Ocean Paradise [2003] QBCCMCmr 459 (4 April 2003)

Last Updated: 10 September 2007

C G YOUNGREFERENCE: 0628-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17611
Name of Scheme:	Ocean Paradise
Address of Scheme:	32 - 36 Ocean Street MERMAID BEACH QLD 4218

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

C G YOUNGI hereby order that within six (6) months of the date of this order, Rose Blanche TULLY, the owner of Lot 10, must remove and keep removed from the exclusive use car space identified in Schedule A of By-law 23 by the number "4", all personal property other than a motor vehicle as defined in By-law 1(b) of the body corporate by-laws. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0628-2002

"Ocean Paradise" CTS 17611

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"Removal of cardboard boxes currently stored in the basement car space allocated to Lot 10. Further the removal of enclosure around the car space allocated to Lot 10."

JURISDICTION:

This is a dispute between the body corporate (the applicant) and an owner (the respondent Rose Blanche Tully, the owner of Lot 10), concerning the enclosure of an exclusive use car space allegedly without proper authorisation, and the storage of boxes in that car space allegedly in breach of the by-law granting exclusive use, By-law 23. These are matters that fall within the dispute resolution provisions of the legislation (see sections 182A, 183, and 223(1)(a) of the Act).

General powers of an Adjudicator in making an order:

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 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:

In accordance with the requirements of section 194 of the Act, a copy of the application was provided to the respondent Tully and to all other owners, with an invitation to respond to the matters raised in the application. Tully and a number of other owners made submissions to the application. The applicant viewed the submission, as provided for in section 196 of the Standard Module regulations, and subsequently made a reply to them. Only one owner made a submission in support of the respondent, while eight others supported the order sought by the body corporate.

A broad outline of the facts of the matter, and the positions of the parties, follows.

The body corporate submits that –

• Tully is in breach section 124(3) of the Standard Module regulations by enclosing her basement exclusive use car space without authorisation. There is no body corporate record showing that permission was given for the enclosure.

• The storage of boxes in the basement poses a potential fire risk and is an attraction to vermin. A letter from Amalgamated Pest Control addressed to the Body Corporate Manager, Body Corporate Services Pty Ltd, states the boxes represent a potential breeding place (for cockroaches).

• The enclosure restricts access to the adjoining car spaces and (makes) parking inconvenient.

• The presence of the stored boxes makes it difficult for the body corporate to require other residents to remove items stored in their car spaces (see Circular to Residents dated 1 August 2002, asking residents to remove stored items from basement car spaces).

In response, Tully states that she settled her contract for the purchase of Lot 10 on 11 January 1995, following approval by the body corporate at a general meeting held two days before on 9 January, for her to enclose her exclusive use car space. She has enclosed a copy of the minutes of that meeting, however the body corporate questions the authenticity of those minutes as it has no similar record of this meeting. She contends that, despite the motion not specifying that the enclosure be for the purpose of storage (for which she has used it virtually since purchase), this purpose can reasonably be implied or inferred.

Tully states that she has used the enclosed car space for storage since purchase without complaint, except in recent times. She states she is 79 years of age and has nowhere else to store the boxes.


DETERMINATION:
"Ocean Paradise" was registered as a building units plan (now termed a building format plan) on 22 December 1994 and comprises 15 lots.

In determining this application, I have considered: the terms of the by-law granting exclusive use to Tully, namely By-law 23; the body corporate resolution giving consent to the enclosure of her car space; and relevant features of the enclosure structure itself. Finally, I shall consider the respondent’s long-term use of her car space for the storage of personal items. I shall deal with each of these in turn, however, in the course of my inspection of the records of the Registrar of Titles, there is a small matter I should comment on initially.

Both the resolution for the change of by-laws (which includes By-law 23) and the resolution approving the enclosure (see later as to the validity of this resolution), were passed at the statutory first annual general meeting held on 9 January 1995. At this time the original owners were the sole owners of the scheme lots. The notification of change of by-laws was lodged with the Registrar of Titles on 16 January 1995, but was not recorded on the registered plan until 16 May 1995. The reason for the delay is irrelevant, however it does mean that approval for the enclosure was given before the grant of exclusive use took lawful effect. However, I do not consider that means anything more than that the approval only took effect on the recording of the by-law. I have no doubt that at the same time other owners were using their (proposed) car space for parking.

Firstly, it is my inference from all of the relevant documentation that Tully’s exclusive use space was intended to be for car parking purposes only. My reasons are as follows –

The wording of the relevant by-law granting Tully (and other owners in respect to other common property car spaces) the exclusive use of the car space, and the wording of the by-law annexures, is consistent with the spaces being allocated for the purpose of parking vehicles. I shall highlight the relevant wording in the by-law and annexures.

By-law 23 states –

23. PARKING OF MOTOR VEHICLES

(a)	A proprietor for the time being of each Lot shall be entitled to the exclusive for himself and his licensee’s of the car space identified on the Plan and Schedule annexed hereto and marked "A".
(b)	The Committee may vary the allocations ... (this paragraph concerns exchanges of spaces and is not relevant to the dispute).
(c)	An occupier of a Lot shall use his best endeavours to ensure that his invitees do not park or stand any Motor Vehicle upon the Parcel except within a car parking space which the Committee has nominated under this by-law but such invitee’s Motor Vehicle shall not be permitted to park overnight on the Parcel without the prior written consent of the Committee.

The annexure "Schedule A" referred to in paragraph (a), at page 11 of the notification of change in by-laws, shows the allocation of spaces (identified by numbers) to each of the 15 lots. One column shows the lot numbers and is headed "Lot No." while the opposite column showing the space identification numbers is headed "Car Park Allocation".

Page 12 of the by-law annexures, also headed "Schedule A", is a sketch plan of Level A of the building, showing the allocated spaces marked with an identification number from page 11. The page includes as its sub-heading –

"Exclusive Use Plan
Ocean Paradise
Basement Carpark"

While the by-law does not state that the grant of exclusive use is for car parking purposes only, the wording highlighted above is strong evidence that "car parking" was the only purpose in contemplation when the by-law was formulated.


Secondly, I have examined the minutes of the first annual general meeting submitted by the respondent Tully in support of her claim that she had proper authorisation for installation of the enclosure structure. The minutes show the meeting as having been held on 9 January 1995, and comprises five pages of motions in a form corresponding to the statutory agenda items for such a meeting, including: persons elected to committee positions; details of insurance policies; and fund contributions. In my view the minutes appear authentic. As previously stated, these minutes also include the resolution granting exclusive use of car spaces to owners which the applicant does not dispute as being part of its by-laws.

On page 2 of the minutes, under the heading "Special Privilege", the relevant resolution reads as follows –

RESOLVED by a Resolution Without Dissent that the proprietor of car park No. 4 (Lot No.10) be granted special privilege to fully enclose her car space with a wire/steel cage and door without infringing on any other car space and this decision be irrevocable and the instrument in writing marked "Special Conditions" be attached to these minutes.

Tully has not included any copy of the "Special Conditions" referred to in the above resolution, if indeed one exists. Accordingly, one can only speculate as to what conditions were imposed. Tully does state that it was required of her that the colour of the door should match the building’s colours.

The respondent contends that, although the motion does not specify that the enclosure was for securing the storage of items other than a vehicle, this purpose can reasonably be implied or inferred. I do not agree with view. There is nothing in the wording of the resolution, or the act of enclosing the car space itself, that evinces an intention by the body corporate that the space was to be used otherwise than in a manner consistent with the by-law.

Thirdly, the enclosure consists of wire mesh at the sides and a garage tilt-a-door at the entrance. The respondent states that the door had to colour-match the building, so it follows that the body corporate was aware the entrance was to be a solid door, highly likely a garage door. It may be that the body corporate specified a garage door in anticipation of its use by the respondent for parking. It may be that the respondent intended the space to be for storage but nevertheless installed a garage door in case she wished to sell her lot in the future. Had the entrance been enclosed with wire mesh including a mesh door, then the use of the space for storage would have been immediately apparent. In summary, these are merely speculations as to the understanding and intention of the body corporate (ie the developer) at the time. However, there is nothing in the resolution or the enclosure itself that assists the applicant in her contention that storage can be reasonably inferred from the consent given – if anything, the use of a garage door to secure the entrance gives a small weight to the contrary view.

In summary, for the above reasons, I view the by-law as granting the spaces for the sole purpose of car parking. In an enclosed space such as the respondent’s, it may be that minor storage of vehicle related items would be acceptable to the body corporate, however using the space for the sole purpose of storage is not within the permitted use of the by-law.

Having said that, I am most conscious of the fact that the respondent has used the space for storage almost from the date of purchase some 8 years ago. There is an equitable doctrine called "acquiescence" which, broadly, allows notice to be taken of a state of affairs that is prohibited or improper, but has nevertheless been allowed to exist for some time by the party that could have earlier taken steps to stop it. Its application here is that the respondent has been using the space for storage for 8 years and the body corporate has not taken any action to enforce the by-law until now.

My decision in this matter has been a difficult one in balancing on the one hand, whether the failure of the body corporate to act earlier makes it unfair to enforce the by-law now, and on the other hand, to enforce the intention of the by-law.

I have taken into account that the respondent is 74 years old and a pensioner of limited financial means. I place no merit on the arguments of the respondent that other owners have personal property stored on their spaces – the items are few in number and where they exist, are incidental to the parking of vehicles, and, over a number of spaces, they consist mainly of bicycles, a cupboard, a small filing cabinet, a hose and a collapsible saw bench. Similarly, I place no merit on the respondent’s argument that there is another enclosure on a car space. The owner of Lot 11 has installed a roller-door across a metre deep alcove at the rear of their car space – the car space is used for vehicle parking and the enclosure is of a small area. The fact remains that the respondent is the only occupier who does not use their car space for parking, and is the only occupier who stores significant amounts of personal property in their car space.

I place only small merit on the applicant’s submission that the boxes constitute a breeding ground for vermin, and are a potential fire hazard. I accept also the committee’s submission that the storage of boxes has been an issue with some occupiers for several years, as borne out by the size of owner support for the application, however the committee’s claim of ignorance of its rights in the matter is an explanation but not of any merit. However, what I consider to be an inescapable fact is that the storage of the boxes is flatly contrary to the intention of the by-law, and is highly visibly so. Certainly the body corporate should have acted sooner in the matter, however equitable relief is discretionary and I consider that the breach is so contrary to the by-laws which should apply equally to all, that the relief should not be applied in the circumstances.

Accordingly, my order is that the respondent Tully must remove the boxes from her car space. However, in consideration of her age and financial circumstances, I am allowing her a period of six months in which to remove them. This should allow the respondent time to either store them elsewhere (whether in her lot, with relatives or friends, or commercially), or dispose of some or all of them by sale or gift.