Surfers International [2001] QBCCMCmr 83 (14 February 2001)

P J HANLYREFERENCE: 0621-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12247
Name of Scheme:	Surfers International
Address of Scheme:	7 Trickett Street SURFERS PARADISE QLD 4217

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

Graeme John Beattie, the company nominee of Accommodation Unlimited Pty Ltd, the owner of lot 137



I hereby order that the application for an order that the Surfers International gymnasium not be closed, and that exercise equipment to the value of $5,000.00 as approved by resolution at the recent annual general meeting be purchased for use in the gym, is dismissed.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0621-2000

“Surfers International” CTS 12247

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

That the Surfers International gymnasium not be closed, and that exercise equipment to the value of $5,000.00 as approved by resolution at the recent annual general meeting be purchased for use in the gym.

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 body corporate resolved at the last annual general meeting to spend $5,000.00 to provide some basic exercise equipment for the gym. The applicant further states that the committee has refused to proceed with the purchase and has, in addition, ordered the gym to be closed due to the unsafe nature of the current equipment.

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 manager pointed out that the gym was closed following a report from the resident manager, of which the applicant is the company nominee, that the existing gymnasium equipment was dangerous and unsafe. The manager further pointed out that the committee has no intention of failing to carry out the body corporate’s resolution to purchase new gym equipment this financial year, but considers that it is responsible and reasonable to do so within the overall maintenance and improvement programmes of the body corporate. The manager noted that the body corporate’s financial year ends on 31 May.

I note the building manager’s report dated 2 October 2000 in respect of the gymnasium. It would appear that the building manager contemplated that the old gym equipment would be removed and the new equipment would be purchased, without any lapse of time between the two events. I do not consider that the committee has an obligation to do other than purchase the gym equipment “in this financial year”. Accordingly, they have until 31 May 2001 to do so, and I accept that such a purchase has been factored in to an overall maintenance and improvement programme. I also consider that the committee has acted responsibly in closing the gym in the interim, on the basis of the applicant’s own report that the existing equipment is dangerous. To have done otherwise could have exposed the body corporate to the possibility of litigation if someone had been injured on that equipment.

I have dismissed the application.2n