The Vaucluse Apartments [2003] QBCCMCmr 395 (20 February 2003)

Last Updated: 7 September 2007

RA MeekREFERENCE: 0605-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15331
Name of Scheme:	The Vaucluse Apartments
Address of Scheme:	28 - 30 Oatland Esplanade RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for The Vaucluse Apartments

RA MeekI hereby order that the application by the Body Corporate for an order that the owners of lot 1 JA Clark and GPL Ashauer be ordered to remove a boat and trailer parked in their car space (car spaces on title) which is parked in breach of by-law 23(b), is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0605-2002

"The Vaucluse Apartments" CTS 15331

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

That the owners of lot 1 JA Clark and GPL Ashauer be ordered to remove a boat and trailer parked in their car space (car spaces on title) which is parked in breach of by-law 23(b).

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)).

In the supporting grounds, the applicant states –

Contravention of by-law 23(b) in that the owners of lot 1 are continuing to park a boat and trailer on their car space.

The body corporate then attaches relevant correspondence evidencing the history of this matter.

I intend to comment on one aspect of the body corporate’s handling of this matter, before proceeding with my determination. I note that the body corporate failed to serve a continuing contravention notice at any time on John Alan Clark and Gail Pauline Louisa Ashauer, the owners of lot 1 (the respondents). I have given consideration to dismissing this application on this basis. It is the view of adjudicators in this office that a body corporate should utilise the mechanisms provided in the legislation to deal with alleged by-law contraventions, rather than immediately approaching this office for an order. Division 4, sections (144 to 146 of the Act) is headed "By-law contraventions" and provides the mechanisms which should be utilised by a body corporate in the first instance where a breach of by-laws is alleged. I recommend to this body corporate that it inform itself of these provisions.

The issue to be determined by this application is whether or not a boat and trailer is a "vehicle" within the meaning of by-law 23B. The by-law, headed "use of car spaces" provides relevantly that –

An occupier shall not use a garage or car parking space for any purpose other than the parking of a vehicle except with the consent in writing of the body corporate committee.

The respondents are currently parking a boat (a "tinnie") on a trailer in their second car parking space. The body corporate believes the boat and trailer not to be a "vehicle" and has declined to give consent under the by-law on the basis that "it contravened the by-laws and further the committee did not want to set a precedent".

The respondents replied that they "cannot accept the committee’s decision". They rely on registration documentation "for our trailer which is clearly classified ... as a vehicle". Their submission includes a copy of a Vehicle Registration Renewal Notice for "Redco RE1210- Boat Trailer".

The New Shorter Oxford English Dictionary (Thumb Index Edition) defines "vehicle" to include "a means of conveyance usu. with wheels for transporting people, goods etc; a car, cart, truck, carriage, sledge, etc. b. any means of carriage, or transport, a receptacle in which something is placed in order to be moved. c. a space rocket in relation to its payload.

On this definition, "vehicle" must include a boat and trailer. The boat and trailer, in combination, have wheels and are used for transporting people and goods by road, and across water. Moreover, if a "space rocket" might be defined as a vehicle, then so must a boat and trailer.

The Transport Operations (Road Use Management) Act 1995 definition of "vehicle" states –

"includes any type of transport that moves on wheels and a hovercraft but does not include a train or tram".

It is important to note that this definition uses the word "includes" and not "means". "includes" contemplates a wider definition than "means" which, as it implies, is limited to what is contained in the definition. In any event, a boat and trailer is a type of transport that moves on wheels. Moreover, the reference to including "a hovercraft" indicates that the definition might extend to a water based transport.

In addition, there is the evidence of the "Vehicle Registration Renewal Notice" which refers to the trailer at least as a vehicle.

Finally, there is the wording of the by-law itself.

An occupier shall not use a garage or car parking space for any purpose other than the parking of a vehicle except with the consent in writing of the body corporate committee.

The by-law is headed "Use of Car Spaces". In paragraph (b), it refer to "a garage or car parking space" and then prohibits any use other than "the parking of a vehicle". In my view, the differential use of words is significant; whilst the by-law is headed "car spaces" and refers to the spaces as "a garage or car parking space", it then refers to "the parking of a vehicle". I conclude that if the by-law was intended to be restricted to the parking of cars, then it would have used that term consistently. It is clear that "vehicle" is a wider concept then a "car".

I intend to dismiss the application. The body corporate has not established a breach of the by-law on the part of the respondents.

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