Luadaka v Body Corporate for the Cove Emerald Lakes - [2013] QCATA 183

CITATION:

Luadaka v Body Corporate for The Cove Emerald Lakes [2013] QCATA 183

PARTIES:	Diane Luadaka (Appellant)
v
Body Corporate for The Cove Emerald Lakes CTS 30595 (Respondent)

APPLICATION NUMBER:

APL368-12

MATTER TYPE:

Appeals

HEARING DATE:

24 April 2013

HEARD AT:

Brisbane

DECISION OF:

Kenneth Barlow SC, Member

DELIVERED ON:

3 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Appeal dismissed

CATCHWORDS:

Body Corporate and Community Management – whether decision of committee “reasonable”

Body Corporate and Community Management Act 1997 (Qld), s 94(2)

APPEARANCES and REPRESENTATION (if any):

APPELLANT:

Diane Luadaka represented herself

RESPONDENT:

Body Corporate of The Cove Emerald Lakes,
represented by Charlie Holland and Joanne Sewell (committee members)

REASONS FOR DECISION

Ms Luadaka is the owner of Unit 1008 in the community titles scheme of which the respondent is the Body Corporate.
Ms Luadaka appeals from a decision of an Adjudicator dismissing her application. She had applied for an order that the Body Corporate pay the costs of and incidental to replacing and removing conduit and wiring from the common property outside units 1005, 1006, 1007 and 1008 to a less visible position. She seeks an order to the same effect in this Tribunal.
The application arose out of the installation of solar panels on the roofs of each of the units referred to above. The work included the installation of conduit wiring on some external faces of the building, which Ms Luadaka contends (and I understand it is not seriously disputed) was unsightly. In essence, Ms Luadaka asked the Body Corporate to require the removal of conduits from all the relevant units and to do so at its expense. In response, the Body Corporate wrote to Ms Luadaka stating that it would not be pursuing the matter with the owners of lots 1005 and 1006 and requiring her to remove or paint the conduits on the outside wall of her unit.
The Adjudicator dismissed Ms Luadaka’s application on the basis that the Body Corporate had acted reasonably in making the decisions that it had. Ms Luadaka contends that, in forming that conclusion, the Adjudicator erred in law because the decision could not be objectively reasonable, and therefore it was made in breach of s 94(2) of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act). On that ground, she says, the decision ought be set aside and this Tribunal ought make the order that she sought from the Adjudicator.
The saga concerning the solar panels commenced in January 2011. The secretary of the Body Corporate committee at the time, Mr Steele, approached Ms Luadaka asking if she would be interested in installing solar panels on the roof of her unit, along with the owners of units 1005, 1006 and 1007. Mr Steele organised for two solar panel companies to give presentations in late January 2011.
On 7 February 2011, Ms Luadaka signed a sales agreement with a company called Beyond Building Energy. Apparently the owners of units 1005, 1006 and 1007 also signed sales agreements with that company. Ms Luadaka paid that company $1,620 on 3 March 2011.
On 16 March 2011, Mr Ray Wilkinson, who was then the chairperson of the Body Corporate, informed Beyond Building Energy that the Body Corporate committee had approved the installation of solar panels during February 2011. In fact, that was not true. Nevertheless, on 21 March 2011, the solar panels were installed by Beyond Building Energy.
Ms Luadaka was dissatisfied with the way in which the solar panels had been installed. In particular, conduits and wiring had been placed on the outside wall of the building which, she contended, defaced the building and depreciated the value of the units in it. Ms Luadaka later learned that there had been no formal committee meeting in February 2011, and that therefore the solar panels had not been installed with the committee’s approval.
In April 2011 Ms Luadaka asked the Body Corporate to issue a contravention notice to the owners of units 1005 and 1006 to move the external wiring and conduits on the external walls of their units. This apparently led to a conciliation conference at which a conciliation agreement was executed by the Body Corporate, Ms Luadaka and the owners of lots 1005 and 1006. That agreement provided that, within one month, each of the lot owners would seek retrospective approval of the committee for the installation of the solar panels and associated conduit. For that purpose, they would obtain a report from the solar panel installer as to the current specifications, why they had been installed in their current position, and the most efficient and less visible position for the conduits to pass along the common property. The Body Corporate may then request that the conduit be moved, or that the owners paint their solar panel conduit to the same colour and standard of the common property over which it passed, or that the solar panel conduit be housed in a less visible carrier, or all of the above.
Following that agreement, Beyond Building Energy prepared plans for removal of the conduits on the exterior of Ms Luadaka’s unit. However, before the works could be undertaken, that company went into liquidation. In the interim, it appears that, on 17 August 2011, the Body Corporate committee approved works in accordance with the plans. Similarly, it appears that the Body Corporate committee approved both the installation of solar panels and rectification work to move conduits from the face of the building in respect of lots 1005 and 1006.
On 23 April 2012, the manager of the Body Corporate, on behalf of the committee, wrote to Ms Luadaka. He noted that the conduits had not been removed from the common property wall of lot 1008, as submitted when approving the installation on 17 August 2011, and requested that Ms Luadaka carry out the work. In response, Ms Luadaka requested the Body Corporate to organise and pay the costs of removing the conduits and wiring from all four lots and to relocate them into less visible positions.
The Adjudicator accepted that he had jurisdiction to deal with Ms Luadaka’s application. He noted that under s 246S of the Building Act 1975 (Qld), a Body Corporate is unable to prevent an owner from installing solar panels on the roof of their lot, although it can impose reasonable conditions. He also noted that the Body Corporate committee can approve the installation of conduits and solar panels under the relevant By-Laws. By-Law 3 provides that no structural alterations may be made to any dwelling on a lot and that an owner or occupier must not in any way alter the exterior appearance of the lot without the prior written consent of the committee. Under By-Law 29, where an owner proposes to carry out work which will alter the exterior of any lot, the owner must obtain the consent of the Body Corporate by applying in writing to the committee, outlining the proposed work and providing plans and specifications.
Ms Luadaka contends that, because no plans or specifications were provided when the solar panels were originally installed, and indeed the committee had not even approved the installation formally at all, the committee’s decision subsequently not to require that the conduits be removed (or moved), and allowing some owners simply to paint over the conduits in the same colour as the external walls of the lots, was unreasonable.
The Adjudicator noted that, in performing its obligation to administer and enforce By-Laws, the Body Corporate is obliged, under s 94 of the BCCM Act, to act reasonably. He noted that the test for reasonableness is an objective one that requires a balancing of factors in all the circumstances according to the ordinary meaning of the term “reasonable”. The question was whether the Body Corporate’s decision was objectively reasonable. He concluded that it was.
In Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, the full court of the Federal Court considered the meaning of the term “reasonable” in the context of anti-discrimination law. Although in the context of that law, the discussion of the meaning of “reasonable” has general application.
Davies J (at page 84) said that the term “reasonable” carries its meaning in ordinary parlance, and the reasonableness of a requirement or condition is to be addressed having regard to all the circumstances of the case. Sackville J discussed the meaning of reasonable in somewhat more detail (at pages 110-2). With reference to a number of other decisions (admittedly all within the context of anti-discrimination of law, but nevertheless in my view still of general application), his Honour made the following points.
a)    The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. The criterion is an objective one, which requires the decision maker to weigh the nature and extent of the effect of the relevant conduct, on the one hand, against the reasons advanced in favour of it. All the circumstances of the case must be taken into account.
b)    Since the test is objective, the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned conduct. Subjective preferences may be relevant in determining the reasonableness of the conduct, but ultimately the test is an objective one, applied by the decision maker after considering all the material facts.
c)    Reasonableness is a question of fact for the decision maker to determine, but it can only do so by weighing all relevant factors. What is relevant differs from case to case and reasonableness cannot be determined in the abstract. “Reasonable” speaks of a term, condition or requirement that is dictated by reason and rationality – not necessarily in which all people or even most people agree.
Keeping these principles in mind, I do not consider that the Adjudicator made any error in concluding that the decision of the Body Corporate not to require the removal of conduit from any unit, and to allow unit holders instead to paint the conduit the same colour as the external surface of the building, was reasonable. Similarly, the decision of the Body Corporate to require Ms Luadaka to take steps to rectify the admittedly unsightly conduit was reasonable. Although the installation was organised principally by the then secretary of the Body Corporate committee, Ms Luadaka is legally responsible for the installation of the solar panels on her unit. She executed the contract for that installation and she, as well as the secretary who organised the installation, did not take steps to obtain the approval of the Body Corporate committee with appropriate plans and/or drawings being submitted before installation.
I therefore do not consider that the Adjudicator made any error of law. The appeal must be dismissed.