Flame trees On Hedge [2003] QBCCMCmr 438 (26 March 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0651-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27569
Name of Scheme:	Flame Trees On Hedges
Address of Scheme:	196C Hedges Avenue, MEMAID BEACH QLD 4218

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

Andrew Stuart Blair & Belinda Leah Blair, the co-owners of lot 2


I hereby order that the owners of lot 4, Agazio Vitale, Linda Jane Vitale and Melissa Jane Vitale, shall, upon the making of this order, cease parking, or allowing any vehicle to stand, on common property.

I further order that the owners of lot 4, Agazio Vitale, Linda Jane Vitale and Melissa Jane Vitale, shall, upon the making of this order, prohibit their invitees from parking, or allowing any vehicle to stand, on common property.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0651-2002

"Flame Trees On Hedges" CTS 27569

The applicants, Andrew Stuart Blair & Belinda Leah Blair, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The applicants are seeking an order preventing the owners of unit 4, 196C Hedges Avenue, Mermaid Beach from continuing to permit family and friends parking their cars within the property in a way that these cars then encroach on common property.

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 applicants state that the owners of unit 4 continually permit friends and family to park their cars within the property in a way that their vehicles encroach on common property. The applicants further state that the encroachment reduces the already limited tuning area and makes it more difficult for them, and other occupiers, to access their garages.

The owners of lot 4, all other owners, and the body corporate committee, were invited to respond to the application.

A submission, dated 20 November 2002, was received from the owners of lot 4 in which they did not deny that vehicles had been parked on the common property, however, they stated that the vehicles "no longer park on the common property and have not done so for some time". The owners further stated that they had not received the body corporate letter dated 6 June 2002, and, further, denied that they had made excessive noise.

The applicants replied to the submission on 27 November 2002, and stated that the owners of lot 4 continued to allow parking on the common property, with the latest incident observed by the applicants having occurred on 23 November 2002.

The by-laws for this scheme provide that owners must not park or stand a vehicle on common property, and must not allow an invitee to do the same, unless they have the body corporate’s written approval to do so. The by-laws similarly provide that an owner or occupier of a lot must not obstruct lawful use of common property by any person.

The owners of lot 4 have clearly parked vehicles on the common property in the past, and according to the applicants, did so again after the date on which they claimed to have stopped doing so. I therefore propose to make an order in the terms sought by the applicants. If the owners of lot 4 have now stopped parking or standing vehicles on common property, then they have nothing to be concerned about in the making of this order. If however, they continue to breach the by-laws, and thereby fail to comply with this order, they may face the consequences of action by the applicants or the body corporate to enforce this order, whereby a maximum penalty of $30,000.00 may be imposed by the Magistrates Court.

The owners of lot 4 should be aware of the provisions of section 235 of the Act, which provides as follows:

235 Failure to comply with adjudicator’s order

(1) A person who contravenes an order under this chapter (other than an

order for the payment of an amount) commits an offence.

Maximum penalty--400 penalty units. ***

(2) A proceeding for an offence under subsection (1) (other than a

proceeding taken by the Attorney-General) may only be taken by--

(a) the applicant for the application for the original order; or

(b) a person in whose favour the order mentioned in subsection (1) is

made; or

(c) the body corporate; or

(d) an administrator appointed under this chapter who is authorised

to perform obligations of the body corporate or its committee.

(3) Costs awarded against a defendant in a proceeding under this section

may include the amount of the fee paid to the commissioner on making the

application for the original order.

(4) In subsection (3)--

"application for the original order" means the application for the order

of an adjudicator for the purposes of which the order mentioned in

subsection (1) is made.

*** a penalty unit equals $75.00


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