Oasis [2003] QBCCMCmr 421 (12 March 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0583-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Moralla Avenue, Runaway Bay Q 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Oasis CTS 20870

I hereby order that the application for an order that the owner of lot 10, Neil Robert Ingram, who has been granted exclusive use of marina berth A8 remove the vessel that is presently moored in the berth which exceeds the dimensions of the berth, is dismissed.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0583-2002

"Oasis" CTS 20870

The applicant, the Body Corporate for Oasis, 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 10 whom (sic) has been granted exclusive use of marina berth A8 remove the vessel that is presently moored in the berth which exceeds the dimensions of the berth.

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 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 that on several occasions the owner of lot 12, to whom exclusive use of marina berth A7 has been granted, has complained of an inability to access the berth as the vessel moored in berth A8 is oversize, and restricts access to berth A7. The applicant further states that the body corporate by-laws prohibit any vessel to be moored in a berth which would exceed in length or breadth the dimensions of a vessel that can be safely moored in the berth, and the vessel in question does exceed the dimensions of the berth.

The owner of lot 10, Mr Ingram, was invited to respond to the application. In his submission, Mr Ingram challenged the assertion that his vessel cannot be safely moored in berth A8. Mr Ingram further stated that the owner of lot 12 purchased the lot knowing which berth was allocated to the lot, and also knowing the position of the berth on the jetty.

I conducted a teleconference with Mr Ingram and Mr Blackburn, the co-owner of lot 12, on 11 March 2003. During the course of the teleconference, Mr Ingram advised me that he has disposed of his vessel, and has not had any vessel moored in berth A8 for several months. Mr Blackburn confirmed this to be the case. Mr Ingram conceded, however, that at low tide Mr Blackburn might have had some difficulty mooring his vessel if a larger vessel were moored in berth A8. Mr Ingram stated that he intends buying another vessel later this year, and agreed that he would have further discussions with Mr Blackburn about the intended vessel. Mr Blackburn was happy with this proposal.

In view of the fact that events have essentially overtaken this application, in that the vessel against which the order was sought has been sold, I propose to dismiss the application. 2n