Santorini Twin Waters [2001] QBCCMCmr 479 (28 August 2001)

RA MeekREFERENCE: 0344-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28222
Name of Scheme:	Santorini Twin Waters
Address of Scheme:	13 Nudjimba Esplanade MUDJIMBA QLD 4564

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

John Gerard Noonan and Margery Lynne Noonan, the owners of lot 13



RA MeekI hereby order that the pool spouts shall be turned off by the body corporate at 8 pm and turned on at 7 am or after each day, unless the body corporate resolves otherwise.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0344-2001

“Santorini Twin Waters” CTS 28222

The applicants John Gerard Noonan and Margery Lynne Noonan, the owners of lot 13, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That immediate reinstatement of the original lock on the air-conditioning plant room for unit 13 be carried out so that the key given to us at time of settlement will allow access as before.

2. That the water spouts in the swimming pool be turned off at night between the hours of 8 pm and 7 am as was previously the case.

3. That suitable enforceable penalties be set in the event of breaches of orders made under 1 and 2.

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 response to the application, I have the benefit of a submission from the manager, a Brian Wockner. That submission briefly states that –

1. The body corporate has given Mr Noonan a key to the air condition room (plant room)

2. The fountains around the pool are now turned off from 8pm to 7am.

The above 1 and 2 have been in place for approximately 4 weeks.

The applicants have replied to the Wockner submission. In their reply they do not mention the issue of the key, or in any way dispute the statement that they have now been provided with a key. I assume from this that this aspect of the application is now resolved. If it were not, then the applicants would have objected to the Wockner statement in their reply.

The applicant’s do however dispute that manager’s statement regarding the pool spouts. They state that –

Mr Wockner’s claim that the pool spouts are turned on at 7 am and off at 8 pm is a half truth as the sprouts have been monitored this week and were found to be ON more often than OFF at night.

In confirmation of this the applicants have attached correspondence sent to the committee regarding this issue. In that correspondence the applicants allege that the “caretakers have an agenda of persecution which they are determined to follow”. They further allege that the times for switching on an off of the pool spouts “showed no regular pattern”.

In the circumstances, given the limited information before me, I intend to order that the pool spouts be turned off by the body corporate, who presumably will direct the service contractor (manager) to comply, at 8 pm and on at 7 am or after, unless the body corporate resolves otherwise. No person has disputed these times being the times presently agreed upon. If, as the service contractor suggests, the spouts are being turned off at these times, then this order will be of no effect in the sense that it is being complied with. However, should this not be the case, then the body corporate will be in breach of the order, and the applicants will have an order that they might seek to enforce.

As for the third order sought, I intend to make no order to this effect. Firstly, the applicants have an order that they will be able to “enforce” should they consider that enforcement is required. Further, if the order is not complied with, it is really a performance issue for the body corporate to address with the manager. I certainly do not intend to order that the body corporate take action with the manager pursuant to the terms of the agreement between them.




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