Paddington Terraces [2004] QBCCMCmr 196 (15 April 2004)

Last Updated: 30 September 2005

REFERENCE: 0747-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21669
Name of Scheme:	Paddington Terraces
Address of Scheme:	29 Bowler Street, PADDINGTON QLD 4064

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

Allan John CLARK, as a co-owner of Lot 7,

I hereby order that the applicant Allan John CLARK, a co-owner of Lot 1, together with Carol Anne CLARK the other co-owner of the lot, and James Sturrock RAE and Cathriona RAE, for the respondent JIMRAE NOMINEES PTY LTD the trustee owner of Lot 6, having on 29 March 2004 reached a mediated settlement of the disputes between them subject of the application, and having signed an agreement setting out the terms of settlement and requesting that a consent order be made for those settlement terms 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. All agree there will be joint management of a mulberry tree situated in the rear courtyard of Unit 6/29 Bowler St Paddington. 2. Allan & Carol will take responsibility for pruning the tree from June to November of each year starting from 2004. 3. James will take responsibility for pruning the tree from December to May of each year. 4. All agree that this will be for one pruning in each time period. 5. All agree they will communicate with each other in the future via the telephone to discuss the management of the tree, ie – • where the tree will be pruned. • James informing the tenant. • confirmation jointly of date and time. 6. We agree to refer this agreement to an adjudicator appointed under the Body Corporate and Community Management Act 1997, as a consent order pursuant to section 276(5) of the Act.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0747-2003

"Paddington Terraces" CTS 21669

The applicant, Allan Clark of Lot 1, sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"The removal of a large mulberry tree located at the rear of the courtyard in the adjacent townhouse (located at 6/29 Bowler St, Paddington)."

JURISDICTION:
This is a dispute between an owner (the applicant Clark) and another owner (James Sturrock RAE and Cathriona RAE, for the respondent JIMRAE NOMINEES PTY LTD the trustee owner of Lot 6), concerning the alleged failure by the respondent to maintain his lot, in particular a mulberry tree, with leaves spoiling the applicant’s lot. This is a matter falling within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 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 –

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.

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 and the tenants of Lot 7 as a likely affected party, with an invitation to respond to the matter of dispute raised in the application. The respondent and the tenants both made a written submission. The applicant body corporate viewed the submissions and subsequently lodged a written reply (see sections 246 and 244 of the Act respectively).

In consideration of the dispute, it was considered by this Office that the most appropriate manner of resolving the dispute would be mediation. The parties were advised on 4 April 2004 that the matter had been referred to the Dispute Resolution Centre of the Department of Justice and Attorney-General (see section 248 of the Act). The parties subsequently participated in a mediation session with a mediator on 29 March 2004 and reached agreement on a settlement of the dispute.



DETERMINATION:
The scheme "Paddington Terraces" was registered as a group titles plan (now termed a standard format plan) in 1982 and comprises 10 residential lots.

Section 276(5) of the Act provides that an Adjudicator may issue a consent order containing the terms of settlement agreed to by the parties to a dispute. It also includes power for the Adjudicator to review the terms to ensure that none contravene a legislative provision or a body corporate by-law.

276	Orders of Adjudicators

(5) If the adjudicator makes an order in a form agreed to by the parties to the application following mediation or conciliation, the order –

(a) may include only matters that may be dealt with under this Act; and
(b) must not include matters that are inconsistent with this Act or another Act.

The legislation provides that owners must maintain their lot and must not cause a nuisance to another lot occupier or interfere unreasonably with the use and enjoyment of their lot (see section 167 of the Act). This dispute concerns these issues and it is open to the parties, as the relevant owners, to make a settlement in the matter.

I have made two technical amendments to the terms of settlement which do not at all affect the substance of the settlement –

• I have deleted Clause 5 which provides for the application to be withdrawn when in fact the under Clause 7 the parties want it to proceed and be the subject of a consent order.
• I have substituted the reference to section 199 in Clause 7 to section 276(5) as the Act has been amended and this is the new equivalent.