Picnic Point Apartments [2003] QBCCMCmr 4 (3 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0038-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3953
Name of Scheme:	Picnic Point Apartments
Address of Scheme:	40 - 44 Picnic Point Esplanade, MAROOCHYDORE QLD 4558

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Trevor Allan Middlebrook and Carole Anne Middlebrook, the co-owners of lot 6

Pursuant to a agreement reached at mediation by • Trevor Allan Middlebrook and Carole Anne Middlebrook, the owners of lot 6, • Mark Rundell and Desley Rae Rundell, the owners of lot 3, and • Godfrey Ian McGillivray and Cynthia Grace McGillivray, the owners of lot 1 it is hereby ordered by consent that within one (1) month of 21 June 2003, and after discussion with the owners of lot 6 as to the best method of proceeding, the owners of lot 1 shall remove or cause to be removed, the tallest fronds and trunks from the 2 clumps of the Golden Cane Palms which are located in their common property exclusive use area.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0038-2003

"Picnic Point Apartments" CTS 3953

The applicants, Trevor Allan Middlebrook and Carole Anne Middlebrook, the owners of lot 6 originally sought an order that certain plants located on common property of the parcel be removed. The application named Godfrey Ian McGillivray and Cynthia Grace McGillivray, the owners of lot 1, as the as the other party to the dispute.

The dispute was referred to mediation undertaken by the Department of Justice Dispute Resolution Centre, and in conjunction with another dispute concerning the same issue and scheme, was successfully mediated, subject to the desire of the parties to have the terms of their mediated agreement made the subject of a consent order of an Adjudicator.

Section 276 of the Act provides -

276 Orders of adjudicators
(1) An adjudicator to whom the application is referred 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 this 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 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.
(2) An order may require a person to act, or prohibit a person from acting, in a way stated in the order.
(3) Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5.
(4) An order appointing an administrator--
(a) may be the only order the adjudicator makes for an application; or
(b) may be made to assist the enforcement of another order made for the application.
(5) If the adjudicator makes an order in a form agreed to by the parties to the application following mediation or conciliation, the order--
(a) may include only matters that may be dealt with under this Act; and
(b) must not include matters that are inconsistent with this Act or another Act.

Whilst the Act does not specifically refer to the making of a consent order, it is implicit from the terms of subsections (1) and (5) that an adjudicator can make an order that is both just and equitable and in a form agreed to by the parties following a mediation, subject to the matters mentioned in (5) being satisfied.

The terms of the parties mediated agreement is as follows –

1. Mark and Desley Rundell, Trevor and Carole Middlebrook, Ian and Cynthia McGillivray agree the following agreement clauses supersede the applications to Body Corporate and Community Management Commissioner Ref. Nos: 0039-2003 and 0038-2003.
2. The above all agree to refer this agreement to an adjudicator appointed under the Body Corporate and Community Management Act 1997, as a consent order pursuant to section 199 of the Act.
3. Ian has agreed to remove the tallest fronds and trunks from the 2 clumps of the Golden Cane Palms which are located in Ian and Cynthia’s exclusive use area.
4. Trevor and Ian agree they will discuss the best way of doing (clause 3).
5. Ian agrees within a month from today’s date, he will arrange for removal of the above agreed fronds and trunks.
6. For future concerns or problems of a gardening nature, obstruction of views, Mark and Desley, Trevor and Carole agree they will approach Ian and Cynthia personally to discuss these.
7. All agree that at the August 2003 AGM of Picnic Point Apartments, clarification of the Committee’s role will be raised for discussion at an appropriate point in the Agenda.
8. All agree that any concerns that arise from actions or possible actions of other occupants in the building, a note is to be placed on either or both of the security doors.
9. Mark, Desley, Cynthia and Ian agree that should there be any issues regarding unit 3, Cynthia and / or Ian will place a letter regarding these concerns in Units 3’s letter box.

The agreement reached by the parties relates to an area of common property which has been allocated by way of exclusive use to the owners of lot 1, Godfrey Ian McGillivray and Cynthia Grace McGillivray. This area includes certain palm trees, the height of which have increased over time, such that the trunks and fronts are affecting the views enjoyed from lots directly above lot 1.

I have reviewed the mediated agreement of the parties. I conclude that only those matters agreed to in paragraphs 3, 4 and 5 are capable of being the subject of a consent order of an adjudicator. In respect of these matters, I have made an order in accordance with the parties agreement that, by virtue of being recorded as an order, will be capable of enforcement. In respect of the other items of agreement, these are not invalid or illegal in any way, but are matters of private agreement only between the parties. In particular, items 6, 8 and 9 contain proposals for how the parties might approach any future issues of dispute arising between them. Whilst I recommend these agreed approaches to the parties, I will not make these items the subject of an order as these agreed ways of proceeding in respect of future issues are simply that; private agreements between the parties as to how future issues will be approached. These agreed approaches cannot however be relied upon to prevent any party choosing to proceed by way of future application to this office or any other means (eg. a complaint to the body corporate committee). Moreover, the agreement contained in item 7 cannot be the subject of an order. For an issue to have any legal effect at a meeting, it must firstly be the subject of a valid motion, and such motion must have been included on the agenda of the meeting and notified to all owners. No valid resolution can arise from a matter raised in the context of general discussion at a meeting. Moreover, an agreement reached at mediation between individual owners can have no binding effect on the body corporate, or owners generally.