Kemt Chambers [2003] QBCCMCmr 544 (30 May 2003)

Last Updated: 10 September 2007

REFERENCE: 0724-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9329
Name of Scheme:	Kemt Chambers
Address of Scheme:	2902 Logan Road UNDERWOOD QLD 4119

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

the Body Corporate for Kemt Chambers


I hereby order that within 6 weeks of the date of this order, the owner of lot 2 Dittmann’s Organ Stop Pty Ltd (DOS) shall remove, or cause to be removed from the common property of the building, the signage advertising DOS’s business and shall repair any damage caused by the affixing of the sign to the numbers "2902" or the common property generally.

I further order that DOS shall only re-affix the signage to the front centre facia of the building provided it does not cover the numbers "2902", or otherwise interfere with other signage or windows located there.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0724-2002

"Kemt Chambers" CTS 9329

The applicant, the body corporate of Kemt Chambers has sought the following order of an Adjudicator under the provisions of the Body Corporate and Community Management Act 1997 (the Act), quote –

To have the non-approved "Dittmers Music Stop" sign removed from the face of the building as it is covering the building number. This order should refer to the large sign on the fascia not the awning sign.

Section 276(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 contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The applicant alleges that the sign has been attached to the facia of the building by the owner of lot 2, Dittimann’s Organ Stop Pty Ltd (the respondent) contrary to a motion resolved by special resolution at an EGM held on 9 March 2001. The relevant motion was headed "Fixed Signage" and provided relevantly for "front of building" signage for lot 2 as "mid fascia under "2902" sign and front awning". It is alleged that in contravention of this, the respondent have affixed its business sign on the facia and covering the "2902" numbering. The body corporate has requested removal of the sign to below the "2902" numbering, and even provided a quote for removal of the sign, and repainting of the "2902" numbering, but to date the sign has not been removed.

A submission from the respondent states that in negotiations for the purchase of the lot between the vendor, the respondent purchaser, and the agent it was agreed that the respondent –

... would be entitled to signage know as front of building top mid fascia and also front and sides of fascia at mid level. ...

In regard to the subsequent EGM minutes, the respondent states –

I disagree that a body corporate can take back what it has already assigned in agreement previously. It was only on this agreement that a contract was signed on the building originally.

The respondent suggests that a "reasonable alternative and solution to the problem" for the "2902" to be located on another section of the signage.

The owner of lots 2 and 3, Kemt Nominees Pty Ltd, denies the agreement alleged by the respondent as to signage. It states –

When we negotiated the sale to Ms Williams we agreed that she could have the bottom 2/3 of the centre top facia leaving the tip 1/3 of the sign with the numerals 2902 intact as it has been in this position for 20 years ... Ms Williams has suggested the sign 2902 go elsewhere, that is not acceptable to us as this would not allow any future tenant to have signage space and this would be grossly unfair ... We would agree Ms Williams can still keep the lower 2/3 of the centre facia and the numerals 2902 reinstated on the top 1/3 in its original position would be acceptable to us.

Determination

I am not prepared to accept the respondent’s allegation of approval for the signage to cover the 2902 numerals. Common sense suggests that parties would not agree to this. Moreover, as this was supposed to have been agreed before the contract for purchase was signed, why did the purchaser / respondent fail to include such an important matter in the written contract. Further, the vendor denies that any such agreement was reached, and there is conflicting evidence from the agent.

A further reason however is that it is for the body corporate, and not individual owners, to negotiate rights in respect of the common property of the parcel. The exterior of the building is common property. An improvement to common property for the benefit of a lot (eg. signage) requires the approval of the body corporate in general meeting by special resolution (see section 114 of the standard module). This is exactly the mechanism the body corporate used to allocate signage rights at the meeting held on 9 March 2001.

In the circumstances, I intend to order that within 6 weeks of the date of this order, the respondent shall remove, or cause to be removed from the common property of the building, the signage advertising the respondent’s business and shall repair any damage caused by the affixing of the sign to the numbers "2902". I further intend to order that the signage shall only be re-affixed to the front centre facia of the building provided it does not cover the numbers "2902", or otherwise interfere with other signage or windows located there. This means that the signage is limited to the facia below the number 2902 and above the existing "Data" sign.