Mactaggarts Place [2004] QBCCMCmr 305 (15 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0630-2003

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 the body corporate for Mactaggarts Place

I hereby order that the application by the body corporate for Mactaggarts Place for an order that the owners of lot 155 be directed to remove the hard floor coverings that have inadequate insulation and has been installed contrary to by-law 51.1 and relay carpet with the approved acoustic underlay to the lot, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0630-2003

"Mactaggarts Place" CTS 16563

The applicant, the body corporate for Mactaggarts Place has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

That the owners of lot 155 be directed to remove the hard floor coverings that have inadequate insulation and has been installed contrary to by-law 51.1 and relay carpet with the approved acoustic underlay to the lot.

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 scheme is a subdivision of 160 (or so) lots registered under a building unit plan (now a building format plan). The regulation module applying to the scheme is the standard module. This office sought submissions in respect of the application from the respondent and all owners. I do not intend to set out in any detail the applicant’s grounds, nor the contents of submissions in response.

On 19 February 2004 I convened a teleconference of the parties during which a possible settlement of the dispute was discussed, which comprised an offer of settlement. The representative of the body corporate (the body corporate manager) informed me that he understood the offer being made by the respondents, and on this basis, I instructed the representative to inform the committee of the offer and to obtain its response: either acceptance or rejection. Thereafter the manager or the committee were required to advise me of the committee’s response to the offer, and confirmation of this by way of a set of committee minutes. Following this, I was to determine what further action was required.

Subsequently, a response was received from the body corporate manager as "Secretary" in the follow terms –

... the body corporate would like to bring to the attention of the commissioner’s office that the By-laws in relation to noise were put in place to curb the serious noise problems within the scheme.

The body corporate will only accept full compliance with the By-laws in this circumstance and expect the Adjudicator to respond accordingly.

I note that the above correspondence was not accompanied by a copy of the committee minutes as I requested. I have some real concerns whether the matter was in fact referred to the committee by the manager as I requested.

On 10 June 2004 I undertook an inspection of the scheme, and the lot in question. I was assisted at that inspection by the owners of lot 155, Tanya Louise Ayyildiz and Yalcin Ayyildiz, a member of the committee, Jackie Bayard and the resident manager, Alistair Black. In consequence of my inspection, I consider that this application should perhaps never have been made in the first instance, and even after it was, that it should have settled on the basis offered by the owners of lot 155 in the teleconference. The continuation of this matter to final adjudication was completely unnecessary in my view. I again raise the concern whether the offer of settlement was properly communicated to the committee by the manager. Certainly the terms in which the body corporate manager has responded (as set out above) are in appropriate.

From my inspection it is clear that –

• Timber floors have not been laid. Rather a timber look cushioned vinyl has been laid.
• This flooring has only been laid in the kitchen, dining and living area, all of which but for approximately 2 feet does not cover any other lot, but rather covers a balcony external to the lot below. Carpet has been laid in the bedroom adjacent to the living room.
• The resident manager indicated that no complaints had been received from any other lot regarding the floors to his knowledge.
• The ceiling appears to be approximately 3 metres high, and I was informed by the manager that there was in fact a false floor installed under the original timber flooring.
• Rudimentary testing of noise transference (my standing on the balcony under listening whilst persons walked around in the lot above) indicated minimal noise transference.

There is only one submission on the file supporting the application. When I mentioned this at the inspection, the committee member and manager present confirmed that the complainant was in another part of the building (unit or lot 128). Whilst the letter is referenced 630 (ie. this application) I conclude that in fact it was intended for another dispute within the scheme. The writers appear to have transposed the incorrect application number.

The owner’s offer in the teleconference should have been accepted by the body corporate. It was a reasonable offer. This would have resulted in acoustic underlay being laid beneath the carpeted area in the bedroom. However, the body corporate’s intransigency in considering the offer of settlement means that it now looses the opportunity to have acoustic underlay laid under the carpet. I am not prepared to order that the owner’s offer still be implemented. I suggest that the body corporate committee should in future properly investigate matters, and make determinations based on reasonableness. If it acts reasonably, then it can expect owners and occupiers to do the same.

It appears that this whole dispute might have started from the unreasonableness of one person, a former acting building manager, who has since left. However the committee should have investigated the matter properly. Had this been done, I doubt this dispute would have continued. But for it to have continued beyond the offer made in the teleconference indicated to me unreasonableness.