Galleon Park Waters [2004] QBCCMCmr 510 (27 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0337-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20756
Name of Scheme:	Galleon Park Waters
Address of Scheme:	96 Galleon Way CURRUMBIN WATERS QLD 4223

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

Troy Anthony Pope, the co-owner of lot 17

I hereby order that the application by Troy Anthony Pope, the co-owner of lot 17, for an order that his unit not be painted (ie. the exterior walls and guttering) as ordered by the body corporate, is dismissed. I further order that within two (2) months of the date of this order, the co-owner of lot 17, Troy Anthony Pope, shall arrange for his lot to be painted in the colours selected by the body corporate and to a standard commensurate with which all other lots in the scheme have recently been painted.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0337-2004

"Galleon Park Waters" CTS 20756

The applicant, Troy Anthony Pope, the co-owner of lot 17, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

I request that Troy Anthony Pope, the co-owner of lot 17, has sought the following order of an adjudicator under the my unit not be painted (ie. the exterior walls and guttering) as ordered by the body corporate.

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 18 lots registered under a group title plan of subdivision (now a standard format plan). The regulation module applying to the scheme is the accommodation module.

This dispute concerns the repainting of the applicant’s lot. The applicant has been instructed by the body corporate to repaint his lot, or have it painted by a contractor engaged on behalf of all owners by the body corporate. The applicant disputes his obligation to repaint, and seeks an order confirming this. The applicant relies on –

• The terms of the quantity surveyors report: the applicant appears to draw a distinction the different terminology used in the report. He states "... The report stated that some other units showed signs of deterioration, peeling and mould, the report pertaining to my lot only stated that the paint appeared powdery";
• Provides photos and notes that "there is no sign of deterioration";
• Alleges that the units were last repainted in early "1998" with the painting guaranteed to last 10 years;
• "There was no meeting regarding the repainting of the units and therefore no change to vote that they not be repainted";
• "... the paint is still in satisfactory condition".

The applicant concludes –

I feel that my unit only requires painting in the eyes of the body corporate to comply with that colour scheme at a cost to me, the lot owner, of $1742-40 and for no legitimate reason regarding deterioration or poor maintenance.

The body corporate has made a submission opposing the application. The body corporate points out that –

• "Seventeen of the eighteen owners have undertaken and satisfactorily completed the repainting of their respective units";
• "The body corporate obtained independent advice from a suitably qualified person (ie. a quantity surveyor) to determine if and when the lot buildings required painting";
• There is a "common obligation to observe a proper standard of care and maintenance of their respective lots so as not to impair the overall appearance of the scheme buildings";
• "The body corporate has painstakingly undertaken a process to ensure that all owners were given reasonable time to carry out the repainting of their unit";

The body corporate relies on the provisions of section 119 and 120 of the Accommodation Module as the basis for the requirement of owners to repaint, or arrange for the repainting, of their lots. Those sections provide –

119 Obligations of owners and occupiers--Act, s 160 [SM, s 120]
(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.
(2) The owner of a lot included in the scheme must maintain the lot in good condition.
(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.
(5) This section applies only to a lot that is not a community titles scheme.

120 Body corporate may carry out work required of owners and occupiers--Act, s 161 [SM, s 121]
(1) This section applies if the owner or occupier of a lot included in the scheme does not carry out work that the owner or occupier has an obligation to carry out under--
(a) a provision of the Act or this regulation, including a provision requiring an owner or occupier to maintain a lot included in the scheme; or
(b) a notice given under another Act or a Commonwealth Act; or
(c) the community management statement, including the by-laws; or
(d) an adjudicator’s order; or
(e) the order of a court.
(2) The body corporate may carry out the work, and may recover the reasonable cost of carrying out work from the owner of the lot as a debt.

This office sought submissions from all owners regarding the application. Of the 10 submissions received, only 1 is supportive of the position of the applicant. All others are supportive of the position of the body corporate regarding this matter, and believe that the applicant should repaint his lot as required.

I intend to order that the application be dismissed.

Firstly, I consider that the provisions of the legislation relied on by the body corporate do require that all owners not only maintain their lots in good condition, but moreover, "must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition".

I consider that the requirement of "clean and tidy" is additional to the requirement of maintenance of the lot. "Clean and tidy" is something which can be assessed in relation to other lots. It suggests a measure of the appearance of the lot from the perspective of other lots.

Moreover, I consider that given the requirements of sections 119 and 120, there is no requirement for the body corporate to determine the matter of painting by resolution in general meeting. The duties or obligations of the owner under section 119, and the powers of the body corporate under section 120, are existing and required to be observed, and not first dependent upon any body corporate resolution. I am satisfied that the body corporate has taken reasonable steps to determine objectively that re-painting of all lots is required. The body corporate has obtained a report on the repainting from a consulting engineering firm. The purpose of the report is stated to be specifically to "determine when (the units) require repainting and what will be required". I am satisfied that this has been an objective process. Moreover, the fact that 17 of 18 owners have agreed further suggests that the process has been objective, and that the requirement is a fair one.

I prefer the body corporate’s evidence that the lot requires repainting over the applicant’s rejection of this. The body corporate’s position is supported by an expert’s report. Moreover, the concluded view of the body corporate has the support of the significant majority of owners.

I consider that the applicant’s reading of the quantity surveyor’s report is selective, and fails to acknowledge what the report is really saying, or to read the report in total. He states that the report makes "no mention of chipping, peeling or mould, only a loss of sheen which I feel does not constitute repainting". The applicant fails to acknowledge that the report concludes, in relation to this lot, that the "weatherboards require a repaint within the next 12 months, as will the gutters and downpipes". The report was dated April 2003.

Secondly, the report does state that the applicant’s front and rear walls appear "powdery". The applicant seeks to down play the significance of this by stating that there is "no mention of chipping, peeling or mould, only a loss of sheen which I feel does not constitute repainting". However when other parts of the report are considered, I conclude that "powdery" does in fact mean that the part of the lot in question will require repainting. This is expressed very clearly in other parts of the report, for example-

• Unit 3 – "Gutters and downpipes will require repainting as they are powdery";
• Unit 6 – "Gutters and downpipes are powdery. ... gutters and downpipes require repainting.";
• Unit 8 – "The gutters and fascia require repainting as they are powdery".

In the circumstances, the applicant’s interpretation of the report is simply wrong. It is clear in my view that "powdery" does mean that repainting is required.

I intend to order that the application is dismissed. Further, I intend to order that within two (2) months of the date of this order, the applicant shall arrange for his lot to be painted in the colours selected by the body corporate and to a standard commensurate with all other lots in the scheme.

The body corporate has sought orders that the application be declared frivolous, vexatious, misconceived and without substance, and additionally that I order that the applicant reimburse the body corporate $673.14 for disbursements in distributing the application to all owners. Whilst the applicant lacked any real merit, I nevertheless do not conclude that it was within the terms of section 270(1)(c) of the Act such that I am empowered to make an order for costs. I therefore decline to do so.