Waterways Apartments [2001] QBCCMCmr 396 (20 July 2001)

RA MeekREFERENCE: 0243-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12646
Name of Scheme:	Waterways Apartments
Address of Scheme:	40 Ferny Avenue SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Waterways Apartments

RA MeekI hereby order that the application by the Body Corporate for Waterway Apartments, for an order that the unregistered vehicle parked in the car space allocated to unit 53 be removed, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0243-2001

“Waterways Apartments” CTS 12646

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

That the unregistered vehicle parked in the car space allocated to Unit 53 be removed.

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 refers to by-law 16 which states –

Each proprietor to whom exclusive use of a car space or spaces has been given shall use the space or spaces only for the purpose of parking of registered motor vehicle, motorcycles, trailers and bicycles, and shall not litter the same or so use the same as to create a nuisance but otherwise no such proprietor shall be responsible for the performance and the duty of the body corporate under the Act.

The body corporate states that “the unregistered vehicle has been parked in the space allocated to Unit 53 for over a year and its appearance is unsightly”.

The owner of lot 53, Constantine Lianos (the respondent) has responded to the application in the form of a submission. The respondent states –

... the particular vehicle in issue is a 1970 Ford Mercury Cougar ... is in immaculate condition and is a collectors item. ... the vehicle is currently unregistered as it is not driven. ... the vehicle is not unsightly, and has an appearance no different than any vehicles that are currently registered and are parked in the exclusive use car parks in the building.

In respect of the particular by-law ... it is ridiculous that an owner of a unit who has the right and exclusive use of a car park is unable to park a motor vehicle in it, whether it is registered or not.

The body corporate has not provided any evidence (eg. photographic) to substantiate its allegation that the vehicle in question is “unsightly”.

I intend to dismiss this application. Whilst I acknowledge that the applicant might technically be in breach of the by-law, I conclude the application of the by-law to the circumstances in question to be unreasonable. The reference to “registered” in the by-laws was presumably included to prevent an owner or occupier parking an unregistered or unsightly “bomb” in the space. However, the applicant has provided no evidence that this is in fact the case in respect of the vehicle in question, and the respondent denies this. I consider that the body corporate has more important matters to pursue in its control, management and administration of the common property then this matter.
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