Tropic Waters [2003] QBCCMCmr 376 (11 February 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0446-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11310
Name of Scheme:	Tropic Waters
Address of Scheme:	114 Duringan Street CURRUMBIN QLD 4223

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Tropic Waters

RA MeekI hereby order that the owner of lot 3, Michael Camilleri, shall within two (2) weeks of the date of this order –

1. Make alternative arrangements for the parking of his ute, so that if it is not parked in the car parking space allocated for his lot, then it is not parking across body corporate common property;

2. Make alternative arrangements for the storage of other items currently stored in the car space;

3. Apply to the body corporate in writing for permission to store his work bench in his car parking space, provided it is kept in a clean and tidy state;

4. Remove all potato sacks from the top of the tarpaulin covering his jet ski, and secure the tarpaulin with rope, or other form of secure tie.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0446-2002

"Tropic Waters" CTS 11310

The applicant, the body corporate for Tropic Waters, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the owner of lot 3 comply with the laws of the body corporate specifically-

1. By-law 24 (car parking);

2. 2 Refrain from standing or parking on the body corporate area;

3. Remove all personal effects from the common areas.

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 consider that the grounds in support of the application are known to the parties and that it is not necessary to restate these here. Suffice to say, the respondent, the owner of lot 3, Michael Camilleri has responded to the application by way of submission.

The respondent, or his father who also occupies the lot, states -

... I have spoke to you twice on the pone (sic) I am speaking the truoot (sic) all pots have gone the van is no longer parked there Mr David Potts no longer owns Flat No 2 it sold 3 months ago little sea do parked under my carport space.

Note came (sic) any one take some photos of Flat 6 it a fire hazard you can’t walk. With pots and tables an chairs ect. Why people see a splinter in my eye and do not see a plank in their eyes?

The body corporate chairperson, Pauline Cassels, has responded to the submission of the respondent. That reply states that the respondent’s reply "is only partially true" and then goes on to elaborate on this statement. This reply was supplemented with photographic evidence apparently taken on January 3, 2003 showing

• Plants in pots on common property;

• One overturned supermarket trolley and one filled with plants in pots on the concrete driveway;

• A night photo showing items stored in the car space for lot 3, and a ute, presumably the respondents, parked behind and at an angle to the car space;

• A wheelie bin filled with apparently composed matter, with maggots visible around the end;

• Items stored in the car space including a bench, an ab machine, and the surf ski covered in a blue tarpaulin.

I elected to convene a teleconference between the respondent, Michael Camelleri and the body corporate "treasurer" (as she described herself in the conference) Pauline Cassels. This teleconference was held on Thursday 6 February 2003 at 11 am, adjourned at approximately 11.20 at the request of Mr Camelleri, and reconvened at approximately 11.30 and proceeded to 11.50.

The teleconference initially considered the actions of Mr Camelleri, or his occupier father, in using his car space as a storage shed and in placing items, and parking his vehicle, upon common property.

I initially addressed the issue of parking. Mr Camelleri appeared to assume a right to use his car space for storage, and to then park his vehicle on the common property. In particular, Mr Camelleri stated he wanted the right to park his jet ski in the car space, and to then park his ute behind this and other items stored in the car space.

I referred Mr Camelleri to the by-laws and in particular, by-law 24 which stated that the car space shall not be used for any purpose other than the parking of motor vehicles. I pointed out to Mr Camelleri that whilst there might be some wider meaning given to vehicle to allow the jet ski to be considered a vehicle, this still did not address the issue of the parking of this "vehicle" in the car space, and then his ute on common property behind and mostly out of the car space. I indicated that Mr Camelleri would need to decide which "vehicle" he parked in his car space, and the other would need to be parked on the street, or at least, not on common property. Mr Camelleri finally conceded this point, and agreed to park his ute outside the scheme.

I next addressed the issue of the pot plants, both in pots and in the supermarket trolley, on the common property. This lead to a wider discussion regarding the gardening for the complex. It transpired that the gardening had been done to date by Mrs Cassels, but that she did not intend to continue this, and that the body corporate might be considering the appointment of a manager of some sort. Mr Camelleri did not appear to be aware of this and apparently, does not attend meetings. I suggested that if Mr Camelleri’s father had an interest in gardening, and that the body corporate may be in need of a gardener, or at least some assistance in this regard, that perhaps some arrangement for the benefit of both Mr Camelleri (senior) and the body corporate could be arrived at.

I was further lead to understand that the upper balcony level of the building, which forms part of the common property, has had plants in pots placed on it. In the circumstances, I am not prepared to make any order regarding the plants in pots, and hope that the body corporate and the Camelleri’s will at least discuss this aspect, with the view to agreeing to some mutually beneficial arrangement. I will say that the pots of Mr Camelleri do appear to be well tended, and but for the fact that they are sometimes in the way of the yard mowing man, are not really that offensive, particularly given the fact of the pot plants being kept by others on the common property. The body corporate and the Camelleri’s should discuss this issue of the pots, and more generally, the gardening.

I next addressed the issue of the storage of other items in the car space. I noted that the by-law restricted the use of the car space to parking purposes only, and not general storage. It was noted that the composting in bins had stopped and that this was no longer a problem. I commented that whilst I had no objection the jet ski being covered with a tarpaulin, I did not consider that this should be held down by some old potato sacks, which I considered created an untidy appearance. Rather, I indicated that the tarpaulin should be tied down. Mr Camelleri agreed to remove the potato sacks and to tie down the tarpaulin.

As for the other items stored in the car space, namely the work bench and the exercise equipment, I noted that these were technically not permitted to be kept there, and that Mr Camelleri should immediately apply in writing to the body corporate for permission to retain these items, or either of them, in the car space. I further indicated that the body corporate committee could give him permission, and was at the very minimum required to act reasonably in considering his request. It was discussed that the body corporate had previously given permission for a storage area in one of the other car spaces. Mr Camelleri agreed to apply for permission for storage of the work bench, and I understand that the exercise equipment was proposed to be stored in the common property storage area adjacent to the laundry.

Following the discussion of these specific items, the teleconference discussed more general aspect of the dispute between the parties. Mr Camelleri’s basis allegation was that the body corporate generally, and Mrs Cassels in particular, did not like him (and his father) and had never given them a fair go. Mrs Cassels stated that she did not want to discuss "personal" matters in the teleconference, however it was clear to me that the basis of the continuing dispute between the parties was in fact, these "personal" matters.

Mr Camelleri alleged that Mrs Cassels had said to Mr Camelleri Senior that Mr Camelleri only worked long hours because he liked the "$" and that he had "lots of money", or words to this effect. Mrs Cassels did not deny that she had made these statements, and then in fact acknowledged that at some time in the past, she in fact had made the statements, or statements to this effect.

I indicated to Mrs Cassels that these statements did not concern matters of the body corporate, and were therefore, not appropriate statements to be made. In particular, if these statements in any way reflect a bias against the Camelleri’s in body corporate dealings, then that this was wrong. The subject matter of these statements are not the business of any person in this body corporate excepting the Camelleri’s.

I indicated on at least two occasions in the teleconference to Mr Camelleri that if he felt that he was being discriminated against in connection with body corporate decisions, that he could approach this office with an application regarding this aspect. I referred to the example of if the body corporate refused him permission to store the work bench in his car space, and that he believed that this decision of the body corporate was made unreasonably.

Moreover, Mrs Cassels appeared to acknowledge that statements by her in the past were firstly irrelevant, and that they had only served to further inflame the disputation between the parties. In essence, I understood that Mrs Cassels would in future confine all comments regarding the Camelleri’s to body corporate business only.

Finally, both parties agreed to seeking to work towards a more constructive relationship, so as to reduce the level of disputation. I indicated that this would take good will on both sides, and that Mr Camelleri would need to show that he was serious by addressing the issues of the parking of his ute and the question of the storage of items in his car space. Similarly, the body corporate needs to be reasonable in both its expectations of the Camelleri’s and as well, in respect of any requests they might in future make of the body corporate. Finally, both parties should discuss the issue of gardening. There may be a mutually beneficial outcome for all parties in this.

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