The Centre [2006] QBCCMCmr 69 (15 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0557-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14718
Name of Scheme:	The Centre
Address of Scheme:	3131 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Deltacorp Pty Ltd, the owner of lot 36 & Stavros Katsikalis, the owner of lot 6

I hereby order that the application by Deltacorp Pty Ltd, the owner of lot 36 & Stavros Katsikalis, the owner of lot 6 for an order for removal of bulkheads on lot 4 and 5 of BUP 343 as bulkheads impinge upon the applicant’s lot, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0557-2005

"The Centre" CTS 14718

The applicants, Deltacorp Pty Ltd, the owner of lot 36 & Stavros Katsikalis, the owner of lot 6 have sought the following order of an Adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Removal of Bulkheads on lot 4 and 5 of BUP 343 as bulkheads impinge upon applicant’s lot. Our client seeks an order to have Mr Tooma remove the offending structure ie. bulkhead and / or recess his bulkhead into the parametres of his lawful entitlement so as to alleviate obstruction of our client’s frontage and obviate the encroachment onto our client’s property.

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 69 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the commercial module.

Whilst the parties to this application have, in the course of their materials, raised or referred to numerous peripheral issues, I refuse to be diverted to a consideration of such matters. I conclude that this is a more straightforward matter than the applicants in particular has sought to assert.

The applicants are the owners of two lots in the scheme, one of which (lot 6) adjoins the respondent’s two lots (4 and 5). Red Carpet Real Estate Pty Ltd (the respondent) has made what I consider to be improvements to the common property (signage) which is for the benefit of the lot.

The applicants have sought to raise a number of arguments and allegations which I simply consider to be irrelevant or incorrect. For example, the applicants speak of "impinge upon applicant’s lot" and "the encroachment". If an encroachment is in fact alleged (that is, an encroachment to or upon the applicant’s lot 6) then this is not a matter within the jurisdiction of this office. It possibly involves questions of title to land, or alternatively, is an issue for resolution under the Property Law Act and relevant provisions regarding encroachments. Conversely, it might be that the civil tort of trespass to land is being alleged. I conclude that in fact none of these concepts are being alleged; rather it is simply a misuse of terminology or language.

The applicants also claim "significant impediment to our client’s lot". In correspondence to "Mr Tony Tooma" of 29 April 2005, the applicants allege "your sign exceeds your property boundary by fifteen (15) centimetres in contravention of body corporate ruling" and "your actions are damaging to our client’s tenants and to the amenity and appearance of lot 6". I suggest the evidence of such allegations are so scant and lacking that I am not prepared to entertain these allegations seriously.

In another somewhat vague statement, the applicants say:

Our client believes that the referee has dealt with issues surrounding lot entitlements within The Centre several times in the past and Orders made were that no structural alteration can take place without the appropriate consents and approvals.

Actually, the Referee ceased to have jurisdiction for disputes of this nature with the commencement of the current legislation in 1997, almost 9 years ago now. Consequently, the relevant of orders of the Referee under previous legislation no longer applicable to this scheme is debatable, although I acknowledge certain concepts remain generally applicable. Secondly, I do not consider what has occurred here to be "structural alteration". In no way does what has been done here constitute a structural alteration to the property. The question here is one of improvement. The respondent has erected a sign on part of what is common property. The right of an owner to make improvements to common property for the benefit of the lot is dealt with in the relevant regulation module. In other modules, its requires a special resolution of the body corporate in general meeting. Under the Commercial Module however, it requires only that the improvement be authorised by the body corporate. This might include the committee. See section 94 which provides:

94 Improvements to common property by lot owner--Act, s 121 [SM, s 114]
(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(3) The owner of a lot who is given an authority under this section19--
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

Whilst it might have been debatable that approval for the signage was in fact obtained, I am satisfied that at the AGM of the body corporate held on 15 November 2005 carried a resolution (by special resolution) no less that "owners of lots with recessed bulkheads be permitted to extend the bulkhead above the front of their lot to the same alignment as the bulkhead of an adjoining lot provided a written application for that modification is first made to and approved by the committee ...".

In all the circumstances of this application, including the contents of submissions received, it seems to me that it is a given that the above resolution carried at the relevant meeting would apply directly to what the respondent has done with its signage, and further, that the respondent will or would obtain approval for such signage from the committee as a matter of course.

In a reply to submissions, the applicant has sought to argue that section 91 of the commercial module is somehow applicable, at least to the validity of the above resolution. The applicants argue that "such an extension can only be permissible after a without dissent motion of the body corporate being passed". The applicants rely on section 91(1) and (2)(a) of the commercial module as authority for this proposition. Section 91(1) relevantly provides:

91 Disposal of interest in and leasing of common property--Act,
s 116 [SM, s 111]
(1) This section sets out the way in which, and the extent to which, the
body corporate is authorised--
(a) to sell or otherwise dispose of common property; and
(b) to grant or amend a lease over common property.
(2) The body corporate may--
(a) if authorised by resolution without dissent--
(i) sell or otherwise dispose of part of the common property; or
(ii) grant or amend a lease for more than 10 years over part of the common property; and ...

Are the applicants alleging a sale or other disposal of common property, or a lease of over common property for more than 10 years. For the reasons why section 91 is of no application to the current scenario, the parties should refer to my reasons in Coronation Towers (0043 of 2006) at pages 5 and 6. Briefly, there is no evidence of any sale or disposal of common property.

In the circumstances, many of the applicant’s submissions are without merit or substance. This application is dismissed.