Heritage Gardens Buderim [2001] QBCCMCmr 209 (9 April 2001)

RA MeekREFERENCE: 0037-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19238
Name of Scheme:	Heritage Gardens Buderim
Address of Scheme:	142 - 150 Burnett Street BUDERIM QLD 4556

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Heritage Gardens Buderim

RA MeekI hereby order that the application for an order by the Body Corporate for Heritage Gardens Buderim, that the owner of lot 42, Katriena Nazmeena Cummings, comply with by-laws 1, 2 and 4, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0037-2001

“Heritage Gardens Buderim” CTS 19238

The applicant, the Body Corporate for Heritage Gardens Buderim, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the owner comply with by-laws 1, 2 and 4.

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)).

In the supporting grounds, the applicant body corporate seeks that the owner of unit 23 (lot 42), Katriena Nazeena Cummings (the respondent) comply with by-laws of the body corporate, in particular 1, 2 and 4. The applicant then attaches a series of correspondence by way of evidence in support of the application. When pressed to provide a proper statement of grounds, the applicant subsequently advised –

The owners of units 22 and 24 had contacted the committee on numerous occasions expressing their concerns regarding ... :

Noise – TV and radio was extremely too loud, hosing down driveway at 6 am. This noise was interfering with the peaceful enjoyment of neighboring residents.

Lack of consideration for owners in units 22 and 24 ... tradespersons arrive from 6.30am and park in driveway. ...

Damage to shrubs when reversing out of driveway.

We understand that the owners of units 22 and 24 have had several altercations with the owner of unit 23.

The by-laws alleged to have been breached are by-laws 1 (Noise), 2 (Vehicles) and 4 (Damage to Lawns).

The respondent has made a written submission in response to the application. That submission attaches correspondence relating to the matters in dispute between the parties, and in particular, a letter by the respondent’s solicitors, Elias Mumford to the body corporate manager. The applicant’s submission, and the solicitor’s letter, canvass the allegations in the application, and as well, raise several new allegations regarding the persons making the complaints.

It is impossible for me to determine the accuracy of any or all of the allegations, whether made in the application, or as part of the response by the respondent. Moreover, the adjudication process does not lend itself to the resolution of disputes of this nature. In the circumstances, I must dismiss the application.

I consider that the parties affected should consider the mediation of this dispute. The mediation service offered by the Department of Justice Community Justice Program is available to all parties and I have enclosed a brochure for this service with each parties copy of the order. Alternatively, if the committee is satisfied that breaches of the by-laws are occurring, then the committee should resolve to issue contravention notices to the parties considered to be in contravention, and should it be necessary, seek to enforce these notices by further action commenced in the Magistrates Court.

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