Lurline [2000] QBCCMCmr 73 (16 February 2000)

RA MeekREFERENCE: 0628-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15031
Name of Scheme:	Lurline
Address of Scheme:	57 Laidlaw Parade EAST BRISBANE QLD 4169

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

Lex Donald Cockrell, the company nominee of Cockrell Management Services Pty Ltd and Agatha Hutton, the owners of lots 3A & 4

RA MeekI hereby order that the application by the owners of lots 3A and 4, Lex Donald Cockrell, the company nominee of Cockrell Management Services Pty Ltd and Agatha Hutton, for an order to approve the motion at Item 10 of the AGM held 13/7/99, is dismissed, on the basis that the application is without jurisdiction. y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0628-1999

“Lurline” CTS 15031

The applicants Lex Donald Cockrell, the company nominee of Cockrell Management Services Pty Ltd and Agatha Hutton, the owners of lots 3A & 4, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

To approve the motion at Item 10 of the AGM held 13/7/99. The motion lost which we request to be approved is: “To give the present owners only (L&M Cockrell) ... permission to allow the nose of their boat to overhand the boundary line projection into the Brisbane River in front of body corporate common property. Permission will only be until such future time as either the space is not required or the body corporate is not decides to construct a useable jetty or pontoon and the area is required by a member or group of members for their own boat”.

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 have come to the conclusion that this application must be dismissed. The Act requires that there must be a “dispute”. 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.

It is noted that “owner” is specifically defined in the section as a person in the person’s capacity as the owner of the lot.

The particulars of this application are somewhat unique. The applicants are the owners of two lots in the scheme. As well, one of these applicants is the owner of the adjoining freehold property. It is in the capacity as owners in the scheme that they have made the application. The benefit sought by the application however accrues to one of these entities as the owner of the adjoining lot.

I consider that this dispute is a dispute between two neighbours; that is Cockrell as the owner of the adjoining freehold lot, and the body corporate as representative of the owners in the scheme. As owner of the adjoining lot, Cockrell would have no ability to bring the application, under the provisions of section 182. The application is made on the basis of ownership of two lots in the scheme.

The accuracy of the above observation can be seen in the fact that the applicants might choose to sell both lots in the scheme tomorrow, but presumably the right hereby sought would continue to benefit Cockrell as the adjoining owner. I conclude that this is a dispute between two adjoining owners as described above. It is not a dispute contemplated within the terms of section 182 of the Act, and consequently I do not have jurisdiction to consider the application further. For this reason, the application is dismissed.