The Penthouses [2006] QBCCMCmr 379 (17 July 2006)

Last Updated: 19 December 2006

REFERENCE: 0831-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11354
Name of Scheme:	The Penthouses
Address of Scheme:	20 Old Burleigh Road SURFERS PARADISE QLD 4217

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

Body Corporate,

I hereby order that the application for an order that the owners of lots 22, 39 and 42 install off white backing to the window coverings in their units, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0831-2005

"The Penthouses" CTS 11354

Scheme

"The Penthouses" was registered as a building units (now known as building format) plan of subdivision on 5 September 1980 comprising 54 lots and common property. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

Application

This application is brought by the body corporate against the owners of lots 22 (Mark Cathcart), 39 (Valerie Hood and Warwick Douglas Ashby) and 42 (Lloyd James Donaldson and Diana Donaldson) seeking an order that they install off white backing to the window coverings in their units.

The body corporate alleges that the owners of lots 22, 39 and 42 are in contravention of by-law 8.2(c) which states as follows:

8.	Appearance of Lot

(2) The occupier of a lot must not, without the body corporate’s written approval:

(c) hang curtains from outside the lot unless those curtains have an off-white backing, or other a backing of a colour specified by the committee so that window treatments to all lots present a uniform appearance when viewed from outside the building.

It should be noted that I have quoted by-law 8.2(c) exactly as it appears in the current community management statement for the scheme. I recommend that the body corporate insert the word "visible" between "curtains" and "from" and delete the "a" between "other" and "backing" when next reviewing its community management statement to correct obvious errors in drafting. I intend to give effect to by-law 8.2(c) as if it were recorded without these obvious drafting errors.

In their grounds to the application, the body corporate states that letters dated 2 March 2005 were sent to the owners of lots 22, 39 and 42 requesting that they install the off white backings by 24 March 2005. On 14 July 2005, the body corporate issued Notices of Continuing Contravention of a Body Corporate By-Law giving a further 28 days to comply.

On 28 August 2005, the owners of lot 42 advised that they had arranged for the off white backing to be installed. As at the date this application was lodged, the owners of lot 42 had not had the off white backing installed, but by letter dated 7 July 2006, the body corporate manager advised that the building manager has confirmed that the owners of lot 42 have now installed the off white backing.

According to the body corporate manager, who had spoken to the building manager, it also appears as though the owners of lot 39 and lot 22 have since complied with the requirements of the body corporate.

Submissions in response to the application were sought from all owners, including the respondents, in particular. The owners of lot 42 made a submission evidencing their intent to have their window backings changed to off white, which has since been done. The owners of lots 22 and 39 did not make submissions. Two submissions were received from other owners in support of the application, stating that different coloured window backings detracted from the uniformity of appearance within the scheme.


Jurisdiction

This is a matter which falls within the dispute resolution provisions of the Act. ^[1] The preliminary procedure for an application by the body corporate in relation to a by-law breach has been complied with.^[2]

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)).

Determination

The body corporate’s by-laws are contained in the scheme’s community management statement and, as such, are binding on all owners and occupiers.^[3] One of the Body Corporate’s general functions is to enforce the community management statement (including the by-laws).^[4] It is important to note that the Body Corporate must act reasonably in carrying out its functions, including the enforcement of by-laws.^[5]

The body corporate has submitted photographs identifying the lots the subject of this dispute resolution application. What troubles me about the photographs submitted is that the lots identified do not appear to me to be in contravention of by-law 8.2(c). However, I could identify at least one other lot that could be regarded as being in breach of by-law 8.2(c). I also observed from the photographs various shades of "off white" window coverings. In my view, it would be unreasonable for the body corporate to pursue the owners of lots 22, 39 and 42 for an alleged breach of by-law 8.2(c) while not pursuing the owners of other lots in the scheme for similar breaches. I could not identify anything from the photographs submitted to distinguish the lots the subject of this application from any others. In fact, I had to return the photographs to the body corporate and ask them to identify the lots the subject of this application, as I was unable to identify them simply by looking for window coverings that were not "off-white".

In these circumstances I believe the body corporate has simply failed to establish a breach of by-law 8.2(c) and I must therefore dismiss the application.

---

^[1] See sections 227, 228 and Schedule 5
^[2] Section 184 Act requires that a contravention notice must be issued prior to lodging an application for dispute resolution.
^[3] Section 59 of the Act
^[4] Section 94(1)(b) of the Act
^[5] Section 94(2) of the Act