Waverley Lodge [2001] QBCCMCmr 278 (22 May 2001)

PJ HanlyREFERENCE: 0198-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11408
Name of Scheme:	Waverley Lodge
Address of Scheme:	28 Coolangatta Road KIRRA QLD 4225

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

Peter Donald Atkins, the owner of Lot 9



I hereby order that the application for an order seeking to over rule a motion allowing use of body corporate electricity for other than body corporate purposes is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0198-2001

“Waverley Lodge” CTS 11408

The applicant, Peter Donald Atkins, the owner of Lot 9, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

Seeking an order to overrule the motion allowing use of body corporate electricity for other than body corporate purposes.

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 a motion has been passed by the body corporate allowing individual owners to use electricity supplied by the body corporate, provided that the use is not of a permanent nature. The applicant expressed the view that electricity supplied by the body corporate should only be used for body corporate purposes. He also raises concerns about the lack of specific limitations and guidelines in the motion regarding the use of the electricity supply by individuals.

Two submissions have been received in support of the application. These submissions raise concerns that some owners will be subsidising the use of electricity by other owners.

A submission opposing the application has been received from the treasurer of the body corporate. The treasurer’s submission includes a statement that the motion was intended to give reasonable access to the electricity supply for occasional use by individuals, when those owners could not access their own electricity supply, for example to vacuum a car being cleaned in the garage area.

Section 87 of the Act provides for the general functions of a body corporate.

87.(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for

the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including the

by-laws affecting the common property); and

(c) carry out the other functions given to the body corporate under

this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under

subsection (1).

I consider that the decision to allow owners to access electricity for the private purposes described by the treasurer is reasonable and for the benefit of owners in the scheme, provided that there are clear guidelines given to owners as to the nature of use which is permissible. From the information before me, it appears that the power outlet in dispute is located in a garage area of common property. It is not difficult to envisage situations in which owners or occupiers might need access to power and it is impractical to connect to the power supplied to the individual lot. The treasurer uses the example of accessing the power to vacuum a car. In my view, the availability of electricity supply in these circumstances would be useful for owners and occupiers of lots in the scheme. However I consider that any form of extended use (such as the example provided by the applicant of a refrigerator being connected to body corporate electricity) would be unreasonable. Individual owners use of electricity supplied by the body corporate should be of short duration and limited to situations where it is impractical to use electricity supplied to the individual lot.

I therefore intend to dismiss the application and allow the body corporate to implement its decision to allow individuals access to the electricity supplied by the body corporate. However I point out that it is the responsibility of the committee to ensure that use of the electricity is occasional and reasonable. If the committee or any owner considers that individual owners are using the body corporate electricity excessively, then the appropriate course of action would for a further motion to be proposed to overturn the decision to allow use of the body corporate electricity. If such a motion were defeated in spite of evidence that the privilege was being abused, then the aggrieved party or parties would be free to lodge a further application with this office.




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