Anglesea Court [2004] QBCCMCmr 40 (21 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0491-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14359
Name of Scheme:	Anglesea Court
Address of Scheme:	Garfield Terrace QLD SURFERS PARADISE

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Attabend Pty Ltd, the then owner of lot 3

I hereby order that the application by Attabend Pty Ltd, the then owner of lot 3 for an order for the removal of pot plants and tables and chairs from the boundary of units 3 and units 2 so that the occupants of unit 3 can access the common property walkway to gain pool and beach access, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0491-2003

"Anglesea Court" CTS 14359

The applicant, Attabend Pty Ltd, the then owner of lot 3 sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

The removal of pot plants and tables and chairs from the boundary of units 3 and units 2 so that the occupants of unit 3 can access the common property walkway to gain pool and beach access. ...

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 the making of this application, the lot has been sold. Departmental records indicate that a transfer of the lot to Wallace Richard and Wendy Joanne Leeke and Vincente and Sarah Bay Fazio was recorded on 7 October, 2003. In the circumstances, I consider that the application must be dismissed, since the original applicant no longer has an interest in the outcome of the dispute. If the new owners are concerned with the matter the subject of this dispute, they should make a further application.

I note that the new owners, when intending purchasers, indicated qualified support for the creation of exclusive use areas in one of the areas in dispute. This however has not been a factor in my decision to dismiss the application. The dismissal is simply on the basis that the applicants have sold the lot. This order has not considered the merits of the application whatsoever. Any further application (if one is made) will consider and presumably determine such merits.