Villa Sirene [2009] QBCCMCmr 396 (14 October 2009)

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

I hereby order that, pending a final determination, Graham Langford and Angela Rogers, owners of lot 1 (respondents) must not perform or allow any alterations to the common property of Villa Sirene except to the extent necessary to make the area safe or to rectify any encroachment caused to the adjacent property at 107 Albatross Avenue.

This interim order replaces my interim order of 6 October 2009 and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

Villa Sirene Community Titles Scheme (Villa Sirene) is a 2 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Small Scheme Module Regulation (Small Scheme Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a building format plan. The plan shows that the scheme consists of a three storey building and common property. Each lot is spread over the three levels of the building with lot 1 comprised of the front northern quarter of the ground floor, the northern half of the second floor, and the northern half of the top floor. Lot 2 is comprised of the remainder of the building. That is, most of the ground floor including a large courtyard area, the southern side of the second floor, and the southern side of the third floor.

This application is by Hirochiyo Suita, owner of lot 2 (applicant) seeking orders against Graham Langford and Angela Rogers, owners of lot 1 (respondents).

The applicant alleged that a builder had commenced work to rebuild some stairs on common property but that there are inadequate footings and it appears the previously existing wall is not going to be built. Orders were sought for an immediate cessation of work on the common property until all requirements are met to the standards required under Queensland legislation and an extraordinary general meeting was held to vote on the proposed work. A final order was sought to require the respondents to provide engineer drawings and design, two quotations, and a BSA approved builders’ contract to the body corporate extraordinary general meeting for approval.

On 6 October 2009 I held a teleconference with Graham Langford on behalf of the respondents and Charles Hamilton on behalf of the applicant. I note that there was some dispute about a proposed redesign of the area but that Graham Langford indicated that he would rebuild the stairs in the same form as the stairs he had removed. Graham Langford indicated that he was complying with an obligation to rebuild the stairs under a Deed of Compromise he had entered into with the body corporate and that no further permission of the body corporate was necessary. Charles Hamilton argued that the stairs were improvements to the common property that still needed to be approved by the body corporate in general meeting. I did not accept that there was any merit in that argument. However, sections 3.3 and 3.7 of the deed indicate the body corporate’s consent is conditional upon the work being performed in accordance with any legislative requirements. Evidence has since been provided to the effect that this condition is not being complied with.

Firstly, photographs have been provided showing the footings abut an adjacent wall. It is alleged that this wall is wholly on the adjacent property and that the footings are therefore encroaching upon the adjacent property. Secondly, documentation has been provided indicating the respondent’s builder is not licensed to perform the work necessary to reinstate the stairs. Thirdly, concern has been expressed about the sufficiency of the footings and the threat to adjacent structures as a result.

Documentation containing these further concerns was sent on 9 October 2009 on the basis further submissions would be required by 9:00am on 14 October 2009 regarding possible changes to the interim order. Graham Langford had previously informed this office that he was going overseas and the further information was sent to him at the email address he had provided. However, I have not received any response to this information or any acknowledgment that it has been read.

I do not see any merit in submissions by the applicant that work authorised in the deed needs to be further approved by the body corporate at an extraordinary general meeting prior to it being performed. However, it is necessary to consider allegations that the approval is subject to the work being performed according to applicable building legislation and that a failure to comply with this condition means the work is not authorised by the body corporate. Further, the body corporate could not authorise encroachment of the footings onto the adjacent property. Serious questions have not been raised regarding whether the work is being carried out in accordance with the approval given by the body corporate as evidenced in the deed.

In the absence of any submissions from the respondents, it is difficult to see any disadvantages to stopping the building work pending an opportunity to finally determine the dispute. In particular, on the submissions provided it is evident that the stairs that are to be reinstated were demolished a long time ago and that use can be made of the unit without those stairs.

I therefore propose to make a supplementary interim order that replaces my interim order of 6 October 2009 and prohibits the respondents from making any further alterations to the common property of Villa Sirene pending a final resolution of the dispute. This will be subject to any need to make further works to the common property to make the area safe or to rectify any encroachment caused to the adjacent property at 107 Albatross Avenue.

For these reasons, I make the supplementary interim order above. If necessary, a final order will be made in due course.

Number of Scheme:	26546
Name of Scheme:	Villa Sirene
Address of Scheme:	105A Albatross Avenue MERMAID BEACH QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Villa Sirene [2009] QBCCMCmr 396 (14 October 2009)