2nd Avenue [2001] QBCCMCmr 17 (12 January 2001)

C G YOUNGREFERENCE: 0760-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5755
Name of Scheme:	2nd Avenue
Address of Scheme:	2nd Avenue BURLEIGH HEADS QLD 4220

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

Robert STONE, Service Contractor for ground maintenance to the Body Corporate,

C G YOUNGI hereby order that the application for an order to restore the ground maintenance contract between the applicant Robert Stone and the body corporate and for the applicant to resume duties under that contract, is dismissed for lack of jurisdiction.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0760-2000

“2nd Avenue” CTS 5755

The applicant, Mr Robert Stone a service contractor to the body corporate, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

Performance of Contract:

1.	Return of the keys to me to the complex so that I can fulfil obligations.

2.	Written notice of Body Corporate appointee

3.	Specific details (in notice of remedy) of what needs attending to and what is required to be done.

4.	Details of work required to be done in addition to the contract payment for additional work already performed.

5.	Reasonable written notice of any meetings of the body corporate that I am to attend.

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 has attached copies of notices served on him by the body corporate as a service contractor providing gardening services. Three notices allege non-performance of duties required of him under the contract while the fourth is the termination of the contract under clause 9(1)(d). The applicant has given several reasons why he believes the termination to be without foundation and unlawful.

The applicant is not an owner of a lot, nor holds an authorisation as a letting agent my the body corporate, but is an outside contractor solely providing garden maintenance services.

I am unable to determine this application, as an adjudicator under the Act does not have the jurisdiction to do so. The “Dispute Resolution” provisions are set out in Chapter 6 of the Act. Section 182 provides that a dispute must be between certain defined parties to bring it within the dispute resolution provisions, the categories of disputants being –

(a) An owner or occupier and another owner or occupier.

(b) An owner or occupier and the body corporate.

(c) A body corporate and a Body Corporate Manager.

(d) A body corporate and a service contractor who is also a Letting Agent.

(e) A body corporate and a Letting Agent.

There is no provision for a service contractor, who is not also a letting agent for the scheme, to bring an application against the body corporate under the dispute resolution provisions of the Act. The applicant has brought this dispute simply as a service contractor and therefore fails to meet the requirements of (f) (see underlining above). This reflects the purpose of the jurisdiction in only providing a means of dispute resolution for parties with a direct interest in the scheme and not general commercial service providers such as the applicant. The applicant has the normal contractual remedies available in the Courts and should seek private legal advice to see if he has a course of action or not.

Accordingly, the application seeks to bring a dispute before the Commissioner that is not a dispute recognised by the Act and I must therefore dismiss the application for want of jurisdiction.2n