Eagles Retreat [2004] QBCCMCmr 265 (21 May 2004)

Last Updated: 30 September 2005

REFERENCE: 0612-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10852
Name of Scheme:	Eagles Retreat
Address of Scheme:	12 Kingfisher Drive PEREGIAN QLD 4573

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Richard Travers Farndon, the co-owner of lot 3

I hereby order that the application by Richard Travers Farndon, the co-owner of lot 3, for an order to complete the balcony redevelopment by erecting a balcony on the north side of lot 3 as per agreement, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0612-2003

"Eagles Retreat" CTS 10852

The applicant, Richard Travers Farndon, the co-owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

To complete the balcony redevelopment by erecting a balcony on the north side of lot 3 as per agreement.

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)).

In relation to this dispute, I convened a teleconference of the parties on 26 February 2003. In the teleconference, I outlined a number of matters to the parties including that in many respects, the terms of the application in touching on issues of joint venture, estoppel and unconscionability, were outside the jurisdiction of an adjudicator under the Act, and that potentially the matter should be referred to a court of competent jurisdiction.

I concluded the teleconference by outlining to the parties and in particular the applicant three options –

1. To proceed with the application, and if so, to evidence the rights under the legislation which the applicant was asserting;
2. To go to court alleging issues of joint venture, estoppel and unconscionability; or
3. To submit to a meeting of the body corporate fresh motions containing the proposal and if such motion or motions were not carried, to make fresh application to this office on the basis that the body corporate was (allegedly) not acting reasonably.

I further indicated to the applicant that if he was not proceeding with the application, then that he should withdraw it. My recollection is that the teleconference concluded with the parties agreeing to meet privately to discuss the resolution of the dispute.

This office contacted the applicant on 5 May 2004. The file note indicates that he would send a notice of withdrawal, and will submit a new application after a meeting is held in 4 weeks time.

This office has not heard further from the applicant, notwithstanding the requests to withdraw the application. In the circumstances, I intend to dismiss it.