Oasis [2000] QBCCMCmr 377 (27 July 2000)

RA MeekREFERENCE: 0208-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	Oasis Villas 100 Morala Avenue RUNAWAY BAY QLD 4216

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

Grahame Douglas Mackelmann and Grace Finlay Mackelmann, the owners of lot 36


RA MeekI hereby order that the application by Grahame Douglas Mackelmann and Grace Finlay Mackelmann, the owners of lot 36, for an order which prevents the vessel in question or any other which is not properly owned within the terms of the by-laws from entering or using the marina, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0208-2000

“Oasis” CTS 20870

The applicant Grahame Douglas Mackelmann and Grace Finlay Mackelmann, the owners of lot 36, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order which prevents the vessel in question or any other which is not properly owned within the terms of the by-laws from entering or using the marina.

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)).

I do not intend to restate the applicant’s grounds in any detail since these are known to the other parties via the submission process. As the applicants state, the dispute relates to usage of the marina at the Oasis complex. The order is sought against the body corporate, and essentially requires that the body corporate and the manager take action against a Michael Vanderkemp (Vanderkemp) for alleged breach of by-laws. The allegation is that the manager arranged with the owner of berth B5 to rent that berth to Vanderkemp, in contravention of by-laws 52(b), 53(a), 56(a) and (b), and subsequently, by-law 54(a)(ii). The applicants have notified the body corporate committee of the alleged breaches but that “the body corporate failed to act on our advice”. The applicants are now alleging harassment against them by Vanderkemp.

The crux of the alleged contravention of by-laws is that it is alleged that Vanderkemp is not the owner of the vessel which he moors at berth 5B.

By-law 56 headed rules relating to usage of the marina provides in part as follows –

(a)	The marina is solely for the private use of those persons who are entitled to use a berth in the marina under these by-laws;
(b)	No one is to moor a boat in the marina unless the boat is owned by and registered in the name of a person who is entitled to use a berth under these by-laws; ...

The effect of by-laws 56(a) & (b) is very restrictive, and if applied literally, means that the only person entitled to moor a boat in a berth is a person who –

• Is the owner of a lot;

• The lot is entitled to the exclusive use of a marina berth (currently 12 out of 76 lots);

• The owner of a lot is also the owner of a boat; and

• The boat is registered in the same name as the name in which the lot is held.

The applicants conclude that –

The by-laws are there for a purpose. They are designed (although not very well) to provide a scenario where only residents in the complex who own a vessel may either own or rent a berth to a complex resident. THE REAL PURPOSE IS TO PREVENT GENERAL RENTING TO PEOPLE “OFF THE STREET”.

I suggest, on the basis of the above statement that the applicants own interpretation of the by-laws is in conflict with what I consider to be their literal (and very restrictive) interpretation as set out above. There is nothing in the by-laws which indicates to me that the holder of a berth is entitled to rent it to another resident in the complex. Perhaps however, such interpretation suits the applicants purposes. Vanderkemp does state in his submission that -

Leasing of the berth from Mrs Val Parker is NOT CONTRAVENING any by-laws and if so then Mr Macklemann is in deed contravening the by-laws himself by leasing out his own berth B7 at the Oasis complex. ...

Whilst I have not investigated this allegation, it seems to me that the applicant’s interpretation of the by-laws is such as to permit the circumstance of which Vanderkemp advises; namely that the applicants do rent their berth to another owner or occupier in the complex. The applicant’s however are insisting on a strict application of the by-laws against Vanderkemp. I suggest that this is somewhat of a double standard on the part of the applicants.

The applicants are silent on the fact that Vanderkemp is an owner of a lot, however Vanderkemp has advised, and records confirm that Michael Albert Vanderkemp and Darlene Gai Vanderkemp are the owners of lot 37. It is noted however that lot 37 is not one of the 12 lots entitled to the exclusive use of a marina berth or berths. Berth B5 is allocated for the exclusive use of the owner of lot 42. Further, the applicants allege that Vanderkemp is not the owner of the boat moored at berth B5.

In his submission in response to the application, Vanderkemp states –

As the person who leased the berth B5 at the Oasis Complex from Mrs Val Parker I would firstly like to state that I am not a person “OFF THE STREET” as Mr Macklemann states in his letter. I am a fully paid up financial owner of the Oasis complex. I am also the owner of the 1986 28.8 Power Cat known as Coaster 1 ... .

It seems clear that neither the body corporate, nor the manager, are prepared to act in any way on the applicant’s allegations, hence this application to compel them to do so.

I suggest that these particular by-laws of the body corporate are not being strictly applied, but rather that the body corporate has applied a pragmatic approach to the operation of the by-laws. I suggest this simply makes common sense given that a literal interpretation of the by-laws would lead to absurdities.

The body corporate has a duty to administer, manager and control the common property and body corporate assets reasonably and for the benefit of lot owners (see section 114(1)(a) of the Act). The body corporate assets include the lease of the marina. I therefore suggest that the body corporate’s apparent more relaxed application of the by-laws so far as they relate to the use of the marina berths is in keeping with its duty to administer, manager and control a body corporate asset (the lease of the marina) reasonably and for the benefit of lot owners.

I am satisfied that Vanderkemp is an owner of a lot. The applicants suggestion that Vanderkemp is someone “off the street”, by alleging a very technical argument that Vanderkemp is not the owner of the boat which he moors at berth B5, is mischievous. We all know that for many reasons different assets might not be held in exactly the same name. What I am alluding to is that whilst Vanderkemp’s lot is held in his individual name, perhaps the boat is held in a company name, or whatever. I am not going to allow the applicants to succeed on a technical irregularity. Vanderkemp states that he is the owner of the boat. Whether this is by some means other than his individual name is of no concern to me. The evidence, including the applicant’s own statements, very clearly suggests that Vanderkemp is in charge of the boat moored at berth B5, and obviously this is satisfactory to the body corporate.

I therefore intend to dismiss this application. I consider that the application is bordering on being vexatious in its endeavour to have the body corporate act against Vanderkemp. Obviously, there is an ongoing dispute between the applicants and Vanderkemp. However I suggest to the applicants that in future they find a legitimate basis for complaint, rather than some trumped up technical irregularity, which when investigated, lack substance or merit.

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