Ryanston [2005] QBCCMCmr 35 (25 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0485-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3553
Name of Scheme:	Ryanston
Address of Scheme:	363 Stafford Road STAFFORD QLD 4053

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

Patrick James Melit, the owner of lot 1

I hereby order that the application by Patrick James Melit, the owner of lot 1 for an order that he not have to endure the noise transmitting through the floor / ceiling whenever the owner / occupier of unit 3 is home, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0485-2004

"Ryanston" CTS 3553

The applicant, Patrick James Melit, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

I am seeking an outcome that would enable me to enjoy living in my unit the same, peaceful way I was experiencing when I moved into the unit back in 1999, up until the time when the owner / occupier of unit 3, which is directly above my unit, removed the carpet and underlay and replaced with a hard surfaced floor covering, which the owner / occupier had stated is vinyl. The outcome sought is one that I will not have to endure the noise transmitting through the floor / ceiling whenever the owner / occupier of unit 3 is home.

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 6 lots recorded under a building format plan of subdivision. The regulation module applying to the scheme is the standard module.

The applicant has named as respondent to the application, Wendi Jessica Martin, the former owner of lot 3. On 3 December 2004, Ms Martin advised that she has vacated the unit some time previous, and had sold the unit, with settlement due to take place on 13 January 2005. Records of the Department of Natural Resources indicate that the lot has indeed been sold and that the new owner is Michelle Leanne Clark. Presumably, Ms Clark as part of her purchase of the lot undertook a search of this office to ascertain any orders pertaining to or affecting the scheme. Provided she had, then she would have been aware at the time of her purchase of the current pending application in respect of the lot which she is purchasing. To this extent Ms Clark would be aware of the issue in dispute.

However, I intend to dismiss this application. The order as sought in the application cannot be made against an unnamed, in coming owner. The applicant has named Ms Martin as the respondent. Moreover, it is clear that many of the applicant’s allegations relate to the conduct and actions of Ms Martin. Reference to Ms Martin’s submission, and to the applicant’s reply to that submission indicates a history of serious disputation between these two parties. Notwithstanding the applicant’s expectation to this effect, I cannot now simply substitute the incoming purchaser for the respondent, and proceed accordingly.

Such an approach would be a denial of natural justice / procedural fairness to the in coming owner of lot 3. I have no alternative but to dismiss this application. The applicant should now assess whether the previous conduct / noise complained of continues with the in coming owner; seek to address that issue with the in coming owner, and failing this, to seek to have the body corporate give the requisite contravention notice, before, if necessary making further application to this office.