Deakinpoint [2004] QBCCMCmr 121 (3 March 2004)

Last Updated: 30 September 2005

REFERENCE: 0570-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9401
Name of Scheme:	Deakinpoint
Address of Scheme:	77 Cairns Street KANGAROO POINT QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mark Gillett and Carol Metcalfe, the Owners of Lot 4:

I hereby order that within five weeks of the date of this order, the Owners of Lot 4 shall arrange for the entry door to Lot 4 to be painted in a style and colours as close as practicable to the style and colours of the entry doors to the other lots included in the scheme. I further order within one week of the date of this order, the Body Corporate shall provide the Owners of Lot 4 with sample paint chips to assist the Owners of Lot 4 obtain paint in colours as close as practicable to those applied to the entry doors to the other lots included in the scheme. I further order that should the Owners of Lot 4 fail to carry out the terms of this order: 1. The Body Corporate shall arrange for the entry door to Lot 4 to be painted in a style and colours as close as practicable to the style and colours of the entry doors to the other lots included in the scheme; and 2. The Body Corporate shall provide the Occupiers of Lot 4 with at least 7 days prior notice of the time and date at which access to Lot 4 will be required for the purposes of painting the entry door; and 3. Within one week of completion of the work authorised by this order, the Body Corporate shall issue the Owners of Lot 4 with a written statement detailing the Body Corporate’s reasonable expenses incurred in carrying out the work; and 4. Within three weeks of the completion of the work authorised by this order, the Owners of Lot 4 shall reimburse the Body Corporate’s reasonable costs incurred in carrying out the work.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0570-2003

"Deakinpoint" CTS 9401

1.	The application

On 26 August 2003, the Applicants (the Owners of Lot 4) submitted a dispute resolution application to the Commissioner for Body Corporate and Community Management ("the Commissioner") under the Body Corporate and Community Management Act 1997 ("the Act"). In the application, the Applicants state that they are seeking the following outcomes:

"That the front door of Unit 4 not be repainted unless as part of the interior refurbishment planned for calendar year 2003.

That any further painting be at the Body Corporate’s expense."

The Applicants also sought an interim order preventing the Body Corporate from engaging a painter to repaint the entry door to Lot 4.

2.	The "Deakinpoint" community titles scheme

Department of Natural Resources, Mines and Energy records show that the "Deakinpoint" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 30 September 1983. The scheme consists of 14 lots and common property.

The community management statement for "Deakinpoint" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

3.	Jurisdiction

This application concerns a dispute between the owners of a lot in a community titles scheme (the Applicants) and the Body Corporate for the community titles scheme. Therefore the matter is a "dispute" for the purposes of the Act’s dispute resolution provisions (section 227(1)(b)).

Section 276(1) of the Act provides that adjudicators may make just and equitable orders to resolve disputes in community titles schemes about-

(a) claimed or anticipated contraventions of the Act or a scheme’s community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or a scheme’s community management statement; or

(c) claimed or anticipated contractual matters about the engagement of a person as a body corporate manager or service contractor for a scheme or the authorisation of a person as a letting agent for a scheme.

This dispute concerns an alteration (painting) to part of the building by a lot owner. The Act makes specific provision for alterations and improvements to common property. In addition, many bodies corporate have community management statements that include by-laws regulating alterations and improvements to lots and common property. As a result, the matter appears to fall within the jurisdiction of an adjudicator.

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

4.	Administration of the application

As mentioned previously, this application was submitted to the Commissioner on 26 August 2003. On 29 August 2003, I issued the following interim order regarding the application:

"I hereby order that pending the final determination of this application, the Body Corporate shall not authorise any person to paint the entry door to Lot 4."

On 2 September 2003, and in accordance with section 243(1) of the Act, the Commissioner provided the Body Corporate with a copy of the application. The Commissioner invited the Body Corporate Committee, and all owners of a lot in the scheme to make written submissions about the application.

Owners of Lots 6, 7, 8, 9, 10, and 14 have provided written submissions about the application. The Owner of Lot 8 has also made a further submission as the Body Corporate Chairperson.

In accordance with section 246(1)(b) of the Act, the Applicants were provided with copies of the written submissions.

On 14 October 2003, the Commissioner made a dispute resolution recommendation (section 248 of the Act) that the application should be resolved by departmental adjudication. The Commissioner has referred the application to me for determination.

5.	Matters in dispute

This application concerns the painting of the entry door to Lot 4. I understand that the door in question separates Lot 4 from a common property elevator foyer.

From the material before me, I understand that approximately 5 years ago the Body Corporate refurbished the elevator foyers on each level of the building. As part of this project, the Body Corporate arranged for the entry doors to each of the lots to be painted in an off-white colour (with a matt finish), with two panels on the external surface of the door being painted light grey.

In the supporting grounds to the application, the Applicants state that they refurbished Lot 4 in May 2003. I understand that in the course of this refurbishment, the entry door to Lot 4 was painted in a gloss white finish, and the previously light grey panels were painted yellow.

It is apparent that the Body Corporate objected to the Applicants painting the entry door to Lot 4, and requested the Applicants to repaint the door in its previous colours. The Applicants claim that they were unable to obtain paint in the previous colours, and as a result I understand that they arranged for the now yellow panels to be repainted in the gloss white finish used on the remainder of the door.

It is apparent that the Body Corporate still considers that the door should be returned to its previous colours. Some owners making submissions have suggested that either the Applicants should arrange for the work to be carried out, or alternatively, the Body Corporate should arrange for the repainting to be done, and the Applicants should reimburse the Body Corporate for the costs of the work.

The Applicants express the view that the current appearance of the door does not detract from the appearance of the scheme. The Applicants also consider that the Body Corporate’s concerns about the colour of the door are trivial. In making this application, the Applicants are endeavouring to ensure that the Body Corporate meets the cost of any work regarding the door to Lot 4 that it arranges and authorises.

The application is supported by two of the submissions in which the relevant owners state that they are not concerned with the current appearance of the door.

6.	Discussion and Determination

In the circumstances, I agree with the Body Corporate’s view that the Applicants were not entitled to paint the external aspects of the entry door to Lot 4 without the approval of the Body Corporate. I have three main reasons for this position, as outlined below.

•

Firstly, it seems to me that the external aspects of the door form part of the common property for the scheme[1]. As such, section 114 of the Standard Module is applicable. Section 114 allows an owner to make an improvement to the common property for the benefit of the owner’s lot if authorised by the Body Corporate.

•

Secondly, and notwithstanding that the internal aspects of the door form part of Lot 4, in accordance with section 109(2)(a)(ii) of the Standard Module, the Body Corporate is required to maintain the entry door in a good condition. In my view, by making unapproved alterations or improvements to parts of the scheme land that fall within a body corporate’s maintenance responsibilities, an owner potentially interferes with the body corporate’s ability to make decisions about how it will meet its maintenance obligations, including for example decisions about the tradespeople and materials the Body Corporate wishes to engage and use.

•	Finally, it appears that by-law 12(c) of the Body Corporate’s by-laws is applicable. This by-law provides the following:

"12. A proprietor or occupier of a Lot shall not:-

(c)	Mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property, except with the consent in writing of the Body Corporate, but this By-Law does not prevent a proprietor or person authorised by him from installing:-

(i) Any locking or other safety device for protection of his Lot against intruders.

(ii) Any screen or other device to prevent entry of animals or insects upon his Lot."

(my emphasis)

For all of these reasons, I consider that the Applicants should have obtained the Body Corporate’s approval prior to painting the external aspects of the entry door to Lot 4. There is nothing before me to suggest that the Applicants obtained the approval of the Body Corporate prior carrying out the work.

Given my view that the Applicants should not have painted the external aspects of the entry door to Lot 4 without the approval of the Body Corporate, I have decided to order the Applicants to repaint the door in a style and colours as close as practicable to the style and colours of the entry doors to other lots included in the scheme.

In the application, the Applicants have expressed concern about being able to obtain paint in the correct colours. The Applicants also state that "(w)e will gladly re-paint the door ourselves if we are told what colours-despite our feelings on the issue". In the submissions, some owners indicate that obtaining the correct colours will be a simple process if the Applicants take sample paint chips to a hardware store. To assist the Applicants carry out the terms of this order, I have required the Body Corporate to provide the Applicants with sample paint chips that can be used by the Applicants to obtain paint in colours as close as practicable to those applied to the entry doors to other lots included in the scheme.

The Applicants also suggest that the work could be carried out in a broader project of refurbishment being considered by the Body Corporate. It seems likely to me that broader refurbishment project may take some time. As a result, and given that the cost of repainting the entry door is likely to be relatively minimal, I do not consider that repainting the door should be delayed pending the broader refurbishment project.

If the Applicants fail to carry out the work required by this order, I have authorised the Body Corporate to arrange for the painting work to be carried out. In this event, I have also ordered that the Applicants shall reimburse the Body Corporate for its reasonable expenses incurred in carrying out the work.

^[1] See sections 48C and 49C(4) of the Land Title Act 1994