Crown Towers [2003] QBCCMCmr 398 (25 February 2003)

Last Updated: 7 September 2007

DJ ReardonREFERENCE: 0539-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24386
Name of Scheme:	Crown Towers
Address of Scheme:	5-19 Palm Avenue, Surfers Paradise Q 4217

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

Christopher Lumley, the Owner of Lot 148


DJ ReardonI hereby order that the application for an order that the Body Corporate replace damaged common property carpet, is dismissed.

I further order that the application for an order that the Body Corporate pay for the cleaning of the deck area of Lot 148, is dismissed.

I further order that the application for an order that the Body Corporate pay for the repair of sails and a mechanical umbrella located on the deck of Lot 148, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0539-2002

"Crown Towers" CTS 24386

1.	Orders sought

The Applicant, the Owner of Lot 148, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"Carpet Replacement-

Mr Lumley wants an order that the Body Corporate pay for replacing the urine-stained carpet caused by Schoolies Week tenants in the hall near the lift, outside his apartment.

Cleanup of Apartment-

Mr Lumley wants an order that the Body Corporate pay for cleaning up all the broken pots, pizza boxes, cigarette buts, broken beer bottles, and other items thrown down by Schoolies Week tenants on higher floors.

Damaged Common Property-

Mr Lumley wants the Body Corporate to pay for the repair of both the huge sails, and the mechanical umbrella, which are out on the deck, and have been damaged by severe storms back in Feb/March 2002."

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 "Crown Towers" community titles scheme was originally created under a building units plan of subdivision (now referred to as a building format plan), registered on 29 October 1997. The scheme consists of 298 lots and common property. The community management statement for "Crown Towers" indicates that the Body Corporate and Community Management (Accommodation Module) 1997 ("the Accommodation Module") applies to the scheme.

2.	Application and submissions

This dispute resolution application was made on 4 September 2002. On 6 September 2002, and 12 September 2002, a staff member of this Office contacted the Applicant’s Solicitors on behalf of the Commissioner for Body Corporate and Community Management ("the Commissioner"), and requested clarification and further information concerning the application.

On 16 September 2002, the Commissioner invited the Committee for the Body Corporate to make a written submission about the matters raised in the application. The Body Corporate Manager has provided a submission about the application on behalf of the Committee under cover of a letter dated 3 October 2002. Although the Applicant’s Solicitors were advised of the procedure for the Applicant to exercise his right to obtain copies of submissions made in relation to the application, and to reply to those submissions, a formal request for copies of submissions under section 196 of the Act has not been received by this Office to date.

On 22 October 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

After reviewing the material submitted in relation to this application, it seemed to me that the submission made by the Body Corporate Committee contained particularly pertinent information that would be relevant to my determination of the application. As I was concerned that the Applicant had not exercised his right to inspect and reply to the submission, on 4 February 2003, I wrote to the Applicant, care of his Solicitors, enclosing a copy of the Committee’s submission and inviting the Applicant to reply. To date, I have not received a reply from the Applicant. As such, I intend to determine the application on the basis of the material before me, without further reference to the Applicant.

3.	Matters in dispute

The Applicant has raised three main matters in this application, which I will consider in turn.

3.1	The Carpet

In the supporting grounds to the application, the Applicant states that there are urine stains on hallway carpets outside Lot 148 and near the lift lobby, caused by "schoolies week" tenants. The Applicant goes on to state that the carpets cannot be properly cleaned, and a strong odour remains. As such, the Applicant seeks the replacement of the damaged carpets.

In the Committee’s submission, the Body Corporate Manager indicates that the foyer carpets on all levels have now been replaced. This seems to me to resolve the Applicant’s concerns on this point, and as such, I intend to dismiss this part of the application.

3.2	Cleanup of Lot 148 deck

In the supporting grounds to the application, the Applicant states that litter and other items are thrown or dropped from units above Lot 148, onto the deck area of Lot 148. The Applicant indicates that the items dropped onto Lot 148 include plastic chairs, cigarette butts, bottles and pizza boxes. Again, the Applicant indicates that he believes "schoolies week" tenants are the main cause of the problem. I understand that the Applicant is seeking an order that the Body Corporate pay for the removal of litter and other items dropped onto the deck of Lot 148, on the basis that the Body Corporate should enforce the by-laws and ensure that these items are not dropped onto Lot 148.

In its submission, the Committee opposes the order sought, and makes reference to section 119(1) of the Accommodation Module. This section imposes an obligation on occupiers of lots included in a community titles scheme to "keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition".
The Committee also expresses a view that the relative size of the deck area of Lot 148 results in it attracting a higher than average amount of litter from higher units. In addition, the Committee points to the obvious difficulties in identifying the specific unit from which particular items or litter are dropped.

I have a significant amount of sympathy for the Applicant’s position regarding this issue. It is clear that the deliberate dropping of litter and rubbish onto the Applicant’s lot is an intrusive and unwarranted nuisance to the Applicant. Even more importantly however, the throwing of glass bottles and chairs onto the Applicant’s lot poses a completely unacceptable risk to the safety of the Applicant, and anyone else occupying Lot 148.

However, it is clear that it is the occupiers of other lots whom are breaching the by-laws of the scheme and creating this nuisance, and not the Body Corporate itself. While the Body Corporate has an obligation to enforce the by-laws for the scheme, it must also be accepted that regrettably, the dropping of items from higher lots onto Lot 148 is a matter that is difficult for the Body Corporate to monitor and remedy. Obviously, in most instances it will be very difficult for the Body Corporate to identify the lot from which a particular piece of rubbish was dropped.

In the circumstances, I consider that the obligation under section 119 of the Accommodation Module applies, and the Applicant is responsible for cleaning the deck of Lot 148. However, I would urge the Body Corporate to take all reasonable steps to enforce the by-laws in this regard.

3.3	Umbrella and sail

In the supporting grounds to the application, the Applicant states that a large mechanical umbrella has been unsecured during a severe storm in February 2002. The Applicant also describes damage to two large sails caused by the same storm, and material being dropped from higher levels. The Applicant seeks an order that the Body Corporate pay for the repair of these two items, which he states, are common property.

In its submission, the Committee states that the umbrella and sail are not common property, but are the property of the Owner of Lot 148. In this regard, the Committee has provided a copy of an extract of the minutes of the first annual general meeting of the Body Corporate held on 21 April 1998. The minutes record the following regarding motion 26.

"Original Motion-Installation of Umbrella and Shade Sail-Lot 148

Submitted by the Owner of Lot 148

That the Owner of Lot 148 be granted permission to install an umbrella and shade/privacy sail to the balcony terrace of Lot 148. The cost and upkeep and maintenance of the umbrella and sail would be borne by the Owner of Lot 148.

Amended Motions

Pursuant to Section 55 of the Body Corporate and Community Management (Accommodation Module) Regulations 1997 the persons present at the Meeting amended the Motion to read as follows:

"That the owner of Lot 148 be granted permission to install an umbrella and shade/privacy sail to the balcony terrace of Lot 148 as referred to in item 26 of the agenda items and in particular in accordance with the plans prepared by DBI Architects "C1 and C2" dated

30 November 1997. The cost and upkeep and maintenance of the umbrella and sail would be borne by the owner of Lot 148".

The minutes record that the motion was carried with 89 votes in favour of the motion, and 5 votes against the motion.

I have not been provided with sufficient information to determine with certainty whether the sail and umbrella are completely located within the boundaries of Lot 148, or whether aspects of the sail and umbrella can be properly described as an improvement to the common property for the benefit of Lot 148. In any event, it seems to me to be clear that the Body Corporate’s condition for permitting the Owner of Lot 148 to install the sail and umbrella was that the Owner of Lot 148 would be responsible for the maintenance and upkeep of the umbrella and sail.

In these circumstances, I do not agree with the Applicant that the Body Corporate is responsible for the repair of the sail and umbrella. Rather, these expenses should be borne by the Applicant.

4.	Conclusion

For the reasons outlined above, I intend to dismiss the application for adjudicator’s orders as sought by the Applicant.