Dockside Hotel [2004] QBCCMCmr 204 (21 April 2004)

Last Updated: 30 September 2005

REFERENCE: 0700-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2888
Name of Scheme:	Dockside Hotel
Address of Scheme:	44 Ferry Street KANGAROO POINT QLD 4001

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Stencraft Pty Ltd, the co-owner of lots 1, 2 and 3

I hereby order that the application by Stencraft Pty Ltd, the co-owner of lots 1, 2 and 3 for orders that - 1. The body corporate pay to the applicant the sum of $40,346.49 being the amount by which the applicant was overcharged for electricity supplied to it during the period 1 January 2002 to 31 March 2003. 2. The applicant has no further liability to the Body Corporate for the cost of electricity supplied to it since 1 April 2003 where the applicant has paid the body corporate for that electricity at the rate of $0.07 per kwh together with the body corporate’s service fee and the ambulance levy. 3. The body corporate may in future only charge the applicant for the supply of electricity at the same rate that the body coprorate purchases that electricity, is dismissed under section 270 of the Act on the basis that I am satisfied that the dispute should be dealt with in a court or tribunal of competent jurisdiction. The above order was appealed to the District Court at Brisbane on 2 June 2004. On 10 August 2004 the appellant and respondent agreed that the appeal should be dismissed by consent and there be no order for costs.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0700-2003

"Dockside Hotel" CTS 2888

The applicant, Stencraft Pty Ltd, the co-owner of lots 1, 2 and 3 has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

1. The body corporate pay to the applicant the sum of $40,346.49 being the amount by which the applicant was overcharged for electricity supplied to it during the period 1 January 2002 to 31 March 2003.
2. The applicant has no further liability to the Body Corporate for the cost of electricity supplied to it since 1 April 2003 where the applicant has paid the body corporate for that electricity at the rate of $0.07 per kwh together with the body corporate’s service fee and the ambulance levy.
3. The body corporate may in future only charge the applicant for the supply of electricity at the same rate that the body coprorate purchases that electricity.

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)).

The scheme

The scheme is a subdivision of 146 lots registered under a building unit plan (now a building format plan). The regulation module applying to the scheme is the Accommodation module.

The application and submissions

This office sought submissions in respect of the application from the committee, all owners and the body corporate manager.

Determination

Section 270 of the Act provides as follows –

270 Dismissal of applications
(1) The adjudicator may make an order dismissing the application if--
(a) it appears to the adjudicator that the adjudicator does not have jurisdiction to deal with the application; or
(b) the adjudicator is satisfied the dispute should be dealt with in a court or tribunal of competent jurisdiction; or
(c) it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance; or
(d) the applicant fails, without reasonable excuse, to comply with a requirement of the adjudicator under section 271(1). ...

After having considered the submissions in response to the application, it is clear in my view that this is a commercial dispute involving significant amounts or claims and disputed evidence. The claims of the respondent body corporate take the application beyond the terms of the original application. The submission of the body corporate "makes counter claims" against the applicant. The amount of these counterclaims is in the excess of $184,000.

The legislature in my view did not intend that such commercial disputes involving significant amounts of money, and requiring more formalised evidence gathering and testing capacities, should be dealt with by departmental adjudication in the manner set out in the Act. In the circumstances, I intend to dismiss this application under section 270 of the Act in that I am satisfied that the dispute should be dealt with in a court or tribunal of competent jurisdiction.