Dutton View [2003] QBCCMCmr 277 (9 December 2003)

Last Updated: 17 May 2005

REFERENCE: 0114-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22644
Name of Scheme:	Dutton View
Address of Scheme:	81-83 Dutton Street COOLANGATTA QLD 4225

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

Terrence Lester Todd and Nola Todd, the co-owners of lot 1

I hereby order by consent as follows: 1. Terrence Lester Todd and Nola Todd (Todds), the owners of lot 1, and Douglas Raymond Edgecombe and Christine Judith Edgecombe (Edgecombes), the owners of lot 2, agree to terminate the community titles scheme. 2. Todds agree to move the existing pool fence back to the outermost edge of the pool coping (530mm). 3. Todds agree not to alter the rear boundary fence. 4. Todds and Edgecombes agree that the rear boundary fence will be finished off with a small return. 5. Edgecombes agree that the area from the original common property driveway inside boundary to the relocated pool fence will be included in the title to lot 1 in the new survey plan. 6. Todds agree that the area from the relocated pool fence to the common property outside boundary will be included in the title to lot 2 in the new survey plan. 7. Edgecombes agree to grant an access easement to lot 1 over that part of the present common property driveway which is to be included in the title to lot 2 in the new survey plan to enable access to the carport constructed at the rear of lot 1. 8. Todds agree that only one car will park in the carport. 9. Todds agree to prepare and lodge all necessary legal documentation at their cost 10. Todds agree to pay the reasonable costs of the Edgecombe’s solicitors for checking legal documentation. 11. Todds and Edgecombes agree that these proposals are subject, so far as relevant, to the approval of the relevant local authority.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0114-2003

"Dutton View" CTS 22644

The applicants, Terrence Lester Todd and Nola Todd, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

1. An order in the terms of motion one considered at the extraordinary general meeting of the body corporate on 13 February 2003 be made.
2. Further or alternatively, an order in the terms of motion two considered at the extraordinary general meeting of the body corporate on 13 February 2003 be made.
3. Costs of this application be awarded to the applicant but only if specialist adjudication is ordered.

Section 276(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 the 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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

There is a significant history in this scheme. A previous application (0156-2002) by the owners of lot 2, Douglas Raymond Edgecombe and Christine Judith Edgecombe, in relation to the dividing fence between lot 1 and the common property driveway resulted in an order being made by another adjudicator on 22 May 2002. That order required the owners of lot 1 to remove at their cost the improvements constructed by them which encroached on the common property. At that time, the material before the adjudicator only revealed the encroaching improvements to be pool fencing and some landscaping. Other improvements (a retaining wall and concrete living area) had been made, but these did not encroach.

The owners of lot 1 appealed to the District Court to overturn the adjudicator’s order. The appeal was dismissed, but not before it came to light that the pool constructed by the owners of lot 1 also encroached onto the common property. In his judgment, His Honour Judge Samios stated "The adjudicator has adjudicated on the issues that were before him, which was namely the pool fencing, a retaining wall, concrete living area and fencing. The swimming pool, in my opinion, is a matter that is yet to be resolved at another time and by others."

As a result, the owners of lot 1 attempted to address the issue of the pool encroachment by proposing certain motions at the extraordinary general meeting held on 13 February 2003. Both motions were defeated, which gave rise to the present application.



Both parties filed material. The parties then agreed to meet with me on 27 November 2003. At that meeting, at which all four owners were present in person, agreement was reached in the terms reflected in the consent orders which I have made today. The parties also acknowledged that their agreement was subject to the consent of the relevant local authority insofar as it related to the new plan of survey, and the relocation of the pool fence.