Heritage Gardens Buderim [2002] QBCCMCmr 694 (28 November 2002)

RA MeekREFERENCE: 0491-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19238
Name of Scheme:	Heritage Gardens Buderim
Address of Scheme:	142- 150 Burnett Street BUDERIM QLD 4556

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Heritage Garden Buderim

RA MeekI hereby order that the occupiers of unit 31 (lot 26) shall not park or stand any motor or other vehicle on common property at any time except between the hours of 7 am and 11 pm in the location specified in by-law 2 A(i), namely immediately in front of the garage to the lot provided that the through traffic is not affected or interfered with by the parking or standing of the motor vehicle. n
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0491-2002

“Heritage Gardens Buderim” CTS 19238

The applicant, the Body Corporate for Heritage Gardens Buderim, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the tenant of unit 31 (lot 26) cease parking their vehicle on the visitors car park.

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)).

In the supporting grounds, the applicant body corporate states that –

The tenant of unit 31 (lot 26) ... has two vehicles. Unit 31 (lot 26) has one garage designed to house one car. There are no additional parking areas for unit 31 (lot 26). However the tenant of unit 31 (lot 26) frequently parks a vehicle on the visitors car park.

The grounds state that successive “requests” have been made by the body corporate manager regarding the matter, and on 9 July 2002, a notice of contravention was issued by the body corporate. The grounds conclude –

As the letting agents in both cases have chosen not to co-operate in this matter the committee ... feel the necessity to make this application.

The occupier of lot 31, Margaret Mastin has responded to the application by way of submission. Mastin acknowledges receipt of the notice regarding the application and advises that “I disagree totally and absolutely with the interpretation of No. 2 Part A (ii) and (iii) of the by-laws ... and I contest same”.

The by-law in question is by-law 2, which in its entirety reads as follows –

Vehicles

i. Owners or occupiers or invitees may park or stand any motor or other vehicle upon common property immediately in front of the garage to the lot during the hours of 7 am and 11 pm provides that the through traffic is not affected or interfered with by the parking or standing of the motor or other vehicle.

ii. Owners or occupiers may not park or stand a second motor or other vehicle upon the common property.

iii. No motor or other vehicle is to be parked or allowed to stand in a visitor’s car park area for a longer period than seven continuous days without the written consent of the committee of the body corporate which consent must not be unreasonably withheld and must be given in cases of sickness or bereavement of the owner or occupier of a lot and during school holiday periods.

Mastin states that –

I have read this several times and I interrupt (sic) the by-law as one vehicle can be parked but a second motor or other vehicle upon the common property cannot. That clearly means a first can.

Mastin then proceeds to indicate her views and expectations regarding the interpretation of by-laws generally, before referring to opinions on the interpretation of the relevant by-law from two real estate agents, the owner of the lot, “a non-resident work colleague” and her husband, all who’s opinion of the interpretation of the by-law support that of Mastin.

Mastin concludes that she might have

... easily obtained hundreds of others with similar interpretations as mine. But enough is enough to show an honest and reasonable interpretation of a by-law by a variety of persons ranging from industry educated to average persons or occupants.

Whilst I agree with Mastin that the by-law is possibly ambiguous, and in my view, badly expressed, I disagree with the interpretation adopted by Mastin and will endeavour to explain the reasoning for this.

Mastin’s interpretation of the by-law appears to be based on a reading of sub-paragraph (ii) of the by-law in isolation. Given that there are three subparagraphs, all to do with the parking of vehicles on common property, Mastin’s reading of part of the by-law in isolation is flawed. In my view, it is common sense that any written instrument must be read and interpreted in its overall context and entirety. To read only a particular part of an instrument may lead to unintended or absurd results.

I consider that the intended meaning of (ii) become clearly when read in conjunction with (i). In essence, (i) provides that an owner or occupier may park or stand a motor vehicle upon common property in a specified location during the hours of 7 am and 11 pm. (ii) then provides that owners or occupiers may not park a second vehicle upon the common property. (i) establishes the basis on which an owner or occupier can park one vehicle on common property. (ii) then prohibits the parking of a second vehicle on common property. The interpretation adopted by Mastin is not logical, when (ii) is read in conjunction with (i).

The combined effect of the two subparagraphs is that an owner or occupier can only park a vehicle on common property between the hours of 7 am and 11 pm. At all other times, no vehicle can be parked on common property, unless the provisions of (iii) apply. Contrary to Mastin’s interpretation, the by-law prohibits the parking of any vehicle on common property between the hours of 11 pm and 7 am, or a second vehicle on common property at any time, unless the circumstances outlined in (iii) apply.

I conclude that Mastin’s interpretation is incorrect, and that her parking of a vehicle on common property outside the hours specified in (i), and apparently on a permanent basis, is in contravention of the by-law. I intend to order that the occupiers of unit 31 (lot 26) shall not park or stand any motor or other vehicle on common property at any time except between the hours of 7 am and 11 pm in the location specified in (i), namely immediately in front of the garage to the lot provided that the through traffic is not affected or interfered with by the parking or standing of the motor vehicle. n