Kelso Villas [2003] QBCCMCmr 507 (13 May 2003)

Last Updated: 10 September 2007

P J HANLYREFERENCE: 0748-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19451
Name of Scheme:	Kelso Villas
Address of Scheme:	39 Morne Street, CAPALABA

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

William Malcolm Parker, the co-owner of lot 19

I hereby order, by consent, as follows:

1. Joan Parker (a co-owner of lot 19) and Derek Gilks (a co-owner of lot 17) (the parties) agree that Kevin Parker will seek information on having the decibel level checked on the air conditioner on the western side of Derek Gilks’ lot. If the decibel level can be checked and is found to exceed 45 decibels then Derek Gilks agrees to rectify the situation. The decibel level will be checked from Joan Parker’s lot.

2. The parties further agree that if the level of noise cannot be checked, or, having been checked, the level is below 45 decibels, then Kevin Parker will make enquiries about methods of reducing the air conditioning noise level. Kevin Parker will communicate with Derek Gilks regarding these methods and the costs involved.

3. The parties further agree that if these methods are to be implemented then the costs of implementation will be shared equally between them, up to a maximum total of $500 (i.e. $250 each)

4. The parties further agree that the upgraded cables previously installed by Derek Gilks will be checked by Energex to ascertain if the tripping of the safety switch/power switch on one property is caused by power usage in an adjoining property. The parties further agree that any cost associated with these checks will be borne by Joan Parker.

5. The parties further agree that if the cable upgrade is not sufficient then Derek Gilks will further investigate the matter.

6. The parties further agree that they need to communicate amicably with each other about these issues in the future.

7. The parties further note that this consent order will finally dispose of this application.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0748-2002

"Kelso Villas" CTS 19451

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

Removal of all heavy duty air conditioning systems and other power systems that cause power cut-outs to our property.

Section 276(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 contractual matter about the engagement of a person as a body corporate manager or service contractor for a community titles scheme or the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The owners of lot 17 were invited to respond to the application. After submissions closed, the parties were referred to mediation. At a mediation session held on 16 April 2003, the dispute between the parties was resolved by a mediated agreement. The parties expressly agreed to seek a consent order reflecting their agreement. Section 276(5) of the Act allows for an adjudicator to make an order in a form agreed to by the parties.

I have ordered accordingly.

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