Cairns Agincourt [2002] QBCCMCmr 523 (26 August 2002)

DJ ReardonREFERENCE: 0379-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1043
Name of Scheme:	Cairns Agincourt
Address of Scheme:	69 - 73 Arlington Esplanade CLIFTON BEACH QLD 4879

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Cairns Agincourt community titles scheme 1043

I hereby order that the Owner of Lot 46 must within 6 weeks of the date of this order vacate, and remove all items being stored in, the areas of common property adjacent to the southern side of Lot 46 allocated for the exclusive use of Lots 16, 22, 23, 24, 38, 39 and 40.

I further order that the application for an order that the Owner of Lot 46 replace the metal cages that were previously installed on the area of common property adjacent to the southern side of Lot 46, is dismissed.DJ Reardon 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0379-2002

“Cairns Agincourt” CTS 1043

1.	Orders sought

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

“Firstly, that the on site manager vacate the area that is clearly marked on the CMS as an “exclusive use” for the unit owners. The first official notice to vacate has been given to Demiro on the 3th of August 2001. The unit owners who are affected by this want an order be made that a date be set for Demiro to vacate the area.

Secondly, that the order be made that the metal cages be reinstalled by Demiro, the current manager.

Thirdly, that penalty points be awarded: It is understood that a body corporate manager or service contractor who has possession or control of a body corporate asset must return it on demand or is required to pay 20 penalty units! In this case the service contractor has consistently failed to return the asset to its rightful use since first requested in August 2001.”

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 the Act or the community management statement; or
c)	a claimed or anticipated contravention of the terms of, 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 “Cairns Agincourt” community titles scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2.	Application and submissions

This dispute resolution application was made on 27 June 2002. On 1 July 2002, the Commissioner for Body Corporate and Community Management requested further information and materials from the Applicant in regards to the application.

On 10 July 2002, the Commissioner invited the Respondent to the application, the Service Contractor and Letting Agent for the Body Corporate, to make a written submission about the application. The Respondent has provided a written submission in response to the application under cover of a letter dated 25 July 2002.
On 16 August 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

3.	Matters in dispute

From the material before me, I understand that this application concerns an area of scheme land adjacent to, and on the southern side of Lot 46 (“the area in dispute”). The Respondent, the Service Contractor and Letting Agent for the scheme, is the registered owner of Lot 46. The community management statement indicates that the area in dispute includes a number of storerooms that have been allocated for the exclusive use of Lots 16, 22, 23, 24, 38, 39 and 40.

From the material before me, it appears that the area in dispute was used by the previous Resident Manager, and is currently being used by the Respondent, to store linen and other equipment, and for other office purposes. It also appears that at some point in the past, the previous Resident Manager removed a number of metal cages, which separated the storerooms.

This application seeks an order that the Respondent vacate this area, and that the Respondent replace the cages that have been removed. The application also sought the application of a penalty against the Respondent. I will consider each of the orders sought in turn.

3.1	Vacating the area in dispute

In the supporting grounds to the application, the Applicant states that the Respondent is using the area in dispute without authority of the Body Corporate. The Applicant goes on to state that the owners with the benefit of exclusive use of parts of the area in dispute wish to use the areas that they are entitled to use, and which, the Respondent is currently using for business purposes.

The Respondent confirms in its submission that it is using the area in dispute for storage and other purposes relating to its function as a service contractor and letting agent for the scheme. The Respondent states that the area has been used in this way for four years, and the Body Corporate has only recently objected to this use. The Respondent also points out that if it is required to vacate the area in dispute, it will experience significant difficulty in conducting its letting business, particularly in relation to storage and the location of a PABX system.

From the material before me, I understand that the Applicant and the Respondent agree that the previous Resident Manager commenced using the area in dispute and removed the metal cages separating the exclusive use areas. The Respondent has continued using the area in the manner used by the previous Resident Manager.

The community management statement indicates that the area in dispute includes areas allocated for the exclusive use of Lots 16, 22, 23, 24, 38, 39 and 40. Section 53(2) of the Standard Module provides, among other things, that the community management statement for a community titles scheme is binding on the body corporate, and each member of the body corporate.

Although the Respondent has continued using the area in dispute in the manner of its predecessor, the fact remains that sections of this area have been allocated for the exclusive use of Lots 16, 22, 23, 24, 38, 39 and 40. In my view, notwithstanding the historical use of the area, the Respondent is not entitled to continue to use this area, and the owners and occupiers Lots 16, 22, 23, 24, 38, 39 and 40 should be able to lawfully use and enjoy the areas allocated for their exclusive use. For this reason, I intend to order that the Respondent must vacate the area in dispute.


However, I also appreciate that the Respondent has used the area in dispute for a significant amount of time, and may require a reasonable period of time to vacate the area and make alternative storage and other arrangements. For this reason, I intend to allow the Respondent 6 weeks from the date of this order to vacate the area.

3.2	Replacing the cages

As stated previously, I understand that the previous Resident Manager for the scheme removed a number of metal cages separating the exclusive use areas of the area in dispute. In a letter dated 3 August 2001 to the Respondent, the Chairperson makes the following comments:

“It is very disturbing to now learn that, without the knowledge or authority of the Body Corporate, the metal cages separating the lockers were removed and the area was occupied by the Manager.

I accept that this unauthorized dealing with common property was the action of the previous Manager, but I’m sure you realize that when you purchased from him you took over all of the rights AND RESPONSIBILITIES from him.”

In its submission, the Respondent expresses a view that it should not be held responsible for unauthorised interference with, or damage to common property by the previous Resident Manager, over which the Respondent had no control. The Respondent also states that if the Body Corporate wishes to take action in regards to the removal of the cages, it should be against the previous Resident Manager.

I agree with the Respondent’s submission on this point. The Applicant has provided me with no convincing reason as to why it would be just and equitable to hold the Respondent liable for the actions of its predecessor. In my view the Respondent has an obligation to comply with the terms of the agreement that it is now a party to, and generally to its responsibilities under the Act, however, this obligation does not extend further to rectifying this type of alleged wrongful action of the previous Resident Manager.

I intend to dismiss the application for an order that the Respondent replace the cages that were located in the area in dispute. It will be for the Body Corporate to consider whether or not to pursue the previous Resident Manager concerning this issue.

3.3

Penalty

After reviewing the material on file, it seems to me that the Commissioner for Body Corporate and Community Management advised the Applicant that adjudicators have no authority under the Act to impose a penalty, and it appears that the Applicant intended to withdraw the application for an order for the application of a penalty. However, this amendment does not seem to have been made to the application distributed to the Respondent. As such, I do not intend to make an order on this issue. However, in any event, I agree with the Respondent’s submission that the Commissioner has no authority to impose a penalty. Further, I agree that adjudicators under the Act have no authority to impose a penalty.