Gemini [2006] QBCCMCmr 709 (7 September 2006)

Last Updated: 29 March 2007

REFERENCE: 0623-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9828
Name of Scheme:	Gemini
Address of Scheme:	Landsborough Parade, GOLDEN BEACH Q 4551

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

Mr John Hamilton, the Owner of lot 99 (unit 90).

I hereby order that the application for the following Interim Orders That the Gemini Body corporate committee be directed not to carry out the renovation of the lift lobby to units 90/91 unless the existing floor tiles are first removed and the floor slab properly prepared in the manner described in Mr. Hamilton’s faxes to North Coast Body Corporate Management Services dated 18/7/06 and 26/7/06 – Attachments 5 & 6 and the new tiles laid so as to eliminate all safety hazards (slips, trips & falls) described in the Health and safety report dated 13/7/06 – attachment 5 prepared by Risk and safety Management Pty. Ltd. That if the Gemini Body corporate committee arranges for the new tiles to be laid over the existing tiles thus creating the safety hazards referred to in the above mentioned Health and Safety Inspectors Report of 13/7/06, THEN as part of carrying out the renovation of the lift lobby for Units 90/91 the existing and the new tiles all be removed at Gemini Body Corporate expense to permit the final tiling work to be completed in the manner described in the paragraph above and as intended in the original design approved by the body corporate general meeting on which the special levy was based. Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0623-2006 "Gemini" CTS 9828

ApplicationThe applicant, John Hamilton, is the owner of lot 99 and has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act): Final Outcomes
The Body Corporate Committee arrange without further delay (since the Body Corporate Committee has already had two and a half years to do the renovation work)to complete the entire renovation of the lift lobby to units 90/ 91 being adjoining and the only units at the Penthouse level of the North Tower of the Gemini resort. Such renovation to be in accordance with the design approved prior to the special levy being paid by owners of all units in early 2004 for the renovation of all lobbies throughout the South and North Towers of Gemini resort.Further to ensure that:That such work follows the design concepts used for the similar lift lobby of the Penthouse level of the South Tower.That in the process of performing the renovation works, the existing floor tiles of the lift lobby to units 90/ 91 be lifted at the expense of the body corporate (estimated cost $500 - $600) and new tiles laid in the manner described in Mr. Hamilton’s Fax(es) to North Coast Body Corporate Services dated 18/7/2006 and 26/7/2006 – attachments (5) and (6).That since the levy was paid by Mr. Hamilton on 15/3/04 and the renovation work for which such payment was made (also by Mrs. Gowan) has not been carried out, resulting in these owners being deprived of both the enjoyment of the new renovations and simultaneously the use of $4152.00 each has paid, the Body Corporate compensate each owner at the rate of 7% per $4152.00 from March 2004 until the work is completed.If, in the circumstances of this dispute should the Adjudicator deem reasonable that the Body Corporate be ordered to reimburse Mr. Hamilton the cost of the Health and Safety Report of 13/7/06 amounting to $269.50.Interim Orders
That the Gemini Body corporate committee be directed not to carry out the renovation of the lift lobby to units 90/91 unless the existing floor tiles are first removed and the floor slab properly prepared in the manner described in Mr. Hamilton’s faxes to North Coast Body Corporate Management Services dated 18/7/06 and 26/7/06 – Attachments 5 & 6 and the new tiles laid so as to eliminate all safety hazards (slips, trips & falls) described in the Health and safety report dated 13/7/06 – attachment 5 prepared by Risk and safety Management Pty. Ltd.

That if the Gemini Body corporate committee arranges for the new tiles to be laid over the existing tiles thus creating the safety hazards referred to in the above mentioned Health and Safety Inspectors Report of 13/7/06, THEN as part of carrying out the renovation of the lift lobby for Units 90/91 the existing and the new tiles all be removed at Gemini Body Corporate expense to permit the final tiling work to be completed in the manner described in the paragraph above and as intended in the original design approved by the body corporate general meeting on which the special levy was based.



The SchemeThe Gemini community title scheme consists of 99 lots registered on a building format plan (previously known as a building unit plan) and is regulated by the Accommodation Module Regulation.Background

The applicant is seeking an order that the body corporate complete renovation of the lift lobby for units 90 and 91 and that existing floor tiles in that lift lobby be removed and replaced with new tiles at the body corporate expense.

In support of the application the applicant made the following submissions:

• Two members of the current body corporate committee were members of the body corporate committee 10 years ago when the existing tiles were laid in the lift lobby;
• The current treasurer was on the committee at the time an application for resolution of a dispute regarding the external appearance of the building was submitted with this Office;
• He was not the owner of lot 90 when the existing tiles were laid as part of renovation work undertaken in 1996 as he was not an owner until 1999;
• However the applicant does admit that in 1996 unit 90 was owned by Alturas investments Ltd., a company controlled by the applicant;
• The body corporate proposal to lay tiles over the existing tiles creates a safety hazard;
• In about 2003 a general meeting of the body corporate approved the renovation of all lift lobbies with no conditions such as those that the body corporate is now trying to impose on the applicant;
• The applicant is concerned that the proposed work could void the legal liability insurance and adversely affect the resale value of units 90 & 91.

The applicant also provided a "Health and Safety Report" dated 13/7/06 and prepared by Risk and safety Management Pty. Ltd. containing the following points:

• The inspection centred on the proposed renovation of the penthouse floor and in particular the tiling of the area bordered by the penthouses, passenger lift, stairwell and laundry room;
• Renovation of the floor could be undertaken by either removing the existing tiles and replacement with new tiles or laying of new tiles over the existing tiles;
• Laying tiles over existing tiles could lead to a higher risk of slips, trips and falls through changing floor levels and raised lips at door entrances or tiles angled up or down to take account of the contours of the existing floor.

Submissions

The body corporate has made the following submissions:

• In 1996 the applicant was the controlling shareholder of a company which previously owned unit 90 and without body corporate approval, tiled the common property foyer that adjoins units 90 & 91 at the same time that extensive renovations were being undertaken in unit 90;
• The decision of the body corporate to renovate all the foyers of the complex has been gradually carried out and the committee has requested the applicant to remove the tiles to allow the renovation work to be completed in the common property foyer;
• The committee does not believe it should bear the cost of removing tiles installed on common property without body corporate approval;
• Following the carrying of the resolution at the general meeting, a levy was imposed to fund the renovation of common property areas. The body corporate does not believe that any particular owner should be reimbursed because of a delay in completion of the work; and
• In any event, even if it was agreed that monies should be refunded, it would be appropriate that all lot owners receive a proportionate share of the amount.

The owners of lot 84 in the scheme made the following submissions:

•	The fact that two members of the current committee were also members of the 1996 committee at the time that tiles were laid in the lift lobby in breach of the by-laws does not bind the body corporate and cannot amount to ratification of the breach;
•	Pursuant to section 37A of the Building Units and Group titles Act, which was in force in 1996, an owner was only authorised to effect improvements to common property by resolution without dissent of the body corporate and no such resolution was obtained;
•	In any event section 37A of that Act requires any owner who made improvements to the common property to meet the Body corporate’s obligations under section 37(1)(c ) of that Act, namely the repair, including renewal or replacement of common property;
•	The dispute resolution application submitted with this Office in 1997 related to the external appearance of the building and has no application to this dispute;
•	It is not appropriate for the applicant to rely on the fact that ownership of the unit was in the name of his private investment company in 1996;
•	From the report commissioned by the applicant it is clear that it is an option to lay new tiles over the existing tiles and that laying new tiling over existing tiling would cause less disruption;
•	Appropriate workplace health and safety measures can be undertaken to ensure that any impact through change of floor levels can be managed by appropriate contouring to the existing floor;
•	Jack hammering of tiles would cause disruption and impact on holiday lettings in neighbouring units;
•	Therefore the body corporate should be permitted to complete the renovation of the lift lobby by laying new tiles over existing tiles with appropriate regard to any health and safety standards; and
•	If an order is made that the tiles should be removed, the cost should be borne by the applicant .

The owners of lot 79 in the scheme made the following submissions:

• the applicant previously retiled the unit 90 lobby in 1996 and has the benefit of that tiled area over the last 10 years;
• prior to 1996 the lobby was mostly carpeted with a few tiles and little preparation would have been required before the applicant completely retiled the area;
• as the applicant retiled the whole area in 1996, renovation of the area would now necessitate jack hammering and removal of the old tiles unless new tiles were laid over the existing floor;
• it is unfair to require other owners to pay an additional cost for which the applicant was responsible.

Another lot owner made was of the view that as the applicant did not obtain body corporate approval to tile the foyer area, he should bear the additional cost of removing the tiles before the lobby can be retiled.

Jurisdiction

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 applicant has sought both Interim and Final Orders.

At this point in time I am considering the request for the following Interim Orders:

That the Gemini Body corporate committee be directed not to carry out the renovation of the lift lobby to units 90/91 unless the existing floor tiles are first removed and the floor slab properly prepared in the manner described in Mr. Hamilton’s faxes to North Coast Body Corporate Management Services dated 18/7/06 and 26/7/06 – Attachments 5 & 6 and the new tiles laid so as to eliminate all safety hazards (slips, trips & falls) described in the Health and Safety report dated 13/7/06 – attachment 5 prepared by Risk and safety Management Pty. Ltd.

That if the Gemini Body corporate committee arranges for the new tiles to be laid over the existing tiles thus creating the safety hazards referred to in the above mentioned Health and Safety Inspectors Report of 13/7/06, THEN as part of carrying out the renovation of the lift lobby for Units 90/91 the existing and the new tiles all be removed at Gemini Body Corporate expense to permit the final tiling work to be completed in the manner described in the paragraph above and as intended in the original design approved by the body corporate general meeting on which the special levy was based.

In 1996 the applicant was the controlling shareholder of a company which then owned unit 90 and tiled the common property foyer that adjoins units 90 & 91. At the same time extensive renovations were being undertaken in unit 90. It would appear that formal approval was not obtained at the time by way of a resolution without dissent at a general meeting. Nevertheless, the applicant submits that the body corporate committee was aware of the renovation work and raised no objection at the time.

It would appear to me that no objection was raised at the time that the work was undertaken, or indeed, during the following 10 year period. In the circumstances I tend to take the view that there is an issue of "acquiescence" in this matter. The principle of acquiescence is essentially to deny a person the right to later complain about something that been known about and in place for some time without any action or complaint having been taken on the issue. For example I do not believe that the body corporate could have required the owner of unit 90 to reinstate the foyer to its previous condition on the basis that formal approval had not been obtained.

However this is not the end of the matter. As the owners of lot 84 rightly point out, at the time of the renovations, section 37A of the Building Units and Group titles Act required an owner who made improvements to the common property to also meet the body corporate’s obligations under section 37(1)(c ) of the Act, namely the repair, including renewal or replacement of common property. Similarly, under section 114(4) of the Body Corporate and Community Management (Standard Module) regulation 1997, a lot owner must maintain an improvement made on common property unless excused by the body corporate.

In addition to the above statutory obligations, It is my experience that when a body corporate authorises a lot owner to make improvements to common property, it is common for the body corporate to make it a condition of such authorisation that the lot owner is to be responsible for the maintenance of such improvements and the cost of removal when such improvements have reached the end of their useful life.

Accordingly, my preliminary view in this matter is that if the applicant wants the existing tiles to be removed prior to the laying of new tiles, it is just and equitable that the applicant be required to bear the cost of removing the existing tiles.

Further, I do not regard the report prepared by Risk and Safety Management Pty. Ltd. as convincing evidence that laying of tiles over the existing floor would give rise to a significant safety risk. I would think that more specific details
regarding the proposed work and compliance, or non-compliance, with applicable building standards, would be required before I could be satisfied with the conclusions drawn in that report.

However, at this stage I am primarily concerned with the question of whether because of the nature or urgency of the circumstances relating to the application, an interim order is necessary or appropriate. The examples included in the Act under section 279 are suggestive of the usual circumstances where an interim order might be made and while the range of matters that might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order. As mentioned above the applicant has sought both Interim and Final Orders dealing with the same subject matter, and in the absence of any demonstrated urgency I believe that the requested interim orders and final outcomes should be the subject of one determination.

For these reasons, I have dismissed the Applicant’s request for interim orders. I will now refer this application back to the Commissioner to be administered in accordance with the Act. Affected
parties will have an opportunity to make further written submissions about the orders sought by the applicant and the applicant will have a right of reply.