Edgewater Gardens [2000] QBCCMCmr 409 (11 August 2000)

RA MeekREFERENCE: 0220-2000

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

Jacobus Anthonius Van Rooijen and Judy Ann Van Rooijen, the owners of lot 1


RA MeekI hereby order that the application by Jacobus Anthonius Van Rooijen and Judy Ann Van Rooijen, the owners of lot 1, for an order to suppress the written attacks by Miss Trankalis on all matters of carrying out our duties as managers of Edgewater Gardens, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0220-2000

“Edgewater Gardens” CTS 10507

The applicants Jacobus Anthonius Van Rooijen and Judy Ann Van Rooijen, the owners of lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

To suppress the written attacks by Miss Trankalis on my wife Judy Ann and myself on all matters of carrying out our duties as managers of Edgewater Gardens.

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 respondent named in the application is Miss Sylvia Tranklis, the owner of lot 7. In her submission in response to the application, the respondent has commenced by referring to section 182 of the Act and stating –

Section 182 of the Act does not provide for a building unit managers to bring an application against an owner, and accordingly Mr and Mrs Van Rooijen’s as service contractors (resident building managers) are not entitled to make this application.

Section 182 of the Act provides as follows -

182. In this chapter—
“dispute” means a dispute between—
(a) the owner or occupier of a lot included in a community titles
scheme and the owner or occupier of another lot included in the
scheme; or
(b) the body corporate for a community titles scheme and the owner
or occupier of a lot included in the scheme; or
(c) the body corporate for a community titles scheme and a body
corporate manager for the scheme; or
(d) the body corporate for a community titles scheme and a service
contractor for the scheme who is also a letting agent for the
scheme; or
(e) the body corporate for a community titles scheme and a letting
agent for the scheme.

“occupier”, of a lot, means a person in the person’s capacity as the occupier
of the lot, and not, for example, in the person’s capacity as a service
contractor or letting agent for the scheme.
“owner”, of a lot, means a person in the person’s capacity as the owner of
the lot, and not, for example, in the person’s capacity as a service
contractor or letting agent for the scheme.

Under section 182, a “dispute” may exist between an owner and another owner of a lot included in the scheme (see section 182(a)). For the purposes of the section, “owner” is defined to mean a person in the person’s capacity as the owner of the lot, and not, for example, in the person’s capacity as a service contractor or letting agent for the scheme. It should be further noted that under the definition of “dispute” there is no ability for a service contractor to be in dispute with an owner.

It is abundantly clear that the final order which the applicants have sought against the respondent is in connection with the carrying out of their duties as managers. This is specifically stated in the order as sought against the respondent. Whilst I acknowledge that the applicants are owners of a lot in the scheme, it is necessary for this application to relate to their capacity as owners and not as service contractors, for a dispute to arise under section 182. Section 192 of the Act provides that there must be a dispute “for which an adjudicator may make an order under this chapter” (see section 192(1)(a)).

For this reason, this application must be dismissed, since the application does not disclose a dispute as defined by the terms of section 182 of the Act. y