Macleay Tower & Villas [2007] QBCCMCmr 595 (17 October 2007)

Last Updated: 12 November 2007

REFERENCE: 0524-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24663
Name of Scheme:	Macleay Tower & Villas
Address of Scheme:	8 Goodwin Street, Kangaroo Point Queensland

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Douglas Brennan, the owner of Lot 95

I hereby order that the application for an order by Douglas Brennan, the owner of Lot 95 against the body corporate for Macleay Tower & Villas community titles scheme 24663 seeking permission to enclose his car space, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0524-2007

"Macleay Tower & Villas" CTS 24663

Application
This application is by Douglas Brennan, the owner of Lot 95 (applicant) against the body corporate seeking permission to enclose his car space.

The applicant is concerned about securing his car space to protect his property. He says his vehicles have been damaged by owners/occupiers who use his car space as a walkway to access the lifts and a basement exit door; a vehicle has been stolen from his car space; and he has had a vehicle broken into and personal property stolen. The applicant intends to use wire mesh to enclose the car space. He states that the enclosure will not be affixed to or damage common property. The applicant relies on the order of an Adjudicator dismissing an earlier dispute resolution application brought by the body corporate for Macleay Tower & Villas against the owner Lot 108 relating to that owner’s intention to enclose the car space forming part of Lot 108 (Application 0288-2006).

Jurisdiction
"Macleay Tower & Villas " is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act).

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s276(1), Act).

Procedural matters
On 11 July 2007, a copy of the application was provided to Ernst Body Corporate Management Pty Ltd (the body corporate manager) for distribution to the owner of each lot (excluding the applicant) and the committee, with an invitation to respond to the matters raised in the application (s243, Act). The Commissioner subsequently extended the time for making submissions.

Submissions were made by Piper Alderman on behalf of the body corporate and by a number of lot owners. The applicant inspected the submissions received and made a written reply (ss244 and 246, Act).

A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Submissions
The body corporate’s objections to the enclosure of Lot 95’s car space can be summarised as encouraging a breach of By-Laws 31 and 41.1(a); the basement car park has security measures; and the design of the basement level does not accommodate built-in car spaces and by enclosing all or even a number of car spaces problems will arise relating to lighting, use of electricity, access to services, insurance and use of car spaces. With respect to the issue of persons using the car spaces to access the lift, the body corporate submits it intends to install a railing around the tiled area in front of the lifts which will prevent thoroughfare through the applicant’s car spaces. The body corporate submitted that the decision for Application 0288-2006 was made on its own merits and does not set a precedent. The body corporate states the applicant did not approach the committee before making this application.

The owners of Lots 73, 113 and 114 made submissions supporting the application for reasons including: the applicant should be able to protect his vehicle by enclosing his car space; and security is an ongoing problem as there have been a number of burglaries in the basement car park.

Background
Application 0288-2006
The facts of this matter are similar to the present dispute insofar as the owner of Lot 108 intended to enclose the car space forming part of Lot 108. In making the order on 1 September 2006 dismissing the body corporate’s application seeking an order that the owner not be permitted to enclose the car space on Lot 108 without prior body corporate consent, Adjudicator R Miskinis relevantly stated the resolution of the dispute revolved around the power of the committee to refuse permission under the by-laws. He stated that as By-Laws 5 (Damage to common property), 8 (Appearance of building), 13 (Structural Alterations), and 31 (Residential Use) did not apply; the owners of Lot 108 were permitted to construct an enclosure on or within the car parking area for Lot 108.

With respect to By-Law 13, the Adjudicator stated This by-law refers generally to structural alterations" and then refers to particular activities which are to be taken as being within the scope of structural alterations". The term is defined in Butterworths Australian Legal Dictionary, (updated) 1997 edition, p.1122, as "Building work done to the fabric of a building. also defines "structure" (at page 1123) as, "Something built or constructed; a building, bridge, dam, or framework." It seems to me that a "structural alteration" to a unit would normally involve some form of improvement, change or adjustment that directly pertained to the structure of a building. Without purporting to create an exhaustive list, "structural alterations" could include adjustments to the essential supporting framework of a building, or perhaps significant improvements to fundamental aspects of a building such as brickwork, roofing or decking. Normally, I would also expect that structural alterations would be of a relatively long term, if not permanent nature. I would not normally expect "structural alterations" to be readily removable. I have reviewed the correspondence between the owners of lot 108 and the body corporate and note that their primary concern is to enclose their car parking area for security purposes. Originally they proposed a masonry enclosure similar to some of the original car park enclosures. Although they obtained confirmation from a professional engineer that such a masonry enclosure would be "non structural" the lot owners were prepared to accommodate concerns raised by the body corporate and subsequently offered to construct enclosures from "colourbond" sheet metal or from chain wire mesh. In my view construction of the enclosures proposed by the lot owners, particularly the wire mesh and "colourbond" enclosures, would not involve structural alterations to the lot.

Extraordinary General Meeting dated 29 March 2007 (EGM)
It would seem that as a consequence of the above order, the body corporate resolved by special resolution at the EGM to amend By-Law 13 to (in part) prohibit the body corporate from consenting to the enclosure of a car space and to prohibit an owner from enclosing a car space (Motion 2). Section 62 of the Act provides that a body corporate may, by special resolution, consent to the recording of a new CMS if the difference between the existing statement and the new statement is limited to a difference in the by-laws (other than an exclusive use by-law).

Community management statement (CMS)
A body corporate resolution which in effect amends an existing by-law does not itself mean that the amendment has effect from the time the resolution is made. The body corporate resolution to amend By-Law 13 necessitated the lodgement of a new CMS with the registrar of titles, Department of Natural Resources and Water (s54, Act). A by-law comes into force on the day the registrar records the community management statement containing the by-law or a later date stated in the by-law (s179, Act). A search of the records of the registrar indicates that the new CMS containing the amended By-Law 13 was recorded on 4 October 2007.

Determination
This application was made in June 2007. At this time, the by-laws for the scheme were those which applied when the order was made on Application 0288-2006. The by-laws for a scheme are stated in the scheme’s CMS (s66, Act). These by-laws are binding on the body corporate and each lot owner (s59, Act).

While the applicant has not provided any specifications or detailed description of the proposed enclosure, the applicant has stated the enclosure will not be affixed to common property and that he proposes to use wire mesh to enclose his car space. In these circumstances, it could be argued that the applicant could have chosen to enclose the car space on the basis of the order made on Application 0288-2006. Nothing has been presented suggesting that there were, at the time the application was made, distinguishing factors between the enclosure of the Lot 108 car space and that proposed for Lot 95’s car space, or that a legislative or by-law provision was relevant to the proposed enclosure of Lot 95’s car space compelling the applicant to obtain body corporate approval and that he was unsuccessful in doing so.

Rather than proceed with the enclosure of his car space, the applicant made the application partly questioning the resolution passed at the EGM to amend By-Law 13.

The applicant states this resolution removes options for owners to protect their property and prohibits an owner from exercising rights of property ownership to enclose a car space. He states an owner should have the right to appeal to a higher authority if they believe that decisions by committee’s or body corporate by-laws are unfair and inequitable. A lot owner is entitled to make an application against a body corporate disputing a resolution passed by it in general meeting (ss227, 229 and 238, Act). It should be noted that an application for an order declaring void a resolution of the body corporate must be made within 3 months after the meeting at which the resolution was passed. Non-compliance with this requirement may, for good reason, be waived by an adjudicator (s242, Act). However, if the applicant disputes the resolution passed on Motion 2, he should have made a dispute resolution application against the body corporate questioning the validity of the resolution. Given the terms of the outcome sought, the merits of the applicant’s arguments about the resolution passed are not relevant in the determination of this dispute. When investigating an application, an adjudicator must observe natural justice (s269(2)(a), Act). Fairness would not be exercised if an order was made against a person without that person being made aware of the specific claim being made and having the opportunity to respond to that claim.

It is clear that the amended By-Law 13 did not have force when the application was made. When this issue was brought to his attention, in his reply to submissions the applicant stated that as a lot owner he was unaware that the new CMS containing the new By-Law had not been lodged. He states he should not have been expected to be aware of this issue as the failure to record the new statement had not been communicated to owners. This argument is without substance. The fact is the applicant proposed to enclose his car space. The onus rested with the applicant to discover the legislative or by-law requirements relevant to the work he proposed to carry out on his Lot.

In its submissions, the body corporate sought to explain the time delay in the lodgement of a new CMS to incorporate the amended By-Law 13. Section 65 of the Act makes provision for the time for lodging a request to record a new CMS. The time taken to lodge the new CMS is not an issue for determination in this application. Neither are the merits of the amended By-Law. The amendments to By-Law 13 did not have force when the application was made. Now that the amended By-Law 13 has force, the applicant or another owner could choose to make a dispute resolution application against the body corporate questioning the By-Law if for example, the person was of the view that there is a basis for voiding the By-Law or the recent amendments made to it. Alternatively, it could be proposed to deal with the matter internally by for example, seeking to again amend the By-Law by having it reconsidered by the body corporate in general meeting.

Section 227(1) of the Act prescribes the meaning of ‘dispute’ as being between particular parties including the owner of a lot and the body corporate. Section 238(1) provides that a person ... may make an application if the person is a party to, or is directly concerned with, a dispute to which this chapter applies. Section 276(1) of the BCCM Act provides that an adjudicator may make an order to resolve a dispute.

The issue of the existence of a ‘dispute’ under the BCCM Act has been considered by the District Court (the then appellant jurisdiction against an order made by a department adjudicator under the BCCM Act). In K.G. Tully & Anor. v The Proprietors The Nelson Body Corporate [2000] QDC 031, Judge Robin QC held that There must be "dispute" before an adjudicator has jurisdiction. The application identified the committee of the body corporate as the other party to the dispute. The respondent's case is that the nature of the permission sought by the appellants was such that the body corporate itself must give permission or authority; it never having been asked by the appellants to do so there can be no dispute involving it as a party, and therefore no right in the applicants to apply to the adjudicator on the basis that they are parties to "a dispute" for purposes of s.192(1)(a) (renumbered as section 238). The objection to the application is sound in principle, in my opinion. The existence of a relevant "dispute" is fundamental to an adjudicator having jurisdiction.

This application can only be determined based on the circumstances evident at the time the application was made. The applicant has made the application against the body corporate, yet he has not demonstrated that a dispute existed with the body corporate at this time. The applicant has not shown that the body corporate was aware of his intentions to enclose his car space and that it had in some way and contrary to the legislation prevented him from enclosing his car space. Rather, it is apparent that the body corporate did not have knowledge of the proposed enclosure until it received the notice of this application from the Commissioner. In these circumstances, there was not a dispute with the body corporate about the enclosure of the car space forming part of Lot 95 at the time the application was made. The applicant may question the resolution passed at the EGM. However, he has not sought an appropriate order if this resolution is his fundamental concern. In addition, the applicant cannot question the amended By-Law given that it did not have force when the application was made.

For these reasons, the application is dismissed.