Jilgar Court [2003] QBCCMCmr 359 (31 January 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0581-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14461
Name of Scheme:	Jilgar Court
Address of Scheme:	70 Liverpool Road CLAYFIELD QLD 4011

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

Marie Burnett, the owner of lot 7



RA MeekI hereby order that the application by Marie Burnett, the owner of lot 7, for orders that -

1. That Ms. Angela Lawson, owner of lot 1 repay to the body corporate for Jilgar Court the entire amount of her plumbing repairs bills.

2. A request that the body corporate for Jilgar Court disclose a fencing encroachment upon its common property to any person or persons or organisation that this could affect.

3. A request that the body corporate for Jilgar Court correct this situation in terms of its obligations under the Act,

is dismissed.
n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0581-2002

"Jilgar Court" CTS 14461

The applicant, Marie Burnett, the owner of lot 7, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That Ms. Angela Lawson, owner of lot 1 repay to the body corporate for Jilgar Court ... the entire amount of her plumbing repairs bills. This amount is $1885.00. This amount was paid by an invalidly appointed Body Corporate Manager on the 22 October 2001.

2. A request that the body corporate for Jilgar Court disclose a fencing encroachment upon its common property to any person or persons or organisation that this could affect.

3. A request that the body corporate for Jilgar Court correct this situation in terms of its obligations under the ... Act.

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)).

I do not intend to restate the applicant’s grounds. The first of the orders sought seeks that the owner of lot 1, Angela Lawson, be ordered to repay to the body corporate an amount of $1885 which the applicant alleges was incorrectly paid to her by the body corporate, for plumbing repairs for which Lawson was responsible.

Without considering the merits of this part of the application, there is a jurisdictional aspect which requires that I dismiss the application. The order is sought against Ms Lawson, as owner of lot 1. However Ms Lawson has now sold her lot, and departmental records indicate that the transfer of ownership of her lot was registered on 15 October, 2002.

The Act, and in particular, the dispute resolution provisions, do not contemplate an order being made against a former owner. Further, this is not a situation where the current owner of the lot in question should stand in the shoes of the former owner. To order the current owner to repay the monies in question would in my view be unfair and unreasonable. The body corporate had from the time of the payment to Lawson till the time of the sale of the lot by her to seek to rectify its alleged error in paying the money to Lawson. This right has now been lost due to the sale of the lot by Lawson, and the only remaining right of the body corporate in the circumstances is to commence proceedings for the repayment of the amount in a court of competent jurisdiction. Accordingly this part of the application is dismissed.

The second and the orders sought by the applicant is that the body corporate "disclose a fencing encroachment upon its common property" to any person or organisation who could be affected, and secondly, that the body corporate "correct this situation".

In her grounds, the applicant did not indicate the nature of the encroachment. In her reply to submissions, she stated –

The boundary in question is the encroachment behind the garages of lots 6, 7 and 8 from number 66 Liverpool Road, Clayfield, the property of the body corporate for Jilgar Court.

To rectify this, the application submits that –

... a boundary survey should be undertaken and correcting documents lodged with the Department of Natural Resources. Failing to do so places the body corporate in conflict with the BCCM Act. Each body corporate member can be held culpable by the continuation of not undertaken (sic) a boundary Survey.

In a submission, Mr Wilks of units 4 and 8 states that he is "committed to a boundary survey and rectification in terms of Jilgar Courts obligations under the ... Act".

Two other owners have however expressed the following contrary view, quote –

A majority of the Body Corporate is aware of boundary irregularities which took place when the units were built and do not wish for any further action to be taken at this stage. This has been reflected in the vote at the AGM.

The boundary has been like this for the past thirty-two years and there was some give and take on both sides of the boundary. If Ms. M. Burnett wishes to do this on her own accord the rest of the body corporate will not object. The body corporate is now subject to a financial strain due to commitments coming out of the AGM and personally I do not see this survey as necessary at this time.

I note that a motion that "the boundaries of "Jilgar Court" be surveyed and land area which has been fenced incorrectly be returned to the control of "Jilgar Court"", was considered by the body corporate at the AGM held on 29^th August 2002. The motion was not carried by a vote of 5 against with 3 in favour.

The sections referred to by the applicant (namely 114 and 257 of the Act) do not impose any specific obligation on the body corporate to take action in respect of the alleged encroachment, in my view. Section 114 expresses the general duty of the body corporate to administer, manage and control the common property reasonably and for the benefit of lot owners. In the circumstances, I see no breach of this duty in the failure of the body corporate to undertake the survey sought by the applicant. I am satisfied that owners are aware of the alleged incroachment, but that by majority vote, have decided not to take any action at this time. If a survey is done, as the applicant proposes, it seems reasonable to assume that further action will be required in the event of the survey evidencing an encroachment. It is foreseeable that this will involve costs at the very least in having amending plans drawn to show the correct position of boundaries. At worst, it may involve the body corporate in litigation with adjoining owners regarding the alleged encroachment. I consider that members of the body corporate have, by majority, determined not to embark on this course of action. I consider this determination by owners to be a reasonable one, and that there exists no compelling reason why this determination should be overturned, as sought by the applicant. I therefore propose to dismiss this aspect of the application. n