The Dorchester [2010] QBCCMCmr 539 (1 December 2010)

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

I hereby order that the application for an order

“that the Respondent provide a detailed summary of all renovation works (structural or otherwise) which she has carried out on Lot 33 or on common property since January 1, 2003;
that the Respondent identify which of those works, she says, she was authorised to carry out by reference to either the “Tiling Motion”, “Stairwell Motion” or “Door Motion”;

in respect of those renovations, alterations or repairs for which the Respondent had no authority, that the Respondent:
- (i) provides the Applicant with the relevant plans, specifications, drawings, engineering certificates (where structural alterations have been made) and approvals (where relevant); and
- (ii) submit to the Applicant the proposed wording of an appropriate motion to be put to the lot owners at the next general meeting of the lot owners in the scheme seeking retrospective authorisation for the unauthorised works;

d) such further or other order(s) as may be determined to be just and equitable for the purposes of resolving this dispute.”

is dismissed.

I further order, pursuant to section 270 Body Corporate and Community Management Act 1997 that the body corporate applicant shall pay to Woon Sim (Elizabeth) Tang, respondent to this application, the sum of $2,000 as costs in this application, on or before one month from the date of this order.

This is an application dated 10th June 2010 but delivered to this Office on 16th June 2010 by the body corporate for The Dorchester CTS 10749 (the body corporate) against Woon Sim (Elizabeth) Tang (Ms Tang) owner of Lot 33 and Lot 25 for orders as follows –

2. that Ms Tang identifies which of those works were authorised by either the “tiling motion”, “stairwell motion”, or “door motion”, as alleged by her;

3. in respect of those renovations, alterations or repairs for which Ms Tang had no authority, that Ms Tang -

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

(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)).

The body corporate says that various renovations including structural alterations were carried out by Ms Tang at Lot 33 in 2003 without the approval of the body corporate. The body corporate wants Ms Tang to disclose to the body corporate information about the renovations.
She has admitted that she has made structural alterations and interfered with utility infrastructure in the building. No information about the alterations exists on the body corporate records. Ms Tang has refused to provide such information. The body corporate provides appendices to its application including the minutes of the relevant general meetings and subsequent correspondence.

On 24th January 2003, a motion to tile the external terrace of the exclusive use area of Lot 33 was resolved by special resolution at an extraordinary general meeting on certain conditions. The works involved removing artificial grass from a roof top terrace. A second motion to make an improvement to common property by the installation of a staircase between Lot 33 and the exclusive use area was also approved on conditions including that the works would be subject to local authority approval where required; be at Ms Tang’s expense; and did not compromise the structural integrity of the building. The tiling motion was passed 25 – 0; the staircase motion was passed 23 – 2.

On 17th February 2003, Diana Taylor, co-owner of Lot 27, who had voted at the meeting and was a committee member, and Katherine Taylor, also on the committee, sent a fax to the body corporate manager concerned about the extent of the renovations. The body corporate engaged solicitors to “protect the interests of the body corporate.” The body corporate also engaged CSF Consulting Engineers Pty Ltd (CSF) at a cost of $654.50, which reported on 21st February 2003 that the work being undertaken was in line with approvals given by the local authority and the body corporate at the general meeting, and would cause no negative impacts.

On 27th March 2003, at the annual general meeting, Ms Tang proposed Motion 16 for the approval of a new entry door to Lot 33. This was also approved with conditions including that the work was not of a structural nature. The vote was 19 – 2.

On the same day, Ros Janes Lawyer reported to the body corporate that the committee had acted properly in obtaining an independent report, and that the result of such report was that there was no dispute between the body corporate and Ms Tang.

The body corporate now says that “in or around February 2003”, Ms Tang commenced renovations on Lot 33. She replaced structural elements which (allegedly) had reached the end of their working life; replaced a structural column; made repairs or alterations to the exhaust ducting; conducted rectification work on (allegedly) defective timbers and linings; replaced timber suffering dry rot in the roof; replaced the metal frame in the roof structure; and shortened the frame in the besser block construction wall, as well as other renovations and alterations about which the body corporate is not concerned.

The structural alterations or alterations to the common property were made without the authorisation or knowledge of the body corporate. The alterations to the exhaust ducting have diminished the performance of the exhaust system to the detriment of other owners in the scheme, are defective and sub-standard, and have been done without any plans or engineering calculations.

The alterations breach By-law 5 “Damage to Common Property”, By-law 13 “Structural Modifications” and by-law 17 “Renovations to a lot”. By-laws 13 and 17 require a certificate from an “experienced consulting engineer” that the proposed work is safe and will not cause distress to the building and has local authority approval; require a detailed description to be furnished to the committee, architectural plans and engineering certificates, and a bond of $1,000 to be lodged with the body corporate. The committee also requires to know who the builders are and to see a copy of the builders’ insurance for public liability up to $10 million.

Ms Tang did not provide any of the information or documents required by by-laws 13 and 17, nor sought body corporate approval for the improvements made pursuant to section 162 Accommodation Module.[1] The work done is therefore also in breach of the legislation.

The body corporate wishes to know the extent of the renovation works which Ms Tang has carried out and to be provided with any information which it should have been provided with at the time. It seeks this information so that it may ensure the structural integrity of the building has not been compromised.

Appendix E is a letter dated 16th February 2009 from Ms Tang to the body corporate concerning minutes of a committee meeting on 20th January 2009 which referred to a compliance audit carried out by Certis Pty Ltd (Certis) on 16th January 2009 centred on Lot 33. She notes that at that meeting “it was acknowledged that the plans supplied to [Certis] ....were pre-submission plans (unstamped by Council) and superseded by later plans, the existence of which the Committee had been made aware in writing on several occasions. The committee agreed to obtain Council approved plans....”. She asked if the committee had yet obtained these plans, which she has. She also wanted to know what Certis had been asked to do, since the committee minutes of 20th January 2009 say that the Certis report had been withdrawn as it “did not address the issues as per instruction.”

Ms Tang wrote again on 9th April 2009, providing documents and correspondence to meet the committee’s assertion that the committee of 2002/2003 was not aware of the “state of decay and rusting of duct work in Unit 33”, and that Ms Tang had not brought this to that committee’s attention. All documents were provided from body corporate records. She provided a letter dated 16th February 2003 from herself to the body corporate saying that on commencing work, the 17th floor was found to be in a worse condition than supposed; a copy of CSF’s report dated 21st February 2003; a further fax from CSF to the then body corporate manager dated 6th March 2003; a copy of the letter from Diana and Katherine Taylor; and the opinion from Ros Janes Lawyers. She also provided a letter dated 15th May 2009 from herself to the body corporate manager denying that the ducting has been “materially altered” but had had a “minor modification as a result of the repair of the rusted out duct work (as deemed necessary in the 2003 report by CSF....)” She said that information regarding the repair works was available from Peter Eustace and Associates (Peter Eustace). She asked to see a copy of the Certis reports. She said that she could find no “as constructed” plans of the 1982 ventilation system or airflow tests at that time. She advised that photos were available prior to the repairs being done. She further explained that when the body corporate asked her in October 2007 about changes to the ventilation system, she had advised them that the roof plan on which the committee was basing its suppositions was an unapproved plan dated 1978 and not what was eventually built by the developer in 1982. She says that her many previous attempts to get the committee to understand this had been ignored.

On 27th May 2009 the body corporate manager wrote to Ms Tang and asked her reinstate the south side of the ductwork at Level 17 immediately, or apply for retrospective approval “of the work in accordance with Body Corporate Regulations.” Solicitors Success Law (Ros Janes) replied on behalf of Ms Tang on 12th June 2009 setting out Ms Tang’s recollection of events and alleging harassment.

The committee replied on 7th July 2009 that the engineering reports from Peter Eustace dated 6th October 2008 and GK Consulting Engineers Pty Ltd (GK) dated 10th November 2008 did not mention alterations to common property. The body corporate’s argument is that “[r]enovations and repairs do not constitute alterations or modifications”. Ms Tang has admitted that “she has altered the ductwork” and there are no approvals for this, or even reference to it, on body corporate records. Success Law again wrote on 3rd August 2009 denying that Ms Tang has ever admitted “to altering ductwork” but that “minor modifications were effected as part of the repairs to the ductwork” and that no council approval was necessary. Success Law points out that the repairs were done six years ago, and that the committee was being unreasonable.
In accordance with section 243(2) Act submissions were invited from all lot owners.

Narelle and William Morrow, representatives of Clarem Pty Ltd , owner of Lot 15, say that since the alterations to the ducting took place they have had no extraction of air from the main toilet exhaust vent which is connected to the roof exhaust ducting referred to. They would like this rectified. They support the body corporate’s application for disclosure.

Helen Ashdown, representative of Nourlangie Pty Ltd, owner of Lot 13, has lived on site for 10 years and has carried out her own research into the matter. She is of the view that all approvals were sought and granted for all improvements and alterations. Ms Tang informed the body corporate in 2003 about problems found when the work commenced. She has seen the body corporate engineer’s reports on the repair work required and saw the work in progress. She cannot understand why so long after the work was done, and in the absence of any complaints, the committee has now raised the matter. The airflow in her bathroom and laundry which was non-existent before, was returned to working order after the renovations. She strongly disagrees with the action taken by the committee, and of the expenditure on legal fees. The money would have been much better spent on maintenance of a 30 year-old building.

Robert and Patricia Baker, owners of Lot 1, say that the ventilation in the laundry, vanity and main bathroom is virtually non-existent. They have owned the unit for 6 years and always had problems with the ventilation extraction. They would like the rooftop inspected and any unauthorised work rectified. They are resident managers of the scheme and say that all south side units are affected.

Charles Norwood, owner of Lot 20, says that he moved in in 1986 and has studied body corporate records. He is amazed that this issue did not arise until 2007 and has still not been resolved. He is of the view that the committee resolution to take action against Ms Tang is a misuse of body corporate funds. He is of the view that approvals were given to Ms Tang. Certain works in section 4.3 of the application do not require body corporate approval as they are maintenance and repair works. The application does not mention Ms Tang’s side of the argument in this unpleasant issue.

David Hendry (Mr Hendry), who describes himself as the owner of Lot 11, opposes the application. He is a former committee member from August 2008 to March 2010. He provides a copy of the Compliance Audit report from Certis . The committee on 23rd December 2008 voted 5 – 2 to accept Certis’ proposal at a cost of $3,410. Certis’ brief was to inspect the building and look at fire safety features that may require upgrading, to determine non-compliance matters and prepare a compliance assessment report.

The compliance audit was conducted on 16th January 2009, but was not finalised by the time of a committee meeting held on 20th January 2009 which Ms Tang attended by invitation. The minutes of this meeting record that Ms Tang “gave a comprehensive synopsis of events back to the time of development of the building, details of Council approvals, inspections carried out and details of Engineer reports and concluded by stating that she has not adversely affected the ventilation system......”

The minutes also note that Certis had submitted a draft report but it was subsequently withdrawn after “it was concluded that it did not address the issues as per instructions.” A copy of the draft report was distributed to committee members on 28th January 2009, and he provides a copy. Certis said that it would not alter its original report without a further fee, even though the committee considered that the report was not prepared according to instructions.

On 21st February 2009 Mr Hendry wrote to the committee cataloguing the history of the dispute which he says has been going on “since 25th July 2007 when a report from SAIS[2] was tabled. That report was based on a pre-construction and non-approved roof tower plan dated 1978... and bears little resemblance to the final configuration of the building as shown on plans approved in 1982.”

The SAIS report said that the ventilation system had been altered by someone other than the developer; that there is now one fan instead of two; that the two south side ducts had been joined after the original construction and moved outside the building on Level 17; and that the north side duct system serving laundries and toilets was compliant and was as originally constructed. These statements are all incorrect. The SAIS report was distributed to all owners.

The body corporate decided to obtain a more detailed report from engineer GK. On 4th September 2008, GK inspected the site, but was given a copy of both the SAIS plan and the 1978 superseded plan. GK’s conclusion was thus similar to SAIS’s, that sometime in the past, the penthouse owners built another room around the original duct risers, and to accommodate this building, they put beams in the ductwork, joined the two risers and moved the ductwork and fan outwards. These conclusions are incorrect. After receiving more information GK on 10th November 2010 revised its report withdrawing the conclusions which it had originally reached.

On 11th November 2008, Ms Tang provided to the committee a report from Peter Eustace, consulting engineers, who had inspected on 6th October 2008. The report included airflow measurements taken in five units on north and south sides. The measurements showed inadequate airflows to duct systems on both sides, and said that the repair of the rusted ductwork by Ms Tang had not caused failure of the ventilation system, but had improved airflow.

Thereafter the committee engaged Certis, who had again been supplied only with the non-approved 1978 plan and the original and unrevised GK report. Ms Tang provided Certis with a copy of the approved plans dated 1982, but the draft report was withdrawn prior to being accepted by the body corporate.

Mr Hendry argued that the inadequacy of the ventilation systems should be resolved expeditiously and that the body corporate should move forward without spending any more money on the past, and on incorrect and inadequate reports. Incorrect information has been circulated to owners and has caused unwarranted distress and division in the scheme. He also suggested that the body corporate obtains a set of relevant and approved plans.

However, the committee resolved on 22nd April 2009 to write to Ms Tang and request details of contractors, plans, approvals and body corporate approvals relating to alterations of the ducting. The chairman was to review the archives relative to prior committee knowledge and approvals of “such modifications.”

Mr Hendry says that in the end Certis was not paid and the body corporate had no further business with Certis. The report was never tabled to owners or to Ms Tang. The Certis report concludes that no was damage done and that all works were lawful.

Felicity Illidge, owner of Lot 10, says that she was a committee member from 2002 to 2005. She was asked for her opinion of the work going on in Lot 33 in 2003, and her response forms part of the body corporate application at Annexure E. She studied the report prepared by CSF who was the body corporate’s engineer, and Kavanaugh McAnany, the lot owner’s engineer. She also met the lot owner’s engineer on site, and the builder and saw that the repairs and replacement work was essential to restore the integrity of the building structure in the exclusive use area of Lot 33. The repair work only became apparent when the renovation commenced.
The lot owner was also aware of her responsibility under By-Law 20 to maintain the lot and the exclusive use area in good condition, and this applies also to improvements made to the exclusive use area by previous owners.

The committee also sought legal advice from Ros Janes at the time. The letter and the solicitor’s response are also attached at “E”. She was aware from the report by CSF that the ducting was in a very poor state due to being rusted out, and that as part of the refurbishment, the duct would be repaired so that it is a complete unit. The cost of the work was shared between the body corporate and the lot owner.

She fails to understand the present committee’s repeated requests for information regarding the work done in 2003. Information is readily available and contained in the body corporate’s application. This information shows that remedial work carried out to the structure on the exclusive use area was required maintenance that the lot owner was obliged to perform under By-law 20.

Peter Gallagher (Mr Gallagher), nominee of P.R.Gallagher Pty Ltd, owner of Lot 31, says that his company has owned the lot since December 1982, and that Lot 31 is directly below Lot 33. He says that parts of the rooftop area are still common property, and part of the roof is the exclusive use area of Lot 33. The common property area contains infrastructure maintained by the body corporate, although the building manager is “constantly denied access.” Ms Tang has placed a barbeque across the door preventing access from the stairwell.

The committee expressed concern about Ms Tang’s renovations at the time. Ms Tang denied that common property had been altered. Over the next few years the committee continued to write to Ms Tang regarding the issue because there was a problem of reduced airflow in the southern side ducting system. Ms Tang continued to deny carrying out any works that were not approved and specifically stated that she did not alter or move the ducting. She provided engineers’ reports, largely from Peter Eustace which addressed the airflow issue, but none of them specifically addresses that the ducting had been moved, although one report said that it had been “modified.” None of these reports referred to the airflow prior to the alterations by Ms Tang.

In January 2008 at a committee meeting Ms Tang told the committee “that she had moved the ducting.” She has not as yet provided any evidence of approvals or drawings, reports and building/council approvals for this. The body corporate records do not show approvals for these works. She has breached the scheme by-laws knowingly and the current committee has spent a considerable amount of time getting to the truth of the matter “by working through misinformation that has been provided by Mrs Tang.” The issue of ducting and airflow is of major concern to most owners, and affects values of lots and may affect the insurance cover.

Caitlin Gallagher makes a submission as chairperson of the body corporate. She says that the southern side of the rooftop contains infrastructure which has to be maintained by the body corporate and it is the job of the building manager. It has been very difficult to ascertain the specific work done due to the difficulty in obtaining access. Mrs Tang has placed a barbeque across the door thus preventing access from the stairwell and “the necessary inspections.” She thinks that the renovations done without approval may have affected common property. It is clear from the photos and original plans “that Mrs Tang has moved the riser for the ducting to allow a more aesthetic access to the roof area via the altered doorway.”

The committee “continued to write” to Mrs Tang regarding the issue of reduction of airflow in the southern side ducting system which had occurred. Throughout this period Mrs Tang continued to deny carrying out unauthorised works, and said that she did not “alter or move the ducting.” None of the reports which she produced from various engineers specifically addressed that the ducting had been moved, although one report said that it had been modified. When the committee engineer provided a conflicting report, Mrs Tang arranged for her engineer to contact the body corporate’s engineer without the body corporate’s knowledge and “provided misinformation” and asked the committee engineer to change his report.

At a committee meeting in January 2008 Mrs Tang stated that she had moved the ducting but provided no evidence of approvals, and there are none on body corporate records. Her submissions are deceptive by design being made up of incomplete reports, outdated letters and partial records.

Geoff Garside, owner of Lot17, says that he is treasurer of the scheme, but makes his submission as a lot owner. He does not support the committee viewpoint, or its submission. The committee did not get the opportunity of seeing the application before it was lodged. He did not become a committee member until February 2010. He notes that the application itself consisting of 16 pages outlines only the body corporate’s side of the argument and is not balanced. The body corporate has ceased to acknowledge relevant communications from Ms Tang or to table them at committee meetings or to communicate them to owners. Acknowledgement and tabling of communication should be mandatory.

He disagrees with both of these statements because the body corporate’s own documents in the application show a letter received on 15th April 2009 which shows that the body corporate was informed of the repairs/modifications and had received appropriate advice from appropriately qualified professionals engaged by the body corporate.

He was a committee member during the time of Unit 33’s renovations and knows that the committee at the time was advised of the rectification work and that the committee undertook to ensure that such works were properly supported by engineers’ documentation. The committee even decided in May 2003 that the body corporate should contribute to certain rectification work recommended by the engineer.

He says that by-law 17 headed “Renovations to a lot” was not passed by the body corporate until 8th August 2003 at an extraordinary general meeting, and that date was after Ms Tang had made renovations to Lot 33.

He is of the view that the weight of evidence supports Ms Tang and that the body corporate has ignored information given to it by her, and the body corporate’s own professional advisers.

On 31st March 2008 at a general meeting, the body corporate voted against funding legal action to pursue Ms Tang, and the committee has continued to pursue this investigation despite the wishes of the body corporate.

Jordan Huang, owner of Lot 32, says he is the adjoining owner to Lot 33. He is also a mechanical engineer and has some understanding of the building’s heating, ventilating and air conditioning systems. He has read the report from CSF, the consulting engineers engaged by the body corporate, and noted the references to decay and corrosion in elements of the building in the exclusive use area. The items listed included rotted timber, rusted steel framing and a structural column that had decayed at the base. The report also indicated that the ducting to the air exhaust system had rusted through and corroded due to water ingress, and that the owner of Lot 33 was addressing this as part of the refurbishment of her unit. He was aware at the time that the cost was being shared between the body corporate and the owner of Lot 33. The body corporate contribution is recorded in the general ledger of 16th May 2003.

He is of the view that Ms Tang restored the building structures and elements in the exclusive use area to good condition. There is no “engineering or other basis to suggest that any compromise to the integrity of the building structure has resulted from the renovation and repair works carried out in 2003 by the owner of unit 33.”

He is also of the view that paragraph 1.2(b) of the application (that no information has ever been provided or if it has it is not on the body corporate records) is not correct. If the body corporate has no longer got the information, it does not mean that the works were unauthorised. The body corporate has not maintained adequate records, or the records have been mislaid. The claim in paragraph 1.2(d) (that the owner has refused to provide information despite requests from the body corporate) is also incorrect. It is clear from the annexures supplied in the application, that the owner of Lot 33 has provided or made available information at the request of the body corporate.

Elizabeth Tang, the respondent, says that she purchased Lot 33 in December 2002. She denies that she has carried out any works without notice to, or the approval of, the body corporate. At the time when the renovations were done in 2003 the body corporate was fully aware of the works being undertaken through her engineer Kavanaugh McAnany, and CSF, the body corporate’s engineer, and Ros Janes Lawyer, the body corporate’s solicitor. She denies that the works negatively affected the integrity of the building, but were necessary remedial works to decayed elements. These statements are supported by the body corporate’s engineer CSF in 2003, her engineer Kavanaugh McAnany in 2003 and Peter Eustace, her engineer in 2008.

By-law 20 requires that exclusive use areas are kept in good condition by the grantee of the exclusive use, which she has done. The exclusive use area was “in a parlous state” as noted by the body corporate’s engineer. There were no issues or complaints raised by successive committees until 2007 when the issue of the ducting was raised. Other issues, now the subject of the application, were not raised until 2009.

The body corporate published inaccurate and misleading allegations in the minutes of a committee meeting in July 2007. The local authority had approved plans in 1982 for the allegedly unapproved work and the body corporate was made aware of that. The work complained of was done as part of the original building works 20 years before her ownership. The body corporate has refused to withdraw its allegations in spite of the evidence shown to the committee.

Ms Tang provides all the documents which she has relating to the works although she cannot guarantee that they are a complete record owing to the length of time since the work was done. She has relied on qualified engineers, builders and other tradespersons and has no building or engineering expertise herself.

She says that the body corporate’s own annexures show that the work done was both essential and approved. She and the body corporate “carried out remedial work to the ducting deemed necessary by the body corporate engineer. As part of those works, some minor modifications were carried out by the ventilation contractor engaged... to prevent recurrence of problems....” The ducting was badly rusted and corroded from water run off on the roof level and exacerbated by lack of an air-gap between the duct and the concrete slab through which it passed.

She denies that she has failed to provide information or that it is not in body corporate records. She has provided the body corporate with all information requested which was within her technical knowledge. When she did not know the answer she told the body corporate that information was available from her engineer Peter Eustace. The body corporate has ignored that advice from her. It is not her fault if the body corporate cannot find information on its files.

On 22nd September 2009, the body corporate’s solicitor admitted in a letter to her solicitor that –

“We appreciate that over the years, your client has provided various reports to our client in support of her position that the unauthorised works were properly carried out. However for completeness, we suggest that these reports be provided again as there is no complete record of what your client has, or has not, provided.”

There is no evidence that the works have compromised the structural integrity of the building. She continues to maintain the insurance. There are no grounds for the body corporate’s own insurance to be compromised and no evidence of risk.

The list of allegedly unauthorised works in the application reflects in its entirety the items of concern advised by Ms Tang’s engineers to the body corporate in 2003. The body corporate now seems to be confusing necessary remedial maintenance as noted in the engineers’ reports in 2003, with the applications by her to make improvements or alterations to the common property which were approved by the body corporate. The works referred to in the engineering reports were urgent remedial works to common property and were her responsibility by virtue of By-law 20. No further retrospective authorisation is warranted or appropriate.

The roof beam support which was badly corroded was carried out to engineering specifications from the engineers who carried out the structural design for the original building and this information as well as photographs were was supplied to the body corporate in 2003 and again in February 2010.

She says that the work to timbers and linings was to repair them, as they were water-damaged from the decayed waterproofing membrane of the upper slab over a period of years. She replaced the membrane at her own expense and this was noted in the “Tiling motion” to a general meeting of 24th January 2003. The remedial work to the timbers was not of a structural nature.

She says that works referred to in the body corporate’s paragraph 4.8(b)(c)(d)(e)(f)(g)(i) are not alterations or improvements but remedial maintenance works. She denies that the exhaust system’s performance was diminished by the necessary remedial work. The body corporate has not provided any evidence of this to her, or by airflow figures prior to 2003. The state of the ductwork can be seen from the photographs supplied by her and the body corporate’s engineer’s report to be in very poor repair. Peter Eustace says that the remedial work restored the ducting to working order and improved the airflow. The work was carried out by an air conditioning contractor, ICD Installations, which was a company engaged by the body corporate and by her to complete the works. The body corporate was therefore aware of this work being done. The body corporate paid $1,730 for this work. She provides a copy of the general ledger for 25th March 2003. The body corporate continues “not to acknowledge the existence of Peter Eustace’s... reports of October 2008 and March 2010.” GK also changed its mind once it had more information.

There is no evidence that the ducting work was defective or not in accordance with Australian standards. Peter Eustace does not say the work was defective at all.

She also says that By-law 17 was in not in existence at the time she did the renovations which were completed by 8th August 2003 save for the removal of multi-globe poles which was approved at the same meeting. Even so, she “substantially provided” all material which would have been required by By-law 17.

Lot 33 and the ventilation system was inspected by GK in October 2008 but the report was based on inaccurate information and superseded plans, even though she believes that the body corporate had the correct plans and information at the time. Subsequently, the first report was replaced by a second report which concluded that it was the engineer’s belief that the alterations had not caused failure to the ventilation system.

Lot 33 was also subject to a compliance audit conducted by Certis in January 2009. Again Certis was given inaccurate information and superseded plans. She was requested to make herself available for the audit which she did, and gave Certis the approved and correct plans. The body corporate has ignored her request for a copy of the Certis report. She has also commissioned two investigative reports from Peter Eustace in October 2008 and March 2010 in relation to the ventilation system (south side). The contents of both these reports have been ignored by the body corporate, and have not been circulated to owners. Most of the committee meeting minutes do not acknowledge receipt of correspondence from her or her solicitor, or record discussion relating to it.

The Peter Eustace report sheds light on SAIS (Safe Air Industrial Services.) and says that SAIS is a duct cleaning company and does not appear to have the professional expertise to advise on this mechanical ventilation exhaust system. SAIS also relied on the 1978 plan and a fan and ducting installation which was not designed for this scheme. SAIS talked about fires being put out by attaching hose-reels to vertical ducts but Queensland Fire and Rescue Authority says such a practice is not used, especially when subducts are installed on each floor. The electrical maintenance man at the scheme for 20 years Tom Radford, and Guilia Ponticello, predecessor in title to Ms Tang, both say that there was only ever one exhaust air fan installed for the southern aspect mechanical ventilation system, and not two as claimed by the body corporate. ICD Installations is now a company called Airconditioning Installations. This company recalls that it increased the cross-section size of the interconnecting duct, thus reducing friction on the air flow system. Peter Eustace says this would have improved performance. Peter Eustace also says that there is no evidence that the repair of the ductwork and replacement and relocation of the vertical discharge duct to the west by 700cm has diminished the performance of the exhaust system, or that council approval was required. The current exhaust system does not now comply with Australian Standards but perhaps it never did. Both the southern and the northern sides are currently non-compliant.

She also provides a copy of minutes of a committee meeting of 25th July 2007 wherein the building manager reports that plans have been borrowed and not replaced in the resident manager’s office.

Ms Tang made a further submission to answer allegations put in the submission of chairperson Catlin Gallagher, and this subsequent submission was sent to the body corporate to consider in its Reply.

Of the allegation concerning the barbeque, she denies that there has been a request from the building manager for access to the south side roof area which has been denied by her. The building manager has gained access to the exclusive use area without notification to her on several occasions. The stairwell door giving access to the roof area opens inwards and not towards the roof area where the portable BBQ on wheels has been located since 2003. The BBQ is easily moved and does not impede access to the roof area. In late 2003 the body corporate asked permission to allow the building manager to have a master key to the stairwell door, but to notify her when access would be used. She allowed this. Prior to 2003, the body corporate did not have a key. At same time, she and the owner of Lot 32 asked for, and got, permission for the lock on the door to the exclusive use corridor on level 17 to be removed so that access could be gained to the electrical control switchboard for the bathroom/laundry air exhaust fans for the building and fire hydrant on Level 17.

On 25th July 2007 access was gained by the building manager and SAIS for a preparing report and taking photos of the exclusive use area. No notification was given to her of this visit. In April 2008, Ms Tang advised the body corporate that access would be made available on request for duct cleaning. There was no response from the body corporate. On 4th September 2008 the building manager and GK Consulting gained access to the roof area to compile a report again without notification to her. Again the BBQ was no deterrent.

In late 2007 and early 2008 the building manager requested access to the roof area to erect swing scaffolding for repainting. Access was made available for several weeks by Ms Tang. She allowed access by Certis on 16th January 2009; and there have been other times. She has never been asked to provide regular access for inspections nor been informed of that requirement, nor about “areas containing infrastructure”. The only infrastructure in the exclusive use area is the exhaust system fan. The electrical switch for the fan is located in a non-lockable cupboard in the non-lockable corridor of the stairwell which despite forming part of the exclusive use area is openly accessible at all times by the building manager.

She denies moving the air duct for aesthetic reasons. The doorway has not been altered since construction in 1982 except for addition of insect screen. Certis confirmed that the door was original. The moving of the riser was carried out as part of the remedial work and to eliminate problems associated with the original installation and not for any aesthetic reasons. The new riser impinges on the exclusive use space to a greater degree than the original riser.

She denies approaching Peter Eustace in relation to asking him to contact the body corporate engineer in order to change his report. Peter Eustace contacted the body corporate engineer on a professional basis, and at the time she had no knowledge of it.

It says that even if structural modifications were necessary, such structural renovations or modifications still required that a motion be put to the body corporate seeking approval to conduct them. One of the reasons is to make sure such modifications are recorded, and appropriately certified. It says that it is still unclear what work was done and what was just contemplated. It is “regrettable” that Ms Tang did not seek approvals since the body corporate “merely wishes to complete its records.”

It notes that Peter Eustace says that the ducting does not comply with current Australian Standards for ventilation, but there are no records for air flow before 2003. “There is therefore no way of knowing whether or not the non-complying air-flow is as a result of the Respondent altering the ducting system.” ICD refers to increasing the size of the concrete slab, and increasing the cross section. The body corporate did not give approval for this work.

Finally, the body corporate says that it was ”not given the opportunity prior to the alterations to consider the respondents engineer’s report”; not given the opportunity to commission its own expert to advise as to air flow and whether anticipated alterations would improve airflow; and not given the opportunity to confirm that the alterations met Australian Standards. Finally, it was not given an opportunity to consider the motion by Ms Tang.

It denies that By-law 20 is the justification for doing unapproved work, and the by-laws set out clear “guidelines.” It is irrelevant that the work was required, since Ms Tang contravened By-law 13 and By-law 17.

Finally, it says it was “not aware of the ducting issue” in 2003 when the body corporate was concerned about all the structural renovations going on. When the ducting issue arose, the body corporate became aware that the respondent had misled them as to the extent and scope of the works she had carried out. Any on-going delay is of her making for not being frank.

The body corporate brings this application and seeks three outcomes: that Ms Tang, the owner of Lot 33, one of the penthouse lots of the scheme, provides a detailed summary of all “renovation works” carried out on Lot 33 since 1st January 2003; that she identifies which of two motions by which she was authorised to do make improvements to common property by the body corporate at general meetings on 24th January 2003 and 27th March 2003 respectively, authorised the works which will appear on the list of “renovation works” sought by the first outcome; and in respect of “renovations, alterations or repairs” for which she had no (presumably body corporate) authority, that she provides the body corporate with relevant plans, specifications, drawings, engineering certificates and approvals where relevant; and proposes a motion to the body corporate for retrospective approval of “unauthorised works.”

In any application to this Office, it is for the applicant to prove its case on merit in the usual way for civil law applications. The body corporate is unable to say what renovations have been done by Ms Tang which are unauthorised by the body corporate, or should have been authorised by the body corporate. It says in the Reply, that it is still unsure what work has been done at Lot 33, despite a voluminous submission from Ms Tang.

Rather surprisingly, this is also in spite of the fact that the body corporate has inspected Lot 33 with it own engineers on at least three occasions[3] precisely in order to investigate what work was being done, or had been done, by Ms Tang.

The second outcome sought requires Ms Tang to detail from the list of renovations done as provided by her, which renovations encompassed the improvements referred to in Motion 2 and Motion 3 of a general meeting held on 24th January 2003, and those that are not covered by the two motions, are to be proposed as a motion or motions to the body corporate for retrospective approval, along with relevant plans, specifications, drawings, and also engineering certificates and approvals, where relevant.

An adjudicator may make an order which is just and equitable in the circumstances for the resolution of a dispute. The dispute must relate to breaches of rights and responsibilities under the legislation or the community management statement.[4] Whilst the body corporate asserts that Ms Tang has breached scheme by-laws it is not relying on such alleged breaches for the orders it seeks. It has not sent Ms Tang a notice of continuing contravention of by-law which is a pre-requisite for bringing an application to remedy a breach of by-law to the dispute resolution process.[5] The letter dated 11th May 2009 sent to Ms Tang from the body corporate manager did not allege that by-law 17 had been breached in any particular, nor contained the elements required for a contravention notice.[6]

In any event, I am satisfied that By-law 17 as set out in the letter dated 11th May 2009, did not become effective until the recording of the new community management statement on 18th September 2003. It therefore would have no relevance to renovations undertaken before that date, if such is the allegation of the body corporate. There is no evidence that renovations have been undertaken in Lot 33 or its exclusive use area since 18th September 2003, save for Motion 19 of the annual general meeting of 18th March 2005 when an improvement to common property being the replacement of an existing external staircase was approved 18 – 3. This motion does not appear to form part of the body corporate’s concerns in this application.

The body corporate also alleges that Ms Tang has breached “section 162 Accommodation Module”, which I am taking to mean section 164 Standard Module since the scheme is governed by the Standard Module and is the equivalent provision in that regulation. This is a section requiring that an “improvement to common property” be authorised by ordinary resolution of the body corporate, unless it is a minor improvement (with an installed value of less that $3,000 then it can be approved by the committee). Prior to the amendments made to the legislation in August 2008, an improvement, save for a minor improvement, would have required a special resolution of the body corporate.

(1) The body corporate may, if asked by an owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.

(2) The improvement must be authorised by ordinary resolution of the body corporate unless—

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the community titles scheme; and

(c) the body corporate is satisfied that use and enjoyment of the improvement is not likely to promote a breach of the owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) An owner who is given an authority under this section—

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

However, the body corporate does not rely on alleged breach(es) of this section either for the orders which it seeks. Nor does it rely on its third allegation that Ms Tang has interfered with utility infrastructure contrary to section 166 Act, which carries a penalty of up to 100 points in a Magistrates Court.

In respect of the provision of information as is sought by the body corporate, there is no legislative requirement for an owner to provide the body corporate with “a detailed summary of all renovation works (structural or otherwise)...” An owner must provide the body corporate only with details of improvements made to a lot or common property if, because of the improvements, the premium for reinstatement insurance required to be taken out by the body corporate is “likely to increase” (Section 183(1)(b)(ii) Standard Module) (This was section 131 in the Body Corporate and Community Management (Standard Module) Regulation 1997 which would have been relevant in 2003.) In such a case the lot owner is required to give the body corporate details of the “nature and the value of the improvement made” as soon as practicable after the improvements are substantially completed.

If the lot owner does not give the body corporate such details, the lot owner will be liable to reimburse the body corporate for any payment that has been made for the cost of reinstatement or repair of the lot or common property, but only to the extent that the necessity to make the payment can reasonably be attributed to the owner’s failure to provide such details. (Section 183(4) Standard Module.)

“ [T]he body corporate ought to have information (about renovations) as should it be the case that there is some structural or other defect in the building which has been brought about by [Ms Tang’s] unauthorised renovations, it could effect.... the insurance cover for the scheme.”

In its Reply, it says that the issue of the ventilation ducting and the reduced airflow “may negatively impact on the insurance cover of the building and leave each lot owner liable” which is a submission taken from the submission of Mr Gallagher. Mr Gallagher provides no evidence of his fears in this regard.

The body corporate has provided no evidence that since 2003 its insurance premium for reinstatement insurance has increased because of any improvements done by Ms Tang to her lot, or to the exclusive use area of Lot 33, or that the premium is “likely to increase” now because of any improvements done in the past.

Furthermore, the requirement to provide details of the “nature and value” relates only to “an improvement”. The body corporate has provided no evidence of any “improvements” made by Ms Tang about which the body corporate did not know.

The body corporate, in its Reply, seems to me, to accept that the following works were not “improvements” but very necessary repairs –

The body corporate’s complaint is that these were structural repairs which should have complied with the “guidelines” of By-law 17. As I have noted above, By-law 17 was not in existence when the structural repairs referred to in the Reply were concluded.

In respect of work done to the ventilation ducting being “an improvement”, I find that the body corporate knew about this work. An analysis of the body corporate’s knowledge, at the least, is as follows –

John Daley (Mr Daley) of Airconditioning Installations, formerly ICD, says that in March 2003 he found the ductwork to be so deteriorated that replacement was necessary. It was rusted through at the bends and where it penetrated the concrete slab between levels 16 and 17.
There was “no point” repairing that duct without also attending to the cause of the corrosion “and increasing efficiency where practical”. He increased the size of the ductwork in the laundry and toilet risers so that the cross-sectional area of the duct was increased from 1.590cm² to 1.843cm². This was to allow for less frictional loss of air flow. New larger transition sections were installed to suit the ductwork, and the hole in the concrete slab had to be made larger “to allow some space between the ductwork riser and the slab to stop corrosion and also to allow for the increase in the size of the riser in the duct. The cross sectional free area is now 3.600cm², an increase of double the original the free air area”.

For Ms Tang to know now, (or then) whether such work constituted “an improvement” or “a repair” is, in my view, far-fetched. It is certain that the body corporate knew of the “interference” to the utility infrastructure. The body corporate paid ICD for the work done, sharing the cost with Ms Tang. If the body corporate did not check the work, or had concerns about the work done, it is unlikely it would have paid the bill, without more. If the body corporate was also of a view that the increase in the size of the ductwork constituted “an improvement” requiring the approval of the body corporate, it might itself have proposed a motion to a general meeting or recommended to Ms Tang, that she should do so. Utility infrastructure remains common property and therefore a body corporate responsibility. [9]

It is prohibited for an exclusive use area to include exclusive use to the rights and enjoyment of utility infrastructure. Section 177 Act provides -

(1) An exclusive use by-law must not give exclusive use to the rights and enjoyment of, or other special rights about, utility infrastructure that is common property or a body corporate asset.

The exclusive use area enjoyed by Lot 33 does not therefore carry with it the responsibility to maintain utility infrastructure, and cannot do so. It is in my view quite extraordinary that Ms Tang was willing to pay for such work at all, since the ducting was not utility infrastructure which provided a service only to her lot.[10]

In respect of whether “maintenance” constitutes “an improvement”, there has been much debate, and it is accepted that sometimes in order to repair, an element of improvement may or must be accommodated. In an appeal of an order of a referee under the Building Units and Group Titles Act 1980 it was stated –

"the term repair may also be interpreted to include replacement, refurbishment and maintenance and I accept that the repairs may invoke an element of improvement, but may still remain within the general concept of repair.” [11]

“For example, the view has been taken that quite different solutions or methods of repair might be categorised as "maintenance" if the principal intention of the proposal is to return something to a useable condition or state of repair. For example, replacement of a balcony balustrade with a safer type of balustrade can constitute "maintenance", as can redecorating common property lift landings and replacing the floor coverings.

A narrow view put forward by the applicants is to the effect that any "change" amounts to an "improvement" even if that change is for the purpose of maintenance. I note that the definition of "improvement” in the Act includes both structural and non-structural changes and that the definition of "change" in the Acts Interpretation Act includes change by addition, exception, omission or substitution....”

“On balance, I prefer a broad view of "maintenance" that does not classify a change as an "improvement" if the purpose of the proposal is maintenance of existing structures or things, even if the work involves some change or the replacement of something with a modern equivalent....”

The body corporate says that it is concerned only with “structural” renovations, and the integrity of the building, and not therefore all “improvements” which Ms Tang is alleged to have (possibly) made. [13]

The body corporate maintains a responsibility within a building format plan for the maintenance of the structure of the building, whether or not the structure is within a lot and/or an exclusive use area.

(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

[Note—For utility infrastructure included in the common property, see section 20 of the Act (Utility infrastructure as common property).

(2) To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must—

(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not common property in a structurally sound condition—

(iii) essential supporting framework, including load-bearing walls.
(3) Despite anything in subsections (1) and (2)—

(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit; and

(b) the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that the utility infrastructure—

1 An air conditioning plant is installed on the common property, but relates only to supplying utility services to a particular lot. The owner of the lot would be responsible for maintaining the air conditioning equipment.

2 A hot-water system is installed on the common property, but supplies water only to a particular lot. The owner of the lot would be responsible for maintaining the hot-water system and the associated pipes and wiring.

(c) the owner of the lot is responsible for maintaining the tray of a shower that services the lot, whether or not the tray forms part of the lot.

(4) To avoid any doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) to maintain a part of a lot in good condition or in a structurally sound condition, the body corporate may recover the prescribed costs, as a debt, from a person (whether or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot.
(5) In this section—

prescribed costs means the proportion of the reasonable cost to the body corporate of carrying out the maintenance that can, in the body corporate’s reasonable opinion, be fairly attributed to the person’s actions.
...(omitted)”.

Section 173(3)(b) Standard Module makes it clear that a grantee of an exclusive use area in a Building Unit Plan, in the absence of “other specific provision in the by-law” does not become responsible for maintaining the exclusive use area in a structurally sound condition, the structural elements which are echoed from section 159(2)(b) Standard Module, quoted above. By-law 20 merely requires the owner for the time being of Lot 33 to “care for and maintain ... in good order” a delineated area of roof top. I am of the view that such general wording does not shift any burden from the body corporate to the owner to maintain “roofing structures providing protection” or “essential supporting framework, including load bearing walls” in a structurally sound condition, save where they are “constructed by or for the owner.”[14] Such a provision in a by-law would have to be particularly specific to shift the burden for structural maintenance, and might even be open to challenge as being not within the general intent of the legislation that such vital elements of a building should be left in the hands of individual owners.

Prime facie, it seems that the work undertaken by Ms Tang in 2003, which I have found was within the knowledge of the body corporate, included structural repairs for which the body corporate was alone liable, for example replacing the column which had rusted away from its base which required the ceiling to be propped up before it could be removed.

However, the analysis above has been undertaken only to investigate if any “improvements” undertaken by an owner triggered an increase, or are likely to trigger an increase in the body corporate’s insurance premium, such that disclosure is required under the Act. There is no evidence that such is the case, even if the works undertaken could be called “improvements” and not “maintenance”, about which there is also no evidence.

Recent engineering reports agree that the current air flows do not meet Australian Standards. As the body corporate says –

“There is no way of knowing whether or not the non-complying air-flow is as a result of [Ms Tang’s] altering the ducting system”.

The body corporate does not know what Ms Tang has done wrong, but it suspects that in 2003, inter alia she unlawfully tampered with the ventilation ducting system in such a way so as to make it work less efficiently than it did before, to the detriment of lot owners who have lots on the south side of the building. It seems to me that the body corporate does not yet know whether or not it has a dispute with Ms Tang, but hopes to find out from this application. The outcomes sought surely are in the nature of a fishing expedition, if not a witch-hunt.

I am satisfied that what Mr Daley did to the ducting system in March 2003 was in concert with qualified engineers and whilst the technical details may not have been known to the body corporate committee, the work had the approval of those advising the body corporate. There is no evidence that Mr Daley acted on a whim of his own or, even less likely, under the instruction of Ms Tang, behind the back of, or against the advice of, CSF.

Furthermore, what information can I order Ms Tang to provide, and how can that be enforced? If she provided to the body corporate a list of “renovation works” which is, or which she says is, within her knowledge, then how could the body corporate challenge that list, to show that Ms Tang is in breach of an adjudicator’s order?

I am of the view that the first outcome sought is not a suitable or relevant order for the determination of a dispute. The other two outcomes sought rely on the first outcome sought and the provision of a list and/or admission of liability by Ms Tang, and therefore fall with it. I find that there is no further or other orders which I could make to solve the dispute since no dispute is demonstrated by the body corporate.

I therefore dismiss this application. The body corporate has failed to satisfy me that there is any duty on Ms Tang to provide the information requested, nor to seek approval from the body corporate for “improvements” which have not been identified.

Further, it seems to me that this application was misconceived and without substance. I find that such information as Ms Tang had was available to the body corporate by the latest at 1st March 2010, (the date of Peter Eustace’s second report when he summarised all the available evidence), but in all probability, well before that date. There is also evidence that body corporate records were archived in such a way that it was not easy for the body corporate to gain access to them; that plans had gone astray or were no longer in the body corporate’s possession; and that the body corporate did not pursue Ms Tang “continuously” as alleged, but opened the issue again in 2007 when it was last raised ion 2003. The application did not refer to the numerous letters and explanations from Ms Tang over the years, but said that she did not respond, and refused to give information. This was simply not true. She did not give the reply that the body corporate wanted to hear, but she responded diligently and to the best of her knowledge and ability. She also engaged an engineer, Peter Eustace, to assist her and the body corporate with the history of the renovations.

In addition the renovations complained of occurred seven years prior to this application being made.

Costs
On 3rd November 2010 I advised the parties that I was considering an order for costs in this matter on the ground that the application was frivolous, vexatious, misconceived or without substance.

Pursuant to section 270 Act, an adjudicator has a limited jurisdiction to award costs where an application is dismissed for being frivolous, vexatious, misconceived, or without substance. The costs are limited to the following circumstances as set out at section 270(3) -

(3) If the adjudicator makes an order under subsection (1)(c), the adjudicator –

(a) may order costs against the applicant to compensate all or any of the following for loss resulting from the application—

(iii) an affected person; and
Example of loss for paragraph (a)—
legal expenses reasonably incurred by the person in relation to the application

(b) in ordering the costs, may have regard to previous applications made by the applicant.
(4) The total amount of costs ordered under subsection (3) must not be more than $2000.

On 7th November 2010 Ms Tang noted that the whole matter had caused her considerable expense, through legal fees, engineering reports, council and body corporate search fees and “incidental costs”, totalling in excess of $6,000, but not all directly attributable to this application. As an owner she has also paid a part of the body corporate’s costs in pursuing this dispute. She notes legal fees directly applicable to this application as totalling $5,223.45 paid to Success Law in two parts on 28th July 2010 and 30th September 2010. She sent copies of the detailed accounts.

I asked the body corporate on 9th November 2010 if it would like to make submissions on the claim for costs by Ms Tang.

The body corporate on 19th November 2010 submitted that the application was not “even remotely” in the category of a “vexatious” application as particularly detailed in Kookaburra Park Eco Village [2003] QBCCMCmr 147 (2 October 2003). It notes that it has brought no previous applications against Ms Tang, and that it was not the predominate purpose of the body corporate to harass or cause annoyance to Ms Tang. It denies that there are any grounds to suggest that the body corporate was either vexatious or that this application was without substance.

The degree of vexation in Kookaburra Park Eco Village referred to was particularly severe, and the parties had brought many applications against each other for dispute resolution. Whilst this application was not in that league, it is clear that the body corporate on 31st March 2008 voted against taking legal action against Ms Tang in respect of the same matters complained of in this application. The committee, not unanimously, has however continued to pursue Ms Tang over the same matters. The body corporate was also warned by Ms Tang’s solicitors on 12th June 2009, when the matter continued following the vote at the general meeting, that the committee‘s action amounted to harassment, and was unreasonable. (see letter August 2009).

In February 2009, Mr Hendry, a long-serving committee member, with considerable diligence put together a detailed report for the body corporate collating the history of the dispute, and finding that the body corporate would be better off not pursuing Ms Tang any further. The remainder of the committee chose to ignore this good advice.

I find that the statement in the Reply that the body corporate “did not have the opportunity” to consider the engineer’s report prior to the alterations being made in 2003 to be untrue, as is the statement that the body corporate “did not have the opportunity” to commission its own expert to advise as to air-flow. The body corporate might have taken both steps if had desired to do so.

I am satisfied that the accounts as submitted by Ms Tang are legal fees relevant to this application. The maximum which can be awarded is however, the sum of $2,000.

For the reasons given above, I am giving costs of $2,000 to Ms Tang, to be paid by the body corporate within one month of the date of this order.

Addendum
As an addendum to this application, I advise all those concerned that the body corporate has powers of entry into a lot or exclusive use area by virtue of section 163 Act, when the purpose is to inspect to find out whether work which the body corporate is required to do is necessary, and to carry out such work. The power may be exercised by giving written notice of 7 days to the owner of the exclusive use area or lot, save in an emergency.

[1] The scheme is governed by the Body Corporate and Community Management (Standard Module) Regulation 2008
[2] Safe Air Industrial Services (Qld) Pty Ltd
[3] CSF Consulting Engineers – 21st Feb 2003 and fax 6th March 2003
GK Consulting Engineers - October 2008 and letter 10th Nov 2008
Certis Building Certification – Level 17 Compliance Report - 20th January 2009
[4] Section 276(1) Act
[5] Section 184(2) Act
[6] Section 182(4) Act elements of a continuing contravention notice.
[7] 21st February 2003 – CSF Consulting Engineers Pty Ltd (CSF)
[8] p.2 report CSF Consulting Engineers Pty Ltd dated 21st February 2003
[9] Section 20 Act and section 177 Act
[10] The exception for a lot owner to maintain utility infrastructure, see section 159(3)(b) Standard Module.
[11] Proprietors “The Rocks Resort” v. Costi, Building Units Appeal Tribunal No 227 of 1997, O’Driscoll SM, 24 September 1997.
[12] [2006] QBCCMCmr 539 (24 October 2006)
[13] Para 4.9 page 8 application.
[14] Section 173(3)(b) Standard Module.

Number of Scheme:	10749
Name of Scheme:	The Dorchester
Address of Scheme:	3-7 Garfield Terrace SURFERS PARADISE QLD 4217

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Dorchester [2010] QBCCMCmr 539 (1 December 2010)