Edgewater Gardens [2001] QBCCMCmr 100 (19 February 2001)

P J HANLYREFERENCE: 0655-2000

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

Edward Albert Owen White, the owner of lot 2



I hereby order that the application for an order that Edward Albert Owen White, the owner of lot 2, be permitted to use another car space, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0655-2000

“Edgewater Gardens” CTS 10507

The applicant, Edward Albert Owen White, the owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I wish to use another car space that I do not have to reverse into.

Section 223(1) of the Act 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)).

In the supporting grounds, the applicant states that he is 80 years of age, and as a result of having had both of his shoulders broken he is unable to reverse his car properly. The applicant further states that if he drives his vehicle in front end first, he cannot open his door widely enough to allow him to get out of the vehicle.

The body corporate manager and the body corporate committee were invited to respond to the application. Responses were received from the chairperson, and from solicitors engaged to act on behalf of the committee. The committee’s solicitors stated, as a preliminary point, that the application should be dismissed on the basis that there is no dispute, and therefore that I have no jurisdiction to entertain the application.

It appears from the material that the applicant has not sought the body corporate’s approval for a change of car space. Section 192(1)(a) of the Act provides that an application for an order of an adjudicator must be made by a person who is a party to, or is directly concerned with, a dispute for which an adjudicator may make an order under Chapter 6 of the Act. If the applicant has not given the body corporate the chance to consider his request for a change of car space, he cannot allege that there is a dispute. This issue was considered by the District Court in Tully –v- The Proprietors The Nelson Body Corporate CMS 9596, (District Court, Southport 2 February 2000) when His Honour Judge Robin Q.C. stated that “(t)here must be a dispute before an adjudicator has jurisdiction. ...The respondent’s case is that the nature of the permission sought by the appellants was such that the body corporate itself must give permission or authority; it never having been asked by the appellants to do so there can be no dispute involving it as a party, and therefore no right in the applicants to apply to the adjudicator on the basis that they are parties to a “dispute” for purposes of s.192(1)(a). The objection to the application is sound in principle, in my opinion. The existence of a relevant “dispute” is fundamental to an adjudicator having jurisdiction.”

I have therefore dismissed the application.2n