Culgoa Point [2005] QBCCMCmr 42 (28 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0473-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11106
Name of Scheme:	Culgoa Point
Address of Scheme:	Culgoa Beach Resort Quamby Place NOOSA HEADS QLD 4567

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

Graham Patrick Cash & Pamela Joyce Cash, the owners of lot 58

I hereby order that within 6 weeks of the date of this order, the body corporate for Culgoa Point shall pay to Graham Patrick Cash & Pamela Joyce Cash, the owners of lot 58, the amount of $550 being reimbursement of the cost of unnecessarily having to relocate the external component of their air conditioning unit prior to a final determination of this aspect by the body corporate committee.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0473-2004

"Culgoa Point" CTS 11106

The applicants, Graham Patrick Cash & Pamela Joyce Cash, the owners of lot 58, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

Firstly that the body corporate pay for the forced removal of the A/C unit from the original position to the balcony (cost $550 + $100 for brackets)
Secondly that the body coprorate pay for the movement of the A/C unit from the balcony to the newly approved racking (to be installed) (cost estimated $ unknown (possibly $800)).

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

The dispute concerns the location and approval for placement of air conditioning condenser units on the common property of the scheme by the owners of lot 58. After initial installation of the external condenser unit, the applicants for various reasons have twice been required to remove the unit and relocate it. The applicants seek by this application to recover those costs from the body corporate for the reason that they allege that the committee acted "unreasonably and unfairly" towards the applicants.

I have found this application difficult to understand in parts. The material is lengthy and somewhat convoluted. As well, I suspect that both parties have sought to portray their particular view or interpretation of the dispute. However, I have reached certain conclusions regarding the dispute which I intend to state only briefly / succinctly and in doing so, I refuse to set out in any great detail conclusions on the myriad allegations raised in the material. My conclusions are based on the totality of the material before me.

On the issue of the original installation of the compressor unit, I conclude that the evidence of the body corporate is to be preferred over that of the applicants. I conclude that the applicants proceeded with the installation contrary to what had been agreed, instructed or approved by the body corporate. I consider that the willingness of the applicants to move the unit after its initial installation by them suggests acknowledgement on their part that the original location and method of installation was not in accordance with what was approved or instructed. The applicants did not really challenge the requirement of the body corporate to move the unit to their balcony; rather they sought to enter into negotiations with the body corporate committee regarding an alternative location. This is clear from their correspondence to the "chairperson and committee" of 27 November 2003, quote –

It is not practical to mount the unit on the balcony for reasons mentioned above. As the unit runs almost noiselessly, the practical position is on top of the current green framework.

I conclude from this statement that the applicants implicitly acknowledge that the original location for installation of their unit was not in accordance with body corporate specifications or approval, and that they were agreeable to moving it, but that they considered there was a preferable location other than the balcony where the body corporate were requiring that the unit be relocated.

I therefore conclude that the applicants would have been required to undertake at least one move of their unit, and that this was bought about by their own actions. The question however is whether the necessity for a second move of the unit could have been avoided if the attitude of the body corporate had been more reasonable.

I refer to a statement in the submission of the body corporate, page 3 at paragraph 6, quote –

The racking approved by the committee was as per a submission to the committee by Mr Cash. The submission was discussed by the chairman and Mr Cash during their joint time at Culgoa Point Beach Resort post Christmas 2003. The solution was not as per the installation that was ordered to be removed. The decision to provide a frame was based on the air-conditioning being for the mezzanine floor only and therefore the entrance door would be open and hot air from the condenser may enter the unit.

I conclude a number of matters from this statement:

• The final installation was not as per the original installation by the applicant;
• The final approval / installation was however pursuant to a submission of the applicants to the committee;
• The statement suggests that the submission came from Mr Cash to the chairperson during their joint time at Culgoa Point Beach Resort post Christmas 2003. That is, at a time after the applicants had moved the unit to their balcony;
• Whilst this might have been when the chairperson first become aware of the submission made by Cash are regards the final location, this is not when the submission arose;
• Cash’s submission which was eventually approved by the body corporate committee was clearly made to the "chairman and committee" in written correspondence of 27 November 2003. Cash concluded that correspondence with –

I await your advice and trust that the unit can be moved to the green framework without delay.

I conclude that had the committee responded appropriately to the applicant’s correspondence of 27 November, 2003, rather than the manner in which it did, then only one move of the unit would have been required. In this regard, I consider the attitude of the committee, as set out in email correspondence to the applicant from the manager, Philpot to be unreasonable and lacking in common sense and practicality. I consider the email correspondence of Philpot to the applicants, particularly of 9 December, 2003 to be nothing short of bloody minded. Whether the committee were in fact aware of Philpot’s correspondence to the applicant’s is unknown. However, a manager is only authorised to act in accordance with a committee’s instructions. Consequently, I presume that the committee had so instructed the manager to respond in the way he did. If it did not then perhaps this is an issue the committee should take up with the manager.

Given the final outcome: namely the committee acceptance of the applicant’s proposal, albeit subject to certain conditions and specifications, then I conclude that the first move of the unit was both premature and unnecessary, and could have been avoided by the committee placing the requirement of the first move of the unit in abeyance pending a final determination, following receipt of the applicant’s correspondence of 27 November 2003.

The applicant claims $550 plus $100 for brackets, as the cost to them of the first move of the unit. I have sighted an invoice for the amount of $550 as claimed. However there is no evidence provided of the requirement of the brackets. Whilst obviously, the brackets are required to hold the unit in place, I note that:

• The applicants have failed to explain in their material the requirement for the brackets, or why they would not have been required in any event;
• The body corporate subsequently resolved "to provide for an additional frame at the cost of the body corporate for unit 58 provided no other costs are born by the body corporate"; and
• That it is usual for the cost of improvements to the common property for the benefit of a lot to be born by the owner of the lot who receives the benefit of the improvement.

Given these three factors I am not prepared to allow the additional $100 claim for the brackets.

I intend to order that within 6 weeks of the date of this order, the body corporate shall pay to the applicants the amount of $550 being reimbursement of the cost of unnecessarily having to relocate the external component of their air conditioning unit.