Alexandra Beach Resort [2005] QBCCMCmr 84 (15 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0055-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30867
Name of Scheme:	Alexandra Beach Resort
Address of Scheme:	Alexandra Parade, ALEXANDRA BEACH QLD

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

Gary William Cox, the co-owner of lot 5

I hereby order that the application by the co-owner of lot 5, Gary William Cox, for an interim order that a breach memorandum, issued by the committee of the body corporate, for the removal of a temporary protective tarpaulin be withdrawn until a permanent replacement awning is established by the body corporate, is dismissed. I further order that the body corporate of Alexandra Beach Resort shall be responsible to replace the awning removed by it over and providing protection for lots 5, 6, 7 and 8, and further order that the body corporate shall take all reasonable steps to facilitate this as soon as practically possible, but taking into account the reasonable expectations of the affected shop owners.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0055-2005

"Alexandra Beach Resort" CTS 30867

The applicant, the co-owner of lot 5, Gary William Cox, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

That the body corporate replace the three awnings that were removed from lots 5/6/7-8 with awnings at least of a similar standard to that of the original standard to that of the original awnings, within 30 days. That the body corporate reimburse the owners and / or tenant the costs of establishing a temporary protective tarpaulin in place of the subject removed awning.

The applicant also sought an interim order, quote:

That a breach memorandum, issued by the committee of the body corporate, for the removal of a temporary protective tarpaulin be withdrawn until a permanent replacement awning is established by the body corporate.

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 226 or so lots recorded under a building unit plan of subdivision (now a building format plan). The regulation module applying to the scheme is the accommodation module.

Upon receipt of the application, this office sought a submission in response to the requested interim order from the committee. A submission addressing the substance of the entire dispute was received from Doug McDougall, the current chairperson of the committee. Having considered both the applicant’s material, and the committee reply, I considered that early intervention in this dispute by way of a teleconference was likely to bring a more practical and immediately resolution of the dispute. A teleconference involving both the applicant and the body corporate chairperson was held on 15 February 2005, at 9.30 am.

In the teleconference, I indicated to the parties that I did not intend to consider the interim order as sought. I considered the terms of the interim order sought to be inappropriate. I explained to the parties that I did not, as a general rule, condone actions of self help undertaken by owners or occupiers. Rather, at the very least the owner or occupier might have sought body corporate approval for the erection of the temporary structure, and perhaps approached this office, had this been refused. In the circumstances, I did consider the action of the body corporate in removing the temporary structure a reasonable and appropriate response to its erection without body corporate approval. In this regard, I consider that the concern of the body corporate regarding the insurance situation to be a valid concern.

I further considered that the requested withdrawn of the breach notice was a non-issue. The notice given was not a legal body corporate contravention notice and consequently was of no legality or effect. Further, as the temporary tarpaulin had been removed by the body corporate, no further breach persisted in my view.

I indicated to the parties that I was more concerned to focus on the real issue in dispute; in particular the responsibility for replacement of the awning structure, and practically how this might occur. At this point in the teleconference, I indicated certain preliminary findings from the material. In particular, that I considered the body corporate responsible to replace the awning. Whilst I acknowledge that the body corporate chairperson did not at an point suggest or argue that the body corporate was not so responsible, I did point out that I considered that the body corporate was so responsible, that the committee were now required to take a more proactive approach to replacement of the awning. This approach was to be contrasted with the approach of awaiting action on the matter from the affected owners (the shop owners).

I acknowledged that whilst there might have been a limited basis for the body corporate alleging that the shop owners / their tenants had failed in maintaining the previous awnings (by not carrying out body corporate instructions to retract the awnings in certain conditions), I indicated that I considered the principal cause of the current scenario was a very poor choice of awning by the body corporate in the first place. The awnings were clearly not suitable for its intended purpose, in particular, having to be retracted in bad or threatening weather. The awnings lacked a certain permanence in my view. Given this initial failing by the body corporate, I concluded that this further required that the body corporate now take a more proactive approach to the replacement of the awning.

At this point the parties indicated that there was to be a certain level of co-operation between the parties so as to bring about the replacement of the awning. The applicant also acknowledged in this context that in fact the previous owner of his lot had failed to undertake actions required of him regarding proposals to replace the awning. Whilst I have no issue with the body corporate taking into account the expectations of the shop owners and particularly those affected, I consider that the body corporate’s principal concern should be to the long term interests of the body corporate, through the construction of a permanent and effective awning structure, with minimal future maintenance costs.

I concluded that the body corporate, subject to receipt of sketches to be provided by the shop owners, should seek to proceed as quickly as possible with the replacement of the awning. Whilst I acknowledge this will take some time, in particular, to approve plans, to obtain local authority approvals, to obtain quotes for the erection of the awnings, and finally to have the work undertaken, I indicated that the body corporate should seek to have this all occur as soon as practically possible. I intend to dismiss the interim order as sought, and instead to order in these terms. The order is practically to the effect of the final order as requested by the applicant, though given the number of steps that are required to be undertaken, I am not prepared to order that the awning be erected or constructed in 30 days as sought.

One final aspect was discussed, which I will set out briefly for the sake of clarity and completeness. It seems that the body corporate is prepared to accept responsibility for a two metre wide awning. This distance is consistent with adjoining awnings. The relevant shop owners however might seek an awning of say 3 metres wide, and the body corporate appears agreeable to this, subject to the relevant owners being responsible for the additional cost of construction. The calculation of the additional cost was discussed in the teleconference, and there was general agreement, and I concluded it reasonable, that the relevant owners should pay the difference between the cost of construction of a two metre awning and a three metre awning, rather than simply one third of the cost of the awning construction. Consequently it will be necessary to obtain two quotes. It was anticipated that there might be additional costs in supporting or cantilevering a three metre awning in contrast to a two metre awning. This would appear a logical expectation in my view.