Boonaroo Heights No. Three [2003] QBCCMCmr 339 (21 January 2003)

Last Updated: 7 September 2007

DJ ReardonREFERENCE: 0567-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2501
Name of Scheme:	Boonaroo Heights No. Three
Address of Scheme:	57 Paddington Drive, NERANG QLD 4211

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

Alex Bovill, a former owner of Lot 4

DJ ReardonI hereby order that the application for an order 2nthat the Owner of Lot 3 restore the balcony of Lot 3 to its original colour, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0567-2002

"Boonaroo Heights No. Three" CTS 2501

1.	Order sought

The Applicant, a former owner of Lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") quote-

"An order is sought under Clause 8(1) of Schedule 2 to require the owner of unit 3/57 Paddington Drive, Boonaroo Heights, Nerang, to return the colour of her front balcony and rear wall of her unit back to its original colour, ie the same as unit 4."

Section 223(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 contravention of the terms of, 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)).

The "Boonaroo Heights No. Three" community titles scheme consists of four lots and common property. The community management statement for "Boonaroo Heights No. Three" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

2.	Application and submissions

This dispute resolution application was made on 12 September 2002. On 13 September 2002, the Commissioner for Body Corporate and Community Management invited the Owner of Lot 3 to make written submissions about the application. The Owner of Lot 3 provided this Office with submissions in response to the application under cover of a letter dated 3 October 2002.

On 21 October 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

On 13 January 2003, I scheduled an inspection of the scheme land for the purposes of gathering further information regarding the application. On 15 January 2003, I received a facsimile from the Owner of Lot 3 reiterating a jurisdictional matter that she had previously raised in her submission regarding the application. Specifically, the Owner of Lot 3 stated that the Applicant was no longer an owner of a lot included in the scheme, and consequently, was not entitled to the relief sought in the application.

In light of this preliminary issue, I decided to cancel the inspection, and give further consideration to the matter before continuing with my investigation and consideration of the application.

3.	Determination

Departmental records confirm that the Applicant has ceased being an owner of a lot included in the scheme since this dispute resolution application was made. In my view, provided an applicant has the appropriate standing to make an application at the time of lodgement, then strictly speaking, the applicant is entitled to pursue the matter to its final determination.

However, I consider that this position is qualified in situations where the applicant has no significant continuing interest in the relief being sought. For example, I consider that it would be difficult for an applicant to argue that he/she had a continuing interest in an application concerning alleged breaches of a noise by-law, if the applicant has sold their lot and no longer resides in the scheme. This can be contrasted to an application for reimbursement of particular expenses incurred by the applicant, which the applicant believes should have been properly borne by the body corporate.

In this instance, I agree with the statements made by the Owner of Lot 3, in that I do not consider that the Applicant has a significant or continuing interest in the relief sought in this application, that being, a requirement that the Owner of Lot 3 return her balcony to its previous colour. As such, I intend to dismiss the application. I would point out however, that this does not prevent a current owner concerned with the colour of the balcony of Lot 3 from making a further dispute resolution application seeking a similar order to that sought by the Applicant.