Kalua [2006] QBCCMCmr 283 (1 June 2006)

Last Updated: 19 December 2006

REFERENCE: 0847-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10510
Name of Scheme:	Kalua
Address of Scheme:	5 - 13 Parker Street MAROOCHYDORE QLD 4558

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

Mr Kenneth Evers, Ms Samantha Thomas and Mr Stephen Evers, the Owner(s) of lot 4

I hereby order that the air conditioning unit for lot 21 is not to be located adjacent to the kitchen window of lot 4. The application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0847-2005

"Kalua" CTS 10510

The Application

The applicants, Kenneth Evers, Samantha Thomas and Stephen Evers, are the co-owners of lot 4 in the Kalua Community Titles Scheme (Kalua). Kalua is a 31-lot scheme contained in one multi-storey building. The applicants lot is on the ground floor and first storey. Above them, on the second storey, is lot 21. The applicants have applied for the following order:

"[Invalidation] of the extra ordinary general meeting held on 7-12-2004 to delete the option for the owner of unit 21 to install their air conditioning unit adjacent to our kitchen window.

Section 276(1) of the Body Corporate and Community Management Act 1007 (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)).

Background

From 2 May 2003 to 7 December 2004, Kalua had in place an "Air Conditioning Approval Policy" (the policy) adopted through a special resolution passed at its Annual General Meeting (AGM) on 2 May 2003. The policy listed 16 conditions attaching to an approval for the installation of an air conditioning unit. Condition "(m)" of the policy stated:

All necessary precautions shall be taken to ensure the air conditioner does not cause any unnecessary noise or nuisance to other occupants in the complex.

At some point prior to October 2004 Jones and Partners Pty Ltd Consulting Engineers (Jones and Partners) were commissioned to provide engineering plans for the location of air conditioning units for each lot on the property. Consequently, on 27 October 2004 Jones and Partners provided scale drawings of the building in Kalua detailing the locations of the air conditioning units (the Plan). For some of the lots on the higher stories, alternative locations were shown.

The policy gave the applicants the option to mount the external unit of their air-conditioner on common property within the confines of the balcony of the lot above. The applicant appears to have taken up this option. The applicant also installed two air conditioning units side-by-side on the ground directly outside and underneath their kitchen window. The Plan showed that three air conditioning units – two allocated to lot 4 and one to lot 21 – could be situated in this location, stacked 3 high. In this event, the Plan showed that a screen would be installed at the left of the stack.

In the alternative, the Plan provided that the balcony area of lot 21 and an area outside of the neighbouring lot 5 could be utilised for the air conditioning units for lot 21. Similarly to the location outside of lot 4, the area outside of lot 5 would have units stacked 3 high and would be screened, this time on the right hand side of the units.

An Extra-ordinary General Meeting (EGM) was convened for 7 December 2004, the predominant purpose of which was to rescind the policy and for a new updated policy (the Policy) to be adopted for Kalua incorporating the Plan. The Policy made changes to 8 of the 16 conditions. Significantly, a new condition "(c)" commenced with:

External plant is to be located in the areas designated on the attached plans.

Condition (m) remained unchanged as did the option for the applicants to install air conditioning units on common property within the confines of the balcony of the lot above.

The Policy was adopted through special resolution.

Preliminary

The EGM occurred almost 12 months prior to the lodgement of this application. Section 242 of the Act requires that for an application seeking a order for a meeting declared void, the application must be lodged within 3 months of the meeting. Sub-section 242(3)(b) of the Act provides that I may waive the non-compliance with the statutory time limit, for "good reason".

For their part, the applicants have provided four reasons for the delay in lodging their application; the reasons are:

•	They were researching alternatives to the Plan.
•	They were working from Sydney.
•	They were not aware of the three-month time limit.
•	The Policy is internally inconsistent.

I do not consider these to be ‘good reasons’ as per sub-section 242(3)(b) of the Act. I do not see why research would necessarily preclude a lodging of an application. The application process is paper-driven. I consider that an application could have been lodged by mail from Sydney as easily as it could have been lodged by mail from Maroochydore.

I have some sympathy for the position that the applicants may not have knowledge of section 242 of the Act. Nonetheless, it is an established common law and statutory principle that ‘ignorance of the law’ is no excuse for non-compliance to it.

The last argument of the applicants goes to the merits of their application rather than to a reason for their delay in lodging and accordingly I disregard this argument in the context of reasons for non-compliance.

I do consider that a reason that was not advanced by the applicants is a good reason for the non-compliance. That reason is the applicants first attempted to resolve this issue with the Body Corporate itself rather than going outside of Kalua. Kenneth Evers proposed a motion at the Annual General Meeting on 7 May 2004; the motion sought to have the option for lot 21 to install an air conditioning unit outside of lot 4 to be excised from the Plan. The motion was ruled out of order by the Chair of the meeting for the reason that it conflicted with the Policy as adopted at the EGM of 7 December 2004.

I do not agree with this ruling. I consider that the motion does not seek to dispute the Policy; rather, motion seeks an amendment to the Plan attached to the Policy. However, this comment is merely an observation – this issue is not the subject of the application before.

It appears that it was only after this attempt failed that the applicants considered obtaining external relief for their concern.

I find Kenneth Evers’ motion to be significant in another way also. After a careful reading of the applicant’s submissions in this matter, it is my view that the applicants do not actually wish for the EGM to be invalidated. Nor do the applicants want the resolution adopting the Policy at the EGM declared invalid – it is noted that they themselves have benefited from the carried over provisions from the previous policy with respect to their own air conditioning units.

Rather, I have concluded that the applicants simply want one thing – that the option for lot 21 to install an air conditioning unit outside of their kitchen window is not taken up. As such, the application would not fall under section 242 of the Act.

Have considered all the above factors I have decided to waive the non-compliance.

The Plan

At the heart of this application is the Body Corporate’s reliance on the Plan and the consequent incapacity for flexibility in placement of air conditioning units at Kalua – in other words, condition (c) of the Policy. The Body Corporate’s attitude is somewhat understandable; Jones and Partners were specifically engaged for the purpose of providing a viable plan. The Body Corporate then resolved by special resolution to adhere to the placements shown in the Plan.

This position is set out in the submission of the Secretary of the Body Corporate Committee dated 13 February 2006 thus:

The Body Corporate engaged to [sic] services of a properly qualified consultant to provide an appropriate plan for the placement of air conditioning units. This was done to ensure that the requirements of all necessary regulations and legislation were considered in establishing this policy.

If that were the ultimate purpose then it was either not achieved or alternatively, its achievement was short-lived. The Chair of the Body Corporate Committee subsequently provided me with the information through a submission dated 15 May 2006 that placement of the air conditioning unit on the balcony of lot 21 "appears to be illegal because it contravenes the by-laws of the Maroochy Shire Council". As the applicants have quite rightly pointed out, the Plan placed 18 (?) air conditioning units on balconies. Either Jones or Partners overlooked these by-laws the drafting of the Plan or they have been enacted since October 2004.

Either way, the net result of this ‘development’ is that for those lots on the second storeys and above, reliance now must be had to the alternative positions in the Plan. I am not persuaded that the Plan properly contemplated that these alternative positions would become the primary positions. I note the Plan calls for three air conditioning units to be stacked on the outside wall of lot 4. Logically, this would result in a unit being placed immediately adjacent to the kitchen window of lot 4, albeit with a screen between the unit and the window. As a matter of commonsense, the unit would cut down the light and the airflow to this window and there would be a corresponding noise and heat impact from the unit’s operation.

I agree with the applicants’ position that this placement would result in a detriment to the quiet enjoyment of their lot and while providing a considerable advantage to lot 21 which enjoys the benefits of air conditioning with none of the attendant disadvantages.

I have noted the research provided by the applicants on how the issue of air conditioning was addressed at "Culgoa Point". I do not know whether or not this solution would be applicable to Kalua. What the research does raise is this significant question – "if the air conditioning unit must be placed on this outer wall, why cannot it be located on the wall outside lot 21?" I have noted that there is precedent for this type of positioning with lot 26. The applicants argue that there is a motor capacity issue involved when the cooled air is required to be transported two storeys. I have no information on this argument one way or another but it is something that could easily be researched and if that is correct, it would potentially be more efficient to have the air conditioning unit located closer to lot 21.

In any event, these issues are for the Body Corporate of Kalua to consider further. For the purposes of this application, the Committee has given an undertaking that approval will not be given for the air conditioning unit for lot 21 to be located next to the kitchen window of lot 4.

In addition, the Committee has given an undertaking that approval would be given to placement of lot 21’s air conditioning unit in the ‘third alternative’ placement on the Plan, around the corner of lot 4 and outside lot 5. The Committee has stated this position is both away from windows and accords with the Plan. The applicants have indicated acquiescence to this placement.

Accordingly, I have decided to confirm this undertaking in my order on this application. It is to be hoped that this alternative placement is not simply shifting a problem from lot 4 to lot 5. That is both an issue for the Body Corporate to consider and as necessary resolve and that issue is beyond the scope of this application before me.