Kings Row South [2003] QBCCMCmr 342 (22 January 2003)

Last Updated: 7 September 2007

REFERENCE: 0563-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11397
Name of Scheme:	Kings Row South
Address of Scheme:	18 Commodore Drive PARADISE WATERS QLD 4217

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

Edgar Vernon Horne, the co-owner of lot 59

I hereby order that the application by Edgar Vernon Horne, the co-owner of lot 59, for several orders that the body corporate :-

1. Exercise control over and supervise the provision of services as set out in Boy Corporate Contracts and restore to me my rights and privileges as provided for by the Act, Body Corporate Contracts, House rules and by-laws.

2. Direct the building manager to carry out his duties in accordance with the terms and provisions of the Act and the body Corporate Contract and house rules and by-laws.

3. Direct the building manager to be available to cater to the needs of owners as provided for in his contract and the house rules and by-laws.

4. Take the necessary action to ensure that the building manager, or his representative, is available at all times to attend to any emergency that may arise at Kings Row South, in accordance with the terms of his contract and the terms and provisions of the House Rules and by-laws.

5. Take all necessary action to ensure that the building manager responds to requests by owners in a courteous and expeditious manner.

6. Take the necessary action to ensure that the body corporate manager responds to correspondence and requests for information in a professional, courteous and expeditious manner.

7. Take the necessary action to provide full information to the body corporate manager to enable him to answer all correspondence and requests in a professional, expeditious and courteous manner.

8. Take all necessary action to ensure that all body corporate contractors treat all owners with courtesy and respect and attend to owners requests and needs, promptly and professionally.

9. Take all necessary action to ensure that my correspondence and the questions therein, dated 10 May, 25 May and 12 June 2002 are answered in full and as expeditiously as possible, having regard to the fact that the correspondence was forwarded more than three (3) months back.

10. Take all necessary action to protect, promote and enhance Owners rights and privileges and obligations having regard to the provisions of the Act, Body Corporate Contracts, The House Rules and By-laws.

is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0563-2002

"Kings Row South" CTS 11397

The applicant, Edgar Vernon Horne, the co-owner of lot 59, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate :-

1. Exercise control over and supervise the provision of services as set out in Boy Corporate Contracts and restore to me my rights and privileges as provided for by the Act, Body Corporate Contracts, House rules and by-laws.

2. Direct the building manager to carry out his duties in accordance with the terms and provisions of the Act and the body Corporate Contract and house rules and by-laws.

3. Direct the building manager to be available to cater to the needs of owners as provided for in his contract and the house rules and by-laws.

4. Take the necessary action to ensure that the building manager, or his representative, is available at all times to attend to any emergency that may arise at Kings Row South, in accordance with the terms of his contract and the terms and provisions of the House Rules and by-laws.

5. Take all necessary action to ensure that the building manager responds to requests by owners in a courteous and expeditious manner.

6. Take the necessary action to ensure that the body corporate manager responds to correspondence and requests for information in a professional, courteous and expeditious manner.

7. Take the necessary action to provide full information to the body corporate manager to enable him to answer all correspondence and requests in a professional, expeditious and courteous manner.

8. Take all necessary action to ensure that all body corporate contractors treat all owners with courtesy and respect and attend to owners requests and needs, promptly and professionally.

9. Take all necessary action to ensure that my correspondence and the questions therein, dated 10 May, 25 May and 12 June 2002 are answered in full and as expeditiously as possible, having regard to the fact that the correspondence was forwarded more than three (3) months back.

10. Take all necessary action to protect, promote and enhance Owners rights and privileges and obligations having regard to the provisions of the Act, Body Corporate Contracts, The House Rules and By-laws.

Section 223(1) 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)).

This is an application against the body corporate, but it seeks to have the body corporate take action against the building manager, the body corporate manager, body corporate contractors, and generally, to take all necessary action to protect, promote and enhance Owners rights and privileges and obligations having regard to the provisions of the Act, Body Corporate Contracts, The House Rules and By-laws.

Submissions in response to the application were received from the committee, the building manager and the body corporate manager. All submissions oppose the application.

I intend to dismiss the application. Section 220 of the Act provides that –

220 Investigation by adjudicator
(1) The adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application.
(2) However, the adjudicator may, without investigation, make an order dismissing the application, or may end an investigation and make an order dismissing the application, if it appears that--
(a) the adjudicator does not have jurisdiction to deal with the application; or
(b) the application is frivolous, vexatious, misconceived or without substance.
(3) When investigating the application, the adjudicator--
(a) must observe natural justice; and
(b) must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application; and
(c) is not bound by the rules of evidence.

Firstly, I consider the application is misconceived and lacking in substance. The applicant’s initial complaint related to noise alleged to be emanating from another lot. Due however to the way those initial complaints are alleged to have been dealt with, the dispute has now grown exponentially to involve seemingly every party responsible to perform an obligation in this body corporate. This is absurd. The nature of the initial complaint does not contemplate or warrant the terms in which this application has been expressed, and I conclude that there is insufficient substance in the complaint to warrant an investigation of its numerous allegations.

Secondly, it is clear that an adjudicator does not have power to make several, if not most of the orders, as sought. There is no statutory basis for an order that the building manager, body corporate manager, or body corporate contractors treat owners variously with courtesy, professionalism etc. My issue is not that these are, objectively, unreasonable expectations. Rather that they are not matters the subject of legislative enactment, and consequently there is no legislative basis for the making of such orders.

If the material of other parties is to be believed, the applicants own conduct in responding to the alleged noise was itself unreasonable. What is a reasonable expectation of an owner in my view is that the manager, after being contacted, should investigate the complaint and take whatever immediate action appears appropriate, including for example, speaking to the persons alleged to have made the noise.

If however the noise continues, then in my view there is very little a manager can do. The manager has no special ability to prevent or stop occupiers breaching by-laws. Rather, the manager should report to the committee who should then investigate the matter.
The committee should investigate whether the complaint is a reason one, and if so, take appropriate action. This might involve at first instance, having a member of the committee speak to the persons alleged to have been responsible.

If over time, this action is not successful in preventing future re-occurrences, then the committee must consider the serving of a contravention notice in respect of the matter. This is the mechanism provided in the legislation for a committee to deal with alleged by-law contraventions. Finally, if there is a failure to comply with the contravention notice, then the committee have the options of seeking an order of this office, or alternatively, approaching the Magistrates Court for the imposition of a financial penalty.

Clearly, the alleged contravention of by-laws is a matter which is often not capable of being addressed to the satisfaction of the complainant at the immediate time or even proximate time the alleged contravention occurs. This is particularly so if those alleged to be in contravention are or continue to act in a belligerent or obstructive manner, with little concerns for the rights of others. It is a fact that some persons have no concerns for the rights of others, and will continue to act inappropriate notwithstanding that they have been advised variously that their conduct is not appropriate. This however does not mean that every party who is somehow responsible to enforce by-laws has failed in their contractual or other duty to this effect, and should be somehow brought to heel.

On the information available, I suggest that the applicant has over-reacted. His expectation was that the matter would be addressed immediately and achieve an outcome to his complete satisfaction. When this did not occur, the applicant appears to have then taken issue with the actions of every party who he believes owes him some form of duty as an owner within this scheme. I suggest to the applicant that this is neither a correct nor appropriate response.

I am aware of the applicant’s more general allegations of dissatisfaction with the current committee in this scheme. I consider that this is a matter which is within the applicant’s capacity to control, to some extent, as an owner. It can be addressed in some practical ways. For example, if an owner is dissatisfied with the performance of the committee, then don’t vote for those members if they again nominate for the committee at the next election. Alternatively, stand against such members for positions on the committee. As a member of the committee, one has greater input into how matters are addressed. In either scenario, the applicant, and other owners who might be dissatisfied, are entitled to actively campaign against the re-election of members of the committee with whom they are dissatisfied. I suggest however that any action in this regard should be both fair and reasonable. Similarly, the actions of committee members should be also.

In relation to service contractors or body corporate managers, dissatisfied owners can vote against the renewal or extension of their contracts, if dissatisfied with the level of service provided. Moreover, owners, if dissatisfied, have the right to place motions on the agenda requiring the committee to take certain nominated or specified action regarding such contractors. If such motions are carried, then the committee is obliged to implement such motions. It should be noted that in order for such motions to be implemented, they will need to be carried by majority vote in general meeting. This is how it should be.