Carmody Centre [2002] QBCCMCmr 25 (21 January 2002)

C G YOUNGREFERENCE: 0613-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16883
Name of Scheme:	Carmody Centre
Address of Scheme:	Corner Ewing Road & Carmody Street WOODRIDGE QLD 4127

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

Harry BAVEAS and Tess BAVEAS, as the co-owners of Lot 1,



C G YOUNGI hereby order that the interim order made on 31 October 2001, as follows –

I hereby order that the body corporate must not implement or otherwise act upon the resolution passed in respect of Motion 2 at the extraordinary general meeting of the body corporate held on 25 July 2001, for the engagement of Statewide Fencing to erect a perimeter fence at a cost of $7,519, pending determination of the application by final order.

I further order that the secretary of the body corporate must serve a copy of this order and the accompanying reasons on each owner of a lot in the scheme “Carmody Centre”,

is extended until such time as a final order to the application is made.

2yn
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0613-2001

“Carmody Centre” CTS 16883

The applicants, Harry and Tess Baveas of Lot 1, sought an interim order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), and on 31 October 2001 the following Interim Order 613-2001 was made -

I hereby order that the body corporate must not implement or otherwise act upon the resolution passed in respect of Motion 2 at the extraordinary general meeting of the body corporate held on 25 July 2001, for the engagement of Statewide Fencing to erect a perimeter fence at a cost of $7,519, pending determination of the application by final order.

I further order that the secretary of the body corporate must serve a copy of this order and the accompanying reasons on each owner of a lot in the scheme “Carmody Centre”.

By letter dated 16 January 2002, received at this office on 17 January, the applicants requested that the interim order be extended as the period for which the interim order has effect was about to lapse, and the parties are scheduled to meet in mediation on 8 February 2002.

Section 225(2) of the Act states -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.2yn

In the circumstances, I am satisfied that the interim order should be extended pending resolution of the dispute subject of the application.

C G YOUNGREFERENCE: 0613A-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16883
Name of Scheme:	Carmody Centre
Address of Scheme:	Corner Ewing Road & Carmody Street WOODRIDGE QLD 4127

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

Harry BAVEAS and Tess BAVEAS, as the co-owners of Lot 1,



I hereby order that the applicants, Harry BAVEAS and Tess BAVEAS of Lot 1, and the respondent Body Corporate for “Carmody Centre”, having reached a mediated settlement on 8 February 2002 of the disputes between them subject of the application, and having signed an agreement setting out the terms of settlement and requesting that a consent order be made for those settlement 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. Pedestrian link to be erected through the fence line equivalent to the width of one car park space.

2. Up to a distance of 1.2 metres towards the Station Road end of the centre from the pedestrian link and around to the vicinity of the rubbish bin on Ewing Road, a small fence be constructed up to a height of 1 metre, with the remainder of the fence line constituting the fence proposed by the Body Corporate.

3. One car space from the car park be relaxed, to accommodate the pedestrian link.

4. The Body Corporate redistribute all car parking bays, including the loading zone, so that each unit owner will still retain three car parking bays.

5. Landscape architect be engaged to prepare plan of the pedestrian link and the upgrading of the garden bed – specifying the type of shrubs and vegetation to be grown.

6. A bin enclosure be built with fencing to enclose waste disposal bin and grease trap facility.

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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0613A-2001

“Carmody Centre” CTS 16883

This 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 Harry and Tess Beavas of Lot 1, who sought orders relating to the proposed positioning of a fence by the body corporate in that the proposal would be to the detriment of business being conducted from their lot.

The applicants also sought an interim order of an adjudicator to restrain implementation of the proposal until the dispute was determined. On 31 October 2001 the following Interim Order 613-2001 was issued -

I hereby order that the body corporate must not implement or otherwise act upon the resolution passed in respect of Motion 2 at the extraordinary general meeting of the body corporate held on 25 July 2001, for the engagement of Statewide Fencing to erect a perimeter fence at a cost of $7,519, pending determination of the application by final order.

I further order that the secretary of the body corporate must serve a copy of this order and the accompanying reasons on each owner of a lot in the scheme “Carmody Centre”.

This interim order was extended by further order on 21 January 2002 to enable the parties to proceed with mediation scheduled to be held on 8 February 2002.

This office was subsequently advised by the Dispute Resolution Centre of the Department of Justice and Attorney-General, that a settlement had been reached at the mediation session.

John Drakos, solicitor for the applicants, and Jeff Thomas & Associates, solicitors for the respondent, advised by letters dated 1 May 2002 and 29 April 2002 respectively, advised that both parties consented to an Adjudicator issuing a consent order containing the terms of settlement.

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 any of the terms that would prevent me from including them in the order. I have included an auxiliary order that, for the purposes of compliance with the settlement terms under this order and any subsequent enforcement action that may be taken, sets the date of the order as the compliance date.

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 the “Dispute Resolution” provisions of Part 2, Chapter 6 of the Act.n