Banksia Place [2002] QBCCMCmr 33 (25 January 2002)

RA MeekREFERENCE: 0507-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11698
Name of Scheme:	Banksia Place
Address of Scheme:	42 Tallowood Drive MAROOCHYDORE QLD 4558

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

Kenneth Noel Murphy, the owner of lot 8



RA MeekI hereby order that the application by Kenneth Noel Murphy, the owner of lot 8, for an order to stop the absentee owner from entering our property and working in a car space which he has converted into a workshop, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0507-2001

“Banksia Place” CTS 11698

The applicant, Kenneth Noel Murphy, the owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking an order to stop the absentee owner from entering our property and working in a car space which he has converted into a workshop.

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 the supporting grounds, the applicant states that –

The owner of unit 1 has rented that unit to a person who doesn’t own a car and consequently that tenant is not using the car space allocated to that unit. The absentee owner has converted that car space into a workshop; stacking the car space with dressed timber and machines which are noisily used by the absentee owner every day of the week.

I have considered the application, and submissions received in response to the application, and conclude that the dispute is without substance. Section 220 provides that an adjudicator may “without investigation” make an order dismissing the application, or may end an investigation and make an order dismissing the application, if it appears that ... (b) the application is frivolous, vexatious, misconceived or without substance”.

Briefly, the allegation appears to be that a car space is used by a non-resident owner as a workshop. There is no reference to by-laws alleged to have been contravened, or to sections of the Act (eg. Section 129) to evidence a dispute. The applicant’s allegations are contradicted by the submissions of the owners of lot 1 in almost every respect.
The car space is part of the lot. It is not common property allocated to an owner by way of exclusive use, and restricted in the by-law to certain uses (eg. Parking only). The respective areas are not described as car parks on the plan, but simply as parts of the respective lots. There is no prohibition on an owner letting only part of his lot, and retaining the garage, as is the case here. There is no evidence that the garage is stacked with timber; rather the pictures included with a submission appear to indicate a storage shed (in the sense of an enclosed area for storage of miscellaneous property or items). There is no evidence that the owner of lot 1 uses machines in the space “every day of the week”. This is specifically denied, and it is stated that the person is in fact absent from the area for long periods of time due to work commitments.

I conclude the application is without substance, that the allegations are unsubstantiated, and that the application should be dismissed. I have ordered accordingly.




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