Kookaburra Park Eco Village [2003] QBCCMCmr 56 (8 August 2003)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Rudolf ONDRICH, a co-owner of Lot 73,

I hereby order that the application for the following order –

We seek the Order that the concrete slab will be done in a time limit, no longer then 3 (three) months from receiving an order of an Adjudicator OR the time limit which the Adjudicator finds appropriate for this project That the landscaping of the project area to stop further soil erosion of the slopes will be done in a time-limit, no longer then 3 (three) months from receiving an Order of the Adjudicator OR the time-limit which the Adjudicator finds appropriate for this project.

(Proposer Mr J Strich, joint owner Lot 74. Concrete slab – motion 15 of the Extraordinary General Meeting 20.5.01. Motion read: That a 40 x 20m of concrete slab be laid on common land at the corner of Elzeards Way and Oxhill Drive, to be used as a multi-functional court),

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0192-2003

"Kookaburra Park Eco Village" CTS 19671

JURISDICTION:
This is a dispute between an owner (the applicant Ondrich) and another owner (the respondent Joseph Patrick STRITCH, a co-owner of Lot 74), concerning the delay in the laying of a concrete slab on common property for recreational use as a court by children and others, pursuant to a resolution of the body corporate in general meeting. This is a matter which falls within the disputes resolution provisions of the legislation (see sections 227, 228 and 276, and Schedule 5, of the Act).

General powers of an Adjudicator in making an order:
Section 276(1) 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 –

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

APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondent Stritch, the body corporate (committee) and to all other owners, with an invitation for each to make a submission on the dispute. The respondent, the committee and an owner each made a written submission to the application. The applicant Ondrich viewed the submissions and subsequently lodged a written reply (see sections 246 and 244 of the Act respectively).

The brief facts of the matter are as follows. At an extraordinary general meeting held on 20 May 2001, the following Resolution 15 was passed on a vote of 25:12 –

This resolution has never been rescinded, nor has the applicant put a motion to that effect despite his objection to the project (the original resolution shows that he objected from the outset).

The applicant wants a time limit to be put on the laying of the slab, and on the landscaping of the immediate area to prevent further soil erosion, stating that the area has been excavated but nothing further done (further work has since been carried out – see later comments).

The committee submits that the motion has no time frame nor was one ever discussed. The committee takes issue with the applicant on two counts –

Stritch submits that, since the application was lodged, the ground has been levelled and the surroundings landscaped with trees and grasses. He further submits that the slab will be laid when sufficient money is available to fund it, on the basis that, This project has been and will continue being paid with voluntary donations and money collected in community activities organised for that purpose.

In his reply to the committee’s submission, the applicant Ondrich, states that if it was the case that he was wrong in making application without first approaching Stitch or the committee, then the department (presumably a reference the Office of the Commissioner for Body Corporate and Community Management) would have required him to make those approaches first, but by accepting our application the department find nothing wrong with our handling of the matter.

In response to Stritch, the applicant appears to say that the project requires the professional advice of either the Kolan Shire Council or a landscaper. He has included copies of letters to the Shire Mayor, Eddie Stone, and the Council engineer, Allen Christensen, inviting them to visit the scheme and asking that a Council landscaping expert ("landscaper") be provided to inspect and report on the landscaping needs of the site.

DETERMINATION:
"Kookaburra Park Eco Village" was registered as a group titles plan (now termed a standard format plan) on 30 March 1995, and comprises 74 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Mediation:
The initial case management decision by the Commissioner as the most appropriate means of resolving this matter, was to refer the application to the Dispute Resolution Centre of the Department of Justice and Attorney-General for mediation. I do not know the grounds on which this case management decision was made, however I suspect that it was based on both the nature of the dispute (on the face of it, one of timing rather than applying the law) and the past history of disputes in "Kookaburra Park Eco Village" in general and those initiated by the applicant Ondrich in particular.
In explanation of this latter point, there have been 26 applications lodged for this scheme since 1 January 2000 where 5 or less would be normally expected; of these, 9 have been submitted by Ondrich (either alone or with his co-owner wife) and only one of the 7 determined so far has not been dismissed.

The mediation took place between Ondrich and Stritch on 25 July 2003 and a "partial agreement" was reached. Both parties consented to the terms of settlement being supplied to this Office, and Ondrich determined not to withdraw his application. The file was returned to this office for determination by departmental adjudication, as foreshadowed in this Office’s letter to Ondrich and other parties in the initial case management advice letter of 15 May 2003.

I have read the terms of the settlement which, in brief, envisages a Shire Council landscaper attending a meeting of interested owners to give advice on landscaping the relevant area. While the partial agreement has no effect whatever on my determination of this dispute, there are terms I find somewhat puzzling –

Given the applicant’s decision not to withdraw the application, I am not sure whether the agreement has been referred back to this Office for an interim consent order to be made incorporating the settlement terms (see section 276(5) of the Act), or for the application to be determined after the above events have taken place or failed, or perhaps despite them. Regardless of the reason, I intend to determine the application on the facts before me.

Despite my above comments regarding the settlement terms, it seems to me that the above sequence of events can proceed, assuming the Council is willing to provide a landscaper and the committee agrees to the process. In determining this application, my order is no different to what it would otherwise have been had the mediation not taken place at all and the partial agreement not entered into. This does not mean that I regard the mediated settlement as being of no use - if the meeting takes place and the landscaping decided upon, that is a good outcome – but it does not alter my view of the application which follows.

Firstly, I am in total agreement with the committee’s comments that the applicant should have raised his concerns with them on both issues, namely the completion and the landscaping, before making application and treating each as a dispute. Without having first approached the committee, there are two consequences: his concerns are not really a dispute as the matters may have been resolved to his satisfaction; and the body corporate has been put to the expense of distributing copies of the application to owners in accordance with the instructions of this office (see section 243 of the Act), meeting and making a response to the application. The propensity of the applicant to lodge applications without having first approached the body corporate on a matter, has been evident in previous applications of the applicant, along with applications of no substance, and this practice and its adverse outcomes for the body corporate and other owners in terms of inconvenience, cost and plain nuisance, has been commented on by I and other adjudicators in respect to past applications.

Secondly, the resolution clearly sets no time frame for completion and it is dependent on funds being available from the sources spoken of by Stritch, namely donations and specific fund-raising events. The applicant cannot have been unaware of the method of funding. In the reasons to my Order 641-2002 issued earlier this year, I had to deal briefly with this project, and at page 4 of those reasons, I referred to the relevant area as the "children’s area" and both the nature and funding of this proposed children’s facility was general knowledge. It follows that the timing of when the project was to be completed, depended on fundraising efforts in the community – it was never a project to be funded out of body corporate funds. While the legislation provides that a committee must implement the decisions of the body corporate, that duty implicitly includes a consideration of the terms and circumstances of the resolution, which in this instance includes that it is a community and not a body corporate funded project, and that completion is directly related to fundraising (see section 101(2) of the Act). There is the related matter of having the area landscaped to avoid soil erosion, and though the applicant has referred to further such erosion, the Project Manager Stritch says that there was only minor erosion in February by unusual heavy rain...almost half of the annual average for the region. To avoid any future erosion more grass is going to be sown. Even the owner whose submission is stridently in support of the applicant does not refer to any erosion problem. It seems to me that the erosion was an unexpected result of unusual rain but in any case was not major and was remedied in the soil extraction and levelling process. The site is now stable.

Additionally, the applicant, having objected to the project at the outset (see minutes for original resolution), is now accusing the body corporate of being tardy in not completing a matter he opposes! This, and previous applications, gives the appearance that Ondrich wishes to confront the body corporate committee (or individuals) on any matter where he believes they have not acted strictly in accordance with the law, no matter how trivial or inconsequential the matter may be, or indeed whether or not he has a direct interest and concern in outcome.

In summary, the resolution contains no time frame and because of the nature of the resolution (a self-funded community project), which really only sought permission of the body corporate to happen and was never meant to be a body corporate funded project, I do not intend to impose one.

Accordingly, for the foregoing reasons I have dismissed the application.

In regards to the mediated settlement, that will be a matter for the parties to pursue as they choose.

Number of Scheme:	19671
Name of Scheme:	Kookaburra Park Eco Village
Address of Scheme:	M/S 368 GIN GIN QLD 4671

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 –
(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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Kookaburra Park Eco Village [2003] QBCCMCmr 56 (8 August 2003)