Ischia Court [2002] QBCCMCmr 524 (26 August 2002)

P J HANLYREFERENCE: 0441-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5673
Name of Scheme:	Ischia Court
Address of Scheme:	86 Sarawak Avenue, PALM BEACH, Q 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Ischia Court CTD 5673

I hereby order that the owner of lot 5, Peter Di Iorio, shall immediately cease standing or parking his motor vehicle, or any motor vehicle being driven by him, on the common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0441-2002

“Ischia Court” CMS 5673

The applicant, the body corporate for Ischia Court, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That Mr Di Iorio cease continually parking his vehicle in such a way as to deny free and normal access by other owners to and from their garage.

The applicant has also sought an interim order of an adjudicator in the same terms.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. 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 Mr Di Iorio has been requested on numerous occasions to cease deliberately parking his vehicle to ensure other owners are denied access to and from their garages. The applicant further states that a Notice of Continuing Contravention of a body corporate by-law was issued on 8 July 2002, but Mr Di Iorio continues to park on common property.

Mr Di Iorio was invited to respond to the application, but no submission was received from him.

Under normal circumstances, an issue such as parking on common property would not fall within the category of matters in respect of which an interim order would be made. However, I note that this problem has existed for almost ten years, with a previous order requiring Mr Di Iorio to cease parking on common property having been made by the Referee on 24 June 1993. That order is still in force. In spite of this, it appears that Mr Di Iorio has continued to park on the common property, without any regard to the inconvenience that he might be causing to other owners. One of the letters attached to the application stated that Mr Di Iorio’s “arrogance and negativity in all instances is frustrating for all owners in this complex as he does not comply with Body Corp rules and openly boasts he has no intention of so doing.” Mr Di Iorio has not taken the opportunity to refute any of the material contained in the application, so I have taken that material as accurately representing the present position.

This scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997. The by-laws applicable to the scheme include a by-law prohibiting an owner or an occupier from parking or standing any motor or other vehicle on common property except with the consent in writing of the body corporate, and a further by-law prohibiting an owner or an occupier from obstructing the lawful use of the common property by any person. It is clear that Mr Di Iorio has breached both of these by-laws.

I have also been provided with two photographs, which show the owner of lot 1’s vehicle completely parked in by Mr Di Iorio’s vehicle. The body corporate manager advised Mr Di Iorio in a letter dated 5 February 2002 that the committee and the owners of lot 3 have given the owner of lot 1 permission to park her vehicle on common property in a space opposite lot 3’s garage. Mr Di Iorio, on the other hand, does not have the written consent of the body corporate to park on common property.

In the circumstances, and given the length of time that Mr Di Iorio’s breaches have continued, I propose to make an order that he immediately cease parking or standing his vehicle on common property.

Given that Mr Di Iorio ignored the previous order made by the Referee, on this occasion he should be aware of a number of matters.

Firstly, section 234 of the Act provides:

234 Enforcement of other orders

(1) This section applies if the following are filed with the registrar of a

Magistrates Court—

(a) a copy of the order of an adjudicator on an application under this

chapter, certified by the adjudicator to be a true copy, or of the

order of a court on appeal from the order of an adjudicator,

certified by the registrar of the court making the order to be a true

copy;

(b) a sworn statement by a person in whose favour the order is made

stating that an obligation imposed under the order has not been

performed.

(2) The registrar may register the order in the court.

(3) The Magistrates Court may appoint an administrator, and authorise

the administrator to perform obligations under the order of the body

corporate, the committee for the body corporate, a member of the

committee or the owner or occupier of a lot the subject of the order.

(4) If the Magistrates Court appoints an administrator to perform

obligations of an entity mentioned in subsection (3), anything done by the

administrator under the authority given under the order is taken to have

been done by the entity.

Secondly, section 235 of the Act provides:

235 Failure to comply with adjudicator’s order

(1) A person who contravenes an order under this chapter (other than an

order for the payment of an amount) commits an offence.

Maximum penalty—400 penalty units.

(2) A proceeding for an offence under subsection (1) (other than a

proceeding taken by the Attorney-General) may only be taken by the

applicant for the application for the original order, or the body corporate.

(3) Costs awarded against a defendant in a proceeding under this section

may include the amount of the fee paid to the commissioner on making the

application for the original order.

(4) In subsection (3)—

“application for the original order” means the application for the order

of an adjudicator for the purposes of which the order mentioned in

subsection (1) is made.

Accordingly, if Mr Di Iorio fails to comply with this order, the body corporate may take enforcement action against him, and if the Magistrate were to find that he has contravened the order, then he would be liable to a penalty not exceeding $30,000.00 (1 penalty unit = $75.00).

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the parties consider that an appeal of this decision is warranted, then they should appeal this order.