344 Queen Street [2003] QBCCMCmr 383 (14 February 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0595-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4885
Name of Scheme:	344 Queen Street
Address of Scheme:	344 Queen Street BRISBANE QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for 344 Queen Street

RA MeekI hereby order that within three (3) months of the date of this order, the owner of lot 8, Power Tel Limited, shall engage the architects responsible for the building refurbishment, Nettleton Tribe (the architect), to design and arrange for the installation of alternative covers for the two grills which Power Tel Limited has installed on the Queen Street facia of the building provided that the covers designed by the architect are to be sympathetic to the facade of 344 Queen Street and the design is to be approved (such approval is not to be unreasonably withheld) by the body corporate committee or its manager.

I further order that Power Tel Limited shall be liable for all reasonable costs of engaging the architect and its design of alternative covers, and of the manufacture and installation of the covers.

I further order that if Power Tel Limited fails, after three (3) months and without reasonable excuse, to comply with and carry out the terms of this order in all respects, the body corporate, upon written notice to Power Tel Limited, shall be entitled to undertake the terms of the order, or any part of it which remains outstanding, and may recover the cost of so doing, including the cost of the architect, and the cost of manufacture and installation of the alternative covers, as a debt against the lot pursuant to section 99 of the Standard Module Regulation. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0595-2002

"344 Queen Street" CTS 4885

The applicant, the body corporate for 344 Queen Street, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order against Powertel Limited (Powertel Limited being the owner of lot 8) to compel Powertel Limited to either:

a) Reinstate, at the sole cost of Powertel Limited, the 344 Queen Street building fascia. This is to include removing the grills, repair the holes cut into the building and to reinstate the external appearance / facia of the building.

b) Engage the architects responsible for the building refurbishment – Nettleton Tribe – to design and arrange for the installation of alternative covers for the grills. Such covers are to be sympathetic to the façade of 344 Queen Street and the design is to be approved (such approval is not to be unreasonably withheld) by the body corporate committee or its manager. All works are to be sole cost of Powertel Limited.

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)).

In the supporting grounds, the applicant body corporate states that –

There has been a significant change to the common property and external appearance of 344 Queen Street (a professional and commercial office building) without body corporate approval.

The owner of lot 8, Power Tel Limited (the respondent) has responded by way of submission. I do not intend to set out the contents of that submission in any detail. The applicant is aware of the contents of that submission and has replied to it. The scheme in question is a commercial office building comprising 30 lots.

The issue to be determined is whether the respondent sought and / or was given authorisation by the body corporate for the installation of two (2) air conditioning "grills" (the grills) which have been installed by the respondent to the Queen Street facia of the building. The applicant alleges that the grills were installed by the respondent without "the express or implied approval of the body corporate or its manager". The respondent has submitted that consent for the grills "has implicitly been given by the body corporate’s conduct and (that) in any event, it is unreasonable for the body corporate to refuse to consent in the circumstances".

The respondent relies on the terms of correspondence by the applicant to "First Pacific Davies" of 10 March 1999, and the subsequent recording of a by-law "relevant to air conditioning" to establish its belief "that the body corporate was fully informed of all intended airconditioning works, including the relevant grills, by provision of plans to the body corporate".

This statement raises perhaps the central issue in dispute; namely whether plans showing the grills were provided to the body corporate for its approval.

On this point, the respondent provides as part of its submission copies of drawings showing "the external façade grills at issue". The respondent states –

Whilst our client is unable to offer clear evidence that these plans were provided to the body corporate, and it is noted the body corporate alleges no record of having received any relevant plans, our client believes that the plans, together with all documentations concerning the works for which body corporate consent was sought, were provided to the body corporate.

On 5 July 1999, our client received a facsimile letter from Vicki Bock of Equis on behalf of the body corporate committee, raising various issues for the works set out in drawings provided to the body corporate. ...

Our client subsequently proceeded with the works, believing all necessary consents to have been received. ...

The applicant has replied to this stating –

Whilst Powertel ... refer to carious consultants and drawings and Statutory Approving Authorities, the fact is simply that these documents were never supplied to the body corporate, its manager, or Equis Investments. ...

Powertel acknowledge that it is unable to offer clear evidence that these plans were provided to the body corporate – then mischievously and repeatedly claim (without providing evidence) that plans were ever proffered. ...

I have considered the letter of 10 March 1999, and note that this letter predates the respondent’s purchase of the lot. In particular, I have considered the section headed "Common Area Issues / Air Conditioning:". There is no reference in this section to any plans submitted or relied upon. Moreover, I consider that the section does not refer to specific issues, but concerns itself the higher level detail of the respondent’s proposal to install air conditioning equipment in the event of its purchase of the lot. I conclude that this correspondence contains no authority, express or implied, for the grills which have been installed in the facia.

It is not possible that the plans submitted by the respondent could have been provided to the body corporate with the initiating correspondence of 8 March 1999, since both plans post date this correspondence. The two plans provided to me are dated 5^th and 13^th April, respectively. In this context, I find the respondent’s statement that whilst it is "unable to offer clear evidence that these plans were provided to the body corporate, ... (the respondent) believes that the plans, together with all documentations concerning the works for which body corporate consent was sought, were provided to the body corporate" unconvincing. If there is no evidence to show that the plans were in fact provided, then on what reasonable basis can a belief that the plans were so provided, exist on the part of the respondent.

In any event, I consider that the issue is somewhat clarified by later correspondence, ironically provided as part of the respondent’s submission. I refer to the memorandum of 5 July 1999 from Vicki Bock to Bassett Consulting Engineers. The writer refers to a meeting on site "regarding the placement of the outdoor condenser unit on the Queen Street balcony". The significance of this memorandum is not only its contents which I shall refer to later, but that it clearly evidences to me that negotiations regarding the specifics of the air conditioning installation were continuing between the parties as late as July. This contradicts the respondent’s contention that the letter of 10 March 1999 effectively concluded all negotiations regarding the air conditioning installation.

Of particular relevance, I find the next three paragraphs of the memorandum very clear in respect of the body corporate’s requirements regarding improvements which will be visible from outside the lot. The memorandum states –

I have ascertained that the balcony is within level 2 strata, however the by-laws stipulate that nothing is to be placed on the balconies to be visible from outside the lot, without the consent of the body corporate. Hence the placing of the generator on the back balcony received body corporate approval but with the proviso that the generator must be screened.

I have inspected the area where you wish to place the condenser unit, from the other side of the street i.e. outside Central Plaza 1, and have assessed that it will be very visible. Therefore before the condenser can be installed it must be approved by the body corporate committee.

I suggest that this approval will not be received unless you devise some manner of screening it as the external appearance of the building from Queen Street is of prime importance to the committee.

This is a very clear statement (unequivocal in my view) of the position of the body corporate regarding changes to the external appearance of the building, which are visible from outside the lot. I consider that the terms of the memorandum should have left the respondent in no doubt that the body corporate considered the external appearance of the building to be of "prime importance" and that any variations to this necessitated by the respondent’s proposed works should, at the very least, be canvassed with the body corporate committee.

Given the respondent’s own admission, and my previous conclusion, that the respondent has failed to evidence that it provided plans to the body corporate, and coupled with the above statement of the body corporate’s position regarding changes to the external appearance of the building visible from an external perspective, I conclude that the respondent did fail to indicate to the body corporate its proposal to install the grills, or it seek its consent to the same, and that in the circumstances, there can be no question of express or implied consent having been given by the body corporate. I conclude that the grills were installed without body corporate approval, and that the body corporate were unaware of the proposal to install the grills until there were in fact installed.

I now turn to the second aspect raised by the respondent; namely that it is unreasonable for the body corporate to refuse consent in the circumstances.

I do not accept the reasonableness of the respondent’s statements (in its submission) numbered 4.1 and 4.2, or the accuracy of the statements numbered 4.3 and 4.4, essentially for the reasons set out above. In my view, a better interpretation of what occurred between the respondent and the body corporate was that these two parties agreed in principle a number of matters of a higher level prior to the respondent determining to proceed with the purchase of the lot.
However, the parties had not agreed on lesser or incidental details including for example, the specifics of the installation of the air conditioning condenser units, or the fact of or location of grills.

The respondent then contends that the removal of the grills "would result in (it) being unable to safely operate its business from the premises". This statement is made without any evidence to support it. The respondent concludes that "in these circumstances, it is unreasonable for the body corporate to now seek to impose any condition in relation to the air-conditioning vent which will prohibit our client from the use and enjoyment of its premises".

The applicant body corporate has rejected the respondent’s conclusion. It states in its reply –

It is our advice that placing a sympatric decorative feature proud of the vents can treat the grills and still allow operational effectiveness. Furthermore, the vents can be moved into other areas within the lot without defacing the commercial frontage to the building. Just because it was cheaper for Powertel to go directly through a façade, rather than run a duct within the premises, does not make it right for Powertel to proceed without reference to others, and to spuriously claim that the business will be unsafe to operate.

The respondent has failed to provide any evidence of its claim that its business would be unable to operate safely. Moreover, this of itself would not mean that the body corporate was acting unreasonably. The body corporate is entitled to give its consideration to each matter affecting it, and should not be put in the position, without its knowledge, where its refusal is construed as unreasonable because of some unsubstantiated claim on the part of a party seeking to have its way on an issue. I do not accept the respondent’s contentions as reasonable. What I consider far more probable is that, as the body corporate statements suggest, the vents "can be moved" or alternatively, that the grills can be decoratively treated so as to reduce their visual impact.

In conclusion, I consider the applicant’s position regarding the grills to be a reasonable one, and I intend to order in terms as sought by it. My only difficulty with this is that the body corporate has sought two orders in the alternative, without expressing a preferred option. Moreover, the respondent has not indicated which alternative it would consider preferable, in the event of its submissions not being accepted. I considered convening a teleconference to canvass this aspect. However, I conclude there are dangers in this approach, including the respondent not accepting my determination of the substantive issue and seeking re-argue the dispute in the course of and after the teleconference, thus prolonging the resolution of this dispute.

In the circumstances, I have elected the second alternative proposed by the body corporate, for two reasons:

• The body corporate has proposed it as one of two seemingly equally preferable solutions to this dispute; and

• Noting of the respondent’s allegation that it will be unable to safely operate its business without the grills. Whilst I do not accept this statement for the reasons set out above, I conclude that the respondent is in a sense expressing a preference that the grills remain in their current location.