8th Avenue Plaza [2000] QBCCMCmr 14 (18 January 2000)

P G DanielsREFERENCE: 0583-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7714
Name of Scheme:	8th Avenue Plaza
Address of Scheme:	1176 Gold Coast Highway PALM BEACH QLD 4221

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

Talle Downs Pty Ltd the owner of lot 21,

P G DanielsI hereby order that the application for orders:

1.	To reverse the actions taken by the Body Corporate against Peter Vaggelas in regard to cancelling the leased section “D” (the sign) to the status that existed prior to 1st June 1999 until the matter is settled and advise Daphne McPhie of this reversal;

2.	That the Body Corporate does not take any further action in demolishing the sign or make any representations to the Gold Coast Council to transfer the sign to them as they have threatened to do.

is dismissed.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0583-1999

“8th Avenue Plaza” CTS 7714

The applicant, Talle Downs Pty Ltd, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

1.	Reverses the actions taken by the Body Corporate against Peter Vaggelas in regard to cancelling the leased section “D” (the sign) to the status that existed prior to 1st June 1999 until the matter is settled and advise Daphne McPhie of this reversal

2.	The Body Corporate does not take any further action in demolishing the sign or make any representations to the Gold Coast City Council to transfer the sign to them as they have threatened to do.

Section 223(1) 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 this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The applicant in this case has been represented by its Chairman and Managing Director, Mr Peter Vaggelas.

Mr Vaggelas states that he leased a section of the rooftop of the 8^th Avenue Shopping Centre in 1986 for a period ending in the year 2010. There seems to be two areas that are described in plans as D and E. He subleased area D to Australian Posters. He claims to have paid the rent on area “D” until the year 2010. The application and orders sought relates to area D.

The Body Corporate passed the following two motions at its annual general meeting on 26 August 1999:

“It was RESOLVED that the Body Corporate Manager instruct Quinn & Co solicitors to write to the Gold Coast City Council and advise that the body corporate will be taking over the lease of the sign.

It was RESOLVED the Body Corporate Manager instruct Quinn & Co solicitors to confirm that Australian Posters are paying the money for the lease of the sign in the trust account on behalf of the body corporate.”

Subsequently, solicitors for the Body Corporate forwarded notices to Mr Vaggelas to deliver up possession of the rooftop. The notices refer to areas, D and E. Mr Vaggelas is described as a tenant at will.

The jurisdiction of an adjudicator under the Act is relevantly defined by section 223(1) as follows:

Orders of adjudicators

223.(1) An adjudicator to whom the application for an order of an adjudicator is referred 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 this Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement;

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The role of an adjudicator is to determine if there has been or will be a contravention of the Act or community management statement and whether rights, powers and duties have been appropriately exercised under the Act or community management statement. As can be observed, the role relates to the Act and the community management statement.

A Body Corporate is constrained by sections 87 and 114(1) of the Act to administer the common property reasonably. These sections provide as follows:

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Body corporate’s general functions

87.(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including the by-laws affecting the common property); and

(c) carry out the other functions given to the body corporate under this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under subsection (1).

Body corporate’s duties about common property etc.

114.(1) The body corporate for a community titles scheme must—

(a) administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners; and

(b) comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme.

The lease of area “D” is on the rooftop, which is part of the common property. The Body Corporate therefore must comply with sections 87 and 114(1). It must make reasonable decisions that are for the benefit of all lot owners.

The problem with the application is that this dispute concerns an alleged contractual relationship between the Body Corporate and the applicant and the remedies for breaching that alleged contract. The dispute does no really relate to whether the Body Corporate is contravening sections 87 and 114. Sections 87 and 114 may be relevant if it were alleged that the Body Corporate had unreasonably:

1.	Decided on the location of the sign if for example the part of the rooftop could not support the weight of the sign;
2.	Allowed offensive wording on the sign;
3.	Decided the dimensions of the sign.

The above list is not exhaustive but only illustrates where sections 87 and 114 may be relevant.

The dispute in this case does not relate to the Act and community management statement but whether a valid lease exists and the remedies for alleged breaches of the lease. I do not have jurisdiction to determine those matters. I suggest that the applicant seeks private legal advice about the matter from a solicitor.

I dismiss the application.