Azelea [2000] QBCCMCmr 239 (26 May 2000)

P G DanielsREFERENCE: 0772-1999

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7807
Name of Scheme:	Azelea
Address of Scheme:	269 Government Road GOLD COAST QLD 4214

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Robert John Punch the owner of lot 1

P G DanielsI hereby order that the determination of the application is suspended for a period of two months from the date of this order.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0772-1999

“Azelea” CMS 7807

The applicant, Mr Robert John Punch, the owner of lot 1, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

A fence and pergola be removed as it is built on common land and stops access to a tap at the front of building. And does not comply with Council Regulations eg fire and safety.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

This dispute revolves around the presence of a pergola on common property that is to the south of lot 2. There is a gate or fence in front of the pergola. The area where the pergola is located leads to the front door of the owner of lot 2, Mr Roger Mathews.

The owner of lot 1, Mr Punch, seeks an order for the removal of the fence and pergola.

I spoke to both parties by joint teleconference on 24 May 2000.

I informed both parties that I was willing to suspend the determination of this dispute for a period of time to allow a general meeting of the Body Corporate to be called. Mr Matthews could submit a motion that the common property where the pergola is situated become part of his exclusive-use area. Mr Matthews indicated that this is a course he would be interested in pursuing. The motion would need to seek approval of an exclusive-use by-law that includes the pergola area. The by-law can authorise improvements including the installation of fixtures. Alternatively, the pergola would have to be authorised by the Body Corporate by separate motion.

Mr Punch indicated he may submit a motion seeking to increase his exclusive-use area.

I have decided to allow a suspension of the dispute to occur so that a general meeting may be called. A resolution without dissent will be required for a motion to succeed in respect of an exclusive-use by-law. If at the meeting, Mr Punch (and Mr Mathews) vote in favour of a resolution to grant the pergola area as part of Mr Mathews’ exclusive-use area and approve the pergola and fence/gate, then the dispute should be resolved. If a resolution is not passed, Mr Mathews will have the option of making his own application to the Commissioner applying for an order that a resolution is deemed to have passed. Additionally, if Mr Punch places a motion before the general meeting that his exclusive-use area be increased and a resolution without dissent is not passed, then he can make a further application seeking an order that a resolution without dissent is deemed to have passed.

At the end of the two months the parties should advise me of the status of the matter. I will reassess the matter at that stage. If ultimately no meeting is called and no further application is made, I will determine this application on the material currently before me.

It is important for the parties to clearly understand that I have made no determination of the merits of this dispute. Additionally, the parties should be aware that if they bring further applications arising out of the general meeting (if it occurs), then those applications will be considered on their merits. At this stage, no indication can be given about the resolution of this or future applications.

I understand that there is no agreement between the two owners in this case about who is on the Committee. In those circumstances, section 11(4) of the Body Corporate and Community Management (Standard Module) 1997 applies and both owners jointly hold the positions of Chairperson, Secretary and Treasurer.

Both owners acting jointly could call an extraordinary general meeting of the Body Corporate to consider motions discussed above. Alternatively, one or both owners may wish to approach a body corporate manager who can call the meeting and organise the various details. I suggest to both owners that this would be a preferable course. There are a number of regulatory requirements for calling a meeting and there are further requirements for a valid resolution without dissent to be passed in respect of an exclusive-use by-law. A professional body corporate manager would be aware of these matters and be able to properly organise a meeting. The manager would need to obtain an order from this office to call the meeting.

I am attaching to my reasons fact sheets prepared by this office in respect of general meetings and by-laws. They should be of assistance to the parties.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order.