Glenrowan [2000] QBCCMCmr 75 (17 February 2000)

RA MeekREFERENCE: 0020-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	71597
Name of Scheme:	Glenrowan
Address of Scheme:	271 Esplanade CAIRNS QLD 4870

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

Desmond Patrick Crowe, the owner of lot 1



RA MeekI hereby order that the application by Desmond Patrick Crowe, the owner of lot 1 for an order that the manager’s position be terminated and all motions since the body corporate manager was made aware her service was acting contrary to law, become void, is dismissed. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0020-2000

“Glenrowan” CTS 51

The applicant Desmond Patrick Crowe, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the managers position be terminated and all motions since body corporate manager made aware her service was acting contrary to law, become void.

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 applicant is the owner of lot 1. The applicant has named as the respondent to his application, Ms Davies-Griffith, the body corporate manager, of 36 Aplin Street, Cairns.

The grounds relied on by the applicant are that –

The method I had to use to attend the initial body corporate AGM left me feeling undignified with a lowered self confidence. I informed the body corporate manager of problem. After engaging an architect, the results that wheel chair access did not conform to the Australian building standards was given to the body corporate manager. AS1428.1 – 1993. After contacting Cairns Community Legal Service, a lawyer informed the body corp manager her service she was supplying at that location was contrary to law. The Anti-Discrimination Commission of Queensland also has contacted the body corporate manager stating the situation was contrary to law. Further correspondence has exchanged. All documents are on body corporate files. Should a conviction be necessary to remedy.

On 24 January 2000, a member of this office contacted the applicant to discuss with him the possible amendment of the named respondent to his application. The applicant’s written response to such discussion is as follows –

I have been informed by your office to make changes to my application because of section 182. If I did change the name of the “affected person” discrimination by a service provider would not be the focus of my complaint and the application would have no merit. A body corporate manager can be named.

The applicant then quotes the provisions of section 182 and 183 of the Act. 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.

Section 182 provides an exhaustive list of the parties between whom a dispute might arise in a scheme. For an owner, a dispute may only arise between such owner and another owner or occupier, or alternatively, between the owner and the body corporate. Under section 182, a dispute cannot arise between an owner and a body corporate manager.

The applicant has named the body corporate manager as respondent. Notwithstanding that the matter of section 182 was raised with the applicant, the applicant has indicated an intention to persist with his application in the original form. In the circumstances, I must dismiss the application, on the basis that there is no jurisdiction to consider it. There can be no dispute between an owner and a body corporate manager.

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