Macquarie Mews [2003] QBCCMCmr 351 (24 January 2003)

Last Updated: 7 September 2007

DJ ReardonREFERENCE: 0566-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21958
Name of Scheme:	Macquarie Mews
Address of Scheme:	123 Macquarie Street, ST LUCIA QLD 4067

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Macquarie Mews community titles scheme 21958

DJ ReardonI hereby order that the within 8 weeks of the date of this order, the Owner of Lot 3 shall pay the Body Corporate $300, which the Body Corporate shall apply toward the cost of a replacement speed bump.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0566-2002

"Macquarie Mews" CTS 21958

1.	Order sought

The Applicant, the Body Corporate for Macquarie Mews community titles scheme 21958, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"That Mr Wheeler (the Owner of Lot 3) pay to have the speed bump in the driveway reinstated at no cost to the Body Corporate."

Section 223(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 contravention of the terms of, 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)).

The "Macquarie Mews" community titles 2nscheme consists of 6 lots and common property. The community management statement for "Macquarie Mews" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"), applies to the scheme.

2.	Application and submissions

This dispute resolution application was made on 12 September 2002. On 19 September 2002, the Commissioner for Body Corporate and Community Management ("the Commissioner") invited the Owner of Lot 3, and all other owners of lots included in the scheme to make a written submission about the application. The Owners of Lots 3, 4 and 6 have made written submissions about the application.

On 19 November 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

On 17 December, in the course of my consideration of the application, I requested the Applicant to obtain and provide me with copies of two quotations for the replacement of the speed bump. The Applicant provided me with 2 quotations as requested under cover of a letter dated 20 January 2003.

3.	Matters in dispute

This dispute resolution application concerns the removal of a speed bump from a common property driveway. From the material before me, I understand that the speed bump was removed around September 2000.

The Body Corporate claims that the Owner of Lot 3 caused the speed bump to be removed without the Body Corporate’s approval. From the material before me, I understand that while the Owner of Lot 3 did not remove the speed bump personally, at his request council workers whom he noticed working with a jackhammer in the vicinity of the scheme land, removed the speed bump.

In his submission, the Owner of Lot 3 states that he consulted with 3 lot owners before the speed bump was removed, however, he does not provide details of the 3 owners. The Owner of Lot 3 also outlines the problems he perceived with the speed bump, particularly, that the speed bump caused damage to vehicles.

4.	Determination

One of the general functions of a body corporate is to manage and administer the common property for the benefit of owners of lots included in the scheme (section 87(1)(a) of the Act).

As it is the responsibility of a body corporate to manage the common property, owners of lots included in a community titles scheme generally do not have authority to make alterations to common property without the proper approval of the body corporate. Rather, owners should seek and obtain the approval of the body corporate prior to carrying out any proposed alterations. The approval of the body corporate could be in the form of a resolution of the committee, or the body corporate at a general meeting, depending on the nature of the alterations.

In this case, the Owner of Lot 3 has not provided me with any minutes of meetings or written correspondence confirming that he had obtained the approval of the Body Corporate to cause the common property speed bump to be removed. While I do not necessarily dispute the Owner of Lot 3’s statement that he consulted with 3 owners before requesting the workers to remove the speed bump, even if I accept this statement, I still do not consider that consulting with 3 owners forms adequate approval of the Body Corporate. In my view, the matter should have been presented to the Committee or Body Corporate for consideration and determination at a proper minuted meeting, with all owners being afforded their rights to obtain a notice of the relevant meeting. If the matter was considered at a general meeting, all owners had a right to attend and participate in the decision making process. If the Committee determined the matter, all owners were entitled to receive notification of the decision to remove the speed bump before the decision was carried out.

As a second point, while I accept that the Owner of Lot 3 did not personally remove the speed bump, it is apparent that he requested the council workers to remove the speed bump. In my view, whether the Owner of Lot 3 personally removed the speed bump, or engaged someone else to remove the speed bump is largely irrelevant to the determination of this application.

I also do not necessarily dispute the Owner of Lot 3’s objections to the speed bump. However, in my view these objections should have been presented to the Body Corporate for consideration. If the Owner of Lot 3 considered that the Body Corporate was failing in its duties by not removing or altering the speed bump, the Owner of Lot 3 would have been entitled to make an application to this Office seeking an adjudicator’s order on this issue. In my view, the Owner of Lot 3’s objections to the speed bump did not warrant him causing the speed bump to be removed without proper Body Corporate approval.

In the circumstances, I do not consider that the Owner of Lot 3 had the proper authority to cause the removal of the speed bump. As such, in my view, the Body Corporate is entitled to the cost of replacing the speed bump from the Owner of Lot 3.

However, I am concerned about the length of time it has taken the Body Corporate to address this issue. As stated previously, the speed bump was removed in September 2000. This application was made almost 2 years later. While the Act contains no time limitation on the making of this type of application, I consider that it is reasonable to expect the Body Corporate to act promptly in making such an application. One of the key reasons for this is that costs of work can vary, usually increasing, over time.

I note that of the 2 quotations provided, A & GM Garbati quoted the lowest price for replacement of the speed bump, that being $374.00. In recognition of the Body Corporate’s delay in making this application, I do not intend to order that the Owner of Lot 3 pay the Body Corporate the full quoted price. Rather, I intend to order that the Owner of Lot 3 pay the Body Corporate $300.00, which is to be put toward the cost of the replacement of the speed bump.

It will now be for the Body Corporate to resolve whom to engage to replace the speed bump, and to meet any additional cost that is not covered by the $300 contributed by the Owner of Lot 3.