Barkool [2004] QBCCMCmr 192 (8 April 2004)

Last Updated: 30 September 2005

REFERENCE: 0093-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5543
Name of Scheme:	Barkool
Address of Scheme:	QUEENSLAND

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

Louise Maree Spiteri, the owner of lot 1

I hereby order that the application by Louise Maree Spiteri, the owner of lot 1 for several orders (as set out below) and associated with the boundaries of her lot, is dismissed.`

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0093-2004

"Barkool" CTS 5543

The applicant, Louise Maree Spiteri, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

• I propose the whole of the land be resurveyed and each lot has its own title with easement rights over the rear entrance, with no compensation either way.
• Each individual owner pays to have their Energex & Gas meter boxes relocated to their own sides.
• As stan and Gina Bodak verbally approved to relocating the fence and Stan accepted money to move and complete the border line fence (assemble, paint etc), I believe the fence should not be moved again. ...
• If the fence is required to be removed, then all boundary fences may need to be removed as they do not appear on the Registered Plan.
• I be reimbursed by Stan Bodak or body corporate for the "handyman, installation and maintenance" work completed on common property area’s that I have personally been paying for ...
• Complete the proposed common property small garden area via BC funds so I do not have to keep paying mowing for the overgrowing of weeds ...
• Leaning retaining wall to be repaired on my side out of BC funds ...
• Body corporate pays for the future maintenance and lawn mowing of the common property areas I am currently maintaining and paying personally.
• ... pay for the surveying costs and energex keys. I now believe Stan and Gina should contribute to all costs related to all these matters.
• Stan and Gina Bodak pay all their own legal costs etc.
• Any unauthorised moneys withdrawn from the body corporate bank accounts while solely under Stan car are refunded back to the body corporate accounts.
• Bank books to be professionally audited.
• Monies start to be contributed to body corporate accounts by all owners for future services / requirements.

The applicant also requested an interim order be made. On 17 February 2004, the requested interim order was dismissed.

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 the 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.



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)).

Since receiving this application, this office has sought submissions from Stanislaw and Giovanna Bodak, the owners of lot 2 (the respondents). To date, no submission in response to the application has been received.

In further correspondence forwarded to this office, the applicant has attached a copy of correspondence received from the Registrar of Titles office, dated 29 March 2004, and requested that the documentation be "added to my application". It is relevant to set out part of that correspondence, quote –

It has been brought to my notice ... that there is a significant error in the description of the location of your boundaries on BUP 9791. ... it would appear the errors stem back to the performance of the original surveyor in 1990.

The Registrar of Titles then advised that he intended to place a Registrar’s Notation on the applicant’s title until such time as "all the matters are resolved to the satisfaction of the land registry".

Other correspondence attached by the applicant includes a letter by the Registrar of Titles to the relevant surveyor. That correspondence states in part, quote –

The lot boundaries are seriously in error, and require attention. ... A number of options are available to resolve the boundary issues with these lots.

Thereafter, 4 possible options are set out.

The orders sought by the applicant in this application are possibly in conflict with, and certainly overlap with the requirements of the Registrar of Titles regarding the boundaries for the plan. Section 285 of the Act provides that an adjudicator does not have power to resolve a question about title to land. Given the advice of the Registrar of Titles to the applicant that there is a significant error in the description of the location of your boundaries on BUP 9791, I consider that this application, and all aspects of it, must be dismissed until all issues raised by the Registrar of Titles regarding relevant boundaries are dealt with by the parties. I consider further that the parties may need to obtain legal advice regarding these issues. However this is a matter for the parties. Once all title and boundary issues have been resolved to the satisfaction of the Registrar of Titles, the parties are at liberty to make further application to this office for resolution of any subsidiary issues, subject to the proviso that an adjudicator has no power to resolve a question about title to land.