Dixon Lodge [2002] QBCCMCmr 47 (30 January 2002)

RA MeekREFERENCE: 0521-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14837
Name of Scheme:	Dixon Lodge
Address of Scheme:	21 Dixon Street COOLANGATTA QLD 4225

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

Marie Aileen Stafford, the occupier of lot 2


RA MeekI hereby order that the application by Marie Aileen Stafford, the occupier of lot 2, for an order to have a gate placed across the opening to the open garage for security, to stop cars being taken, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0521-2001

“Dixon Lodge” CTS 14837

The applicant, Marie Aileen Stafford, the occupier of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

To have a gate placed across the opening to the open garage for security, to stop cars being taken.

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)).

I have considered the applicant’s grounds and note the following comments, namely :-

• Her car has had malicious damage done seven times altogether;

• “4 other cars have been done since mine”;

• “Police officer advise gate be placed for deterrent to stop cars being taken”;

• “mate Fred Steel, had numerous times, plus meetings to as secretary applied for security my car garage to owners but units 1/15 would not agree, myself twice to committee and spoke at meeting to Mr O’Donnell – no unit holders would not agree to have any security at all for garage.”

The body corporate manager has responded on behalf of the committee, by submission. In particular, the committee states that no motion or quote has ever been submitted to a general meeting for approval, and consequently, the committee is “not aware of any dispute with regard to such matter”. Further the committee challenges the right of the applicant as an “occupier” to “submit an application or the Commissioner the right to proceed or rule on an application which would incur a capital expense on the body corporate and create a financial burden on the owners”.

It is unnecessary to deal with the issue of jurisdiction as raised by the body corporate submission, as I intend to dismiss the application in any event. The grounds relied on by the applicant simply do not warrant an order in the terms as sought being made.

In my view, the application lacks two essential ingredients. Firstly, evidence that the applicant (or another, who would need to be a lot owner) has submitted a motion regarding the proposal for inclusion on the agenda of a general meeting. Whilst the applicant alleged the matter has been raised with the body corporate, there is no evidence tendered to support this.

Secondly, whilst I do have power to order a body corporate to make an improvement to common property where I am satisfied the “improvements are reasonably necessary for the health, safety or security of persons who use the common property” (see section 113(3) of the standard module), quoted hereunder, I do not consider that the applicant has established a sufficient case for the making of the improvement on security grounds. With respect to the applicant, I consider that her grounds lack coherency and are difficult to follow.

ÿ
Improvements to common property by body corporate—Act, s 121
113. The body corporate may make improvements to the common property if—
(a) the cost of the improvements, or, if the improvements together with associated improvements form a single project for improvement of the common property, the cost of the entire project, is not more than an amount worked out by multiplying the number of lots included in the scheme by $250; or
(b) the improvements are authorised by special resolution;23 or
(c) an adjudicator, under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements.

I conclude by stating that if, as it seems, most owners in the scheme are opposed to the installation of a gate to enclose the entire common property car park, then perhaps the applicant, or the owner of that lot, should propose a motion that the owner be entitled to enclose the individual car space, as is done in many buildings on the Gold Coast. Improvements to common property by an owner are dealt with in section 114 of the standard module and require a special resolution in most cases. Alternatively, if the car space for the applicant’s lot is part of the lot and not common property, then the committee might be able to approve the enclosure of the individual car space. In the event of the body corporate or the committee refusing permission for such proposal, the applicant would have the right to make application to this office alleging that such refusal is unreasonable.




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