Barklya [2003] QBCCMCmr 610; [2003] [2003] QBCCMCmr 225 (17 November 2003)

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

I hereby order, by consent that the Body Corporate for Barklya, represented by Jessie Richardson of Cairns Body Corporate Management, and Stephen Gadd, co-owner of lot 3, having reached a mediated settlement of their dispute on 3 November 2003, and having signed an agreement setting out the terms of settlement and requesting that a consent order be made by an adjudicator pursuant to section 276(5) of the Body Corporate and Community Management Act 1997 (the Act), must abide by those agreed terms which are set out below:

1. We agree to refer this agreement to an adjudicator appointed under the Body Corporate and Community Management Act 1997 pursuant to section 199 (section 276(5)) of the Act, so that the adjudicator may approve its terms, subject to the requirements of the Act.

2. Mr Gadd agrees to write a letter to the Body Corporate to facilitate resolution.

3. Mrs Richardson agrees to present the letter to the Body Corporate meeting on behalf of Mr Gadd.

4. Mr Gadd and Mrs Richardson agree to seek an extension of time to all the body corporate to receive and act upon the letter.

5. Mrs Richardson agrees to advise Mr Gadd and the Commissioner for Body Corporate and Community Management of the outcome of the body corporate meeting.

I further order that the carrying out of the above terms must be in accordance with the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0440-2003

"Barklya" CTS 18592

APPLICATION

This application was made by the Body Corporate for Barklya (applicant) on 30 June 2003 under the Body Corporate and Community Management Act 1997 (Act) pursuant to a general meeting resolution on 18 March 2003. The applicant sought orders against the Mr Steve Gadd, co-owner of lot 3 (respondent) for the removal of a fence in compliance with the by-laws and technical manual.

The Barklya community titles scheme (Barklya) consists of 10 lots and common property. The community management statement for Barklya indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondent and to all owners, with an invitation to respond to the matters raised in the application. Written submission were made by the respondent and four other owners. The applicant did not inspect the submissions received or make a written reply (see sections 246 and 244 of the Act respectively).

A dispute resolution recommendation was made on 3 September 2003 referring the dispute to mediation through the Dispute Resolution Centre of the Department of Justice and Attorney-General (see section 248 of the Act). The parties participated in a mediation session on 3 November 2003. They reached agreement regarding the matters in dispute, and requested that a consent order be made to reflect that agreement.

JURISDICTION

This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

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:

(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.

Section 276(5) provides that, if the adjudicator makes an order in a form agreed to by the parties following mediation or conciliation, the order may include only matters that may be dealt with under this Act; and must not include matters that are inconsistent with this Act or another Act.

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 and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

MATTERS IN DISPUTE

The application relates to the construction of a fence by the respondent. By way of background, the facts of the dispute, as outlined in the application and submissions, can be summarised as follows.

The applicant became aware of the respondent’s intention to construct a fence and advised him of the requirements to seek body corporate approval. The respondent requested approval in December 2002 but the applicant considered that the proposal did not comply with the body corporate by-laws and ‘technical manual’. The fence was constructed and the applicant asserts that it was without approval or compliance with the body corporate requirements. Discussions were held with the parties and other owners to seek a compromise and it appears some modifications to the fence were made. The matter was considered in extraordinary general meetings in January and March 2003, at which approval of the fence was refused unless it complied with the body corporate requirements. As a result of the second meeting, the applicant required modifications to be made within six weeks or the fence be removed. The respondent indicated his intention to modify the fence but the applicant considered the modifications made did not meet the requirements. The applicant issued two by-law contravention notices to the respondent, before lodging this application.

DETERMINATION

This dispute was successfully meditated by the parties. I am satisfied that the contents of the mediated agreement are able to be dealt with under the Act and are not inconsistent with the Act or any other legislation. Accordingly, I have made a consent order on the terms agreed by the parties. However, I have noted that, in carrying out the agreed terms, the parties must ensure that they comply with the provisions of the Act and the Body Corporate and Community Management (Standard Module) Regulation 1997.

For the reference of both parties I note that a consent order may be enforced in the same manner as any other order of an adjudication (see section 287 of the Act), but, unlike other adjudicator’s orders, a consent order can not be appealed (see section 289(b)).

Number of Scheme:	18592
Name of Scheme:	Barklya
Address of Scheme:	Barklya Close, KAMERUNGA, QLD, 4878

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Barklya [2003] QBCCMCmr 610; [2003] [2003] QBCCMCmr 225 (17 November 2003)