172 Macquarie Gardens [2005] QBCCMCmr 130 (3 March 2005)

Last Updated: 5 July 2005

REFERENCE: 0664-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17676
Name of Scheme:	172 Macquarie Gardens
Address of Scheme:	172 Macquarie Street ST LUCIA QLD 4067

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Body Corporate for 172 Macquarie Street

I hereby order that the application by the body corporate of 172 Macquarie Gardens for an order of an adjudicator that the owners of lot 11, Peter Kevin Long and Mary Catherine Long a) remove the alterations that they have made to the lot, namely the cedar timber frames surrounding the windows on the north and east facing elevations and the fold out windows; and b) bring the external appearance of the lot back to its original condition namely block aluminium window frames and sliding windows, is dismissed. I further order that the owners of lot 11, Peter Kevin Long and Mary Catherine Long (the owners), shall be permitted to retain the existing timber framed windows, on the following conditions: a) The window frames, including both internal and external faces, shall be painted "black" in either a matt, satin or gloss finish which is nearest in appearance to the finish of the previous aluminium window frames; b) The painting, at the cost of the owners, is to be undertaken and completed in a professional manner using quality paints within three (3) months of the date of this order; c) The owner of the lot for the time being cannot thereafter make any further change to the colour of the window frames without first obtaining the written approval of the body corporate in respect of the proposed change; d) The white shutters located on the balcony of the lot which the body corporate has previously approved, are at all times (except when being cleaned) to be kept in a closed or fixed position. That is, the shutters are to be aligned side by side and are not to be retracted or folded back on each other; e) Nothing in this order shall be interpreted as requiring that the individual blades of the shutter doors cannot be opened so as to take advantage of the prevailing breezes. I further order that the terms of this order shall apply, and continue to apply to the owner of the lot for the time being, and should the lot be sold, any new owner of the lot shall be bound by the conditions of this order as to the maintenance of the colour of the window frames ("black") and the requirement to keep the white shutters in the closed or fixed position, subject only to them being cleaned from time to time.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0664-2004

"172 Macquarie Gardens" CTS 17676

The applicant, the body corporate of 172 Macquarie Gardens has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

1.	That the adjudicator make an order pursuant to s276(2) of the Body Corporate and Community Management Act 1997 that the affected persons:
a)	Remove the alterations that they have made to the lot, namely the cedar timber frames surrounding the windows on the north and east facing elevations and the fold out windows; and
b)	Bring the external appearance of the lot back to its original condition namely block aluminium window frames and sliding windows.
2.	That outcome sought in 1(a) and 1(b) be at the cost of the Affected persons.

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 11 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the standard module.

The dispute concerns the replacement of certain metal or aluminium framed windows with timber framed windows within lot 11 by the owners of that lot, Peter Kevin Long and Mary Catherine Long (the respondents). It seems that initially the applicant body corporate considered the replacement of the windows an improvement to common property (requiring a special resolution under section 114) however subsequently, the body corporate alleged that the replacement of the windows was a contravention of by-law 9 headed Alterations to lot. That by-law prohibits an occupant from making "a change to the external appearance of a lot or (making) any structural alterations to a lot, except with the consent in writing of the body corporate".

In the grounds, the body corporate alleges:

The affected persons have altered the lot and breached by-law 9 by removing the existing windows and black aluminium frames surrounding the windows on the north and east facing elevations and replacing them with cedar timber and by changing the windows from sliding windows to fold out windows without first obtaining the written consent of the body corporate.

The application proceeded by way of submission from the respondent, which opposed the order sought or at the least, sought a compromise outcome. The applicant then responded to the application.

After reading the application, I considered that a teleconference was required in order to clarify and / or canvass certain matters. This teleconference was held on Wednesday 2 March at 2:30 pm. Mr Long and two members of the committee were available for the teleconference, and both parties were represented by their solicitors. The teleconference resulted in a resolution of the dispute by mediated agreement, and consequently, it is not necessary to canvass or elaborate here all aspects of the dispute.

The parties agreed to resolve the dispute on the following basis. The respondents are to be permitted to retain the existing timber windows, on the following conditions:
That the owners of lot 11, Peter Kevin Long and Mary Catherine Long (the owners), are permitted to retain the existing timber framed windows, on the following conditions:

a) The window frames, including both internal and external faces, are to be painted "black" in either a matt, satin or gloss finish which is nearest in appearance to the finish of the previous aluminium window frames;
b) The painting, at the cost of the owners, is to be undertaken and completed in a professional manner using quality paints within three (3) months of the date of this order;
c) The owner of the lot for the time being cannot thereafter make any further change to the colour of the window frames without first obtaining the written approval of the body corporate in respect of the proposed change;
d) The white shutters located on the balcony of the lot which the body corporate has previously approved, are at all times (except when being cleaned) to be kept in a closed or fixed position. That is, the shutters are to be aligned side by side and are not to be retracted or folded back on each other;
e) Nothing in this order shall be interpreted as requiring that the individual blades of the shutter doors cannot be opened so as to take advantage of the prevailing breezes.

The terms of this order shall apply, and continue to apply to the owner of the lot for the time being, and should the lot be sold, any new owner of the lot shall be bound by the conditions of this order as to the maintenance of the colour of the window frames ("black") and the requirement to keep the white shutters in the closed or fixed position, subject only to them being cleaned from time to time.

Whilst the above order reflected a mediated or agreed resolution of the dispute between the parties, I will indicate that the order is very similar in effect to that which I consider is a just and equitable resolution of the dispute, and had an agreed resolution not been forthcoming, is proximate to what I would have ordered in any event.

I consider I would have ruled against the complete replacement of the windows for the reasons that the body corporate had in fact authorised the installation of the white shutters which in my view resulted in a significant change to the external appearance of the lot in any event, thus resulting in the body corporate’s current objection being arguably somewhat pedantic. Also, I am concerned, and certainly canvassed in the teleconference, the possibility that the body corporate’s original objection in respect of the windows was that they were part of the common property. This was not the case, however it is arguable that the body corporate still sought to maintain its objection notwithstanding this, simply thereafter alleging that the change was to the external appearance of the lot.