Phoenix Palms at Bronberg Court [2003] QBCCMCmr 509 (14 May 2003)

Last Updated: 10 September 2007

RA MeekREFERENCE: 0109-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24082
Name of Scheme:	Phoenix Palms at Bronberg Court
Address of Scheme:	1 Bronberg Court SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
Michael John O’Dowd & Diane Myles O'Dowd, the owners of lot 16

RA MeekI hereby order that the interim order made on 24 February 2003 is of no further force or effect, and is superseded by the terms of this final order.

I further order that RA Meekthe body corporate for Phoenix Palms shall not take any steps or action whatsoever with the view to or intention of implementing any resolution, committee or otherwise, regarding rectification of the alleged interference with common property of the scheme by the soon to be former owners of lot 16, Michael John O’Dowd and Diane Myles O’Dowd, in their constructing of a new pathway over parts of the common property in alleged breach of by-law 4.2, unless and until the body corporate, or its committee, have first validly resolved to such effect, with the incoming purchaser of the lot being notified in the usual manner of the proposed motion / resolution (if carried).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0109-2003

"Phoenix Palms at Bronberg Court" CTS 24082

The applicants, Michael John O’Dowd & Diane Myles O'Dowd, the owners of lot 16, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The pathway as originally sited on common property – our area exclusive use to our lot backing onto rainforest and amenities as sited on the 16^th of March 2000, prior to our purchase, and to be maintained in its present position.

On 24 February 2003, the following interim order was made -

RA MeekI hereby order that the body corporate for Phoenix Palms shall not take any steps or action whatsoever with the view to or intention of rectifying the alleged interference with common property of the scheme by the owners of lot 16, Michael John O’Dowd and Diane Myles O’Dowd, in their constructing of a new pathway over parts of the common property in alleged breach of by-law 4.2.

In the statement of reasons for the interim order, I noted as follows –

In the supporting grounds, the applicants state that –

1.	Location of pathway common property exclusive use area is in dispute;
2.	Service contractors constructed another pathway unnecessarily as access is available through gate in bush fence;
3.	Lot owner changed pathway back to its original position using the two (2) pavers layed (sic) by service contractors – plus four (4) supplied by owner;
4.	Notice of contravention of body corporate by-law 4.2 is incorrect for the following reasons – I have not constructed a new pathway. I have only restored and widened original pathway on my exclusive use area.

The grounds set out by the applicants do not indicate with any clarity the terms of the dispute. I note the terms of the Notice of Continuing Contravention of a body corporate by-law (the notice) issued by the body corporate states that the applicants have –

... changed a common property pathway leading to your exclusive use garden area. The result being that in changing the pathway you have constructed a new pathway over parts of the common property. The result being that you have damaged the common property in order to construct the new pathway. This amounts to a breach of by-law 4.2 in that you have damaged Landscape.

In the letter serving on the applicants the notice, the body corporate solicitor has stated –

We are instructed by our client that it is in intention of the Body Corporate to rectify your interference with common property. This will require the removal of the works you have carried out on common property and return the unauthorised pathway to its previous state.

In the circumstances, whilst the applicants grounds are not absolutely clear to me at this time, it is clear that the body corporate has indicated an intention to rectify the alleged interference with common property. Given this, I consider that the interim order sought by the applicants, namely that the subject pathway remain in its present position until the dispute is resolved by the commissioner for the BCCM, is appropriate so as to maintain the status quo, until this dispute can be finally determined. I am further satisfied that an interim order to this effect shall not have a significant impact on any member of the body corporate, since I understand that the path in question is within the exclusive use area of the applicants.

Determination

I have now been advised that the applicants have sold their lot with settlement to be effected on Friday 16 May 2003. Moreover, the body corporate has stated –

The new owners have asked for, and received permission to stamp concrete on the previously grassed area, which has been the centre of the dispute. The dispute is not mute (sic) as there will no longer be an access problem to mow this area.

Whilst initially intending to inspect the subject lot on Wednesday 14 May 2003, I instead conducted a teleconference between the applicant, Diane O’Dowd and the body corporate committee representative, Joe Welch to ascertain the current position.

The applicant confirmed the sale of the lot, with settlement to be effect this Friday.

Welch confirmed the permission given by the body corporate committee to concrete an area presently grassed.

Both parties acknowledged that the replacement of the grass with concrete would remove the need for body corporate access to mow the grass, and consequently, the rectification of the path was no longer an issue for the body corporate.

In the circumstances, I indicated to both parties that I did not intend to proceed with a full investigation of the dispute the subject of the application, as it would not exist post settlement. I then indicated that the order I intended to make was to curtail the operation of the current interim order, but as well, to prevent the implementation by the body corporate of any resolution carried to date, committee or otherwise, regarding rectification of the alleged interference with the common property by the owners of lot 16. The intent of this second order was to place all parties on an even footing. It seems that the purchasers and the body corporate will have no further issue or dispute. However, if the body corporate considers that any further action to "rectify" the path is necessary, it will need to carry a new resolution or resolutions to this effect. It will not be able to simply rely on the terms of the existing resolution.