North Sea Apartments [2005] QBCCMCmr 489 (31 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0389-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5483
Name of Scheme:	North Sea Apartments
Address of Scheme:	30 McIlwraith Street MOFFAT BEACH QLD 4551

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

Radcliffe & Rossiter, the Owner(s) of Lots 3 and 1:

I hereby order that all owners and occupiers of the North Sea Apartment complex will keep the common entry door and stairwell front security door closed at all times when not in use by the occupiers, owners, their guests and invitees.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0389-2005

"North Seas Apartments" CTS 5483

The Applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"The complex common entry door and stairwell front security door be kept closed at all times when not in use for personal, guests, services, emergencies entry and exit, in particular common sense of community living."

Jurisdiction:

This is a dispute between the owners of Lots 3 & 1 (B & E Radcliffe and J Rossiter) (the Applicants) and Brian and Veronica Healey owners of Lot 2 (the Respondents), regarding the closure of the front security door to the complex. This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

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 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:

Under section 243 of the Act, a copy of the application was provided to the Respondents with an invitation to them and all owners within the scheme to respond to the matters of dispute raised in the application. No written responses were received regarding this matter however telephone contact was established with the Respondents regarding this matter.

The brief facts of the matter are as follows. The Applicants advise that the complex has 4 lots. Lot 1 has its own entry independent of the balance of the lots. Lots 2, 3 and 4 have a common entrance which opens to the front street. This entrance is the common entry door and stairwell front security door which is the subject of this application. The door is a self-closing and locking door constructed of an aluminium frame and glass panels.

The Applicants allege that the Respondents has persistently placed a brick or block behind the door holding it in an open position generally all day long and sometimes during the evening. The Applicants express concern that the door is a security door and should be kept closed so as to protect the lots and occupants. The Respondents state that one lot was broken into (forced entry) recently and that this highlights the need for improved security. The Applicants stated that had the door been closed then this may have prevented the incident.


In support of the application the Applicants provide copies of minutes to an AGM and EGM held on 16 April 1999 and 21 November 2003. The resolution carried in the April 1999 AGM provides:-

"Resolved that the body corporate manager arrange for that the door close properly and also try to reduce noise."

The resolution carried in the November 2003 EGM provides:-

"That the front door is to be kept closed at all reasonable times."

Relevantly the Applicants allege that the Respondents are responsible for ‘blocking’ the door open. The basis of this allegation is that Mr Healey (one of the Respondents) made mention of the door not being a security door in correspondence he sent to the body corporate manager dated 19 May 2005. Further in support of this allegation is the fact that the Respondents are the only other permanent occupiers within the scheme which would have cause to keep the door open. Finally, the Applicants allege that personal approaches to the Respondents have not remedied the situation. The Applicants provide few details of these personal approaches.

The Respondents were contacted regarding this matter however declined to provide a written submission in this matter. The Respondent (in particular Mr Healey) did state that he would generally ‘block’ the door open because it was impractical to have to use the key all the time especially when access was needed on a regular basis. Further, the Respondent advises that the break in (forced entry) alleged by the Applicants was simply a case of the occupier leaving the door to that lot open and nothing was stolen. The Respondent also advised that the door is a common door used by all people who use Lots 2, 3 and 4 or access the complex and therefore it is difficult to identify who may have ‘blocked’ the door open on any one occasion. Finally, the Respondent advised that the doors to each lot are the real security doors within the complex as they are fire rated and quite heavy.

Determination

"North Sea Apartments" is a community titles scheme that is subject to the provisions of the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

This dispute arises between the parties on the basis that the Respondents are ‘blocking’ the door open. The Applicants have made efforts in the past to keep the door closed both through formal body corporate processes (resolutions at EGM and AGM) and from personal approaches to the Respondents. In the opinion of the Applicants this has not addressed the situation to their satisfaction.

After considering all of the materials provided with this application I have formed the view that there is sufficient evidence to establish that the door has been ‘blocked’ open beyond what is reasonably necessary or as required per the resolutions made at the 1999 AGM and the 2003 EGM. I am however not convinced that the Respondents are solely responsible for this. On this basis I am willing to make orders which will address the Applicants’ concerns.

I order that all owners and occupiers of the North Sea Apartment complex will keep the common entry door and stairwell front security door closed at all times when not in use by the occupiers, owners, their guests and invitees.

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