Edgewater Gardens [2000] QBCCMCmr 336 (10 July 2000)

C G YOUNGREFERENCE: 0176-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10507
Name of Scheme:	Edgewater Gardens
Address of Scheme:	21 Whelan Street SURFERS PARADISE QLD 4217

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

Geoffrey Charles HENVILLE, the owner of Lot 40,



C G YOUNGI hereby order C G YOUNGthat within four (4) months of the date of this order, the owner of Lot 61, Jia Pty Ltd, must at its own expense remove the structure of metal grilles and door erected to enclose an area of common property situated in the south-east corner of Level “A” of the building, being that area designated as space “65” in the sketch plan accompanying By-law 46.

The above order was appealed to the District Court, Southport. On 25 October 2001, Judge Hall DCJ delivered the following order:

“THE ORDER OF THE COURT IS THAT –

Appeal dismissed. Order of the adjudicator affirmed in each case. No order as to costs in respect of each appeal.”2n
2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0176-2000

“Edgewater Gardens” CTS 10507

The applicant, Geoffrey Henville of Lot 40, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

The order I am seeking is that the owner of Lot 61 be ordered to remove the fencing compound in the south-east corner of the basement carpark which closes in single car spaces 65 and 66 together with an open area of other common property which also includes a toolroom, workbench, and electrical power outlet; such fencing compound causing an obstruction to the rightful use of said common property by all other owners and tenants thereby causing an unjustifiable diminution of their rightful lifestyle amenity.

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)).

This one of three applications that I have before me for adjudication which concern the enclosure of an area of common property over which the respondent owner of Lot 61 believes it has rights of exclusive use. I have referred to this area as “Space 65” in my reasons to Order 164-2000 and shall also adopt description here.

The other two applications are Applications Ref. No’s 164-2000 and 178-2000, submitted by Sylvia Trankalis and the applicant respectively. Application 178-2000 seeks an order for the service of a by-law contravention notice on the respondent to remove the structure. The two applications by the applicant (Henville) are together similar to the application by Trankalis which seeks the following two orders, (a) an identical order for the body corporate to serve a by-law contravention notice on the respondent, and (b) an order for the structure enclosing Space 65 to be removed also, but by the body corporate rather than the respondent.

Because of the similarities in the applications, and because Application 164-2000 by Trankalis was the first to be lodged with this office, I have decided to deal conclusively with the matter of the enclosure in my order to her application, and then determine both this application and the other by the applicant, by reference to the reasons for Order 164-2000. All three orders will then be issued together.

Accordingly the reasons given for Order 164-2000 (“the Reasons”) requiring the removal of the enclosure, are, by reference, the reasons for the same order made in respect of this application. That is, the Reasons are to be taken as the reasons for this Order 176-2000. I see no point in repeating those reasons here. Although this order is the same as Order 164-2000, I have repeated the order here to preserve the rights of the parties in respect of this application.

There are also certain preliminary comments given in the Reasons which are also applicable here. These comments concern the distribution of “Edgewater Garden” files amongst adjudicators and the reasons why I have not ordered the immediate removal of the enclosure around Space 65 and have given a period of four months for the removal to be effected. These are set out fully in the Reasons and by reference these are also to be taken to be part of the reasons for this order.