Edgewater Gardens [2000] QBCCMCmr 410 (11 August 2000)

RA MeekREFERENCE: 0251-2000

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

Russell Charles Henville, the co-owner of lot 48


RA MeekI hereby order that the application by Russell Charles Henville, the co-owner of lot 48, for an order that instructs the owner of unit GO1 who as the service contractor is the Resident Manager of Edgewater Gardens, Mr Van Rooijen, to desist from creating nasty confrontations with resident unit owners by carrying out a vicious and spiteful vendetta against a number of unit owners, and that further instructs him to better use his time to attend to his duties as per his contract of employment as a service contractor, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0251-2000

“Edgewater Gardens” CTS 10507

The applicant Russell Charles Henville, the co-owner of lot 48, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

We ask for an order that you instruct the owner of unit GO1 who as the service contractor is the Resident Manager of Edgewater Gardens, Mr Van Rooijen, to desist from creating nasty confrontations with resident unit owners by carrying out a vicious and spiteful vendetta against a number of unit owners who did not vote in favour of what amounts to his 15% pay rise at the EGM held on 14 January 2000, and that you further instruct him to better use his time to attend to his duties as per his contract of employment as a service contractor to serve all the lot owners who pay his wages by applying his efforts directly towards improving his record in caring for and maintaining the amenity and living safety 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 Mr J Van Rooijen. The respondent was originally described by the applicant as “owner of unit 401 Edgewater Gardens as the Resident Building Manager”. This was subsequently amended by deletion of the words “the Resident Building Manager”. However the applicant did not seek to amend in any respect the terms of the order as sought against the respondent.

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 applicant has sought against the respondent is in connection with the carrying out of the respondent’s duties as resident building manager. This is specifically stated in the order as sought against the respondent. Whilst I acknowledge that the respondent is an owner of a lot in the scheme, it is necessary for this application to relate to his capacity as an owner and not as a service contractor, 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