Oasis [2001] QBCCMCmr 537 (19 October 2001)

C G YOUNGREFERENCE: 0321-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Morala Avenue RUNAWAY BAY QLD 4216

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

C G YOUNGI hereby order that the application for orders that the owners of lot 4, Allan and Christine Grice:

• Be ordered to cease parking their vehicles on common property directly in front of their garage;

• Be ordered to remove their dog from the premises in accordance with the scheme by-laws; and

• Stop illegal use of common property by the riding of a scooter on the driveway

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0321-2001

“Oasis” CTS 20870

The applicant Body Corporate, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote

That the owners, Mr and Mrs Grice be ordered to cease parking their vehicle on Common Property directly in front of their garage and further that they are ordered to remove their dog from the premises in accordance with the scheme By-laws. In addition to the above an order is sought to stop illegal use of Common Property, i.e. riding of a scooter on the driveway.

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 the Grice’s have been approached on a number of occasions by the Resident Manager and also by way of correspondence via the Body Corporate Manager’s office, including the issue of two Notices of Continuing Contravention of a Body Corporate By-Law, regarding breaches of body corporate by-laws. Specifically, the applicant alleges a breach of by-laws 13, 14 and 32 in that the Grice’s allow their son to ride a scooter through the complex on the driveway, park a Silver Musso and a White Toyota Ute in front of their garage on the common property and allow their dog to run through common areas and in some cases other lots.

A new Community Management Statement (CMS) was registered for the Oasis Body Corporate on 15 may 2000. By-laws 13, 14 and 32 contained therein provide as follows.

13.	OBSTRUCTION

An owner or occupier of a lot shall not obstruct lawful use of common property by any person. In particular common property driveways must be not used for any form of recreation including ball games, bicycle riding, skating or skate boarding.

14.	NO PARKING

An owner or occupier of a lot shall not park or stand any motor vehicle or other vehicle upon areas set aside for visitor car parking or upon any other part of the common property except with the consent in writing of the Body Corporate committee.

32.

ANIMALS

An owner or occupier of a lot shall not bring any animal to or keep any animal upon his lot or the common property. This by-law does not apply to persons with authorities to keep animals if the authority was validly given prior to the 18^th December, 1990 but upon the death of any authorised animal it is not to be replaced.

Section 53(2) of the Act provides that the community management statement is binding on each member of the body corporate as if it included mutual covenants to observe its provisions entered into by each person bound by it and as if each person bound had signed the community management statement under seal.

In their submission, the Grice’s concede a breach of by-laws 14 and 32, stating that the parking on common property was temporary while they were in the process of moving in (although they state that they do not own and have never owned a white Toyota Utility) and that they have now removed the dog from the premises. However, they state that their son’s riding of his scooter did not constitute a breach of by-law 13. They further state that there is no current or continuing breach of any of the body corporate by-laws. The applicant, in response to this, states that the Grice’s continue to utilise common property regularly for the parking of a vehicle (registration no. 417-BSJ), although all other matters have been resolved to the satisfaction of the committee. After a number of requests from this office to do so, the body corporate managers provided the office with a description of the vehicle (registration no. 417-BSJ). The vehicle was described as a white Nissan Pulsar. The Grice’s state that their only vehicles are a Musso and a Toyota Soarer Coupe. The applicants have therefore failed to supply sufficient evidence that the Grice’s are in fact continuing to park on the common property. As such, there appears to be no current or continuing breach of body corporate by-laws and this application must be dismissed.