Kelso Villas [2004] QBCCMCmr 478 (13 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0117-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19451
Name of Scheme:	Kelso Villas
Address of Scheme:	39 Morne Street, CAPALABA QLD 4157

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

William Malcolm Parker and Joan Margaret Parker, the owners of lot 19

I hereby order that the application by William Malcolm Parker and Joan Margaret Parker, the owners of lot 19, for an order, quote – Removal of all air conditioning systems for the following reasons 1. Instalment without permission 2. Continual power cutouts and power to our property 3. Noise levels in excess of body corporate regulation 4. Affects our peaceful enjoyment and lifestyle is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0117-2004

"Kelso Villas" CTS 19451

The applicants, William Malcolm Parker and Joan Margaret Parker, the owners of lot 19, have sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Removal of all air conditioning systems for the following reasons

1.	Instalment without permission
2.	Continual power cutouts and power to our property
3.	Noise levels in excess of body corporate regulation
4.	Affects our peaceful enjoyment and lifestyle

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)).

This is the second application by the applicants against the named respondents, Cecil Derek Gilks and Margery Anne Gilks. The first was numbered 0748 of 2002 and in that application, the following order was made by the adjudicator, quote –

I hereby order, by consent, as follows:

1.	Joan Parker (a co-owner of lot 19) and Derek Gilks (a co-owner of lot 17) (the parties) agree that Kevin Parker will seek information on having the decibel level checked on the air conditioner on the western side of Derek Gilks’ lot. If the decibel level can be checked and is found to exceed 45 decibels then Derek Gilks agrees to rectify the situation. The decibel level will be checked from Joan Parker’s lot.
2.	The parties further agree that if the level of noise cannot be checked, or, having been checked, the level is below 45 decibels, then Kevin Parker will make enquiries about methods of reducing the air conditioning noise level. Kevin Parker will communicate with Derek Gilks regarding these methods and the costs involved.
3.	The parties further agree that if these methods are to be implemented then the costs of implementation will be shared equally between them, up to a maximum total of $500 (i.e. $250 each)
4.	The parties further agree that the upgraded cables previously installed by Derek Gilks will be checked by Energex to ascertain if the tripping of the safety switch/power switch on one property is caused by power usage in an adjoining property. The parties further agree that any cost associated with these checks will be borne by Joan Parker.
5.	The parties further agree that if the cable upgrade is not sufficient then Derek Gilks will further investigate the matter.
6.	The parties further agree that they need to communicate amicably with each other about these issues in the future.
7.	The parties further note that this consent order will finally dispose of this application.

In a submission in relation to the present application, the respondent’s solicitor has sought that the present application be dismissed on the basis of section 271(2). In essence that submission states that the former order was not appealed, and further that the terms of the former order have not been complied with by the applicants. The submission concludes –

We are further instructed that our clients continue to be prepared to consider any submission made pursuant to the orders of Adjudicator Hanly of the 13^th May 2003.

In correspondence of 8 June 2004, the applicants (by their solicitor) seek to allege, amongst other matters, that the agreement of 16 April 2003 which formed the basis of the above consent order was "in breach of the Kelso Villas and General Body Corporate By-laws". I have several thoughts on the applicant’s solicitors correspondence of 8 June 2004. Firstly, it seeks to make a submission by the applicant’s in respect of the application. This is itself a denial of natural justice to the respondents in my view in that it contains new and additional material in relation to the applicant’s application and on which they sought to rely. Applicants are not entitled to make a submission in respect of their application for obvious reasons of natural justice / procedural fairness. In the limited circumstances where an applicant is able to provide additional material in respect of their application, the applicant is at the very least required to distribute that material to the respondent and allow a further period for submission from the respondent on that material. There is no information before me that this has occurred. If it were not my determination to dismiss this application for other reasons, I would take steps to allow the respondents a further period for submission on the additional material provided by the applicants.

However, I further consider that if the applicants did not consider that the previous agreement was in breach of the by-laws, and that consequently, the consent order was invalid, then their right of redress was to appeal the original order. Adjudicators of this office do not provide a review or appeal mechanism for aggrieved persons. Rather the right of appeal is to the District Court on a question of law. Consequently, the previous order is a valid (final) determination of the issues it purports to deal with, unless and until the order is overturned on appeal.

This leads me to my determination of the present application. In correspondence of 21 June 2004, the solicitor for the applicant’s in reply to the submission on behalf of the respondent has stated that the present application "relates to both continuing problems and new issues of complaint". This may have been so in respect of the Energex issue, though it is debatable, but in any event, the Energex issue is not one within the jurisdiction of this office. I note in the applicant’s final correspondence, they are seeking "a final approval from Energex before this matter is completely resolved". I suggest the applicants approach Energex for any approvals they seek. It is not within my jurisdiction to order in respect of matters relating to or pertaining to third parties.

The applicants also seek the recovery of legal costs in respect of their applications. Adjudicators are of the view (and have detailed their reasons on numerous occasions) that an award of legal costs is not within their jurisdiction. Consequently, I do not intend to further consider this issue.

This leaves the outstanding issue of the alleged noise of the respondents air conditioning system. In their correspondence of 21 June 2004, the applicants state that –

We are instructed that at the mediation of the first complaint both Rosemary Gilks and Kevin Parker indicated that they were unable to find anyone in the Redland Shire who is qualified and capable to check decibel reading. This has made it impossible to measure the levels.

This allegation is clearly contrary to the terms of the consent order. As indicated previously, I will not review the terms of the previous order. I do note however that the applicants agreed to "seek information on having the decibel level checked ...". There is nothing to suggest that this can only be done by a technician from the Redland Shire. Moreover, I am satisfied that it is within the applicant’s power to engage a person or firm capable of providing the required information.

I consider that the applicants have failed to implement the terms of the consent order, and by this application are now seeking to avoid the terms of that order, and have different orders substituted. For the reasons explained above, I am not prepared to do this. The applicants should seek to implement the terms of the original order. This present application is dismissed.