Paradise Discovery One [2004] QBCCMCmr 76 (9 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0578-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18598
Name of Scheme:	Paradise Discovery One
Address of Scheme:	PO Box 7478 CAIRNS QLD 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Paradise Discovery One

I hereby order that within three (3) months of the date of this order, the owners of lot 28, Paul Nadilo and Maria Nadilo shall repaint the exterior of their lot in a colour or colours first approved by the body corporate or the Architectural Control Sub Committee in compliance with by-law 1.7.3, as interpreted by this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0578-2003

"Paradise Discovery One" CTS 18598

The applicant, the body corporate for Paradise Discovery One 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 28 be ordered to repaint the exterior of their house in a pastel colour as approved by the body corporate or the Architectural Control Sub Committee in accordance with by-law 1.7.3.

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 30 lots recorded under a group title plan (now a standard format plan) of subdivision.

The dispute centres on the interpretation of a by-law. The by-law in question (1.7.3) provides that –

Exterior cladding ... shall be painted or finished in a pastel colour selected from a range of sample colours as approved by the Body Corporate or the Architectural Control Sub-Committee.

The body corporate alleges that the owners of lot 28 Paul and Maria Nadilo (the respondents) failed to paint their house in a colour approved as per the by-law. The body corporate further alleges that there was no final clearance from the Architectural Control Sub-Committee.

The respondents deny the allegation and state that they have complied with the relevant by-law. They claim that the by-law "provided to (them) differ from the by-laws relied upon by the body corporate ...". They state –

In particular, by-law 1.7.3 of the by-laws provided to us specifically provides us with an option to paint the exterior either (a) in a pastel colour or (b) in a neutral background selected from a range of sample colours as approved by the Body Corporate or the Architectural Control Sub-Committee.

The respondents state that (they) "have painted the exterior of our house in a pastel colour as provided in option (a) of that by-law". However, the by-law, even if I accept the one relied on by the respondents, does not provide an option (a) and (b) as the respondents have suggested. Rather the relevant provision states –

... shall be painted in a pastel colour or neutral background selected from a range of sample colours as approved by the Body Corporate or the Architectural Control Sub-Committee.

I conclude that the by-law should not be interpreted as the respondents would have it. Rather the concluding or qualifying words "from a range of sample colours as approved by the Body Corporate or the Architectural Control Sub-Committee" must be read as applying to both the matters raised, namely "a pastel colour or neutral background" and should not be limited as applying to only the later. There is no basis for the qualification sought by the respondents to apply.

In the circumstances, I am satisfied that the respondents have failed to comply with the relevant by-laws and I intend to order in terms as sought by the applicant body corporate.