Ipomoea Court [2005] QBCCMCmr 458 (16 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0288-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5042
Name of Scheme:	Ipomoea Court
Address of Scheme:	44 Ocean Street MERMAID BEACH QLD 4218

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

the body corporate for Ipomoea Court CTS 5042

I hereby order that the application for an order that Peter Lovelock, "unit 1 owner comply with by-law No.5" is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0288-2005

"Ipomoea Court" CTS 5042

APPLICATION

This is an application by the body corporate for Ipomoea Court CTS 5042 (as amended) through its committee (the applicant) for an order that Peter Lovelock, (Mr Lovelock) owner of Lot 1 in the scheme, complies with By-law 5 for the scheme, and removes the timber blinds erected on the east-facing kitchen window which he has installed without body corporate approval.

JURISDICTION

"Ipomoea Court" Community Title Scheme 5042 (Ipomoea) is a scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are eight lots in the scheme created under a Building Unit Plan of subdivision.

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)).

SUBMISSIONS

Submissions were invited from all eight lot owners in accordance with section 243(2)(b) of the Act.
Submissions were received from Paul Lomaz of Lot 5; Daniel Stosur of Lot 2; Nathan Reeves, of Lot 8 (who is also the secretary for the scheme); Dale Webb, attorney for Mrs Daphne Webb of Lot 4; and Mr Lovelock. I do not propose to summarise the submissions in the light of my determination

DETERMINATION

In any dispute concerning by-laws, it is necessary first to study the wording of the by-law which it is alleged has been breached.

The body corporate has copied out "by-law 5" as follows-
By-law no.5

"No external blinds shall be erected and all curtains and all blinds on the external windows of the building shall be of a uniform off-white backing or such other colour as the Council of the Body Corporate shall from time to time nominate or require an (sic) order to have a standard and orderly appearance for the building."

Mr Lovelock in his submission has also provided a copy of a document headed "By-Laws of Ipomoea Court", where the first word, which may be relevant as I shall later explain, has been crossed out. That first word may be "Recorded" although it is not possible to say with any certainty.

However, a by-law for a scheme can only be a by-law if it is recorded as such in the Land Titles Registry of the Department of Natural Resources and Mines, (the Titles Office). Section 179 of the Act states –

179 Commencement of by-laws

A by-law comes into force on the day the registrar records the community management statement containing the by-law or a later date stated in the by-law.

Historically, when the Act came into effect in July 1997, existing schemes such as Ipomoea were deemed to have an "interim" community management statement in which were included by-laws which were identical to the by-laws that, immediately before the commencement of the Act, were the by-laws in force for the scheme (section 337(2)(g)(i) Act.) Bodies corporate were then given three years in which to record a new Community Management Statement (CMS) which could include, amongst other things, new by-laws adopted by the scheme. If a scheme did not register its own particulars within three years of the assent of the Act, the Registrar recorded a CMS for the scheme, giving the scheme a Standard Module regulation as the governing regulation, and stating as follows-

"By-Laws
Taken to be those in effect as at 13 July 2000"

The scheme therefore kept whatever by-laws it had prior to the recording of the standard CMS, which were the by-laws on the "interim" CMS. In other words, if a body corporate did not wish to update its by-laws, they remained as they were in 1997 before the commencement of the Act. A standard Community Management Statement for Ipomoea was recorded by the Registrar on 15th July 2000 in accordance with the current section 339(2) of the Act.

There are no by-laws recorded on the CMS in the Titles Office for Ipomeoa. Prior to 1997 there have been no previous dealings where individual by-laws have been recorded.

In such circumstances, the by-laws in force in 1997, were those under the former legislation, the Building Units and Group Titles Act 1980 (BUGTA).

Section 30 of BUGTA states -
"30 By-laws

(1) Except as provided in this section the by-laws set forth in Schedule 3 shall be the by-laws in force in respect of each plan."

Section 30 goes on to set out how a body corporate may make, add to or repeal its own by-laws by notification on the prescribed form in the land registry and recording by the Registrar of Titles

Section 30(3) states –

"An amendment of, addition to or repeal of the by-laws has no force or effect until the registrar of titles has, pursuant to a notification in the prescribed form lodged in the land registry by the body corporate, recorded the notification on the registered plan."

The by-laws set out in Schedule 3 of BUGTA are the only by-laws that can apply to Ipomoea since there are no other by-laws recorded. The by-laws in Schedule 3 of BUGTA are set out at the end of this decision, and do not contain any specific references to blinds. By-Law 8, concerning appearance of a building in a building units plan (BUP) such as Ipomeoa, requires permission in writing of the committee to " hang any washing, towel, bedding, clothing or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his or her lot in
such a way as to be visible from outside the building."

Under the "ejusdem generis" rule of statutory interpretation, which provides that the interpretation to be given to general matters is constrained or defined by reference to the specific matters which precede them, I do not find "any sign, advertisement, placard, banner, pamphlet or like matter" could refer to timber blinds. In my view, the by-law aims to address the problem of unsightly advertising material and not to regulate a choice of soft furnishings. Nor do I find that "any washing, towel, bedding, clothing or other article" whilst technically could include curtains, could be interpreted to require that lot owners indeed remove their curtains from hanging in windows, and therefore should not be interpreted as having reference either to fabric or timber blinds.

The document provided by Mr Lovelock, the terms of which he has allegedly breached are not by-laws for the scheme. They may well be "house rules" or a similar code for administering the scheme in a proper manner but they cannot be enforced by a lot owner or the body corporate, and as such I cannot find that Mr. Lovelock has breached a by-law or ask him to take any remedial action. I must dismiss this application.

The body corporate may, of course, take steps to record that document as its by-laws in the Titles Office. The adoption, amendment and repeal of by-laws requires a new CMS to be lodged which is not a complicated process, and any land titles registry in Queensland can advise on the forms and fees required. In order to lodge a new CMS however, the body corporate ( ie, not the committee) must at a general meeting pass a special resolution that a new CMS is recorded. (section 62(3) Act). The new CMS must be recorded within 3 months of the general meeting at which the resolution is passed. (section 65 Act). A special resolution requires that two-thirds of all those voting for or against (not of all lot owners) be in favour and not more than 25% of all lot owners ( ie 2 ) be against.

Whilst the committee may take steps to enforce its by-laws, it cannot at committee level agree to change or not to change the by-laws. This is a matter for the body corporate. The committee may of course propose a motion to a general meeting with its recommendation that a certain by-law be amended or deleted. In this manner, the body corporate can "drive" its by-laws and there is no reason why a scheme should try to work with former "by-laws" which may no longer be applicable to the scheme or which may be against the wishes of the majority of lot owners. Any lot owner may propose a motion to a general meeting that a by-law be included in the CMS or amended etc. Provided the voting is by special resolution at a general meeting, this is entirely a matter for the lot owners to decide themselves.

____________________________________________________________________

Schedule 3 By–laws
section 30
1 Noise
A proprietor or occupier of a lot shall not upon the parcel
create any noise likely to interfere with the peaceful
enjoyment of the proprietor or occupier of another lot or of
any person lawfully using common property.
2 Vehicles
Save where a by-law made pursuant to section 30(7)of this
Act authorises a proprietor or occupier so to do, the proprietor
or occupier of a lot shall not park or stand any motor or other
vehicle upon common property except with the consent in
writing of the body corporate.
3 Obstruction
A proprietor or occupier of a lot shall not obstruct lawful use
of common property by any person.
4 Damage to lawns etc. on common property
A proprietor or occupier of a lot shall not--
(a) damage any lawn, garden, tree, shrub, plant or flower
being part of or situated upon common property; or
(b) except with the consent in writing of the body corporate,
use for his or her own purposes as a garden any portion
of the common property.

5 Damage to common property
(1) A proprietor or occupier of a lot shall not mark, paint, drive
nails or screws or the like into, or otherwise damage or deface,
any structure that forms part of the common property except
with the consent in writing of the body corporate, but this
by-law does not prevent a proprietor or person authorised by
the proprietor from installing--
(a) any locking or other safety device for protection of his
or her lot against intruders; or
(b) any screen or other device to prevent entry of animals or
insects upon his or her lot.
(2) Provided that the locking or other safety device or, as the case
may be, screen or other device is constructed in a competent
manner, is maintained in a state of good and serviceable repair
by the proprietor and does not detract from the amenity of the
building.
6 Behaviour of invitees
A proprietor or occupier of a lot shall take all reasonable steps
to ensure that his or her invitees do not behave in a manner
likely to interfere with the peaceful enjoyment of the
proprietor or occupier of another lot or of any person lawfully
using common property.
7 Depositing rubbish etc. on common property
A proprietor or occupier of a lot shall not deposit or throw
upon the common property any rubbish, dirt, dust or other
material likely to interfere with the peaceful enjoyment of the
proprietor or occupier of another lot or of any person lawfully
using the common property.
8 Appearance of building
In the case of a building units plan, a proprietor or occupier of
a lot shall not, except with the consent in writing of the body
corporate, hang any washing, towel, bedding, clothing or
other article or display any sign, advertisement, placard,
banner, pamphlet or like matter on any part of his or her lot in
such a way as to be visible from outside the building.
9 Storage of flammable liquids etc.
A proprietor or occupier of a lot shall not, except with the
consent in writing of the body corporate, use or store upon his
or her lot or upon the common property any flammable
chemical, liquid or gas or other flammable material, other
than chemicals, liquids, gases or other material used or
intended to be used for domestic purposes, or any such
chemical, liquid, gas or other material in a fuel tank of a motor
vehicle or internal combustion engine.
10 Garbage disposal
A proprietor or occupier of a lot shall--
(a) save where the body corporate provides some other
means of disposal of garbage, maintain within his or her
lot, or on such part of the common property as may be
authorised by the body corporate, in clean and dry
condition and adequately covered, a receptacle for
garbage;
(b) comply with all local government local laws and
ordinances relating to the disposal of garbage;
(c) ensure that the health, hygiene and comfort of the
proprietor or occupier of any other lot is not adversely
affected by his or her disposal of garbage.
11 Keeping of animals
Subject to section 30(12), a proprietor or occupier of a lot
shall not, without the approval in writing of the body
corporate, keep any animal upon his or her lot or the common
property.


The Commissioner’s office offers a free Information Service on 1800 060 119 and will be able to advise on the content of by-laws and how to contact a land titles registry. The service is available to all members of the public, so that committee members and lot owners may obtain information directly. There are also brochures available ( eg a brochure entitled "By-Laws") from the Information Service and on the Commissioner’s website at www.dtftwid.qld.gov.au/Dispute+Resolution/BCCM