Summer Fields South [2003] QBCCMCmr 23 (17 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0747-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20629
Name of Scheme:	Summer Fields South
Address of Scheme:	33 - 67 Edmund Rice Drive, SOUTPORT QLD 4215

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

I hereby order that the applicant Body Corporate for "Summer Fields South" CTS 20629 and the respondent Laurence Joseph MELVILLE, the owner of Lot 83, having reached a settlement of the dispute the subject of the application, and having both signed letters setting out the terms of the settlement and requesting that a consent order be made for those settlement terms by an Adjudicator pursuant to section 276(5) of the Body Corporate and Community Management Act 1997, must within two (2) months of the date of this order abide by those agreed terms which are set out below.


The body corporate must –

Erect a chainlink or wire fence approximately 1.3 metres high, along the body corporate land between the backyard boundary of the units and the footpath on Edmund Rice Drive.

Erect a wooden panel fence (the same type of dividing fencing currently in the complex) between the walls of unit 83 and unit 84. This fence would also incorporate a lockable gate.

The owner Laurence Melville must –

Remove all lattice panelling and wire mesh and the temporary fencing attached to his pergola, except for 4 lattice panels that are approximately 50cm wide that are attached to the top of the pergola.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0747-2002

"Summer Fields South" CTS 20629

This is the final order to an application by the body corporate which has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

1. That Laurence Joseph Melville, the owner of Lot 83, comply with By-law 31 and remove the gas cylinder from his lot.
2. That Melville remove the wire and lattice structure enclosing his pergola, installed in breach of By-law 20.
3. That Melville pay the costs and expenses of the body corporate in accordance with the provisions of By-law 25.

On 4 June 2003 I issued the following Interim Order 747-2002 –

I hereby order that the application for an order that Laurence Joseph Melville, the owner of Lot 83, remove the gas cylinder from his lot, is dismissed.

I further order that the body corporate committee and Laurence Melville are to –

(a) exchange relevant information regarding the date the various lattice and wire mesh panels ("the panels") were installed; and

(b) together inspect all of the panels in dispute; and

meet for the purpose of reaching a settlement regarding the removal, repair or replacement of the panels in dispute (with the benefit of the information given in the reasons to this order), and within four (4) weeks of the date of this order report the outcome to me for determination of the appropriate final order to the application

JURISDICTION:
Jurisdiction was established in my Reasons to the interim order and that assessment still stands. However, as the matter of the removal of the gas cylinder was finally determined in my interim order, this order and these reasons are only concerned with the second order sought by the body corporate, namely that concerning the lattice and wire mesh panels erected on Lot 83.

General powers of an Adjudicator in making an order:

Section 276(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 contractual matter about –
(i)	the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii)	the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).


APPLICATION AND SUBMISSIONS:
The facts of the dispute and the submissions to the application were discussed in my Reasons to the interim order and I will not repeat them here.

In my Interim Order 747-2003, I required the parties to exchange certain information and jointly inspect the subject panels, both lattice and wire mesh. With the benefit of the information gained from both those exercises and the information given in my Reasons to the interim order on the application of the legislation to the facts of the dispute, the parties were to attempt a resolution of the dispute.

In separate letters dated 2 July 2003, the committee and the respondent Melville have notified having reached an agreement in resolution of the dispute.


DETERMINATION:
The peculiar circumstances of this dispute lent itself to the means of resolution that I adopted in the issue of an interim order. The parties have been able to reach a settlement of the dispute that should be more acceptable to them than one imposed on them. The settlement terms will no doubt have advantages and disadvantages to both parties but it will be a solution that both can live with.

In my Reasons to the interim order I explained my power to issue a "consent" order in the following terms at page 4 –

If the parties are able to reach a settlement on the structures, then I can, on the consent of both parties, include the settlement terms in a "consent order". Such an order is enforceable as with any order, but it cannot be appealed.

If the parties are unable to reach a settlement on some, or all, of the structures, then upon notification of the outstanding matters, I shall issue an order in respect of them according to my view.

Section 276(5) of the Act provides for the making of a "consent" order subject to certain conditions–

276. Orders of Adjudicators.
(5) If the adjudicator makes an order in a form agreed to by the parties to the application following mediation or conciliation, the order –

a) may include only matters that may be dealt with under this Act; and
b) must not include matters that are inconsistent with this Act or another Act.

I have read the terms of the settlement (which is set out in the order) and I believe that they comply with the above conditions. Accordingly, I have issued a consent order in the terms agreed to by the parties. I reiterate that the order is enforceable in the manner of other adjudicator orders and the order cannot be appealed (see sections 287 and 289(1)(b) of the Act respectively).

In regard to the question of costs, the legislation only permits costs to be awarded by an adjudicator against a party in the particular circumstances of where the application is found to be frivolous, vexatious, misconceived or without substance (see section 270(3) of the Act). This does not apply in this instance.

The applicant has also referred me to their By-law 25 which provides as follows –

25. Recovery of Costs.
An owner must pay on demand the whole of the body corporate’s costs and expenses (including costs assesses on the indemnity basis), such amount to be deemed a liquidated debt incurred in –

a) Recovering levies or any other money that the body corporate is entitled to receive from the owner; and
b) All proceedings, including legal proceedings, taken against the owner concluded in favour of the body corporate including, but not limited to, applications for an order by the commissioner.

This by-law purports to authorise the body corporate to recover costs from an owner who is the unsuccessful party to an application to a court or an adjudicator to resolve a dispute (whether as applicant or respondent). An adjudicator’s powers are derived from the legislation and not the by-laws of a body corporate, and apart from the specific power provided in section 270(3) the legislation does not make any other provision, whether general or specific, to award costs against a party (or other person) to a dispute. Accordingly, I have no power to award costs against the respondent either under the legislation or this by-law and I make no costs order against the respondent.

I might add that while I do not have to consider the point in regard to this application, I very much doubt that this by-law is a valid one in respect to paragraph (b). Is the body corporate really suggesting that if a matter is decided by a court and, after consideration by the court of costs and no costs order is made against an unsuccessful owner, that the body corporate would then seek to recover those same costs under the purported authority of this by-law? Equally in regard to an application to this office, it is eminently arguable that such a by-law is against public policy in that it could be seen to be intimidatory in persuading owners not to challenge a body corporate by formal dispute for fear of the possibility of having to bear the costs of the body corporate. Additionally, at least in regard to matters that an adjudicator considers comes within section 270(3), it is inconsistent with that power of an adjudicator to award, or not award, costs. Regardless of whether a matter is before a court or an adjudicator, I consider this by-law is both against public policy and attempts to usurp the power of the court or an adjudicator to award costs.