Ixora Villas [2004] QBCCMCmr 37 (20 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0474-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17439
Name of Scheme:	Ixora Villas
Address of Scheme:	4 Vallely Street, FRESHWATER QLD 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Barbara Leptig, the occupier of lot 2

I hereby order that the application by Barbara Leptig, the occupier of lot 2 for an order that the two visitor parking bays be determined as not exclusive use of owners of units 3 and 6, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0474-2003

"Ixora Villas" CTS 17439

The applicant, Barbara Leptig, the occupier of lot 2 has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

Two visitor parking bays be determined as not exclusive use of owners of units 3 and 6.

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 6 lots recorded under a building format plan (formerly a building units plan).

The application

The issue in dispute is whether two "visitor parking bays" located on common property are or are not part of the exclusive use allocation of lots 3 and 6 respectively.

Whilst I have considered the applicant’s grounds, and the submissions of owners who choose to respond, including the named respondent Josephine Brading (lot 6), I do not propose to restate the grounds or the contents of submissions in any detail. The named respondent, Elizabeth Ann Stallard (lot 3) did not reply to the notice inviting submissions.

The applicant submits that she has been advised that "parking bays cannot be made exclusive use". The applicant alleges misrepresentation by the body corporate to the local authority in 1995.

The respondent Brading submits that she made full enquiries prior to her purchase to ensure that the parking bay was in fact part of the exclusive use allocation.

By-law 28 (the relevant exclusive use by-law) provides relevantly that

The proprietor or occupier for the time being of each lot shall be entitled to the exclusive use and enjoyment ... of the garden area numbered the same as his lot and hachured in red on the annexed plan marked "A". ...

The plan recorded with the by-laws in 1995 (dealing number 701020723) shows the two areas in question hachured as belonging to lots 3 and 6 respectively. So far as I am concerned, this is the end of the enquiry. The by-law provides that the lots in question have exclusive use of the areas hachured and these hachured areas include the two parking bays. If this exceeds what the local authority approved, then this is a matter between the local authority and the body corporate, or more particularly the developer. However, in my view, the owners of the relevant lots are entitled to the exclusive use of the areas hachured, including the parking bays. Part of the reason by-laws are recorded is to ensure that purchasers when they are deciding to purchase can be sure that any exclusive use allocations which were represented to them as attaching to the lot are in fact so. The applicant, or her son when purchasing would also have been able to satisfy himself of the exclusive use allocations for the parcel, and should have been in no doubt that the two parking bays in question were part of the exclusive use allocations for lots 3 and 6.