MacArthur Park [2004] QBCCMCmr 230 (30 April 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Marie Josephe Paula Witham, the owner of lot 6

I hereby order, by consent, as follows:

1. The owner of lot 5, Concetta Giuseppe Di Francesco, shall within 7 days of the date of this order forward a copy of the approved plans and specifications for the proposed alterations to the front balconies at the scheme to all owners.
2. Upon completion of the proposed alterations, the owner of lot 5, Concetta Giuseppe Di Francesco, shall lodge the original approved plans and specifications with the body corporate manager to be placed with the body corporate records.
3. The kitchen windows of lots 1 and 5, if constructed in the southern wall, shall be the same size as the other windows in the southern wall so as to maintain uniformity of the profile of that wall.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0222-2004

"MacArthur Park" CTS 12850

The applicant, Marie Josephe Paula Witham, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

I require lodgement of final stamped plans and specifications of the proposed alterations to front balconies (proposed alterations) to be lodged with the strata managers for record purposes and I request that a special meeting be called to review those plans before work commences.

The applicant has also sought an interim order of an adjudicator as follows:

To prevent any work being carried out on front balconies until plans and specifications have been lodged with the strata managers and the body corporate has examined and approved the final stamped plans.

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

(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)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

All owners were invited to respond to the application. Submissions were received from five of the remaining seven owners. All of those owners were in favour of the proposed alterations proceeding, with the proviso expressed by the owners of lot 4 that a stamped copy of the approved plans be submitted to the body corporate, and provided the plans confirmed the work previously approved by the body corporate, that that work be carried out.

The scheme comprises 8 lots in a building format plan (previously described as a building units plan). It is regulated by the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

Section 114 of the Standard Module provides as follows:

(1) The body corporate may, if asked by the owner of a lot, authorise the

good condition, unless excused by the body corporate.

A minor improvement is defined in the Standard Module as being an improvement with an installed value of $250.00 or less. The proposed alterations clearly do not fall into this category.

The proposed alterations were considered by the body corporate at its extraordinary general meeting held on 20 December 2002. The minutes of the meeting, which were attached to the submission by the owner of lot 5, Mr Di Francesco, do not indicate whether the motion to approve the proposed alterations was submitted as requiring a special resolution or an ordinary resolution. During a teleconference held on 23 April 2004 (to which I shall refer further later), Mr Di Francesco advised me that he could not recall that detail. He could only recall that the motion was carried. The minutes reveal that 6 votes were recorded in favour of the motion and 2 votes were recorded against the motion. Each lot has a contribution schedule lot entitlement of 1. The voting on the motion therefore met the necessary criteria for a special resolution (Act, 106).

I also note that the proposed alterations are to be carried out at the expense of the owners of lots 1 and 5, who have the exclusive use of the whole of the existing balcony immediately in front of the eastern (or ocean front) side of their respective lots.

I further note that the area of each of the new balconies within the proposed alterations is greater than the area of each of the existing balconies. It will therefore be necessary for the body corporate to grant exclusive use of the new balconies to the owners of lots 1 and 5 (the motion to do so being required to be carried by resolution without dissent). The new exclusive use by-law, which will probably be worded similarly to the existing exclusive use by-law, will nonetheless be referable to the new, larger balconies by virtue of the timing of the meeting, which will of necessity be after the new balcony has been constructed. The new exclusive use by-law will be contained in a new community management statement. Mr Di Francesco acknowledged that until the new exclusive use by-law is approved by the body corporate, and the new community management statement recorded in the Titles Office, the enlarged area of the balconies will remain common property.

I also note that the Gold Coast City Council issued a Show Cause Notice to the body corporate on 20 June 2003, in which it stated that the upper level balcony deck had been assessed as being a potential danger to persons using it because it had structurally failed.

I conducted a teleconference on 23 April 2004 with the following persons:

Mr Di Francesco advised me that the proposed alterations had commenced several days before, as the contract had been entered into with the builder some months ago, on the basis that the body corporate had authorised the work to proceed, and the existing balconies were unsafe. Mr Di Francesco further advised that the existing balconies have already been demolished. Mr Witham stated that he was simply concerned that the original approved plans and specifications should be held in the body corporate records, so that if any dispute were to arise in the future, the body corporate would have immediate access to the plans. Mr Di Francesco explained that the original plans and specifications had to remain on site whilst work was in progress. However, he said that he was willing to provide a copy of the plans to all owners, and then as soon as the work was completed he would lodge the original plans and specifications with the body corporate manager so that they could be placed with the body corporate records.

Mr Witham also expressed concern that the new windows which are to be constructed in the kitchens of lots 1 and 5 (on the southern wall) are to be larger than the other windows in other lots on the southern wall, thereby altering the profile of the building from that aspect. Mr Di Franceso stated that Mr Gibbs (the owner of lot 1, with whom contact during the teleconference dropped out because of a poor mobile telephone connection) was unsure whether he even wanted such a window in his lot, even though it had been approved by Council. Mr Di Francesco said that he would follow whatever Mr Gibbs decided in relation to the window, and if Mr Gibbs did not have a window, then Mr Di Francesco would also not have a window, so that the appearance of the southern wall in relation to lots 1 and 5 was kept uniform. However, Mr Di Francesco stated that if Mr Gibbs decided he did want to have a window, then Mr Di Francesco undertook to ensure that the windows in lots 1 and 5 were the same size as the other windows in other lots on the southern wall.

Mr Witham stated that he accepted the proposals and undertaking offered by Mr Di Francesco, and both parties agreed that I would make a consent order to reflect the resolution of the matters as discussed. Mr Witham further agreed that these orders would satisfactorily dispose of his wife’s application.

Number of Scheme:	12850
Name of Scheme:	MacArthur Park
Address of Scheme:	468 Esplanade PALM BEACH QLD 4220

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

MacArthur Park [2004] QBCCMCmr 230 (30 April 2004)