Tully v The Proprietors The Nelson Body Corporate
[2000] QDC 31
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- Tully v The Proprietors The Nelson Body Corporate[2000] QDC 31
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Tully v The Proprietors The Nelson Body Corporate[2000] QDC 31
Tully v The Proprietors The Nelson Body Corporate[2000] QDC 31
DISTRICT COURT OF QUEENSLAND
CITATION: | K.G. Tully & Anor. v. The Proprietors The Nelson Body Corporate [2000] QDC 031 |
PARTIES: | KEVIN GERARD TULLY and KIM MOYNE (Appellants) v THE PROPRIETORS THE NELSON BODY CORPORATE CMS 9596 (Respondent) |
FILE NO/S: | Appeal 415 of 1999 |
DIVISION: | DISTRICT COURT |
PROCEEDING: | APPEAL TO DISTRICT COURT FROM ADJUDICATOR’S DECISION |
ORIGINATING COURT: | DISTRICT COURT, SOUTHPORT |
DELIVERED ON: | 10 MARCH, 2000 |
DELIVERED AT: | BRISBANE |
HEARING DATE: | 2 FEBRUARY 2000 |
JUDGE: | P.D. Robin, Q.C., D.C.J. |
ORDER: | APPEAL DISMISSED WITH COSTS |
CATCHWORDS: | Body Corporate and Community Management Act 1997 s. 133(i), s. 182, 192, s. 220(i), s. 221, s. 237, s. 242 – Body Corporate and Community Management (Standard Module) Regulation 1997 s. 113 – appeal to District Court from adjudicator’s decision dismissed – adjudicator held to have no jurisdiction because there was no “dispute” – applicant/appellants nominated committee of body corporate as the other party to a “dispute” – as they required an “exclusive use by-law” to authorise keying-off their floor of a high rise building, they must have properly approached the body corporate as such in general meeting and have their proposal rejected before there would be a relevant “dispute” – District Court held it was for the adjudicator to determine what investigations to make under s. 220 and s. 221. |
COUNSEL: | Mr T Green (Solicitor) for Appellants Mrs W Cull for Respondent |
SOLICITORS: | Carter Green & Co for the Appellants Teys McMahon for the Respondent |
- [1]This is an appeal brought to the District Court by Mr and Mrs Tully in reliance on Chapter 6 Part 12 (s. 237ff) of the Body Corporate and Community Management Act 1997 against the order of an adjudicator made under the chapter on 17th February 1999. That order was one dismissing their application for an order granting permission “to key off our 15th floor – the cost to be borne by ourselves and our neighbours, so as to give security to this floor against the high rise burglaries.” The “neighbours” are the owners/occupiers of the only other unit on the floor. There is evidence of their support for the application, which I think may be relied on, although Mrs Cull, counsel for the respondent body corporate, pointed out it has not been made clear whether they, or indeed the applicants themselves, accept a continuing obligation to maintain the foyer area, which they may have to do if the outcome of the proceedings is that it be blocked off.
- [2]While Mrs Cull presented a case on the merits, she also relied on an objection to the application based on there being no “dispute” within the meaning of s. 182. The definition there defines disputes in terms of the parties to them. The only potentially relevant category is:
“(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in a scheme.”
- [3]There must be a “dispute” before an adjudicator has jurisdiction. The application identified the committee of the body corporate as the other party to the dispute. The respondent’s case is that the nature of the permission sought by the appellants was such that the body corporate itself must give permission or authority; it never having been asked by the appellants to do so there can be no dispute involving it as a party, and therefore no right in the applicants to apply to the adjudicator on the basis that they are parties to “a dispute” for purposes of s. 192(1)(a). The objection to the application is sound in principle, in my opinion. The existence of a relevant “dispute” is fundamental to an adjudicator having jurisdiction.
- [4]This can not be avoided by recourse to a provision such as s. 113 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (applicable to this body corporate) which Mr Green for the appellants contended was applicable here, on the basis that what his clients sought amounted to an “improvement to the common property” which may be made by the body corporate if, among other cases:
“(c) an adjudicator, made under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements.”
- [5]The adjudicator here having declined to make the order, it is sought that the Court make it. In my opinion, however, it is plain that this may be done only if the dispute resolution provisions in Chapter 6 of the Act are truly applicable. The question the Court must decide is whether the body corporate as such, acting by resolution at a general meeting or refusing to act by rejecting a relevant motion is the appropriate entity to say yes or no to the appellants’ request.
- [6]The application stated the following grounds:
“The request was initially bought up at the AGM May 16 1997 in the form of a question regarding security and keying off floors. Since then I have had several discussions with Gerard Hoogesteynes (Helen Howard only took over 26.5.98. Each time the issue has been raised with the bodycorp, it has been deferred and I have been advised to seek permission from the council, the fire board, the other owner on our floor and when all these had been obtained, I bought this up at the 1998 AGM only to be told it would be discussed at the September 16th meeting. I have also sought advice from my solicitor, who agrees with Gerard, that it is not a question “of exclusive use” (as there are 2 owners) and can not see why they are procrastinating. We are on the top floor, and we are very concerned over the lack of security in our building, whereby an intruder entering, can freely go from floor to floor and this has happened.
P.S. In October/Nov 1997 permission was given at a meeting and Otis arrived only to be sent away by the previous bdg manager even though he had been present at the meeting – he requested a letter from the bodycorp and then later other requests were made. We have complied with all.”
- [7]Tender of minutes of general meetings and committee meetings by Mrs Cull established that nothing relevant occurred at any general meeting of the body corporate or at any meeting of the committee beyond the following item at a meeting of June 10th 1998 at 2.00pm:
“Request by Kim Tully of Unit 79 - Penthouse Unit – To key off this floor of the building for security purposes at the cost of the two owners residing there.
Discussion followed and the Building Manager advised the meeting that the Fire Brigade have approved of this action and would need to be notified if the proposed Security changes are carried out.
Concern was expressed re access being denied of the common areas located on this floor, by the owners residing on other floors in the building. The meeting was advised that all the owners of the building are Tenants in Common of all the common property and should therefore be allowed access to same, unless Exclusive Use had been obtained.
It was RESOLVED that the Secretary seek legal advice on this matter and report back with same to the next meeting of the committee.”
- [8]At an AGM on 28th July 1999 (which was, of course, after the adjudicator’s determination), Mrs Tully proposed an ordinary resolution “that the body corporate resolves to take a poll of all owners to be taken to request that all floors have the lifts keyed off on all floors” which attracted 10 votes for, but 29 against. Mrs Tully’s motion was but one of a number of hers relating to enhancing security in the building. It does not seem possible by any form of reasoning to convert a request for a “poll of all owners” directed to obtaining an expression of opinion into a judgment by the body corporate that the 15th level be keyed off, or not be keyed off.
- [9]The adjudicator was in receipt of information regarding the views of other lot owners, only one supportive of the application, 17 opposed, giving reasons summarised thus:
- A precedent would be established if the elevator to level Q could be keyed off resulting in possible similar requests from the others of the other units in the building.
- The keying off of level Q should be done by exclusive use by-law.
- The keying off of level Q would restrict access to the roof of the building.
- This matter should have been considered by the body corporate in general meeting.
- There is little evidence to support the view that the building is subject to intrusion by burglars.
- There is some doubt as to whether the keying off of level Q would improve the security of the building.
- [10]The second and fourth of those points related to the issue of competence of the application. The adjudicator noted the opposed views that were current, but made no determination as to whether an “exclusive use by-law” was required. Mr Green seized on this as a question of law justifying the appeal under s. 237(2) of the Act. The other question of law relied on was the asserted failure of the adjudicator to investigate as required by s. 220(1). The adjudicator was criticised for leaving matters uncertain or unresolved, such as whether breaches of security as asserted by the applicant related to the subject building in particular or to high rise buildings on the Gold Coast generally and whether roof access (necessary for lift maintenance, or perhaps for the safety of people caught in the building in an emergency) would really be compromised. Instead of complaining of a lack of evidence of security problems in the building or “that the body corporate had unreasonably rejected any proposal to initiate appropriate security measures”, it was argued, the adjudicator ought to have investigated and formed a view. Mr Green submitted that this Court, on the evidence in the record, could and should form a view favourable to the application or, alternatively, send the matter back to the adjudicator with a direction to proceed appropriately under s. 242(1)(c). According to Mr Green, the case was a clear one of an “improvement” and there was no possible issue of what his clients proposed relating to the common property on level Q constituting a nuisance within s. 129 of the Act.
- [11]In my opinion, under s. 220 and s. 221 it is for the adjudicator to determine what ought to be done by way of investigations and there is no error of law by an adjudicator who determines that the evidence available is insufficient to justify a necessary conclusion and does not actively seek further evidence to support the application. If it matters (and I am doubtful this is a question of law) I agree with the adjudicator’s observation that the appellants’ proposal served the interests of their own lot and the adjoining lot on the same floor and not those of owners generally, a conclusion which would justify his declining to make the order as an “improvement” under s. 113(c) of the Standard Module. More fundamentally, I see no justification for the view advanced by Mr Green that under this provision the adjudicator may make an exclusive use by-law. In my opinion such a by-law is the only means whereby the keying off of level Q (so that access to the common property there is restricted to the owners of lots 79 and 80 and their privies) may be achieved.
- [12]Section 133(1) of the Act is as follows:-
“An “exclusive use by-law” for a community titles scheme is a by-law that attaches to a lot included in the scheme, and gives the occupier of the lot for the time being exclusive use to the rights and enjoyment of, or other special rights about –
- (a)common property; or
- (b)a body corporate asset.”
- [13]Mr Green argued that there was no question of “exclusive use” here, given that the special treatment involved was not restricted to lot 79, but extended equally to lot 80. Mr Green also contended that the body corporate and persons specially authorised by it to have access to the common property on level Q also would have rights of access, thus denying any exclusivity. Mr Green claimed assistance from the Court of Appeal decision in Platt v Ciriello (1997) QCA 33 (14 March 1997) decided in a somewhat different context. I am unable to see that it advances his case. In principle, it seems to me possible that the occupiers of more than one lot may be given “exclusive” use of some part of the common property or of a body corporate asset for purposes of s. 133 and related sections – the occupiers of the remaining lots are excluded in exactly the same way. As Mrs Cull pointed out, it is not necessary to reach a concluded view about the concept of “exclusive use”, in any case, because an exclusive use by-law is equally necessary should the occupier of a designated lot (or, I would say, the occupiers of designated lots) be given “special rights” about common property or a body corporate asset. I think that situation undoubtedly arises if those connected with lots 79 and 80 have access to the common property on level Q which is not available to the occupiers of other lots, who, ordinarily, would have access to such parts of the common property.
- [14]I refuse to hold, as Mr Green asked, that the appellants’ application did not require an exclusive use by-law to be given lawful effect. The contrary is the position. No attempt having been made by the appellants to have such a by-law adopted by the body corporate, it follows that they are in no position to complain and, further, that there was no “dispute”, as defined, in which the adjudicator had jurisdiction. Assuming, for the purposes of argument, that the committee of the body corporate had been uncooperative, that does not, for purposes of this controversy, establish a dispute between the appellants and the body corporate.
- [15]I would not wish to be critical of the adjudicator, who may be seen as assisting the parties by forming and stating views regarding the matters referred. It does not appear that any submission was made to the adjudicator that there was no jurisdiction. If my view is wrong, and there was jurisdiction, no just criticism is open of the manner in which the adjudicator exercised the jurisdiction. In particular, it seems obvious there ought to be serious concern about the restriction of access to the roof of the building from level Q, which is as high as it is possible to travel by lift. Convincing evidence would be needed that the keying off of that level as requested by the appellants would not compromise safety.
- [16]The adjudicator having dismissed the application, it suffices that this court simply confirm the order under appeal under s. 242(1)(a) of the Act. The appeal should be dismissed with costs.