Oliver Court [2001] QBCCMCmr 430 (6 August 2001)

PJ HanlyREFERENCE: 0264-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21019
Name of Scheme:	Oliver Court
Address of Scheme:	53 Oliver Street NUNDAH QLD 4012

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

Gaetana Moschini, the co-owner of lot 1



I hereby order that the application for an order that the owner of lot 3, Angelo Denaro ceases parking on common property, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0264-2001

“Oliver Court” CTS 21019

The applicant, Gaetana Moschini, the co-owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Dear Sir, number 53 Oliver Street, only has four units with two visitors car parks. Mr Denaro refuses to abide by the Body Corporate By-Laws. We have done everything in our power to resolve this dispute, but we have run out of solutions.

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 parking has been a problem for many years. Mrs Moschini further states that she believed the matter had been solved in 1998, however the problem still continues. She further states that Mr Denaro sought the committee’s approval (to park on common property) in December 2000 and that the committee has given its approval. Mrs Moschini further states that on 11 March 2001 she found footprints on her balcony and suggests that Mr Denaro’s car was used as a “stepping stone” by someone to gain access to her balcony. She also states that this occurred again on 17 April 2001 and these events were reported to the police.

Submissions were sought from the respondent (Mr Denaro) and the other members of the body corporate.

Mr Denaro and the owner of lot 4, Joyce Eagles both confirm that approval for Mr Denaro to park in the visitor’s car park was sought from the committee, and subsequently granted. Their submissions also make reference to the purported use of Mr Denaro’s car as a “stepping stone” to gain access to Mrs Moschini’s balcony. Ms Eagles expresses the view that if such a thing had occurred there would be some physical evidence (a dent) of this on the car. Mr Denaro confirms that no footprints have been noticed on his car, but that he has on at least one occasion found “a bucket full of dirt....” tipped over the car. There is no evidence as to how the dirt might have found its way onto his car. Mrs Moschini reported the two sightings of footprints to the police, but there is no material before me as to whether the police ever conducted any investigation into the matter.

I note from the photographs submitted by Mrs Moschini in her response to the submissions that the footprints on the balcony appear to have been made by someone who had walked across wet soil. The photographs are otherwise inconclusive. I am not satisfied on the available evidence that Mr Denaro’s car was used to access Mrs Moschini’s balcony.

“Oliver Court” (4 lots) was registered as a group titles plan on 17 June 1987. Under the then legislation, the Building Units and Group Titles Act 1980, the by-laws set out in the Third Schedule of that Act became the by-laws of the body corporate immediately upon registration. Under the 1988 transitional provisions of section 5(10) of that Act, and section 283 of the current Act, the by-law relating to the parking of motor vehicles for this body corporate is as follows –

2. Vehicles. Save where a by-law made pursuant to section 30(7) authorizes him so to do, a proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

The exemption provision in the by-law is not relevant here as there is no by-law made under section 30(7) of the previous Act giving the owner of Lot 3 exclusive use of a particular part of the common property.

Accordingly, the by-law provides that owners and tenants of lots have no authority to park vehicles on the common property without the prior approval of the body corporate. The committee, as the administrative arm of the body corporate, can give that consent in the name of the body corporate, though of course the body corporate in general meeting can, as the principal body, overturn a committee’s decision.

As noted previously, Mr Denaro has stated that he has obtained approval to park in the “Car Park”. Mrs Moschini has, herself, confirmed that the approval has been given. The submissions received suggest that approval was given at a “meeting” of the body corporate. However, discussions with the body corporate manager, Access Body Corporate Management reveal that an “Advice Form” was sent to all four committee members seeking their vote on the request by Mr Denaro to park his company car in the visitor’s car park between the hours of 4.00pm to 8.00am Monday to Friday and all day and all night on Saturdays and Sundays.

Three of the owners returned their “Advice Form”. Mr Greig (lot 2) and Ms Eagles (lot4) voted yes and Mrs Moschini voted no. I am advised that Mr Denaro abstained from voting presumably to remove any question of conflict of interest.

The applicable regulation module for this scheme is the Body Corporate and Community Management (Standard Module) Regulation 1997. Section 35 of the Standard Module provides that a committee can make decisions outside of committee meetings. The section states:

Voting outside committee meetings

35.(1) A resolution on a motion before the committee is a valid

resolution of the committee, even though the motion is not passed at a

meeting of the committee called and conducted under division 7, if—

(a) notice of the motion is given to all committee members or, in an

emergency, as many members as it is practicable to contact; and

(b) a majority of all voting members of the committee agrees to the motion.

(2) The notice must be given in writing, and the members’ agreement to

the motion must be given in writing but, in an emergency, the notice may

be given, and the member’s agreement expressed, orally or by another

appropriate form of communication.

(3) For the operation of sections 34(1) and (2) and 37, the committee, in

dealing with a resolution under this section, is taken to deal with the

resolution at a meeting of the committee.

Given the provisions of section 35 the committee has given its consent to Mr Denaro’s request.

I now turn to Mrs Moschini’s comments in her reply to submissions. She refers to an adjudicator’s order, reference number 0301-1998 that she states prevents owners from parking in the visitors’ car park or other parts of the common property. She contends, “it seems strange that the committee could overturn the adjudicator’s order”. The application (0301-1998) was lodged by Mrs Moschini and sought orders similar to this application. The application was withdrawn on 29 July1998 at the request of Mrs Moschini. No order was made.

I therefore propose to dismiss the application.

Finally I will make some comment regarding Mrs Moschini’s obvious concern for her safety. I have already found that the by-laws under the Building Units and Group Titles Act 1980 apply to this scheme. By-law 5 provides as follows:

5 Damage to common property

(1) A proprietor or occupier of a lot shall not mark, paint, drive nails or

screws or the like into, or otherwise damage or deface, any structure that

forms part of the common property except with the consent in writing of

the body corporate, but this by-law does not prevent a proprietor or person

authorised by the proprietor from installing—

(a) any locking or other safety device for protection of his or her lot

against intruders; or

(b) any screen or other device to prevent entry of animals or insects

upon his or her lot.

(2) Provided that the locking or other safety device or, as the case may

be, screen or other device is constructed in a competent manner, is

maintained in a state of good and serviceable repair by the proprietor and

does not detract from the amenity of the building.

The by-law effectively allows an owner to install security screens or a security door to protect a lot. If Mrs Moschini should decide to install a security door or security screens, she would be well advised to put her proposal to the body corporate so that the owners can be assured that the installation would comply with sub-section 2 of by-law5.