Lake Hills [2002] QBCCMCmr 643 (23 October 2002)

C G YOUNGREFERENCE: 0462-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26051
Name of Scheme:	Lake Hills
Address of Scheme:	Palm Meadows Drive CARRARA QLD 4211

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

C G YOUNGI hereby order that within one (1) month of the date of this order, John Francis Delaney and Lesley Joan Delaney, the co-owners of Lot 61, must remove and keep removed their jetski and trailer from any part of their lot where the items are visible from the common property or from any adjoining lot. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0462-2002

“Lake Hills” CTS 26051

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

That the Owner of Lot 61 be ordered to comply with By-law 14.2 – Appearance of Buildings and signs.

The relevant by-law states –

By-law 14.2 – Appearance of Buildings and Signs.

An owner or occupier of a lot shall not, except with the consent in writing of the Committee, permit any boat, trailer, caravan, campervan or mobile home on a lot which is visible from the Common Property or from an adjoining lot.

JURISDICTION:
This is a dispute between the body corporate (the applicant) and an owner (respondents John and Lesley Delaney, the co-owners of Lot 61), concerning the breach of a body corporate by-law. This is therefore a matter that comes within the dispute resolution provisions of the legislation (see sections 182(a), 183(1)(a) and 223(1)(a) of the Act).

General powers of an adjudicator in making an order:
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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).



APPLICATION AND SUBMISSION:
Under section 194 of the Act, a copy of the application was served on the respondents (Delaney’s) with an invitation to respond to the matters raised. They subsequently lodged a written submission.

The body corporate has provided copies of correspondence and minutes of meetings relevant to the dispute, which discloses the following history of events.

By letter dated 27 December 2001, the body corporate (secretary) first informed the respondents that the parking of the jetski and trailer, so as to be visible from the common property, was in breach of By-law 14.2. They were requested to submit an application to the body corporate committee asking that it exercise of its discretion under the by-law and consent to the parking of both items in that location. This they did on 3 January 2002, followed by a letter dated 9 January stating they had spoken to Mr P Sullivan (the scheme developer and chairperson) who reportedly said, if there is a problem with item 1 (jetski and trailer) it can be landscaped out. The committee considered the application by flying minute dated 24 January and rejected it.

In a letter to the secretary dated 29 January, the respondents stated that prior to purchasing their lot they had sought approval from the development company personnel, namely P Sullivan, D Arrowsmith (project manager) and J Dodd (salesperson), to park the jetski and trailer on their lot. They state that certain modifications were agreed to (including replacement of part of the fence with a double gate, and replacement of certain gardens with pavers) specifically to accommodate access and parking for both items, all of which the respondents considered as a conditions to their purchase of Lot 61.

The matter was reconsidered at a committee meeting held on 6 March 2002. The minutes show that the chairperson, P Sullivan, acknowledged that the change to the front fence had been arranged prior to the completion of the construction of the property. The acknowledgement does not go further than this. There was discussion on the installation of coloured Perspex to hide the parked items, but the committee again rejected the respondent’s application. The chairperson said the Perspex would be attached on a trial basis for the Committee Member’s consideration only.

A letter from the secretary dated 21 March requires the respondents to house the jetski and trailer in their garage, out of view. The secretary also comments that the committee considered the Perspex an unsatisfactory solution. In the application, the body corporate states that repeated requests to the owner to store the jetski in his garage have been ignored.

The respondent’s submission relies wholly on the alleged representations made, or implied, at the time of purchase, as set out in their letter to the secretary of 29 January 2002 and described above.


DETERMINATION:
The respondents have not argued against either the validity of the by-law or that the parking of the jetski and its trailer, on the face of it, breaches the by-law in that they are visible from the common property and adjoining lots.

The respondents claim that their pre-purchase discussions with Sullivan, Arrowsmith and Dodd, and the subsequent changes to their property to accommodate both access and parking for the jetski, done in the knowledge that Sullivan was both developer and body corporate chairperson, led them to naturally assume(d) that everything was fine and went ahead with the purchase of the property and paid many thousands of dollars for these alterations to be made.

I have not sought a submission from Sullivan concerning the respondent’s allegations that he either explicitly or impliedly said they could park their jetski and trailer as they do; it is not necessary for my determination of the dispute as any representation given by Sullivan whether in his capacity as developer or chairperson, could not lawfully have been given in the name of the body corporate nor could it bind the body corporate.

It is the body corporate which administers the common property and the scheme community management statement, including the administration and enforcement of the by-laws (see sections 87 and 114 of the Act). By-law 14.2 provides that the body corporate committee has discretion to consent to the parking of a boat, trailer etc (which encompasses a jetski and its trailer) which would otherwise be in breach of the by-law. Neither the chairperson, secretary nor other committee member may make decisions unilaterally – committee decisions are made upon the vote of a majority of a quorum of members (see sections 31 and 33 of the Accommodation Module regulations).

If the circumstances are as the respondents say, then they have been placed in an unfortunate position. However, neither the committee nor the body corporate in general meeting made any representations to them nor gave any undertakings concerning their jetski. Their reliance on any comments of the chairperson were misplaced – he, as chairperson, had no authority to make any representation on behalf of the body corporate, nor were there any actions by the committee, or circumstances, that would allow the respondents to rely on him as having the ostensible or implied authority to act for the committee. The respondents were bound by the by-law immediately upon purchasing their lot (see section 53(2) of the Act), and the by-law is quite clear in its reference to the committee as the entity having the power to give consent for an exception.

The respondents should seek their own legal advice as to what course of action they may have in regard to any misrepresentations they believe were made to them. From my reading of the relevant documentation, the body corporate has acted correctly in the matter and is entitled to the order it seeks. Accordingly, I have ordered that the jetski and trailer be removed from being parked anywhere on the lot where they may be visible from the common property or an adjoining lot.
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