Moreton Outlook [2009] QBCCMCmr 304 (19 August 2009)

Last Updated: 28 September 2009

REFERENCE: 0379-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11896
Name of Scheme:	Moreton Outlook
Address of Scheme:	195 Landsborough Avenue SCARBOROUGH QLD 4020

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

the Body Corporate for Moreton Outlook

I hereby order that the application for an order: To have the garages cleaned at the respondents expense or compensation to the same value is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0379-2009

“Moreton Outlook” CTS 11896

The Moreton Outlook community titles scheme (“Moreton Outlook”) consists of 9 lots and common property. The community management statement (“CMS”) for Moreton Outlook indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (“Standard Module”) applies to the scheme. The Department of Environment and Resource Management records show the scheme is registered as Building Units Plan 3261.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (“the Act”), this application was made by The Body Corporate for Moreton Outlook (“the applicant”) on 22 April 2009. The applicant sought orders against Dean William Graham, the owner of lot 5 (“the respondent”) in the following terms:

“To have the garages cleaned at the respondents expense or compensation to the same value.”

PROCEDURAL MATTERS

In March 2009 the parties participated in a conciliation session with the Commissioner’s Office pursuant to section 248(3) of the Act. Unfortunately conciliation did not resolve the matter. Subsequently, this application was lodged.

Under section 243 of the Act, a copy of the application was provided to the respondent and the Body Corporate, with an invitation to the respondent and all owners to respond to the matters raised by the application. Submissions were made by the respondent and the several lot owners. The applicant did not inspect the submissions or make a written reply.[1]

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to the cleaning of oil on two common property visitor car parks, namely visitor car parking bays 1 and 2. The facts of the dispute, as outlined in the application and submissions, can be summarised as follows.

The applicant alleges that upon moving into the property on 15 December 2006, the respondent had two cars and a motor bike. The applicant states that the respondent’s motor bike and ‘good car’ resided in the garage belonging to the respondent’s lot, while his ‘old car’ was stored mostly in visitor car parking bay 2 and leaked oil onto the floor.

The applicant claims that the respondent then let his unit, but continued to park his ‘good car’ and motor bike in the garage belonging to the lot, and told his tenants to use the visitor parking bays. The applicant states that both the respondent’s ‘old car’ and the vehicle belonging to the respondent’s tenant leaked oil into visitor parking bays 1 and 2.

The applicant has included in the application:

• Photos of a white vehicle, allegedly belonging to the respondent and parked in the visitor car parking bays;
• Photos of oil which the applicant states are on the ground of visitor car parking bays 1 and 2;
• A contravention notice issued against the respondent for breaches of by-laws 2(1), 5(1), 7, 13 and 15; and
• A quote from Black & White Homeservices dated 9 October 2008 stating the cost of cleaning two garages is $150.00.
  

Six submissions were received from lot owners supporting the application:

• One lot owner made reference to an email dated 16 October 2008 from the Respondent stating that “as from December the 15th, my tenants will not be using the visitor bays and will have access to the unit garage. As for the oil, I will arrange to have this cleaned professionally when the tenant vacates. For the record, there has always been oil in all bays before [sic] I moved there but I am still happy to clean any excess that has resulted from recent parking.”

The lot owner also alleges that the body corporate has not given permission for the respondent’s tenant to park in the visitor parking bays.

• Another lot owner states that the respondent’s ‘old work vehicle’ was parked in either of the two visitor bays for months at a time and that the respondent’s tenant also parked an ‘old vehicle’ in the visitor bays. The lot owner states that the respondent’s vehicle and his tenant’s vehicle were the source of the oil problem.
  

The lot owner also includes an email from the respondent dated 10 October 2007 in which the respondent states that other owner’s tenants were “using the bay for over 8 weeks” and “I plan to use the car park for next twelve months in lieu of payment”.

Further, the lot owner commented on interpersonal issues between the applicant and the respondent.

• The remaining four lot owners expressed their general support for the application. Two of these lot owners alleged that the respondent had said he would clean up the oil. While the other two lot owners stated that the respondent’s car was parked in the visitor car parking bays in contravention of the by-laws.
  

The submission from the respondent includes the following comments:

• At no stage did the respondent’s vehicle leak oil in the visitor garage; the respondent’s car does not leak oil.
• The scheme has a security gate that is operated by remote control, and the respondent’s tenants were never issued a remote control to access the visitor car parks.
• The building is 30 years old and has oil stains in every visitor car park (there are three car parks in total).
• There is no evidence that both the respondent’s vehicle and his tenant’s vehicle leaked oil.
• There have been many older cars parked in the visitor car parking bays that were guests of the applicant. How does the applicant know that it was not their guest’s cars leaking the oil?
• Owners pay quarterly maintenance fees to maintain the building which should include periodically cleaning the parking bays.
  

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[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 CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about -

(i) the engagement of a person as a body corporate manager or service contractor; or

(ii) the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

DETERMINATION

The main issue for consideration in this matter is whether the respondent should pay for the costs of cleaning oil from visitor car parking bays 1 and 2.

Responsibility for oil stains

Section 159 of the Standard Module provides that the body corporate must maintain common property in good condition. All parties appear to accept that visitor car parking bays 1 and 2 are part of the common property of the scheme. Therefore, pursuant to section 159 of the Standard Module, the body corporate has a prima facie obligation to maintain the visitor car parking bays in good condition, including where necessary, removing excess oil.

In order for the respondent to be responsible for such costs, the applicant must prove that it was the respondent who caused the oil damage to car parking bays 1 and 2. The applicant must prove this matter on the balance of probabilities.

The applicant has alleged that upon moving into the scheme on 15 December 2006, the respondent parked his ‘old car’ mostly in visitor car parking bay 2 and leaked oil onto the bay. The applicant also states that the respondent’s tenant parked his vehicle in the visitor car parking bays and leaked oil onto them. The applicant included in the application photos of the oil damage in visitor car parking bays 1 and 2 as well as a photograph of a white vehicle, allegedly belonging to the respondent, parked in visitor car parking bay 2. Submissions were received from lot owners containing several emails regarding the parking and oil issues.

While I am satisfied that the respondent and his tenant parked their vehicles in the visitor car parking bays from time to time, this factor alone does not prove that the respondent or his tenant substantially caused the oil stains on visitor car parking bays 1 and 2. I find that the applicant has failed to prove, on the balance of probabilities, that the respondent or his tenant caused or substantially caused the oil stains on visitor car parking bays 1 and 2.

Further, pursuant to section 227 of the Act, the body corporate can lodge a dispute resolution application against either ‘an owner or occupier of a lot’. This section does not appear to make the owner of a lot responsible for the actions of its occupant. In fact, by allowing an application to be lodged against either ‘an owner or occupier of a lot’, it seems to indicate that the lot owner is not responsible for the actions of their occupier under the Act. Therefore, even if the applicant was able to prove that a vehicle belonging to the respondent’s tenant caused an oil leak in one of the visitor car parking bays, I question whether the lot owner would be responsible for the actions of his tenant in this instance.

Conclusion

While I am satisfied that the respondent and his tenant parked their vehicles in the visitor car parking bays from time to time, the applicant has failed to prove to the requisite standard, that is on the balance of probabilities, that all or most of the oil stains in the visitor car parking bays were contributed by a vehicle belonging to the respondent or his tenant.

On this basis I am dismissing the application.

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[1] See sections 246 and 244 of the Act respectively
[2] See sections 227, 228, 276 and Schedule 5 of the Act
[3] Section 276(2) of the Act
[4] Section 284(1) of the Act