Mactaggarts Place [2004] QBCCMCmr 275 (27 May 2004)

Last Updated: 30 September 2005

REFERENCE: 0345-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16563
Name of Scheme:	Mactaggarts Place
Address of Scheme:	53 Vernon Terrace TENERIFFE QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Gary Wayne Jones, the owner of lot 34

I hereby order that the application for an order that the owner of lot 85 at MacTaggarts Place repair and screw down the deteriorated floorboards to stop the loud, continuous, intrusive, squeaking and creaking, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0345-2003

"Mactaggarts Place" CTS 16563

The applicant, Gary Wayne Jones, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the owner of unit (lot) 85 at MacTaggarts Place repair and screw down the deteriorated floorboards to stop the loud, continuous, intrusive, squeaking and creaking.

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)).

In the supporting grounds, the applicant stated that the noise being transmitted to his lot from the lot above had become intolerable. The applicant further stated that the problem was caused by the deteriorated state of the floorboards. The applicant explained that he had complained to the body corporate, which had in turn resolved to direct the owner of lot 85 to screw down the floorboards (see minutes of the committee meeting held on 26 March 2003).

The (then) owner of lot 85 was invited to respond to the application. In her submission, a director of the corporate owner stated the lot was maintained in very good condition, with carpeted floors. The director further stated that her understanding of the flooring policy at the scheme was that squeaking floorboards would only need to be re-screwed if and when an owner decided to change the floor coverings. The director also complained of the applicant’s behaviour towards the tenant in lot 85 (who was the director’s son).

Subsequently, however, the then owner of lot 85 arranged for certain work to be carried out in lot 85, (which work apparently did not resolve the noise problem), and then lot 85 was sold in February 2004.

The new owner of lot 85, Ms Peterson, was invited to respond to the application. In her submission dated 24 March 2004, Ms Peterson stated that on 1 April 2004 the floor of the lot would be completely screwed down, soundproofing would be put down and then a new wool carpet would be laid on top.

On 23 May 2004, the applicant confirmed that this work had been carried out. However, he explained that the workman had been unable to stop one area in the middle of the lounge from "creaking and squeaking". He stated that he and the building manager were present whilst the work was carried out, but the owner was away, and therefore the floor "was screwed as well as possible and the new carpet laid." The applicant suggested that the offending floorboard needs to be replaced, and then screwed down. He stated that he did not want to upset the new owner. He acknowledged that the screwing down of the floorboards had made an enormous difference to the creaking and squeaking of the rest of the apartment. He suggested that mediation might be the answer, as it was beneficial when he attended with the previous owner.

In my view all reasonable steps have been taken to resolve the noise issue of which the applicant originally complained. I consider that the suggestion that a floorboard be completely replaced, after the new owner has gone to the expense of having all floorboards screwed down, as originally requested, and a new carpet laid, is completely unreasonable. The applicant has chosen to purchase a lot in a building which is a converted warehouse. Furthermore, he is living in a community titles scheme, not on acreage on the outskirts of the city. Community living produces an environment in which there will inevitably be some noise with which an owner must be prepared to live. It would be unreasonable to expect that all noise could be completely eliminated. I am not satisfied that the owner of lot 85 should be required to take any further action in relation to the floorboards.

I have dismissed the application.