Centre Court [2005] QBCCMCmr 45 (31 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0736-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12171
Name of Scheme:	Centre Court
Address of Scheme:	32 - 34 Musgrave Street KIRRA QLD 4225

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

Deanne Easton, the co-owner of lot 19

I hereby order that within two (2) months of the date of this order, the owner of lot 6, David John Stringer (Stringer), shall remove from the common property of the parcel the air conditioning compressor unit and all associated pipes and ducting which Stringer has installed without authorisation of the body corporate in general meeting, and reinstate the common property to its former state and condition of repair. I further order that before proceeding to re-install the air conditioning unit or any part thereof in any location on the common property of the parcel, Stringer must first obtain the authorisation of the body corporate in accordance with section 114 of the standard module; namely by special resolution of the body corporate in general meeting.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0736-2004

"Centre Court" CTS 12171

The applicant, Deanne Easton, the co-owner of lot 19, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

To be informed if all lot owners should have been able to vote AGM level on this issue as Airconditioner motor was installed on the wall of unit owner 13 car lot without permission from such and wall being common property.

The applicant also sought an interim order, namely whether the air conditioning motor should be removed or remain from the wall of common property in unit owners security basement carpark. On 22 November 2004, the requested interim order was dismissed.

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 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 installation of air conditioning (or at least the external component thereof) (the unit) on common property being the car park wall adjacent to the car parking spaces occupied by lots 12 and 13. The unit has been installed by David Stringer, the owner of lot 6 (the respondent). The respondent operates a real estate agency from his lot. The respondent is also the secretary of the body corporate.

The dispute is twofold. The nature of the approval given, and whether that approval has been complied with in any event. The respondent was approved by the committee to install the unit in one location (the exterior of the property above the exit garage doors (north side)", but in fact installed it in another, completely different location, without referring this aspect back to the committee.

This office sought submissions from the committee, the respondent and all owners in the scheme. Whilst the committee did not respond (although individual submissions were received from certain committee members), the respondent and several owners did.

The installation of the unit on a common property wall is an improvement to common property for the benefit of a lot. Section 114 of the standard module provides –

114 Improvements to common property by lot owner--Act, s 159
(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless--
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.
(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section42--
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

The committee has no power to authorise an improvement unless the improvement can be categorised as "minor". The category of "minor" is very limited. "Minor improvement" is defined as an improvement with an installed value of $250 or less. I conclude the installed value of the unit must have exceeded this amount. The installation of the unit is not a minor improvement. Consequently, a special resolution of the body corporate in general meeting is required in order to authorise the installation of the unit.

The argument that the installation of the unit is "minor" is the totality of the respondent’s submission. For the above reason, I do not accept this submission. The respondent does not even address the second aspect of the dispute, except perhaps in passing to suggest that the unit has been housed "within the basement and affixed to the common wall at the far end of car spaces 12 and 13 (the area set aside for service utilities for the building)". Does this statement somehow justify the respondent’s unilateral, and unapproved action of relocating the unit from its location as "authorised" by the committee. I suggest that it does not. I might have had some empathy for the respondent’s position had he installed the unit in the location apparently authorised by the committee, but he did not. I will further indicate that the arguments supplied by Rod Gibb in support of the respondent’s position are flawed, for the reasons that:

• The statement attributed to the owner of lot 13 regarding the unit are contrary to the terms of a submission she has provided;
• The statement that "a body corporate may proceed with out resolution for a lease or licence of common property if the CMS so provides" is a nonsense. As a committee member, I suggest that Mr Gibb better inform himself of the provisions / requirements of the legislation;
• The by-laws for a scheme do not override the legislation. The legislation requires a special resolution (see section 114 above). To the extent that any by-law of the scheme provides otherwise, it is void.

In the circumstances, I intend to order to respondent to remove the unit from the common property of the parcel and to reinstate the common property to its former state and condition of repair. I further intend to order that before proceeding to re-install the air conditioning unit in any location on the common property of the parcel, the respondent must first obtain the approval of the body corporate in accordance with section 114 of the module; namely by special resolution of the body corporate in general meeting.