Broadwater Tower [2001] QBCCMCmr 46 (1 February 2001)

P J HANLYREFERENCE: 0598-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9041
Name of Scheme:	Broadwater Tower
Address of Scheme:	17 Bayview Street RUNAWAY BAY QLD 4216

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

Mervyn Lancelot Aristotle Archos, the owner of lot 119


I hereby order that the applicant, Mervyn Lancelot Aristotle Archos, shall at all times maintain control of his allocated security keys and shall not make such keys available for the use of another person who is not an occupier.

I further order that the applicant, Mervyn Lancelot Aristotle Archos, shall ensure that the common property facilities are only used by his invitees or guests whilst they are residing in or visiting his lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0598-2000

“Broadwater Tower” CTS 9041

The applicant Mervyn Lancelot Aristotle Archos, the owner of lot 119, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) clarifying whether his guests are permitted to use the scheme’s tennis court when he is not physically present with them. The applicant also seeks clarification of the by-laws in relation to security keys.

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 he has been inviting a long time friend and his wife to play tennis on the common property tennis courts, and has also provided his friend with a key. The applicant further states that as he is incapacitated, he sometimes sits in the enclosure and watches his friends play tennis, and at other times they play without his being present. The applicant seeks a ruling on whether his actions breach the by-laws of the scheme.

The body corporate committee was invited to respond to the application. A response was received from the body corporate manager, on behalf of the committee. The body corporate manager states that several by-laws are applicable, and the committee’s concerns relate to the possible breach of security of the scheme, the use of visitor parking when the persons concerned are not actually visiting a lot owner, and the reduction in time available for the other owners to use the tennis court. The body corporate manager cites a regular occurrence of the applicant’s friends being observed arriving at the complex, parking their car in the visitor’s car park, gaining access directly to the tennis courts with a security key, playing tennis, and then leaving the complex, without at any time visiting the applicant, or the applicant coming to them.

The by-laws of the scheme are incorporated in the community management statement consented to by the body corporate on 31 May 2000 and recorded by the Registrar of Titles on 12 July 2000. The by-laws applicable to this application are by-laws 25.1, 26.1, 26.2, 28.2 and 34.1.

It is my view that the applicant should not have given a key to his friends to allow them unrestricted access to the scheme and its facilities. The issue of security is obviously an important one, particularly in a large scheme. Whilst I am not suggesting that the applicant’s friends would be careless with the key issued to them, it is still a matter of justifiable concern to other owners if keys are given out to third parties, hence the inclusion of by-law 28.2. I am also of the view that if the applicant wishes to invite his friends to play tennis, then they should go the applicant’s lot on each occasion, and from there the applicant should provide them with access to the tennis courts. I do not consider it necessary for the applicant to thereafter remain at the tennis court for the duration of the game. Of course, if the applicant’s friends were actually residing within the scheme, (occupying the applicant’s lot whilst he was away) then they would be entitled to have a security key for the duration of their stay, and no argument could be raised in relation to their use of the facilities.

As requested by the applicant, I have made appropriate declaratory orders.

2n