else to do this.
21. That if body corporate could agree, I am prepared once again to keep common property in a clean condition, also replant gardens, to help make complex look agreeable.
22. That body corporate dispense with service of currently engaged lawn mowerman, and engage a more efficient and cheaper contractor to do work which needs to include cutting back of trees and bushes down right side of complex.

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)).

This office sought submissions from the body corporate and all owners in respect of this application. There are nine other lots in the scheme, excepting the applicant. Submissions have been made by -

• Michael and Mandy Green, the owners of lot 2;
• Linda Moore, the owner of lots 3 and 4;
• David Brandon, the owner of lot 5;
• Malcolm Moses, the alleged owner of lot 7.
• Gary Ralph, the owner of lot 8;
• Rebecca Brandon, the owner of lot 9.

I have indicated that Mr Moses is the alleged owner of lot 7. He states that he is the owner of that lot, but government records indicate that the owner of lot 7 is Dean Lawrence Woods. Moreover, Mr Moses is not the owner of any other lot in the scheme. I therefore intend to not consider his submission in the determination of this application.

I consider it very significant to note that submissions have been made by owners of 6 of the remaining 9 owners. The benefit of this response is that I now have an understanding of the position of other owners in respect of this dispute. Moreover, 6 of 9 (two thirds) is a good representation of owner’s views.

This is the fourth similar application made by the applicant in the past 5 years or so, one of which did not proceed to determination. The first two applications (450 of 1998 and 298 of 2000) were duly investigated, with an officer inspecting the scheme on both occasions prior to an order being made. I have considered the terms of both orders which have been made in considering this application.

Having obtained the submissions from other owners, I do not intend to inspect the scheme, or to consider the grounds submitted by the applicant in any detail. I conclude that orders have previously been made which point out to owners the responsibility of the body corporate to undertake maintenance, and the usual role of a body corporate manager in a scheme. It is not necessary in my view for these matters to be restated. What I find that is that there is a recurring similarity in many of the issues raised by the applicant. There are also certain discrepancies in her grounds. For example, the applicant alleges generally that no maintenance of common property is being carried out (see first order sought) and then in the last order sought, seeks that the services of the current lawnmower man by dispensed with. It seems that the applicant wants to allege both that no maintenance is being carried out, and if it is, then that she is not satisfied with the standard of maintenance, and in consequence of this, is offering to undertake this maintenance herself "to make the complex look agreeable". It is unclear whether the applicant seeks or expects remuneration for this, but has sought such remuneration from the body corporate in the past. I suggest there is a level of confusion or conflict in the applicant’s expectations of this body corporate.

I now intend to make some observations of the orders sought by the applicant, adopting the numbering above, which is slightly different from the applicant’s numbering -

• 1 and 2 relate to maintenance, part of which (settlement of foundations) is potentially a major issue;
• 3 is a request to reset a lighting time switch;
• 4 is a mix of a request for repair and a request for improvement. The applicant effectively seeks that new mail boxes be constructed closer to the complex;
• 5 is a request for a change to part of the common property;
• 6 is a further request for something (numbering) to common property;
• 7 is a request to rental owners, and in my view, not an order which can be made;
• 8, 9 and 10 are really statements of the applicant’s expectations vis-à-vis other owners;
• 11 is a request to dispense with certain services, and engage others.

In many ways, I conclude the orders sought are simply a list of all the applicant’s grievances and wishes regarding common property. Several have been the subject of previous applications in some form. Certain cannot be the subject of an order of an adjudicator in my view. More relevantly, I conclude that there is no evidence that the applicant has referred any of these items to the body corporate for its consideration (by way of a general meeting) prior to making this application. I conclude that it is a necessary part of being in dispute with someone to actually raise your issues with that party and allow them or invite them to respond. One owner in submission refers to this –

In Mrs Smith’s letter she has nine points of complaint. I am sure some of which are quite valid. However these could have been raised at the last body corporate meeting if Mrs Smith, or a representative of Mrs Smith had attended.

I consider that this is a reasonable expectation of other owners; that the applicant will in the first instance address / raise her concerns / issues with the body corporate. If following this, the resolution of the issue is not to her satisfaction, then if she has a reasonable basis for doing so, she might make application to this office seeking a review of the determination.

From submissions, I conclude that there is an awareness amongst other owners of their responsibility vis-à-vis the body corporate, and of the body corporate to maintain common property. One owner, representing others, says as much –

My first comment would be that we, the owners, are responsible for the maintenance of the apartments and that we as a group appoint a body corporate manager who in turn sets the fees at an amount that will allow the building to be maintained in an acceptable manner.

... However I do not believe that this would be a valid reason for one owner to refuse to pay fees that the remainder of the owners have paid.

Another owner has commented that –

Mrs Smith (Wooler) has put forward 9 issues, which have some validity. If Mrs Smith (Wooler) would pay all outstanding levies she would then be able to have a pro-active part on the committee to resolve them. ...

... For someone to criticise and complain as much as Mrs Smith (Wooler) does with continual outstanding levies seems a little double standard. All 10 owners have a responsibility to pay their levies and all owners also have the opportunity to be part of a pro-active committee. After all it is our investment and to our better interests to look after them.

In her reply to submissions, the applicant acknowledges her failure to pay contributions, and outlines her belief that the alleged failure of the body corporate to maintain the common property justifies this stance, quote –

I do not believe I should continue paying levies for services not received.

Much of the applicant’s reply refers to beliefs held, and matters which are simply not relevant to the determination of this application. For example, there is discussion regarding the level of contributions and a statement that "an increase would never be warranted".

I don’t have an answer for this, however in light of the applicant’s failure to pay contributions, or to involve herself in affairs of the body corporate (eg. to serve on the committee) her expectations regarding the body corporate appear somewhat unreasonable. I consider the applicant needs to do two things to assists her own position in respect of the matters in which she is in dispute. Firstly, to bring her outstanding contributions up to date. This will ensure her right to vote at general meetings. Secondly, she should refer her concerns / issues in the first instance to the body corporate for consideration. It seems to me that owners generally acknowledge the need for maintenance, and the obligation to undertaken the same. However, the applicant cannot expect her position on all matters to prevail. She is one of ten owners in the scheme. Bodies corporate make determinations on the basis of majority decisions in most instances. Invariably owners will need to compromise at times on certain issues, and on others on which they have been overruled, accept the position of the majority. I recommend the above approach to the applicant before making any further applications to this office.