Tawaree Court [2002] QBCCMCmr 212 (18 April 2002)

C G YOUNGREFERENCE: 0746-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22408
Name of Scheme:	Tawaree Court
Address of Scheme:	66 - 68 Broadsea Avenue MAROOCHYDORE QLD 4558

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

John William Joseph ROBERTS and Dora ROBERTS, owner and occupier of Lot 4 respectively,



C G YOUNGI hereby order that the applicants, John William Joseph and Dora ROBERTS of Lot 4, Rita and Kenneth WALKER of Lot 5, and Bill REYNOLDS, having reached a mediated settlement on 15 April 2002 of the disputes between them subject of the application, and having all signed an agreement setting out the terms of settlement including that a consent order be made in respect of the terms by an Adjudicator pursuant to section 199(3)(e) of the Body Corporate and Community Management Act 1997, must abide by those agreed terms which are set out below –

1. Bill Reynolds agrees to install a pedestal fan in the garage to direct the cigarette smoke away from the Walker’s property within fourteen days (of 15 April 2002).

2. Ken Walker offers to modify his exhaust pipe on his vehicle to prevent fumes bothering the Robert’s within fourteen days (of 15 April 2002).

3. Ken (Walker) will cease parking/stopping alongside the window opening from the Robert’s property.

4. Bill (Reynolds), Dora(Roberts) and Jack (John Roberts) agree that they will not feed the birds from now on.

5. All parties agree that communication in the immediate future may be difficult and have agreed to contact each other by leaving a note in the letter-box should any difficulties arise.

6. All parties agree not to speak badly about the other parties to other people.

7. Ken is agreeing to install a security grille on their adjoining window to the Robert’s property.

I further order that, for the purposes of compliance with this order, both parties must observe and carry out the terms of the agreement from the date of this order. C G YOUNG 2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0746-2001

“Tawaree Court” CTS 22408

This is a consent order made under the provisions of section 199(3)(e) of the Body Corporate and Community Management Act 1997 (“the Act”) to an application by John (Jack) and Dora Roberts of Lot 4, have sought the following order of an adjudicator under the Act, quote –

“Cease being a nuisance (no verbal contact at all)”

The above order was sought against Ken Walker, the owner of Lot 5, though from the grounds submitted the dispute appears more with Mrs Walker.

A copy of the application was forwarded to the respondent and the owners of other lots in the scheme inviting submissions to the matters raised in the application (see section 194 of the Act). Yann responded with a written submission dated 5 July 2001. Both Ken and Rita Walker made submissions to the application.

Under the case management provisions of section 198(2) of the Act, the Commissioner for Body Corporate and Community Management (“the Commissioner”) subsequently determined that mediation was the most appropriate method for resolving the disputes subject of the application. The application was referred to the Dispute Resolution Centre, Department of Justice and Attorney General, for mediation. This case management decision was advised to the parties by letter dated 27 February 2002.

The Dispute Resolution Centre subsequently advised the Commissioner that the disputes had been mediated between the parties on 15 April 2002 and that an agreement had been reached. A copy of the written agreement, signed by both and containing the terms of settlement, was also forwarded. The agreement includes as its final term –

“We agree to refer this agreement to an Adjudicator appointed under the Body Corporate and Community Management Act 1997, as a consent order pursuant to section 199 of the Act, so that an adjudicator may approve its terms, subject to the requirements of the Act.”

Section 199(3)(e) of the Act states –

“Supplementary case management recommendation.

199. (1) This section applies to an application for an order of an adjudicator if—

(a) the application has been the subject of dispute resolution center mediation or specialist mediation; and

(b) the applicant wishes to proceed with the application.

(2) The commissioner must decide on a supplementary case management recommendation for the application.

(3) The commissioner must choose 1 of the following supplementary case management recommendations—

(a) if the application has been the subject of dispute resolution center mediation—that the application be the subject of—

(i) further dispute resolution centre mediation; or

(ii) specialist mediation;

(b) if the application has been the subject of specialist mediation—that the application be the subject of—

(i) further specialist mediation; or

(ii) dispute resolution centre mediation;

(c) that the application be the subject of department adjudication;

(d) that the application be the subject of specialist adjudication;

(e) that the application be the subject of department or specialist adjudication, limited to making an order with the consent of all parties to the application, whether or not for formalising the substance of an agreement reached at mediation.”

Accordingly, as provided for in paragraph (e) above, my order is limited to the making of a consent order formalising the agreement reached, there being nothing in the terms that would prevent me making the order. I have, however, added the settlement date to terms 1 and 2 to incorporate the time limits agreed to by the parties. I have also included an auxiliary order that, for the purposes of compliance with the terms under this order and any subsequent enforcement action taken, sets the date of the order as the compliance date, however in respect of Terms 1 and 2, the fourteen day period applies and is already running at the time of making this order.

I point out to the parties that under the provisions of section 237(1)(b) of the Act, no appeal can be made against this order. I also point out that this order comes within the general provision for the enforcement of orders as set out in Part 2 of Chapter 6 “Dispute Resolution” of the Act.n