Waterview Terraces [2002] QBCCMCmr 690 (26 November 2002)

C G YOUNGREFERENCE: 0503-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26977
Name of Scheme:	Waterview Terraces
Address of Scheme:	34 Bundock Street TOWNSVILLE QLD 4810

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

Andrew Lewis CARUANA and Margaret Evelyn CARUANA, as the co-owners of Lot 23,



C G YOUNGI hereby order that the application for an order declaring the garage shown on Sheet 5 “Level B” of the registered plan for the scheme as being part of Lot 23 (sited between the garages for Lots 22 and 34), is dismissed for lack of jurisdiction. 2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0503-2002

“Waterview Terraces” CTS 26977

The applicants, Andrew and Margaret Caruana of Lot 23, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

“As Lot 40 is now selling & the initial structure of the complex indicated that our lot had a garage & this has not been changed by the body corporate, we believe the garage still rightfully belongs to Lot 23, & returned to us. I seek a declaratory order that the garage in dispute be returned to Lot 23.”

JURISDICTION:
This application has been lodged as a disputed matter between the applicants, who are the co-owners of a lot, and the respondent co-owners of Lot 40, Gary and Celia Lane. While the combination of parties is one of those which have standing under section 182 of the Act to be parties to a dispute, namely owner and owner, in my view I have no jurisdiction to determine the matter as it would involve my consideration of a question of title to land which the legislation expressly prohibits. Section 231 of the Act states –

Limitation on powers of adjudicator.

231. The adjudicator does not have power to resolve a question about title to land.

Certainly section 223(3)(u) of the Act provides as an example of the type of order that an adjudicator may make, that where a motion requiring a resolution without dissent fails in circumstances which an adjudicator considers unreasonable, the adjudicator may order the body corporate to give effect to the motion. Example (3)(t) then provides that an order can require the body corporate to lodge a community management statement with the registrar of titles for recording. Had, for instance, the right to use the garage, the car space and the storage area (all areas allegedly part of an exchange between the previous co-owners of Lot 23 and the respondents) rested upon an exclusive use by-law rather than title, then I would have had jurisdiction to fully determine the matter. If I considered right lay in that direction, the determination could have been not only the dismissal of the application but an order giving effect to Motion 15 and requiring the body corporate lodge the community management statement for recording.

However, though I have given careful consideration to the matter, I believe that for me to be in a position to determine the reasonableness or unreasonableness of the applicant’s dissenting vote, I have to first satisfy myself concerning title, and transfers of title, to parts of lots. I believe such consideration would be in conflict with section 231 and therefore I have dismissed this application for lack of jurisdiction. It may be that should this dispute be the subject of a future court action, depending on the outcome concerning title, the court may then remit the question of the failed motion and the recording of the community management statement to an adjudicator for determination.


DETERMINATION:
My determination is that I have no jurisdiction to determine this dispute and my order is to this effect. I have noted the requests on file by the solicitors for the respondents that the application be determined urgently, and I am sorry that, for reasons of equity, resources and workload, earlier attention could not be given this file.2y