Villa Aqua [2005] QBCCMCmr 559 (10 October 2005)

Last Updated: 19 July 2006

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997 Dispute Resolution Application Reference Number 0003-2004 APPLICANT: JILLIAN MARIE CASSIDY AND RESPONDENT: THE BODY CORPORATE FOR VILLA AQUA CTS 23101 ORDER

Initiating Document: Amended Dispute Resolution Application filed 23^rd July 2004

I do order and declare that the Resident Unit Manager’s Agreement made between the Body Corporate for Villa Aqua Community Title Scheme 23101 on the first part and Gus Johnson and Anastasia Johnson on the second part on 26th November 2003 does not impose an obligation on the Resident Unit Managers to maintain the applicant’s exclusive use common property area. I hereby order and declare that clause 3.1(c) of the Resident Unit Manager’s Agreement made between the Body Corporate and the Resident Unit Managers does not oblige the Resident Unit Managers, on reasonable request from the applicant, to allow tradesmen, contractors and the like, engaged by the applicant, access to the applicant’s lot from time to time. I do further order that the applicant pay to me, as my costs of the adjudication, the sum of $3,300.00 inclusive of G.S.T.

Signed:

Specialist Adjudicator

Dated: 10^th October 2005

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Dispute Resolution Application Reference Number 0003-2004

APPLICANT: JILLIAN MARIE CASSIDY

AND

RESPONDENT: THE BODY CORPORATE FOR VILLA AQUA CTS 23101

REASONS FOR DECISION

1. By an Application dated 23^rd July 2004 the applicant sought an order against the respondent that it direct the residential unit building managers of Villa Aqua, Mr Gus Johnson and Mrs Anastasia Johnson, to maintain the exclusive use common property area, being the applicant’s courtyard, to a high standard including but not limited to regularly cleaning all paved/tiled areas as well as watering, fertilizing, trimming/mowing all gardens, plants, lawns and edges within that courtyard area.

2. In addition to that order the applicant sought a further order that the Body Corporate direct Mr and Mrs Johnson to cooperate and assist the applicant by facilitating the access of tradesmen, contractors and the like, engaged by the applicant, to the applicant’s lot from time to time.

3. The applicant also sought an order that the Body Corporate direct the residential unit building managers not to reduce the height of the trees and shrubs on the nature strip on the boundary of Villa Aqua when trimming and/or pruning those trees and shrubs.

Obligation to maintain exclusive use common property

4. In support of her principal application the applicant relied upon the terms of the Resident Unit Manager’s Agreement, entered into between the Body Corporate and Mr and Mrs Johnson on 26^th November 2003. In particular the applicant relied upon clause 3 of the Agreement recording the "duties" of the Resident Unit Managers. Specifically, reliance was placed upon clause 3.1(k) which imposed an obligation on the managers to:-

"Ensure that the common property gardens, lawns and shrubs are regularly watered, fertilized and maintained at a high standard."

5. In support of the application reliance was placed upon the meaning of "Community Titles Scheme" within the Body Corporate and Community Management Act 1997. Section 10(2) of the Act provides that:-

"Land may be identified as scheme land only if it consists of:-

(a) two or more lots; and

(b) other land (the common property for the Community Titles Scheme) that is not included in a Lot mentioned in paragraph (a)."

An annotation to that subsection provides:-

"Common property, for a community title scheme is, effectively, freehold land forming part of the scheme land, but not forming part of a lot included in a scheme."

6. Thus it is the applicant’s contention that land within a scheme must be comprised of either lots or common property. To grant exclusive use of common property in the way that the applicant was given exclusive use of the courtyard area contiguous to her lot did not alter its character. Hence, it was argued, that the obligation imposed on the resident unit managers by clause 3.1(k) of the subject agreement imposed obligations in respect of the exclusive use area.

7. The argument has some prima facie attraction. However, it seems to me to be necessary to consider the agreement in its entirety before endeavoring to construe an isolated sub clause. The recitals to the agreement provide:-

"The Body Corporate is desirous of providing for the better caretaking management administration control use and enjoyment of Villa Aqua ("The Complex") and for the better exercise and performance of its powers and duties in relation thereto in particular to the keeping thereof in a state of good and serviceable repair and the proper maintenance of the Common Property thereof.

"It has been agreed by and between the parties hereto that the Body Corporate will engage the Resident Unit Manger and the Resident Unit Manager will accept such engagement for the purpose of performing certain duties on behalf of the Body Corporate as hereinafter set out."

8. In the light of the recitals I would have thought that this agreement could be construed as doing no more than imposing upon the resident unit managers the obligation to perform such duties as hitherto had been the responsibility of the Body Corporate, as opposed to the individual lot owners, in terms of keeping the complex in a state of good and serviceable repair and maintenance.

9. The rights and obligations vis a vis the Body Corporate and individual lot owners are prescribed in the Community Management Statement. By-law 20.2 of the Community Management Statement provided:-

"Owners are liable for the maintenance of and operating costs for areas allocated exclusively to them under this by-law."

10. Clearly, in imposing upon the resident unit managers the obligations that the Body Corporate may have had in keeping "common property and Body Corporate assets... in a state of good and serviceable repair" the Body Corporate could not be seen as imposing upon the resident unit managers an obligation to perform a task that was never the responsibility of the Body Corporate. For the Body Corporate to have contracted otherwise would be ultra vires its own powers. See Humphries & Anor v The Proprietors "Surfers Palms North" Group Title Plan 1955 (1992-1994) 179 CRR 597.

11. In my view the management agreement in this instance is a contract that was entered into between the Body Corporate and the resident unit managers to facilitate the performance of the Body Corporate’s functions in terms of the maintenance of the common property (which did not extend to common property in respect of which a right to exclusive use had been given) to a good and serviceable standard pursuant to section 95 of the Body Corporate and Community Management Act 1997. This is sufficient to dispose of the issue raised for my consideration by the first prayer for relief.

12. However, to the extent that the management agreement is said to be capable of being construed so as to impose an obligation on the resident unit managers to maintain exclusive use common property I would have thought that a Court would readily grant rectification of the argument. Neither of the contracting parties in this instance contend that they had ever contracted in respect of such an obligation. Both the Body Corporate and the resident unit mangers say that the agreement, in as much as it refers to common property, was intended to refer to common property other than exclusive use common property.

13. The applicant is not and was not a party to the management agreement. It seems to me that to the extent that the two contracting parties are contending that the agreement, if construed in the way contended for by the applicant, does not reflect their common intention at the time when the agreement was made on 26^th November 2003 either or both of them would be entitled to rectification of the agreement to reflect their true intentions and to exclude any obligation to maintain common property in respect of which lot owners had been given a right to exclusive use.

14. Further, for the purposes of my decision, I do not find it necessary to read down any definition of "common property" to exclude "exclusive use common property". However, it does seem to me that the exclusive use courtyard, in respect of which this dispute has arisen, might not be "common property" within the meaning of section 10 of the Body Corporate and Community Management Act 1997. That is to say that the character of the courtyard is such as to place it in a special category whilst nevertheless retaining its common property characteristics.
15. For instance by-law 3 of the Community Titles Scheme provides that an owner must not obstruct lawful use of the common property by another person and (without limitation) obstruct access to the common property. Clearly, in this instance, it could not be said that an owner to whom exclusive use had been granted, pursuant to by-law 20.2, is in breach of by-law 3.1 by, as has been done in this instance, erecting fences and gates which clearly obstruct use by other persons.

16. It seems to me that exclusive use common property cannot remain common property for all purposes and in spite of section 10 of the legislation the only proper way of construing the term "common property" where it is used in clause 3.1(k) of the management agreement is to construe it as excluding exclusive use common property.

17. As I have said, in the light of my earlier reasoning, it is unnecessary for me to make a final determination in respect of this latter matter. Nevertheless, within the meaning of clause 19.1 of the Management Agreement it does seem to me to be inconsistent in the context of the agreement to give to the term "common property" the definition to be derived from section 10 of the Act.

Obligation to facilitate access to individual lots

18. In support of her second prayer for relief the applicant relies upon clause 3.1(c) of the Resident Unit Manager’s Agreement which provides:-
"The Resident Unit Manager shall during the term of this Agreement:
...

(c) keep in the possession of the resident unit manager the master key or keys for any rooms under the control of the Body Corporate and the lots so far as the individual proprietors of the Lots shall permit PROVIDED THAT possession of those keys shall be surrendered to no person other than an authorised representative appointed by the Committee of the Body Corporate (The "Authorised Representative") or the individual Lot proprietor concerned and the Resident Unit Manager shall allow a lawful authorised person in the course of his duties free access to any part of the Common Property or the Lots so authorised at all reasonable times."

19. Against the applicant it was contended that she was being selective in reading that clause as imposing an obligation on the resident unit managers to facilitate access of trades people and like persons notwithstanding that individual lot owners had given permission in that respect. On a true construction of the clause that has to be so.

20. The reference to "lawful authorised person" in clause 3.1(c) has to be a person duly authorised to enter a lot in accordance with the Body Corporate’s obligations to:-

"(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme;

"(b) enforce the community management statement (including any by-laws for the scheme); and

"(c) carry out the other functions given to the Body Corporate under this Act and the community management statement."

See section 94 of the Act.

21. Albeit that a lot owner may give permission to the Resident Unit Managers for trades people and like persons to enter his or her lot, an obligation to facilitate such entry cannot be seen to be imposed upon the Resident Unit Managers. For the reasons given above the Resident Unit Managers are appointed by the Body Corporate to fulfill the "Body Corporates General Functions" as imposed by section 94 of the Act.

22. It could not be said that the facilitation of access by tradespeople and the like to individual lots could conceivably fall within section 94. In my opinion it would be ultra vires the powers of the Body Corporate to contract with the Resident Unit Managers in the way that is contended for the by the applicant. In any event I cannot see that the subject clause can be construed in the way for which the applicant contends.

23. I should add that in their response the resident unit managers foreshadowed a potential reliance of the applicant on clauses 3.1(d), 3.1(n) and 3.1(y) of the Resident Unit Manager’s Agreement. 3.1(d) refers to "the appointment and supervision of contractors in respect of maintenance services... of common areas". Even if it was suggested that the lot owner was requiring the admission of a tradesman to perform work on the exclusive use common property, for reasons already given, I do not think that that clause would have application.

24. As to clause 3.1(n), requiring compliance with "reasonable directions... in and about the administration and management of the complex", I do not consider that a direction to admit tradesmen to an individual’s lot could be construed as a "reasonable direction" unless hitherto the Body Corporate had such an obligation to so admit such people. For a similar reason clause 3.1(y) requiring the performance of "such other acts and things as are reasonably necessary and proper" would impose no obligation in itself.

Restriction on trimming boundary vegetation

25. The third prayer for relief sought: -

"that the Body Corporate direct the resident unit managers not to reduce the height of the trees and shrubs on the nature strip along the boundary of the complex when trimming/pruning those plants... in order to maintain the privacy of lots within the complex and the aesthetic appeal of the complex itself."

26. The resident managers challenged the jurisdiction of a specialist adjudicator to make an order of the nature sought given that the vegetation in question was located on the nature strip beyond the boundary of the building unit complex.

27. Notwithstanding the objection to jurisdiction, the resident unit managers contended that in reducing the height of the vegetation they were doing no more than complying with a workplace health and safety audit report recommending that the height of the vegetation "be reduced to the level of the external wall or just above" to allow for safe maintenance.

28. It transpired in the course of the hearing of the application on 18^th July 2005 that from henceforth the resident unit managers agreed that they would not alter the status quo of the vegetation from a workplace health and safety perspective. All parties expressed satisfaction with this resolution and did not seek that I make any determination in relation to the matter in those circumstances. I will not make any order in relation to the vegetation height issue.

Costs

29. The fourth order sought by the applicant was that the Body Corporate should pay the costs of the adjudication. In the light of the decision of McGill SC DCJ in Woodrange Pty Ltd v LeGrande Broadwater Body Corporate [2004] QDC 215, by which I am bound, I cannot make any order in respect of the costs of any of the parties to this application.

30. Section 280(2) of the Body Corporate and Community Management Act 1997 provides "unless the adjudicator otherwise orders, the applicant is responsible for the costs of the application". In the light of the decision of Judge McGill this section must be construed as referring only to the costs of the Specialist Adjudicator.

31. In the premises, costs are payable by the applicant unless I make a special order. That the Act makes the costs generally payable by the applicant militates against adoption of the simple proposition that costs should follow the event. Unless a special order can be obtained the applicant must pay the costs, even if the applicant wins.

32. Of course the applicant has been unsuccessful in this matter unless the compromise of the vegetation issue can be seen as involving a concession of some kind on the part of the Body Corporate and/or the unit resident managers. However, I do not think that that limited success can displace the general rule that the applicant should pay the specialist adjudicator’s costs.

Dated: 10^th day of October 2005

..................................................
Specialist Adjudicator