Thornton Tower [2010] QBCCMCmr 59 (11 February 2010)

Last Updated: 23 March 2010

REFERENCE: 0726-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12433
Name of Scheme:	Thornton Tower
Address of Scheme:	33 Thornton Street SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Thornton Tower community titles scheme 12433

I hereby order that the application for an order by the body corporate for Thornton Tower community titles scheme 12433 against Melina T Pty Ltd, the owner of Lot 143A and its director, Tony Lavalle seeking the following outcomes: 1.That the exhaust fan be removed and replaced with the smaller capacity fan which was previously installed to reduce the noise it makes. 2.That the Lot may not be used for any purpose other than a kiosk, in particular that it may not be used as a restaurant. 3.That the air-conditioning unit on common property be removed unless or until the Body Corporate gives its written approval. 4.That the brown vent at the exhaust vent outlet be removed unless or until the Body Corporate gives its written approval. 5.That all screws inserted in common property be removed and all damage caused by such screws or their removal and any holes drilled in common property be repaired. 6.That any damage caused by attending to the abovementioned procedures be repaired. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0726-2009

“Thornton Tower” CTS 12433

The scheme
“Thornton Tower” community titles scheme 12433 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application was made on 4 August 2009 by the Body Corporate seeking outcomes against Michael Asaad, the occupier of Lot 143A. The Body Corporate named Melina T Pty Ltd, the owner of Lot 143A as an affected person. On 10 August 2009, the Commissioner invited submissions from Mr Asaad and lot owners regarding the application. On 17 September, Adamson Bernays Kyle & Jones, solicitors for the Body Corporate (ABKJ) informed the Commissioner that as Mr Asaad had vacated the premises, he no longer needs to be a respondent to the application. It was requested that Melina T Pty Ltd, the owner of Lot 143A and its director, Tony Lavalle be substituted as respondents. The application was amended and Melina T Pty Ltd was invited to make submissions on the amended application on 25 September.

The Body Corporate seeks the following outcomes:

1. That the exhaust fan be removed and replaced with the smaller capacity fan which was previously installed to reduce the noise it makes. The Body Corporate refers to By-Law 1 stating a previous occupier of the Lot replaced the smaller fan with a larger capacity extremely noisy exhaust fan which is not necessary for the use of the Lot as a kiosk.
2. That the Lot may not be used for any purpose other than a kiosk, in particular that it may not be used as a restaurant. The Body Corporate refers to By-Law 12 stating Melina T Pty Ltd is seeking an occupier of the Lot and is advising prospective tenants that the Lot may be used as a restaurant, a purpose not permitted by the By-Law. The Body Corporate says it wishes to prevent Melina T Pty Ltd from using the Lot or allowing any other person to use the Lot for any purpose other than a kiosk and purposes ancillary thereto.
3. That the air-conditioning unit on common property be removed unless or until the Body Corporate gives its written approval. The Body Corporate refers to By-Law 3 stating a previous occupier of the Lot installed an air-conditioning unit and other fixtures and fittings on common property without the consent of the Body Corporate.
4. That the brown vent at the exhaust vent outlet be removed unless or until the Body Corporate gives its written approval. The Body Corporate refers to By-Law 5(1) stating a previous occupier of the Lot drilled a hole through the structural concrete slab to the car park below and replaced the green duct for the exhaust system with a large second-hand unsightly brown vent without Body Corporate approval.
5. That all screws inserted in common property be removed and all damage caused by such screws or their removal and any holes drilled in common property be repaired. The Body Corporate refers to By-Law 5(1) stating a previous occupier of the Lot drilled holes into a common property wall and inserted large screws without Body Corporate approval.
6. That any damage caused by attending to the abovementioned procedures be repaired.
   

The Body Corporate says Melina T Pty Ltd is in breach of the order made on a previous dispute resolution application (Thornton Tower [2007] QBCCMCmr 487 (14 August 2007)) insofar as damage has been caused to common property. The Body Corporate is concerned Melina T Pty Ltd has a clear understanding of its obligations to comply with by-laws and the 2007 adjudicator’s order.

The Body Corporate provided a copy of a number of documents, including:

• A letter dated 18 March 2009 from Mrs Robb (Body Corporate Manager) to Melina T Pty Ltd referring to the installation of an air-conditioning unit by the then occupier of Lot 143A without Body Corporate approval.
• A letter dated 24 April 2009 from ABKJ to Mr Asaad stating they have been instructed that he caused a hole to be drilled through the concrete slab without permission, and requiring that the slab be repaired.
• A letter dated 24 April from ABKJ to Melina Pty Ltd referring to work carried out on common property by Mr Asaad, asking that rectification work be arranged and stating that as the owner Melina T Pty Ltd is responsible for Mr Asaad’s actions.
• A facsimile dated 9 June 2009 from J Hall Lawyers to ABKJ indicating that the Gold Coast City Council has informed that the Lot is classified as a restaurant and café.
• A reply dated 10 June 2009 from ABKJ referring to By-Law 12.
• A ‘Notice To Re-Enter Premises’ dated 7 March 2009 to Mr Asaad (lessee) from Melina T Pty Ltd (lessor) referring to the air-conditioning unit, the vent for the exhaust fan and unauthorised connections to the premises.
• An unsigned and undated ‘Notice of Continuing Contravention of a Body Corporate By-Law’ to Melina T Pty Ltd referring to By-Laws 1, 3, 5(1), 8, 12, 14, 15 and 23 saying it has allowed the occupier or failed to prevent the occupier from: creating noise by running a noisy exhaust fan (By-Law 1); installing an air-conditioning unit on common property (By-Laws 3, 5(1), 8, 14 and 23); drilling holes into a common property wall and inserting screws and replacing the green duct with a brown vent (By-Laws 5(1), 8 and 14); and using the Lot for a purpose other than a kiosk as it is being used as a pizza restaurant (By-Law 12).
  

Submissions to the Commissioner
Melina T Pty Ltd did not respond to the Commissioner’s invitation to make submissions. The application is supported by 43 lot owners.

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

Jurisdiction
An adjudicator may make an order to resolve a dispute 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 (s 276(1), Act).

Decision
While the abovementioned by-law contravention notice refers to By-Laws 1, 3, 5(1), 8, 12, 14, 15 and 23, the Body Corporate relies on By-Laws 1, 3, 5(1) and 12 in this application. The community management statement for the scheme (No. 709579098) includes By-Law:

1. NOISE

The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.

3. OBSTRUCTION

The occupier of a lot must not obstruct the lawful use of the common property by someone else.

5. DAMAGE TO COMMON PROPERTY
   • (1) An occupier of a lot must not, without the body corporate’s written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property,
12. USE OF LOT

Each lot shall be used for residential purposes only except Lot 143 which may be used as to part for office purposes including reception office, letting office relating to the lots in the building, manager’s office, food preparation centre, cleaning centre and for such other purposes as are ancillary to its use as the manager’s office, and to the remaining part for the purpose of a kiosk and for the purposes ancillary thereto but shall not be used for residential purposes.

The by-laws stated in the community management statement are binding on the body corporate, each member of the body corporate and each person who is otherwise the occupier of a lot in the scheme (s 59 and 66, Act). An “occupier of a lot” includes “a resident owner or resident lessee of the lot or someone else who lives on the lot or a person who occupies the lot for business purposes or works on the lot in carrying on a business from the lot” (schedule 6, Act).

A function of the body corporate is to enforce the community management statement, including the by-laws (s 94(1)(b), Act). Sections 182 to 188 of the Act provide a framework for dealing with by-law contraventions. Relevantly, section 182 provides that if a body corporate reasonably believes an owner or an occupier is contravening a by-law and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person to remedy the contravention. The notice must state the by-law the body corporate believes is being contravened and details sufficient to identify the contravention. The person must comply with the notice. The notice must state that if the person does not comply, the body corporate may start proceedings in the Magistrates Court or make a dispute resolution application (s 182(4)(e) and s 183(4)(e)). If the body corporate gives notice to a person who is not the lot owner, the body corporate must give a copy of the notice to the owner (s 187, Act). Ordinarily, a body corporate may make a dispute resolution application to resolve a dispute between it and the owner or occupier of a lot where the body corporate reasonably believes the owner or occupier has contravened a by-law only if the body corporate has given the requisite contravention notice (s 184, Act).

The Body Corporate has provided material which suggests it gave a contravention notice to the owner of Lot 143A before making the application. The notice named the owner even though it is apparent from the material submitted in the application that the owner did not, at that time, occupy the Lot. There is nothing to suggest Melina T Pty Ltd was or is the occupier of the Lot. The material indicates the Body Corporate claimed the owner “allowed the occupier to or failed to prevent the occupier” from contravening particular by-laws. By-Laws 1, 3 and 5 set rules about noise, obstruction and damage to common property. Each By-Law regulates the activities of the occupier of a lot. The By-Laws do not make the owner of a lot liable or responsible for the actions of the person who is occupying the lot in the way mentioned in the contravention notice. I have not been referred to, nor am I aware of any other by-law or any provision of the legislation which may have this effect.

The Body Corporate has argued, and has provided material suggesting, that a previous occupier of Lot 143A did things contrary to By-Laws 1, 3 and 5. This person was bound by the By-Laws as an occupier. It is not disputed that this person no longer occupies Lot 143A. This circumstance does not, in my view, make the owner of the Lot liable or responsible for the claimed by-law contraventions. In this regard, I do not consider there is a dispute about a contravention of the Act or the community management statement; or about the exercise of rights or powers, or the performance of duties, under the Act or the community management statement.

The Body Corporate has also relied on By-Law 12. However, it has not demonstrated that the owner of Lot 143A has contravened the By-Law and continues to do so in a way which would warrant an order of the nature sought.

With respect to the claimed breach of the order made in 2007, it should be noted that sections 286 to 288 make provision for the enforcement of an adjudicator’s order.

For these reasons, the application is dismissed.