Harmony Court [2001] QBCCMCmr 477 (28 August 2001)

DJ ReardonREFERENCE: 0162-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1157
Name of Scheme:	Harmony Court
Address of Scheme:	451-455 Severin Street CAIRNS QLD 4870

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

Kay Elizabeth Bennett, the owner of Lot 4

DJ ReardonI hereby order that the application by Kay Elizabeth Bennett, the owner of Lot 4, for an order nin relation to nuisances created by the occupier of Lot 5, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0162-2001

“Harmony Court” CTS 1157

The applicant Kay Elizabeth Bennett, the owner of Lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“I am seeking justice for not just for a few. Surely there is something the Commissioner can do. I feel that it is not a dispute but very bad management practices by Meg Trimble. The guy in flat he now does whatever he, knowing that no one will do anything. In honesty this must change.”

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 of the application, the applicant indicates that she objects to the noise created by the occupier of Lot 5. The applicant goes on to outline that she is not satisfied with the performance of the body corporate manager in dealing with her complaints.

In the course of investigating this application, this office invited all owners of lots in the scheme and the body corporate committee to make a written submission in response to the application. Two submissions have been received opposing the application, one from the owner of lot 19, and one from three committee members. This office has not received any submissions in support of the application.

Before this application was determined, the applicant sold her lot in the scheme. This was confirmed by a telephone conversation between the applicant and a member of this office on 14 August 2001.



In my view, having sold her lot in the scheme, the applicant no longer has a sufficient interest in the issues raised in the application to warrant an order of an adjudicator. The conduct of occupiers of lots in the scheme is an issue for the current committee and current owners and occupiers of lots in the scheme to consider and manage. If the current committee, or current owners and occupiers believe that there is a problem regarding the conduct of an owner or occupier, then they could make further applications to resolve a dispute with this office. In making this decision, I have also had regard to the fact that the only submissions received in response to the application have been in opposition, and further, the applicant has provided minimal grounds in support of the order she is seeking. In other words, the applicant has simply not provided sufficient evidence or information to demonstrate that the occupier of Lot 5 is creating a nuisance, or breaching body corporate by-laws.

The applicant has raised the issue of the performance of the body corporate manager as an issue in this application. While it has no bearing on the order I have made, I would like to provide the parties with some brief information on the role of a body corporate manager. The Act describes a body corporate manager as a person “engaged by the body corporate (other than as an employee of the body corporate) to supply, including through the exercise of delegated power, administrative services to the body corporate”. More specifically, the duties and responsibilities of the body corporate manager will be set out in the written management agreement entered into by the manager and the body corporate. While they are not prohibited from doing so, generally, the body corporate manager will not have a direct decision making role in the policing of body corporate by-laws. This is usually a matter managed by the committee (or the on-site manager if one has been appointed), perhaps with administrative support and advice from the body corporate manager.