Cairns Industrial Park [2002] QBCCMCmr 389 (17 June 2002)

Last Updated: 19 November 2007

P J HANLYREFERENCE: 0210-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	239
Name of Scheme:	Cairns Industrial Park
Address of Scheme:	36 Buchan Street CAIRNS QLD 4870

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

D J Madder Pty Ltd, the Owner of lot 7



I hereby order that the owner of lot 6, Suton Pty Ltd, and any occupier for the time being of lot 6, shall forthwith cease traversing the exclusive use area allocated to lot 7, in order to gain access to the exclusive use area allocated to lot 6.

The above order was appealed to the District Court at Cairns on 18 December 2002. On 27 July 2004 the Court ordered, with consent of the parties, that the appeal should be dismissed and that each party shall bear their own costs of the appeal.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0210-2002

"Cairns Industrial Park" CTS 239

The applicant, D J Madder Pty Ltd, the Owner of lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order is sought to prevent the owner and tenant of Shed 6 from crossing the land area known as Shed 7 exclusive use area (Unit 7).

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 owner and tenant of shed 6 insist that they have right of access through the exclusive use area allocated to lot 7 in order to access the exclusive use area allocated to lot 6. The applicant further states that this is contrary to the original plan, which shows that the common property terminates at the gantry support.

The body corporate committee, the body corporate manager and the owner of lot 6, Suton Pty Ltd, were all invited to respond to the application. A submission was received from the owner of lot 6, who stated that the incorrect registration of the plan needed to be addressed to avoid confusion. This statement was in reference to the alleged easement, which exists over the exclusive use area allocated to lot 7, thereby allowing lot 6 to access its exclusive use area by traversing lot 7’s exclusive use area. The submission also included a statement from the agent who was instrumental in the development and sale of the property. The agent’s statement attached a number of plans, and included the following statement:

"I have spoken to Mr Ron Tonkin the original owner and he will verify if required that these properties were sold with all parties fully understanding that this easement existed from the beginning. I also think that Mr Rod Hyatt would do likewise."








The applicant replied to the submission.

The building units plan (now described as a building format plan) registered in the Titles Office on 22 March 1993. Several easements were registered against the property, two of which were for right of way purposes to lots adjacent to the lot on which the building units plan had registered. The other two easements were to the FNQEB and Cairns City Council for electricity purposes and drainage purposes respectively. On 4 May 1993, the Registrar of Titles recorded a notification of change of by-laws, by which all lots were allocated exclusive use of certain areas of common property. Travelling over common property adjacent to lots 8 and 9 accesses the exclusive use area allocated to lot 7. Travelling over common property adjacent to lot 5 accesses the exclusive use area allocated to lot 6.

It is apparent from a perusal of all of the easement documents, the registered plan and the registered by-laws, that there is no easement over lot 7’s exclusive use area enabling lot 6 to access its exclusive use area from that side. It is immaterial that any party may have purchased a lot with such an "understanding", when the registered documentation in existence at the time of those purchases clearly shows otherwise.

In the circumstances, I have ordered that the owners and occupiers of lot 6 shall forthwith cease traversing lot 7’s exclusive use area in order to access lot 6’s exclusive use area.

2n