Daniells Terraces [2003] QBCCMCmr 465 (10 April 2003)

Last Updated: 10 September 2007

C G YOUNGREFERENCE: 0694-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4489
Name of Scheme:	Daniells Terraces
Address of Scheme:	47 Daniells Street CARINA QLD 4152

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

Mark John WANKIEWICZ, as the owner of Lot 2,



C G YOUNGI hereby order that the application for the following order –

That the July 2002 resolution authorising Jeanette Kelly, former owner of lot 4, to have installed wooden lattice on top of the northern boundary fence of lot 4, be rescinded. That the proprietor of lot 4 removes the lattice panels that have been fixed to the top of the common property fence on the northern boundary of their lot,

is dismissed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0694-2002

"Daniells Terraces" CTS 4489

The applicant, Mark Wankiewicz of Lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That the July 2002 resolution authorising Jeanette Kelly, former owner of lot 4, to have installed wooden lattice on top of the northern boundary fence of lot 4, be rescinded. That the proprietor of lot 4 removes the lattice panels that have been fixed to the top of the common property fence on the northern boundary of their lot"

JURISDICTION:
This is a dispute between an owner (the applicant Mark Wankiewicz) and the body corporate (the respondent), concerning the validity of a body corporate resolution which allowed an improvement to be erected on the common property for the benefit of Lot 4, namely wooden lattice panels attached to the top of the scheme perimeter fence, and the consequent removal of the panels. These are matters falling within the disputes resolution provisions of the legislation (see sections 182A, 183 and 223 of the act).

There is a matter of jurisdiction that I need to initially address. Section 193 of the Act provides that applications for the invalidation of a resolution passed by the body corporate in general meeting must be lodged within 3 months of the passing of the resolution. Subsection (3)(b) provides that an adjudicator may waive the requirement where there is good reason.

I consider there is good reason for the prohibition to be waived in this instance on the grounds that the same dispute was raised in a previous application, Application 535-2002, within time. The applicant withdrew this application after he was notified that, as the respondent Jeanette Kelly was no longer an owner, the application would be dismissed for lack of jurisdiction. That is, the opposition of the applicant to the resolution was initially put as a dispute within the 3 month period, but the changed circumstances of the respondent meant the matter could not be determined within this office’s jurisdiction. This application is a resubmission of that dispute with an appropriate respondent, the body corporate.

General powers of an Adjudicator in making an order:
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) 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:

Under section 194 of the Act, a copy of the application was provided to the respondent body corporate (committee) and to all other owners, with an invitation to respond to the matter of dispute raised in the application. Submissions were received from the new owner of Lot 4, Helen Dubois, and Peter Blondell, the owner of Lot 3. Both owners’ submissions were against the application.

The brief facts of the matter are as follows. The previous owner of Lot 4 (Kelly) obtained the authorisation of the body corporate, by special resolution passed at a general meeting held on 25 July 2002, to have installed and maintained, at her expense, wooden lattice at the top of the northern fence boundary of Lot 4. Kelly erected the lattice panels and later sold her lot.

The applicant says that the installation of the panels is in breach of By-law 5 (because nails and/or screws have been driven into the common property fence in breach of the by-law) and By-law 8 (the panels alter the appearance of the building in being visible from outside the building, and adversely so, and therefore the panels breach the by-law).

DETERMINATION:

This is the second application I have dealt with for this scheme in as many weeks, and the language of the two parties in the documents before me confirm my previous comment that, despite being only a 4-lot scheme, there is continuing ill feeling between the owners Wankiewicz and Blondell.

"Daniells Terraces" was registered as a building units plan (now termed a building format plan) on 2 July 1991 and its by-laws, upon registration, were those set out in the Third Schedule to the legislation then in force, the Building Units and Group Titles Act 1980. I note that these by-laws were added to on 6 September 1993 by new By-law 12 which granted the owner of Lot 2 the exclusive use of a specified area of common property. Otherwise the by-laws were unchanged until the introduction of the current Act which, under the transitional provisions, preserved the by-laws then in force.

By-law 5 Damage to common property, does provide that owners cannot drive nails or screws into the common property, including a perimeter fence as the applicant points out, but it qualifies the prohibition with the words except with the consent in writing of the body corporate.

By-law 8 Appearance of building, refers to the display of certain items and other article that, as the applicant points out, is visible from outside the building. As with By-law 5, this by-law is qualified by the exception, except with the consent in writing of the body corporate.

The passing of the special resolution on 25 July 2002 satisfied the qualifications in respect of both by-laws. The resolution is sufficient as an authority in writing, as required by the by-laws, and though the two by-laws are not specifically referred to in the text of the resolution, the consent required in both instances is implicit in the resolution. This view is not unique to this resolution; body corporate consents to owner’s improvements under section 114 of the Act are very frequent occurrences in schemes throughout the State, and consent by implication to these two by-laws, and any other similar restrictions under the legislation, is accepted as following the consent to the improvement.

Apart from this, By-law 8 would not in any case catch the lattice panels. The prohibitions under the by-laws are as follows -

• hang any washing, towel, bedding, clothing or other article.

• display any sign, advertisement, placard, banner, pamphlet or like matter.

The term "lattice panel/panel/fence" is not specified in the by-law, nor does it come within the scope of the general term other article or the other general term like matter. This is because of the operation of a rule of statutory interpretation called the "ejusdem generis" rule. This rule states that where a list of specific things of a particular kind are followed by general words, then the general words are limited in scope to only include things of the same kind as those listed. That is, the general words derive their meaning from the context in which they appear. Accordingly, when By-law 8 refers to washing, towel, bedding, clothing then the general words or other article are limited to like items, for example, a tea-towel. Similarly, where the by-law refers to sign, advertisement, placard, banner, pamphlet, then the general words or like matter are limited to like items, such as a poster. Neither of the general words could conceivably include a "lattice panel/panel/fence" within their category of things.

In regard to the passing of the resolution itself, section 114 of the Standard Module regulations provides that a special resolution is sufficient as an authority by the body corporate for an owner to effect an improvement on common property for the benefit of the relevant owner and lot. Accordingly, the special resolution passed was sufficient authority for the erection of the lattice panels. The evidence before me does not support the allegation, or suggestion, by the applicant that the owners of Lot 1 were intimidated into supporting the motion. Certainly the owners of Lot 1 have made no submission to this application to that effect. Accordingly, I dismiss this as being unsupported by the facts before me.

For the foregoing reasons, I have dismissed the application for orders to set aside the resolution authorising the lattice panels, and as a consequence the second order sought, for the panels to be removed, also fails. My order is therefore that the application is dismissed.

Having said that, I would add that although the resolution only appears to impose a duty of maintenance on Kelly, it would be a reasonable inference that the duty runs with ownership to successors in title. That is, Dubois is now responsible for the maintenance of fence. The applicant states a concern that the panels may affect the fence, however there is no present damage and therefore this is a matter to be decided if and when damage occurs. The answer will likely lie with the source of the problem.