Caribbean-Bilinga [2006] QBCCMCmr 37 (31 January 2006)

Number of Scheme:	24297
Name of Scheme:	Caribbean-Bilinga
Address of Scheme:	80 Pacific Parade BILINGA QLD 4225

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

I hereby order that within 14 days of the date of this order that the body corporate pay to the applicants Nathan and Simone Jenkins the sum of $1,363.66 (one thousand, three hundred and sixty three dollars and 66 cents) in reparation for items removed unlawfully by the body corporate on or about 22^nd June 2005 in contravention of the exercise of the powers of the committee ;

I further order that a copy of this order and the reasons for decision be circulated to the 12 lot owners in the scheme, at the expense of the body corporate, on receipt of this order by the body corporate.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0614-2005

"Caribbean-Bilinga" CTS 24297

APPLICATION

This is an application dated 18^th August 2005 and amended on 7^th September 2005 by Simone and Nathan Jenkins, tenants of Lot 7, (the applicants) against the body corporate for the scheme (the body corporate) for an order that the body corporate compensate the applicants for personal property removed and destroyed by the body corporate which removal the applicants say was unlawful. The applicants claim the sum of $3,870 being the value of the items removed inclusive of $500 for "administration" under which heading the applicants include their time, phone calls and emails to the body corporate.

JURISDICTION

"Caribbean – Bilinga" CTS 24297 is a community titles scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management ( Standard Module) Regulation 1997 (the Standard Module). There are 12 lots in the scheme created under a building unit plan of subdivision.

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

(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)).

There is no authority given in the legislation for an award of costs to an applicant, for example for time taken, or disbursements incurred, in addressing the dispute or submitting the application. The claim for "administration " in the sum of $500 therefore fails.

However, a more pertinent point is whether I have the jurisdiction to order reimbursement to the owner of the value of property destroyed by the body corporate committee.

Section 276 (1)(b) of the Act entertains the resolution of a dispute " about the exercise of rights or powers, or the performance of duties, under the Act or the community management statement. "

Section 94 of the Act states the body corporate must act reasonably in anything it does in respect of administering the common property, enforcing the by-laws, and in carrying out the other functions given to the body corporate under the Act and the community management scheme. (section 94(1)(b)).

Section 281 of the Act allows an adjudicator to order " the person who the adjudicator believes, on reasonable grounds, to be responsible"" for a contravention of the Act or a contravention of the community management statement which has caused damage to an applicant’s property, to carry out repairs to the damaged property, or to pay the applicant a sum as reimbursement for repairs carried out to the property by the applicant (section 281(1) (a) and (b)). The example given in the subsection is where a waterproofing membrane in a roof which is the responsibility of the body corporate leaks, and incoming water damages wallpaper and carpets in an owner’s lot. If the leak results from the body corporate’s failure to maintain the membrane, ie. a contravention of the obligation in the Act to maintain common property, then an adjudicator could order the body corporate to have the damage repaired or pay an appropriate amount as reimbursement to the lot owner " for amounts incurred by the owner in repairing the property." In the example given, this would in my view, include replacement of the carpets and wallpaper, and the word "repair" refers to the lot itself which must be repaired because of the water damage.

The new shorter Oxford English Dictionary defines "Repair" as follows –

I am satisfied that if the body corporate acts unreasonably in exercising its powers given under the Act, or the community management statement, which in my view would include the circumstance where the body corporate acts beyond its powers, then an aggrieved owner or occupier has the right to have the dispute resolved at this office. If the unreasonable exercise of those powers causes damage to the property of an owner or occupier, I am satisfied that I have jurisdiction to make an order that is just and equitable in the circumstances, including making an order for a fixed sum of money to be paid for reparation of damaged property.

SUBMISSIONS

The applicants say that on 27^th January 2005, Body Corporate Services, the body corporate manager for the scheme ( the body corporate manager) sent a circular letter out to all lot owners and occupiers about the appearance of the carpark, stairwell and foyers, pointing out that the appearance of the building was " less than pleasing" and that shoes and boots left outside entrance doors to units were a potential hazard. The circular advised all owners and occupiers that personal items not removed from common property within 14 days would be removed and disposed of. The circular specified common areas such as stairwell foyers outside entrance doors to units and the carpark, and stated " this includes old furniture ( eg broken cupboards and wardrobes) and bric-a-brac ( eg old vases, pictures, etc.)

A second circular headed " Final Notice" was sent out on 2^nd June 2005, stating that personal items currently stored in the carpark must be removed within 7 days otherwise they would be disposed of.

On 9^th June 2005, the body corporate manager sent a letter to the owners of lot 7, C.I. and G.P. Raven, (Mr and Mrs Raven) and the applicants, asking that the applicants’ personal items (including tyres) in the garage be "removed immediately." The applicants responded to this letter on 11^th June 2005 saying that they had been tenants for over 12 months, they were one of only four or five permanent tenants on site, and they thought the requests petty and distressing. The applicants admitted that "Nathan leaves his workboots at the door"; they said they had a few personal items in the carpark which were tidily stored and well hidden and could not fit in their unit; and the items were in the car park space which had been allocated to them by the letting agent. They asked if a compromise could be reached. They received no response to their email.

On 22^nd June 2005 some of the applicants’ stored belongings were taken from the carpark space. The applicants contacted their letting agent at the Professionals, Belinda Dinsey. (Ms Dinsey) Between 22^nd June 2005 and 1^st August 2005, the applicants , Mr and Mrs Raven and Ms Dinsey tried to ascertain the whereabouts of the removed items, believing that they might have been stolen.

On 1^st August 2005, the owner received an email from Peter O’Loughlin, (Mr O’Loughlin) the Chairman of the body corporate saying that the goods had not been stolen but "they have been taken to the tip by the removalist acting upon the Committee’s instructions." The chairman further warned that if any tyres remained in the carpark, they were also subject to removal without notice.

The applicants contacted Mr O’Loughlin to say how distressed they were to find that their property had been destroyed. On 11^th August 2005 Mr O’Loughlin wrote an email to the applicants saying that if the body corporate had instead taken the procedure of issuing the applicants with a Continuing Contravention Notice of Breach of By-Law, it would have been " a very tedious and cumbersome process!" The Chairman stated that the body corporate committee had authorised and approved the action which was recorded in the committee meeting minutes.

The applicants say they have lost the following items, described as follows –
Coffee table (extreme sentimental value, was to be restored) valued at $2000
Sanyo Portable Surround Sound CD player $500
Black leather Office Chair $500
Milk crate containing fixtures and fittings for carpentry work $300
Rake $20
Car cleaning Products $50

Submissions were invited from all lot owners in accordance with section 243(2)(b) Act. Submissions were received only Mr O’Loughlin, on behalf of the body corporate, and from Colin Gard of the body corporate manager, also on behalf of the body corporate.

On behalf of the Committee, Mr O’Loughlin says that the body corporate was unsure which lot owner or occupier was responsible for which property, since items were stored within various carpark spaces. The committee decided to send the circular letter on 27^th January 2005 instead of taking proceedings for breach of a by-law. He says the contravention notice "requires us to nominate specific property belonging to each resident." Since some carspace numbers have been changed around, with different numbers painted over the original numbers, it was difficult to nominate specific property belonging to each owner/ occupier.

The body corporate manager made a lengthy submission saying that it has acted in the best interest of " all involved." It provides committee meeting minutes of a committee meeting held on 18^th January 2005 wherein the committee passed the motion to issue of the circular letter, and further information to show that the body corporate manager was acting on the body corporate’s instructions when it sent round the " Final Notice." The body corporate manager denies being involved with the removal of items from the garage. Minutes of a committee meeting on 7^th June 2005 show a committee resolution " that the Chairman be authorised to engage Henry Ballance to remove all rubbish from the garage after 14^th June 2005 at a cost not exceeding $300 plus GST." Although the body corporate manager was in attendance at that meeting, when the applicants’ property disappeared, he sought information as to its whereabouts from the chairman on behalf of the applicants.

In reply, the applicants say that the items were stored in the carpark allocated to Unit 7. There is some confusion over re-numbered spaces but this is nothing which the applicants as occupiers can do anything about. They believe that Unit 7’s real car space now carries the number " 4" but it was like that when they moved in. In support they supply a letter from Ms Dinsey explaining that the lot owners had swapped car spaces with Unit 12 in 2000 and that a chalk "7" was marked in Unit 12. Ms Dinsey says that she has for four years let out Unit 7 with the "chalked 7" car space and there has been no queries from the body corporate about it.

The applicants say that there are still personal items stored in other car park spaces, eg bicycles, furniture, electrical equipment and boxes, and they feel discriminated against. No other owner or occupier has had items removed. Further, the delay in finding out what happened to their goods was exacerbated by the body corporate manager who was aware or swiftly became aware that the chairman had had their items dumped but did not tell them so.

DETERMINATION

The substantive facts are not in dispute in that the applicants stored certain items in a carpark space which they rented as part of their rent of Unit 7, which were removed after two warnings by the body corporate. The committee authorised the removal after 14^th June 2005, at its meeting on 7^th June 2005.

Whilst this aspect has not been pressed in argument, it appears from an investigation of the community management statement, that the garage spaces are areas of common property over which each lot owner is granted exclusive use.

By-law 12 states –

Schedule E shows that lot 7 has exclusive use of car park space 7 on the plan registered in the titles office. This shows an area of 16 sq m. allocated for the exclusive use of Lot 7.

Whilst it appears that the owner(s) of Lot 12 and the owners of Lot 7 had a private arrangement about using each others spaces, that agreement could not be relied upon in the event of a sale. Lot 7 has exclusive use only of Lot 7 car space as shown on the plan. However, it does not appear that the owner of the car space in which the applicants stored their goods ( if not carspace 7) had any objection to them being stored there. Since the space in which the goods were kept was an exclusive use area of a lot owner, and not simply the common property of the body corporate, the body corporate should before taking any action, have consulted the lot owner with the exclusive use which would have been easily obtainable from a look at the community management statement.

An "exclusive use" gives the occupier of a lot exclusive use to the rights and enjoyment of, or other special rights about, common property (section 170 Act).

In my view, there is nothing in the by-laws for the scheme to prevent lot owners from storing goods as they see fit in their respective exclusive use areas. Whilst the table of Schedule E is headed "Number of exclusive use area for car parking on the plan annexed hereto", there is nothing in the body of the by-laws to prevent parking of specific types of vehicle in the car-parking space, and if an owner or occupier wished to park something other than "a car" in the car parking space, there would seem to be no right on the part of the body corporate to prevent him or her from doing so.

If the body corporate wants to restrict the types of vehicle which can be left in the car-parking space, or wants to prevent storage of other goods in the car parking space, it must pass such a by-law and register it in the titles office.

The only relevant by law for the scheme concerning goods left on common property is By law 7 which says -

" The occupier must not leave rubbish or other materials on common property in a way or place likely to interfere with the peaceful enjoyment of the common property by someone else."

There is absolutely no evidence given by the body corporate that the goods stored by the applicants were placed " in a way likely to interfere with the peaceful enjoyment of the common property by someone else." Even if there had been, the correct procedure was to send a by-law contravention notice to the applicants asking them to comply with the by-law. Such a notice would not require the goods to be itemised, but would require that By-Law 7 was set out in full, with the details of the contravention stated, ie. in what way the materials were likely to interfere with others’ enjoyment.

Further, it is arguable whether By-Law 7 refers to an exclusive use area at all, since it is not "common property" in the normal meaning of the words, that is, common property which all owners and occupiers have a right to use and enjoy. Since only the holder of the exclusive use has a right to use and enjoy an exclusive use area, it may be difficult to show that the manner of use by the owner or occupier interfered with anyone else’s rights. However, there is no need to consider this argument since the applicants have not been accused of breaching a by-law.

I am satisfied that the body corporate committee has acted unreasonably in the exercise of its powers, and that it has abused its authority in destroying items belonging to a legitimate occupier, which items were stored in a place (and possibly in a manner) in which they had every right to be.

The body corporate has failed to carry out correct procedures in investigating the storage of items to which it took offence, and denied the applicants, and Mr and Mrs Raven as owners, their statutory rights, in that it did not reply to the applicants’ email of 11^th June 2005; did not send out a notice of breach of by-law which the applicants had a right to defend; and did not act fairly or reasonably in administering the common property, in all probability because it could not be bothered to go through a " tedious and cumbersome process" required by law.

Further, it impinged on an exclusive use area of a lot owner without any authority of that lot owner (whoever that may be.) There is also no evidence provided by the body corporate that the minutes of the committee meeting of 7^th June 2005 were sent to all lot owners within a period in which lot owners could have exercised their rights under section 37 of the Standard Module.

(a "notice of opposition"), signed by or for the owners of at least one-half

containing the resolution or, for a resolution passed other than at a meeting,

(4) In a proceeding involving a challenge to the right of the committee to

(my underlining).

The committee’s action was high-handed and unlawful. It decided that the applicant’s goods were "rubbish" that could be removed by Mr Ballance. Its actions may also be a tort (a civil wrong) and a crime. It is a matter for the applicants if they wish to involve the police.

In their submissions, the body corporate did not address the values placed by the applicants on the items destroyed, nor did the body corporate dispute that the items listed were removed. I have asked the applicants to provide proof of the value of the items, which has understandably been difficult since some of the items were bought some time ago. They have receipts only for the carpenters’ tools stored in the milk crate as follows –
Chalk reel and powder, carpenter’s square - $45.90.
Extension lead $16.90
Rivet gun and rivets $32.29
Professional organiser - $29.97
Sharpening stone - $23.98
14 piece screwdriver set - $28.96
Socket set - $99.00
I could find no receipt for the item " Dolphin torch".

These add up to $277.00 and were purchased between November 2004 and March 2005. I have no difficulty in making an order that the body corporate reimburse that sum to the applicants.

Further, I find that a rake valued at $20 is not unreasonable, nor car cleaning products at $50. I find that such items might reasonably be kept in a car parking area, outside but under cover.

However, I have some difficulty in accepting that items of significant value, that is, the black leather office chair ($500) which was 2 - 3 years old; the Sanyo Portable Surround Sound CD player ($500) which was 4 years old; and the antique coffee table ( $2000) which was inherited by the applicant Mrs Jenkins from her grandfather; would be items which would be stored in a car parking area because of lack of space in Unit 7, if they were in good condition.

Mrs Jenkins has said that the table was not in good condition and is not replaceable. I accept that the table had sentimental value to Mrs Jenkins and understand her difficulty in assessing its value now that it has been destroyed. Unfortunately, the applicants must have evidence of their claim, and the sentimental value attached to the table cannot be recompensed in monetary terms. Nor has it been possible for the applicants to find an independent valuer for the unrestored value of the table. Taking an outsider’s view of the value of a 1940s coffee table which needed renovation and was kept in a carpark space, and uninsured, I put a figure of $350 on the table. I realise that this may not be its actual value.

I am taking the view that the chair and the CD player will need to be replaced by the applicants. The applicants have provided quotations for a replacement office chair from Harvey Norman at $679; and a replacement Grundig home theatre at $599. I have not asked the body corporate to comment on these quotations even though they are in excess of the original claim by the applicants, as I am not satisfied that "like for like" has been obtained in the quotations. I find no fault with the applicants in saying that.

I am aware that fully "portable" surround sound systems and systems which are "portable" but meant to be "shelf systems" may be purchased from between $150 - $400, up to almost unlimited value. Leather office chairs also vary greatly in quality and design.

In all the circumstances, on the lack of hard evidence of value, I am discounting the original application value of the chair and CD ($500) player by one third. Each item will be reimbursed to the applicants by the body corporate in the sum of $333.33.

The total value to be paid to the applicants by the body corporate is therefore $1,363.66. Whilst this will no doubt disappoint the applicants, if the property had been stolen by persons unknown, and had not been insured, in all probability, the applicants would not have achieved any reparation at all.

In this dispute, the applicants as occupiers have standing only to bring a matter against the body corporate or another lot owner or occupier. (Section 227(1)(b) Act). The committee represents the body corporate in all matters in which it has power to act without seeking a resolution at a general meeting. Section 310 of the Act states –

This section may act to protect the removalist who was hired by the committee. However, whilst the committee represents the body corporate, it may be the view of the body corporate that the committee exceeded its powers in taking the action which now results in the body corporate having to pay the applicants $1,363.66. The body corporate has standing to bring an action against the committee, or a member or members of the committee (section 227(1)(g) Act). The body corporate may like to seek that the committee or members of the committee repay the body corporate. The body corporate may also reflect its view of the committee’s actions at election time.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Caribbean-Bilinga [2006] QBCCMCmr 37 (31 January 2006)