Cyathea [2007] QBCCMCmr 419 (16 July 2007)

Last Updated: 27 July 2007

REFERENCE: 0482-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18594
Name of Scheme:	Cyathea
Address of Scheme:	Cyathea Close KAMERUNGA QLD 4878

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

Angela Joy Cotton, the owner of lot 19

I hereby order that the owner of lot 19, Angela Joy Cotton, shall, within four weeks of the date of this order, cause to be removed from the common property the shipping container in the vicinity of lot 19 and thereafter keep it removed from the common property. I further order that the owner of lot 19, Angela Joy Cotton, shall make good any damage to common property that results from the container’s presence on common property, or its installation on, or removal from, common property. I further order, that in all other respects, this application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0482-2007

"Cyathea" CTS 18594

Scheme

Cyathea Community Titles Scheme 18594 was registered as a group titles plan (now termed a standard format plan) of subdivision on 24 May 1991 and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). It comprises 19 lots and common property.

Background

A serious fire occurred in the dwelling on lot 19 on 22 April 2007 in which the applicant was injured and her personal belongings were damaged. Goods salvaged after the fire were cleaned and packed into a shipping container approximately 40 feet long, by the applicant’s insurer, CGU Insurance and their loss assessors, Freemans. The container was placed on an area of common property in front of lot 19 comprising a parking area and a grassed area. The container has been in that location since 24 April 2007 and remains in that location to this date.

Application

This application was lodged by the owner of lot 19, Angela Joy Cotton, against the body corporate seeking the following final orders:

1.	Provision of full documentation of any meetings held related to common property immediately adjacent to lot 19 & specifically related to shipping container located there, as provided for under s.36 of the Act.

2.	Provision of full details as provided for under the Act of any motions or wording by Cyathea CTS 18594 to commence legal action re same.

3.	Provision by Cyathea CTS 18594 of due process formal notification of any breach of any by law.

The grounds to the application are to the following effect:

The applicant states that she has not been provided with any evidence of the authority of the body corporate to remove the container. She has not been provided with any minutes of either committee or general meetings which purport to authorise the container’s removal, nor any notification of any breach of any by-law. Further, she has not received any notification of the container’s removal, directly to her, as owner of lot 19.

Interim Order

Section 247 of the Act provides that the Commissioner may refer an application for an interim order to an Adjudicator where the nature or urgency of the circumstances warrants referral. This referral may be made even though all persons entitled to make a submission under the Act have not had the opportunity to make submissions. An interim order is temporary in nature and lapses once a final order is made in the matter. This application was referred to me for consideration of an interim order on 31 May 2007. On the same day, I made the following interim order in respect of this matter:

I hereby order that, pending a final determination of this dispute, the body corporate, or the committee, or any agent of either, shall not proceed with any action to remove, relocate, or otherwise interfere with, the container in the vicinity of lot 19.

This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

Due to the urgency of the matter, including the intended removal of the container by 5pm on the day I received the application, I proceeded to make the interim order without seeking a submission from the body corporate in relation to the interim order sought. Because of this, I gave an undertaking to make a final determination in relation to this matter as soon as possible after the close of the reply to submissions period and as a matter of urgency.

Submissions

Submissions in response to the application were sought from all lot owners (excluding the applicant), the committee, the body corporate manager and Freemans Claims & Insurance Services (Freemans).

Astley Associates made a submission on behalf of the body corporate to the following effect:

• The container was placed upon the common property unlawfully and without the consent of the body corporate.
• The continued presence of the container constitutes a real nuisance as it severely curtails the visitor parking area (to the extent of 80%), it is an eyesore and disrupts the proper functioning and management by the body corporate of the common property.
• Contrary to the alleged police opinion, the positioning of such an enormous container does create a traffic hazard albeit on a private road. The container blocks visibility from certain directions including vehicles approaching from the southern end of Glacier Road and on May 27, 2007 a serious accident involving a motorcycle and vehicle adjacent to the container was narrowly avoided.
• The body corporate is concerned about its potential liability if the container is allowed to remain.
• Almost all the owners other than the owner of lot 19 have requested the body corporate to take prompt action.
• The placement constitutes a continuing serious breach of the by-laws the body corporate is charged to administer.
• The nuisance created by the container has been ongoing since approximately 24 April 2007 and all reasonable attempts by the body corporate to procure its removal have been ignored, if not challenged without grounds, by the owner of lot 19, by her underwriter CGU Insurance and by their loss assessors, Freemans.
• The owner of lot 19 has vacated the premises and as the repair/rebuilding process for lot 19 is likely to continue for an indeterminate time, it is inappropriate and unreasonable for the container to remain indefinitely upon the common property visitor car parking area. The contents of the container can be secured to permit movement of the container to a proper storage area without damaging the contents, pending restoration of the property.
• The final orders sought appear to have as their sole purpose, the allowance of a continuation of an existing serious breach of the by-laws. They do not allege any right to leave the container in position upon the common property and if granted, would leave the breach of by-laws issue unresolved. The power of the body corporate to seek removal of the container is not in question and there is no issue of law, far less a serious legal question, at issue in this matter.

In addition to the above, the body corporate, through the secretary, Richard Rudd, made submission to the following effect:

• The placement of the container upon the common property is a clear breach of by-laws 3.1, 4 and 7.
• The consent or permission of the body corporate to the placement of the container was not sought by the owner of lot 19 nor by any person or agent acting on her behalf.
• A "Table of Events" detailing the history of the breach of by-laws constituted by the placement of the container was attached.
• Immediately after the container’s appearance, the body corporate initiated enquiries to ascertain who was responsible. There had been an internal fire at lot 19 during the early morning of 22 April 2007. The body corporate was not advised of the fire at any time by the owner of lot 19. It was subsequently discovered that the applicant had vacated the premises immediately after the fire but did not notify the body corporate of any new address or contact. The committee later learned some weeks later from Body Corporate Services that they had received information that mail to lot 19 had been redirected.
• The body corporate eventually obtained some information from a notice attached to the container by a carpet cleaning company which led the body corporate eventually to Freemans who advised the body corporate on 30 May 2007 that the container was placed for and on behalf of the applicant and further, that the placement and location of the container had been determined by a contractor.

The body corporate seeks the following orders:

• The withdrawing or termination of the interim order;
• That the placement of the container upon the common property is a breach of by-laws 3.1, 4 and 7.
• That the owner of lot 19 and/or CGU Insurance and Freemans cause the container placed upon the common property car park and lawns adjacent to the intersection of Glacier Road and Cyathea Close, to be removed and relocated outside the common property.
• That the owner of lot 19 and/or CGU Insurance and Freemans pay the body corporate costs of and incidental to this matter.

The body corporate has since issued the applicant with a Notice of Continuing Contravention of a Body Corporate By-Law, detailing a breach of by-laws 3.1 and 7, dated 8 June 2007.

The owners of lot 7 made submission to the effect that the container does create a traffic hazard, not only affecting line of sight turning right from Cyathea Close onto Glacier Road, but turning left from Glacier Road into Cyathea Close. The container is unsightly and is blocking all but 1 of the common property car parks.

The applicant exercised her right to inspect the submissions and made a reply to the following effect:

• She seeks to justify the actions taken on her behalf by her home insurer, CGU Insurance, by detailing the seriousness of the fire and the negative health affects of the fire on her, which meant she could not return to the premises after her discharge from hospital.
• She does not accept that the body corporate was unable to contact her prior to 8 June 2007, when the Notice of Continuing Contravention of a Body Corporate By-Law was issued. She advises that she received posted correspondence addressed to herself, from the body corporate during the month of May 2007 related to annual general meeting matters. She further states that the body corporate has always been in possession of her mobile phone number.
• The only parties that typically use the parking bay in question are the applicant, visitors of her property and the secretary of the body corporate. All residents have their own driveways. In addition, there is another parking bay 20 paces away with provision for 4 vehicles that is Council owned land in the middle of Glacier Road.
• The Cairns Police have already determined that the container is not a traffic hazard. No factual evidence has been provided that a "narrowly avoided" motor cycle/vehicle accident actually occurred on 27 May 2007.
• CGU Insurance also insures the common property of the body corporate and its legal liabilities. CGU Insurance is aware of the placement of the container and has confirmed that the container placement is acceptable.
• Building work is well advanced. The applicant is informed by Freemans that the contents within the container will be repositioned into lot 19 when repairs to the first floor are complete, without delay. The applicant is informed that this is likely to be as early as 28 July 2007, or at the latest, 7 August 2007, based on the builders current estimates.
• The applicant is informed by Freemans that the contents of the container cannot be secured to permit movement of the container. It would be necessary to completely unpack the container, repack the container and then move the container. Alternatively, she states that it would be necessary to unpack the container into a furniture truck, unpack the contents into a storage facility and then load the furniture for return in 3 – 5 weeks when repairs are complete. Costs of $7,487.58 were incurred to clean contents items and pack them into the container. The applicant is informed that a further $10,000 plus storage fees would be incurred to remove the contents off-site for what will only be another 3-5 week period.

Jurisdiction

This is a dispute between an owner and a body corporate concerning an alleged contravention of the Act or community management statement or the exercise of rights or powers, or the performance of duties, under the Act or community management statement and comes within the dispute resolution provisions of the Act. (See sections 226,227 & 228)

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

Orders Sought by Applicant

The body corporate states that at no stage has its consent to the placement of the container on common property been sought. It believes the placement of the container in that position constitutes a breach of by-laws 3.1, 4(a) and 7, which provide as follows:

By-Law 3 Obstruction

3.1	A proprietor or occupier of a lot shall not obstruct the lawful use of common property by any person.

By-Law 4 Damage to Lawns, Etc on Common Property

A proprietor or occupier of a lot shall not:

(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated upon common property

By-Law 7 Depositing Rubbish, Etc on Common Property

A proprietor or occupier of a lot shall not deposit or throw upon the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using the common property.


The applicant does not contradict the body corporate’s assertions that the placement of the container on the common property constitutes a breach of body corporate by-laws, nor that no consent of the body corporate has been sought for its placement. Her application, at least the final orders sought, appear to be concerned only with whether the correct formalities and legalities have been followed by the body corporate in pursuing the removal of the container from common property. In this regard, she argues that there has not been appropriate approval for the engagement of legal advisors by the body corporate, nor the issue of the by-law contravention notice, nor any formal notification to her, as owner of lot 19, of the removal of the container. In response to these claims, the body corporate has supplied a copy of resolutions passed outside a committee meeting on 12 June 2007, ratifying the instigation of legal action necessary to have the container removed and to forward a letter to the applicant relating to harassment of committee members. The documentation indicates that the motions were sent to all six committee members. Three affirmative votes were returned and no negative ones for each motion considered. Two other resolutions entirely irrelevant to this dispute were also made. There does not appear to be any specific committee resolution authorising the issue of the by-law contravention notice, although the notice has been signed by two committee members and the body corporate seal has been stamped on the document. The delay in the issue of the by-law contravention notice is explained by the body corporate by not having been advised by the applicant of any change in her contact details.

In addition to objecting to the formalities followed by the body corporate, the applicant appears to seek to justify her actions on compassionate grounds and on account of the fire and resultant predicament she found herself in.

It appears to me that there is little doubt that the placement of the container in its current location breaches by-laws 3.1 and 4(a). The container is clearly obstructing lawful use of common property and damaging an area of grassed lawn. However, I am not convinced that by-law 7 has been breached because I cannot classify a shipping container used to store personal belongings as "rubbish, dirt, or dust". In light of the ejusdem generis rule of statutory interpretation^[1], nor do I consider that the container falls within the scope of the "other material" referred to in this by-law.

Despite the clear breach of by-laws 3.1 and 4(a), I am not satisfied that the by-law contravention notice was validly issued. Section 182 of the Act lists the requirements for issue of a Continuing Contravention Notice. The body corporate must "reasonably believe" that an owner or occupier is contravening a provision of the by-laws for the scheme before it may, by notice given to the person, require the person to remedy the contravention. In order for the body corporate to form a reasonable belief that a by-law has been breached, I consider that it is necessary, at the very least, for a committee resolution to be passed to this effect and also to authorise the issue of a Continuing Contravention Notice. While the intent of the committee (or at least three of the six members) in this regard is fairly obvious, I am not satisfied that either of these things occurred in this instance. In any event, I regard the Continuing Contravention Notice as irrelevant in the context of the final orders that will be made pursuant to this application.

I regard the committee resolution of 12 June 2007 as sufficient to authorise (or ratify) the body corporate seeking legal advice in relation to this matter, provided the amount expended on the advice does not exceed the relevant limit for committee spending. However, it would have been preferable for the resolution to have been passed prior to the advice being sought and for an amount of expenditure to have been specifically authorised. Any spending above the relevant limit for committee spending has to be authorised by ordinary resolution in general meeting (see section 103, Standard Module).

Section 94 of the Act provides that the body corporate’s general functions are to administer the common property and body corporate assets for the benefit of owners and enforce the community management statement (including any by-laws for the scheme). The body corporate must act reasonably in anything it does in this regard, including making or not making a decision. While I accept that the body corporate acted in good faith in seeking to identify the person responsible for placement of the container and that a breach of by-laws has occurred, I am not satisfied that the body corporate has acted reasonably in exercising its discretion to enforce the by-law breach and have the container removed from the common property.

Despite the amount of parking spaces taken up by the container (approximately 80% of visitors parking), I have not been made aware of any complaints of insufficient parking remaining. According to the applicant, the car park in question is used only by the applicant, visitors to her lot and by the secretary. Further, the applicant advises that additional car parking spaces are available only a short distance (about 20 paces) away. If the car parking spaces in question are designated visitors car spaces, then neither the applicant, nor the secretary (nor any resident for that matter) is entitled to use them. While it may be true that the visitor car spaces may be vacant much, or most, of the time, these are designated visitor spaces required by the local government, to be used for visitors’ parking. These spaces are a universal local government requirement for the registration of a community titles scheme, and remain a continuing requirement of the scheme. Given this, I consider any impact of the container on parking to be minimal, despite it taking up some 80% of available visitor spaces.

I am also unconvinced that the container constitutes a traffic hazard, at least to the extent argued by the body corporate. Based on the photographs submitted with the application, it is difficult for me to agree that it could constitute a traffic hazard to anyone other than a user of the car parking space available in the area adjacent to the container, which appears to be room for one car. The photographs indicate that the entrance to the scheme is set back some distance from Glacier Road and the container is set back some distance from the entrance and existing fence line for lot 19 that faces Glacier Road. Cars parked in the area would arguably pose a similar hazard, although on a smaller scale.

In summary, I am not convinced that the presence of the container is having the detrimental effects the body corporate alleges, or at least to the extent it alleges.

Having said this, I do not believe the applicant is without blame. She could have sought body corporate permission to place the container in its current location, on compassionate grounds, but has not at any time sought to do this. Further, it was unreasonable of her to expect the body corporate to find her at her new address. The legislation places the onus on the owner to notify the body corporate of any change in address (see section 141, Standard Module). If the owner fails to notify the body corporate of a change in address, the body corporate must use the address last notified to the body corporate.

Having considered and balanced the competing claims of the body corporate and the applicant, I have determined that a just and equitable order would be to require the applicant to cause the container to be removed from common property within four weeks of the date of this order and to thereafter keep it removed from the common property. I have also ordered the applicant to make good any damage to the common property caused by the presence of the container, or its installation or removal.

In all other respects, I intend to dismiss this application. The body corporate is reminded of its legislative obligation to send minutes of committee meetings and notice of any resolutions passed outside committee meetings, to all owners, within 21 days (see section 36, Standard Module). The applicant is also reminded of her right to inspect the books and records of the body corporate within seven days of the body corporate receiving a written request from her, accompanied by the prescribed fee (see section 205, Act & section 151, Standard Module).

Orders Sought by Body Corporate

I decline to make any of the orders sought by the body corporate for the following reasons. Firstly, the interim order will cease to have effect upon the issue of the final order (see section279(2)(d), Act). The first order is therefore unnecessary. Although I have found that a breach of by-laws 3.1 and 4(a) has occurred, I decline to make any orders in this regard. Doing so serves no useful purpose. The final orders I have made cover the third order sought by the body corporate. Although the body corporate sought a costs order, it did not quantify this. In any event, I can only award costs if it appears that the application is frivolous, vexatious, misconceived or without substance. I have not found the application to be any of these things.

---

^[1] The rule that where particular words are followed by general words, the general words are limited to the same kind as the particular words.