Kalcem Court [2002] QBCCMCmr 404 (21 June 2002)

DJ ReardonREFERENCE: 0245-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19775
Name of Scheme:	Kalcem Court
Address of Scheme:	2 Queen Street CLEVELAND QLD 4163

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

Body Corporate for Kalcem Court

DJ ReardonI hereby order that the Owner of Lot 15 must immediately remove her vehicle from the common property for the “Kalcem Court” community titles scheme.

I further order that the Owner of Lot 15 must in future refrain from parking on common property 2nin breach of the by-laws for the “Kalcem Court” community titles scheme.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0245-2002

“Kalcem Court” CTS 19775

1.	Order Sought

The Applicant, the Body Corporate for “Kalcem Court” has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“That the Occupier (Owner) of Unit 64 Lot 15 be ordered to remove the vehicle parked permanently from the visitors car park, as per the by-laws of Kalcem Court.”

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)).

The community management statement for the “Kalcem Court” community titles scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

The community management statement for the scheme contains the following by-law concerning vehicles.

“4. Vehicles

(a)	A Proprietor or Occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the Body Corporate.
(b)	An Occupier of a lot within the parcel shall not regularly park in the same parking space situated on the common property. For the purposes of this By-Law regularly means for not longer than ten (10) hours per day over three (3) consecutive days (1 day being 24 hours).
(c)	Except where accommodated within a garage or carport a Proprietor or Occupier shall not park or stand or permit the parking or standing of a caravan, trader, boat trailer or motor vehicle upon his or her lot unless for the purpose of immediately loading or unloading the same.
(d)	A Proprietor or Occupier of a lot shall not service or repair (or permit the service or repair of ) any vehicle within his or her lot or on the common property without the prior written consent of the Committee. For the purposes of this By-Law “repair” includes repair, engine overhaul, stripping, reconstruction, panel beating and painting.”
2.	Application and Submissions

This dispute resolution application was made on 26 April 2002. On 17 May 2002 the Commissioner for Body Corporate and Community Management invited the Owner of Lot 15 to make a written submission about the dispute resolution application. Having not received a submission from the Owner of Lot 15, a member of the Office of the Commissioner for Body Corporate and Community Management telephoned the Owner of Lot 15 on 17 June 2002 to verify whether or not she intended to make a submission about the application. In the course of the conversation the Owner of Lot 15 indicated that she was in the process of moving out, and selling the lot and did not intend to forward a submission about the application.

As a result of the above conversation, the member of the Commissioner’s Office contacted the Body Corporate Manager for the scheme to establish whether the dispute was resolved. The Body Corporate Manager for the scheme could not confirm that the dispute was at an end.

At the time of making this order, the registered ownership of Lot 15 has not changed since the date of lodgement of the application.

3.	Supporting grounds to the application

As supporting grounds to the application, I have been provided with an undated copy of a Notice of Continuing Contravention of the Body Corporate By-law, purportedly issued to the Owner of Lot 15. The notice outlines by-law 4, and states that the Owner of Lot 15 has breached the by-law by “using the visitors car park adjacent to your unit as a permanent car park”.

I have also been provided with a copy of the minutes of a committee meeting held on 18 March 2002. The minutes record that a letter had been received from the Owner of Lot 15 requesting permission to park a vehicle in a visitors bay until the lot was sold. As an item of “Correspondence out”, the minutes describe a letter from the Chairperson for the scheme to the Owner of Lot 15 “advising that committee members were unanimous in the decision that no dispensation be granted in respect of parking of owners vehicles in visitors car parking spaces.” The minutes also record that “The committee endorsed implementation of appropriate action under legislation to the Body Corporations Act should the owners of unit 64 continue to defy the by-laws in respect to parking”.

In addition, I have been provided with a number of photographs of a vehicle purportedly parking on common property without the approval of the Boy Corporate.

4.	Conclusion

In the absence of a submission from the Owner of Lot 15 opposing the application, I have little alternative but to accept the Body Corporate’s claim that the Owner of Lot 15 is parking on common property in breach of the by-laws for the scheme. For this reason, I intend to order that the Owner of Lot 15 remove her vehicle from common property, and further I intend to order that the Owner of Lot 15 refrain from parking on common property in breach of the by-laws. 2n

Parties should not that the Act provides for the enforcement of adjudicator’s orders through the Magistrates Court. A person who contravenes an adjudicator’s order commits an offence, which may attract a maximum penalty of 400 penalty units (The value of a penalty unit is $75, see section 5 Penalties and Sentences Act 1992).