Jade Court - Maroochydore [2004] QBCCMCmr 383 (6 August 2004)

Number of Scheme:	27751
Name of Scheme:	Jade Court – Maroochydore
Address of Scheme:	20 Fourth Avenue COTTON TREE QLD 4558

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Brian John PETER and Maureen Ann PETER, as the co-owners of Lot 1,

I hereby order that the application for the following order –

1. The outcome we seek to resolve this dispute is for Mr & Mrs Auld to comply with the by-laws that govern our unit block, and remove the rotary clothes hoist from the roof.

2. Also, remove the mirror effect window tinting to units 2 & 3, due to the detrimental effect it has on the look of the building,

is dismissed.

I further order that the body corporate must consent to the tinting of the various windows of Lots 1, 2 and 3 as tinting has been applied and is currently in place at the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0772-2003

"Jade Court - Maroochydore" CTS 27751

JURISDICTION:
This is a dispute between an owner (the applicants Peter) and the other owner (the respondents Robin AULD and Patricia Ann AULD, the co-owners of Lots 2 and 3), concerning the mirror-effect tinting applied by the respondents to a number of windows in both lots and the presence of a rotary clothes hoist on the rooftop of Lot 3, both of which allegedly detract from the appearance of the scheme and have not been authorised by the body corporate. These are matters that fall within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) and therefore may be determined by an adjudicator.

General powers of an Adjudicator in making an order:
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 –

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

APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondent owners with an invitation to respond to the matter of dispute raised in the application. The respondents made a submission opposing the application. The applicants viewed the submission and subsequently lodged a reply (see sections 244 and 246 of the Act).

The Commissioner initially referred the parties to the Dispute Resolution Centre of the Department of Justice and Attorney-General for the dispute matters to be mediated. The parties did participate in a mediation session and evidently resolved a number of other issues but did not attempt to mediate the two subject of this application. After some misunderstanding as top what had been resolved the matters has been referred back for adjudication. I would only say that both were capable of mediation and I hope they were not avoided through any misunderstanding of the dispute process.

The brief facts of the matters are as follows.

Though the building was not established as a community titles scheme until February 2000 by Stephen and Tina Carey (who appear as the original owners on the titling documents), it seems that it was previously in use as a private dwelling since 1991.

The Aulds purchased Lot 2 around mid-2000 and took up residence. The Peters purchased Lot 1 in December 2000, renting it until August 2001 when they took up residence. The Aulds then purchased Lot 3 in early 2003 and moved into that lot around May 2003, renting out Lot 2.

Window Tinting:
In regard to the mirror-effect tinting, the Aulds had the tinting of Lot 2 done with the mirror effect sometime between December 2000 and March 2001. The Peters had their windows tinted with normal grey tint around November 2001. The tinting of Lot 3 in mirror effect by the Aulds was done soon after they moved into Lot 3 in May 2003.

The applicant Peters complain that, firstly, the Aulds did not seek proper authorisation of the body corporate for the window tinting of either lot, and secondly that the mirror effect detracts from the appearance with "strong sun reflections and distortional look of the glass panels from the streets, which causes the whole building to look ugly", and elsewhere "In our opinion it’s not a good look, and devalues the property."

The respondent Aulds submit that the difference in appearance between a reflective and non-reflective tint is a matter of personal opinion. They chose mirror effect for privacy and heat resistance. Further, they say that the Peters did not seek or obtain proper body corporate authorisation for their own window tinting.

Clothes Hoist:
In regard to the clothes hoist located on the roof of Lot 3, the Peters say that the Aulds erected it some two weeks after taking up residence when it first became visible. The Aulds say that the hoist was put in place by the Careys and was there at the time the building was open for buyer’s inspection prior to auction of the lots in December 2000.

The applicant’s complaint that the sight of the hoist adversely affected the presentation of the building was supported by a photograph showing the hoist filled with washing. The Aulds say that the photograph must have been taken from somewhere in the nearby Maroochydore Tennis Club as it shows the court’s mesh fence which is around 4 metres high, as the hoist is not visible from surrounding footpaths. They have submitted three photographs taken from different footpath positions that do not show the hoist. In their reply, the Peters state the Auld’s photographs must have been taken within 30 metres of the building when it is not visible; also perhaps the hoist was wound down. They state their photograph had been taken at ground level through the mesh fence at a distance of 60-80 metres.

DETERMINATION:
"Jade Court - Maroochydore" was registered as a building format plan on 14 February 2000 and comprises three residential lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Window Tinting:
By-law 8(1) of the body corporate by-laws provides as follows –

Although tinting is applied on the inside of the windows and therefore within a lot’s boundaries, it is still caught by the above by-law as the tinting has an effect on the external appearance of the lot and the building generally. Accordingly, in the case of both parties having tinting applied to their windows they should have complied with the express provision requiring prior written body corporate approval. That can take the form of a committee approval or an approval by the body corporate in general meeting as approval by ordinary resolution is not specified in the by-law.

Both parties are in breach of the by-law in not having sought the prior approval of the body corporate for the tinting of their respective windows. The order I have been asked to make is for the removal of the Auld’s mirror effect tinting, not because it has not been approved but because of the alleged detrimental effect it has on the building’s appearance.

There is no doubt that mirror effect tinting is more noticeable than ordinary tinting of the type fitted by the Peters. However, the question as to whether it makes the building look less attractive, even ugly, is a subjective matter of personal taste. I imagine that the Aulds may well disapprove of the Peter’s application for approval on the same grounds that the Peters will lay against their tinting.

In any case, there are questions of equity that arise in resolving some disputes and one of those equitable principles arises here, namely that of acquiescence. The Aulds first applied their mirror tint to the windows of Lot 2 between December 2000 and March 2001, and to Lot 3 soon after purchase of that lot in May 2003. This application was lodged in December 2003, around 3 years after Lot 2 was tinted and 6 months after Lot 3 was tinted.

The principle of acquiescence is essentially to deny a person the right to later object to something that has in fact been in place for some time without any action or complaint having been taken by them, giving rise to an inference of assent. Here the delay by the Peters of 3 years in the first instance and then 6 months when the tinting was extended to other windows is such that it would be unreasonable to now allow an action for its removal to be contemplated. Had there been a serious impediment or hazard involved, then acquiescence might not have been applied however that is not the case here. I would point out that the point raised by the Peters that they were earlier unaware of their rights to object to the tinting has no merit – they are presumed to know the law and their relevant rights under the law.

Accordingly, for the above reasons I make no order against the respondents for removal of the mirror effect tinting from the windows of their lots. My order includes a provision that the body corporate consent to the tinting of all lots (both the Auld’s and the Peter’s lots) as it is now in place; in effect this order will act as that consent and is part of the body corporate records.

Clothes Hoist:
Both parties have given conflicting evidence as to whether the clothes hoist was in place from the outset or whether it was installed by the Aulds after purchase. The Aulds claim that it was in place at the time of the buyer’s inspection. Their reference to the original owners as the Careys is correct and they could perhaps have been located and asked the truth of the matter – it would have not only been silly for the Aulds to lie in this respect but also unlawful being in breach of section 297 of the Act which provides for the imposition of a penalty by the courts for a false or misleading statement being given to an adjudicator. Also, the argument by the Aulds that the roof hoist gives the lots a hoist each and was planned that way, has some merit. The Peters have not produced any evidence to refute what is the more probable state of affairs, that is that the roof hoist was there originally.

Accordingly, I have made no order that the hoist be removed. Also as the balance of probabilities is that it was an original fixture, there is no need for me to order that it should be treated as being approved by the body corporate as for the tinting.

Having made that decision, I would comment that the Peters have said in their reply that if they had had some say in the hoist matter then they would have agreed to it being on the roof but would have asked that it be positioned in the south-west corner of the roof where it would be less visible. The Aulds, in the interests of harmony, may wish to consider this relocation of the hoist.

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 this 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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Jade Court - Maroochydore [2004] QBCCMCmr 383 (6 August 2004)