Riverwalk Place [2005] QBCCMCmr 48 (31 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0807-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32887
Name of Scheme:	Riverwalk Place
Address of Scheme:	238 Robina Town Centre Drive ROBINA QLD 4230

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

I hereby order that Highside Realty Pty Ltd trading as Richardson & Wrench Gold Coasat Central, as the lessee occupier of Lot 1, must within ten (10) days of the date of this order remove and keep removed all of the signage displayed by it on the lot or on the common property, including that displayed on the windows of the southern and eastern elevation of the scheme building, in breach of the body corporate By-laws 13.1 and 13.3.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0807-2004

"Riverwalk Place" CTS 32887

The applicant body corporate has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

1. The owner of Lot 1 has allowed his tenant to erect signage to the building which is in contravention of By-laws 13.2 and 13.3 and further has allowed his tenant to store furniture in the exclusive use carpark which is in contravention of By-law 33.3 of the body corporate by-laws. Considerable correspondence (which is attached) has been forwarded to the lot owner and his solicitor and a notice of continuing contravention of a body corporate by-law has been issued on 8 November 2004. The body corporate requests that the owner of Lot 1 instructs his tenant to remove the illegal signage and the furniture from the property.

2. That the Commissioner award an order that costs relating herein are paid by the owner of Lot 1.

The applicant has also made application for the following interim order of an adjudicator –

That the owner of Lot 1 be instructed to request his tenant to remove the illegal signage and furniture immediately pending the outcome of the final order.

JURISDICTION:
This is a dispute between the body corporate (the applicant) and an owner (the respondent owner Joseph Eric BLEAKLEY of Lot 1), on his allowing his tenant, Highside Realty Pty Ltd trading as Richardson & Wrench, real estate agent, an affected person in the dispute, to erect signage on the scheme in breach of the body corporate by-laws, namely By-laws 13.1 and 13.3, and of storing furniture in the exclusive use car space for Lot 1, in breach of By-law 33.3. These are matters falling within the disputes resolution provisions of the legislation (see sections 227(1)(b), 228(1) and 276 of the Act).

While section 279(1) of the Act provides that an adjudicator may make an interim order if satisfied on reasonable grounds that an interim order is warranted because of the nature or urgency of the circumstances, there is nothing in the legislation to prevent an adjudicator, in appropriate circumstances, from making a final determination of the dispute by proceeding directly to a final order.

I consider this course is appropriate in this instance because: the facts of the matter are relatively simple and clear; the relevant parties (see later under heading "Application and Submissions" following) have been given the opportunity to speak to the disputed matter; sufficient information is available to determine the matter; and a prompt resolution of the dispute is in the interests of all parties.

Accordingly, this order will be the only order made in respect of the application. The parties, of course, retain their appeal rights against the order made, and my having dispensed with the making of an interim order does not diminish those rights.

General powers of an Adjudicator in making an order:
Section 276(1) 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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
In accordance with section 243 of the Act, a copy of the application was provided to Adamsons Solicitors & Attorneys (Jason Hall) for the respondent Bleakley, and to Katrina McEachen, representative for the occupier of Lot 1, Richardson & Wrench (Highside Realty Pty Ltd) as an affected party, with an invitation to respond to the matter of dispute raised in the application. The respondent sought and obtained two extensions of two weeks each to make a submission, but the third request for a further two weeks was reduced to 3 days.

Submissions were lodged by the respondent and the occupier (McEachen).

The brief facts of the matter are as follows. Bleakley is the owner of Lot 1 in the subject community titles scheme "Riverwalk Place" and has leased the lot to Highside Realty Pty Ltd ("Highside") trading as Richardson & Wrench Gold Coast Central. The applicant body corporate has submitted copies of correspondence with Adamsons Solicitors & Attorneys dating from 13 September 2004, requiring the removal of signage displayed by its client’s tenant which was not in compliance with the body corporate by-laws. Photographs submitted show various signs erected over and on external windows advertising the tenant’s real estate business.

On 8 November 2004 the body corporate served a Notice of Continuing Contravention of a Body Corporate By-Law on Bleakley specifying that he had allowed his tenant to display signage on the south and east elevation of the scheme building in breach of By-laws 13.1 and 13.3 (wrongly shown as 13.2) which read as follows –

BY-LAW 13. APPEARANCE OF LOT AND COMMON PROPERTY.
13.1 Subject to by-laws 13.2 and 13.3, an owner or Occupier must not (without the prior written consent of the body corporate committee) :-

a) paint, affix or display any sign, advertisement, notice, poster, placard, banner, pamphlet or similar article or hang any articles on any lot or the common property; or
b) install any internal partitions on any lot;

in such a way to be visible from another lot, the common property or outside the scheme land.

13.3 An Owner or Occupier of Lots 1-4 and 7-8 on SP 165624 may install signage (only of the types set out below) in the shop fronts for their lots in the locations shown on the plans attached and marked "E". The Signage may only compromise:-

a) for signage on either side of the doors, sign writing with optional illumination. Light box type signs are not permitted.
b) for signage above the doors an illuminated light box type sign.

The body corporate also submitted photographs of advertising signs, paint tins, boxes and rubbish, stored on the exclusive use car space allocated for Lot 1. The above notice also included details of a breach of the relevant By-law 33.3 which reads-

BY-LAW 33.3 EXCLUSIVE USE – CAR PARKS.

a)	must only use the area for the purpose of car parking:
b)	is responsible for keeping the area in a clean and tidy condition and is also responsible for the repair, maintenance and replacement of the car park.

Despite the notice, the signs remained on display and on 17 December 2003 the body corporate committee lodged this application. The respondent Bleakley sought and was granted extensions for making a written submission (to 21 then 27 January) for reasons deemed reasonable.

The respondent acknowledges having received formal notice from the body corporate for signage to be removed from his lot and does not wish to contest the application. He submits that he has now done all in his power under the lease with his tenant to rectify the position, by serving Highside with a Notice to Remedy Breach of Covenant under the Property Law Act 1974 (Form 7) dated 21 January 2005 to remove the signage displayed in breach of Clause 3.13.1 of the Lease.

The tenant, Katrina McEachen for Richardson & Wrench Gold Coast Central, has submitted that she has received the Form 7 notice from Bleakley’s solicitors. She states that the lease was, "signed incorrectly, therefore, never returned to our office and the second was only signed and stamped in early December with our office not receiving a copy until today, it accompanied the Notice of Remedy" (submission dated 21 January 2005). The tenant asks whether windows stickers are prohibited but concludes that it is disappointed with the outcome and then states that it reluctantly withdraw/withhold any submission...we would like your advice on where we stand exactly and will comply accordingly."

Highside has advised that the articles have been removed from the car parking space. As the amount of material was small and appears to be a temporary storage of material relating to the signage, and not something in the nature of a permanent storing of items, I do not intend to issue an order in respect of this dispute but shall only deal with the matter of the signage.


DETERMINATION:
"Riverwalk Place" was registered as a building format plan on 28 July 2004 and comprises 24 lots. It is regulated by the Body Corporate and Community Management (Commercial Module) Regulation 1977 ("the Commercial Module").

The matter of Highside’s compliance with the terms of the lease agreement is not within my jurisdiction to determine. In the circumstances, I consider that it will be more expeditious (in addition to my dealing finally with this application by this order) if I consider the application solely as one concerning non-compliance by an occupier with the body corporate by-laws.

Section 169(1)(b)(i) of the Act provides that a body corporate may make by-laws for the "regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme" This is a wide by-law making power available to the body corporate and would include a by-law regulating the display of signs that, by being visible to persons from outside the lot, detract from the appearance of the scheme. By-law 8 of the statutory by-laws contained in Schedule 4 to the Act is to this purpose.

By-laws 13.1 and 13.3 are by-laws concerning the use of a lot for the purposes of ensuring that the external appearance of the scheme building is maintained, and that there is an equitable sharing of signage space, both important in a commercial building. In my view both are by-laws that a body corporate may make in exercise of its power under section 169(1)(b)(i) of the Act.

I am satisfied that the signage displayed by Highrise is visible within the meaning of By-law 13.1 and, being displayed otherwise than in accordance with By-law 13.3, is therefore not in compliance with those by-laws.


Section 59(2) of the Act provides that each member of the body corporate, registered proprietor and occupier of a lot (and others) is bound by the community management statement ("CMS") of the body corporate. A tenant is therefore caught by this provision, and further, subsection 59(3) states that the binding nature of the CMS is as effective as if those bound had signed the statement under seal. Section 66(1)(e) of the Act requires that the body corporate’s by-laws must be contained in the CMS unless they are the statutory by-laws contained in schedule 4 to the Act – "Riverwalk Place" has included the above by-laws in its first CMS.

Accordingly, Highside was bound by the by-laws of the body corporate from the outset of its occupancy, and by displaying the signage is itself in breach of the by-laws. Under the above provisions, that is so regardless of whether it was aware of the by-laws or not.

Accordingly, I have ordered that Highside is to remove the signage within 7 days of the date of this order. It should approach the body corporate committee to discuss what signage is acceptable with the terms of the relevant by-laws and the discretion of the committee.

In regard to the order sought regarding costs, an adjudicator only has jurisdiction under the Act to make a costs order where an application is found to be frivolous, vexatious, misconceived or without substance (see section 270(3)(a) of the Act).

Finally, while I have made no order regarding material placed in the car parking space, for completeness and future consideration I offer the following comments on that issue.

Section 170 of the Act provides for the granting of a right of exclusive use over an area of specifically identified common property attaching to a lot to be exercised by the occupier. The grant of an exclusive use area for the purposes of car parking is a common exercise of this power. Section 103(1) of the Commercial Module provides that an exclusive use by-law may impose conditions. The conditions set out in By-law 13.3 and the sketch plan marked "E" concerning the type and designated positions for signage, are in exercise of that provision.

The placing of signs, paint, rubbish, etc., in the exclusive use car parking space constituted a breach of By-law 33.3 which requires firstly that the owner must use the space for car parking purposes only, and secondly that the must be kept the area in a tidy condition.