Pacific Haven - North Caloudra Beach [2002] QBCCMCmr 86 (15 February 2002)

D P GardinerREFERENCE: 0594-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26336
Name of Scheme:	Pacific Haven - North Caloudra Beach
Address of Scheme:	9 Browning Boulevard CALOUNDRA NORTH QLD 4551

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

Ms Sharyn D'Arcy, the Owner of lot 36 seeks an order declaring that rule 12 of the by-laws is invalid.



D P GardinerI hereby order that the application for an order declaring that rule 12 of the by-laws is invalid

be dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0594-2001

“Pacific Haven - North Caloudra Beach” CTS 26336

The applicant Ms Sharyn D’Arcy, the Owner of lot 36, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“an order declaring that rule 12 of the by-laws is invalid.”


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 has referred to a letter dated 11 May 2001 which she wrote to the body corporate requesting deletion of the age limit specified in rule 3 of the by-laws and the insertion of the word “ non-swimmers” The remainder of the letter contains little if anything in support of the applica2ntion.

In its response, the body corporate has assumed that the application is really concerned with the revocation of rule 3 and has formulated its response accordingly. With respect to by-law 12, the body corporate says that this by-law provides authority for the formulation of a set of house rules for the orderly conduct and living conditions of all residents within the complex.

Whilst I do not consider that the application questions the validity of rule 3, I have assumed for present purposes that the application does challenge this rule as well as rule 12 for the sake of completeness.

Section 131(1) of the Body Corporate and Community Management Act 1997 relevantly provides that by-laws for a community titles scheme may only provide for the regulation of, including conditions applying to, the use and enjoyment of common property, body corporate assets and services and amenities supplied by the body corporate.

By-law 12 provides that the Committee may make rules relating to the common property and its use not inconsistent with these by-laws (sic) which shall be observed by the owners unless and until they are disallowed or revoked by a majority resolution at a general meeting of the owners.


In my opinion, by-law 12 is valid as it complies with the provisions of Section 131(1) as described above.
House Rule 3 provides as follows:

Swimming Pools – hours of use are 6.30am to 8,30pm. Diving only at the deep end and no running around the pool. Glass is definitely not permitted in the pool enclosure. Children under the age of 10 years must be supervised by a responsible adult. People swimming laps have right of way in the lap pool.

In my opinion, rule 3 sets out conditions for the use of common property, namely the pool, and is valid as it complies with the objects of section 131(1).

House Rule 12 provides as follows:

Resident Participation – all residents are encouraged and entitled to act on something that isn’t right with respect to the above rules and/or the by-laws. If you fel something needs to be said (in the appropriate manner) please do so(eg kids running around the pool0. If however you are not comfortable with this please advise Mark or Glenda of the problem.

In my opinion House Rule 12 is consistent with the objects of section 131(1) and is valid.

In light of the conclusions expressed above, I do not consider that the applicant has established grounds warranting the grant of the order sought and therefore I dismiss the application.