Jowa Court [2001] QBCCMCmr 259 (16 May 2001)

C G YOUNGREFERENCE: 0128-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17372
Name of Scheme:	Jowa Court
Address of Scheme:	788 Brunswick Street NEW FARM QLD 4005

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

Brenda Pearl JACKSON, the owner of Lot 5,



C G YOUNGI hereby order that the application for an order that the body corporate either –

1. carry out such alterations as are necessary to the carport owned and used by the owners of Lots 4, 5, 6 and 7, including the removal of the northernmost post positioned between Lot 5 and 7 carspaces, as will allow the owner of Lot 5 to use the designated Lot 5 carspace to park a motor vehicle; or

2. to reimburse the owner of Lot 5, Brenda Pearl Jackson, for her share of the cost of the erection of the carport,

is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0128-2001

“Jowa Court” CTS 17372

The applicant, Brenda Jackson of Lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“Post removed from carport next to No.5 car parking space. Moved to centre or roof-span strengthened to support without post.

Failing this, reimbursement for construction of carport & parking space that cannot be used, due to construction of fence by the Catholic Church next door. The fence was constructed after the carport was erected. No searches carried out. Also no plan lodged or passed by Council, by building company.”

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)).

A copy of the application was supplied to the body corporate secretary for distribution to all owners, and the committee, with an invitation for them to respond to the issues raised by Jackson in her application, namely that the body corporate either alter the carport so she can use her carspace or that it reimburse her for her share of the cost.

Only the committee responded to the invitation by written submission from the Body Corporate Manager, Strata Solutions (Doug Smith), which included a copy of the minutes of the annual general meeting held on 22 June 1999.

Jackson’s submission is that she and the other three owners had a carport erected by Choice Building Company containing spaces for each of their motor vehicles. The design included roof support on the lane-side being three posts, one at either end of the carport and one between the adjoining spaces for Lots 5 and 7. The position of the latter post was such that Jackson could only move a motor vehicle in and out of the space by making use of an area of private land opposite the space. Four months after construction the owner of that private land, the Catholic Church, erected a fence along its boundary with the lane. This action prevented the vehicle manoeuvre necessary for Jackson to be able to use her carspace.

Jackson states that as the carport’s construction was approved by the body corporate (see minutes of AGM) then it should be held responsible for the inaccessibility of the carspace she paid for.

The committee states that Jackson was the driving force behind the carport construction, she having obtained the two building quotes and having submitted the motion to the AGM seeking approval for the four owners to erect the carport. The motions (one for each tenderer) actually state, “ That the body corporate agree to grant permission to the Owners of Lots 4, 5, 6 and 7 to erect carport as outlined in the quotation from (the tenderer)... payment of this account will be paid by the owners of Lots 4, 5, 6 and 7. All repairs and maintenance will be the owners responsibility.”

The carports are not for the general benefit of owners but are for the sole benefit of the four specified owners. The motions, as they should, merely sought the permission of the body corporate for the owners to erect the structure on the common property. Again as it should be, the four owners were to take sole responsibility for the repair and maintenance of the carport under the motion.

The body corporate bears no responsibility in the matter. The carport is not a common property structure for the benefit of owners, but is for the use of particular owners. From the submission it seems that the Body Corporate Manager, Smith, became involved in the selection of a builder and in some overseeing of the work, but these were duties outside of his delegations as a Body Corporate Manager and, on his advice, not billed to the body corporate. Although I do not regard that it applies here, care needs to be taken in undertaking tasks which are outside the brief of the body corporate in the event that some responsibility or agreement is implied by those actions.

Although it has no bearing on my order in the matter, there is one glaring error in the tender resolutions. Section 114 of the Standard Module sets the required resolutions for owners seeking to effect an improvement on common property. Unless the improvement is a “minor improvement” (costing $200 or less) then this section requires that a special resolution is necessary to give permission. In the case of the carport costing in excess of $4,000, the correct resolution was a “special resolution” not an “ordinary resolution” as specified for the meeting. I note that Motion 13 was passed with a vote of 5 votes in favour and 1 against. Accordingly had it been put as a special resolution then it still would have passed. However that is not sufficient as an authority for the presence of the carport and the body corporate will need to properly reconsider a motion at a further meeting to authorise its presence in proper legislative form.

While it is unfortunate that the applicant cannot now use her carspace, that is a burden she cannot place on the body corporate. Also, whether the carport is or is not approved by the local government Council, does not affect the decision I must make. For the foregoing reasons I have dismissed the application.

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