Nautilus Three [2004] QBCCMCmr 560 (12 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0633-2004

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18043
Name of Scheme:	Nautilus Three
Address of Scheme:	42 Murev Way CARRARA QLD 4211

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Peter Leslie Lloyd, the owner of lot 8

I hereby order that until a final order to this application is made, or this application is withdrawn, the owner of lot 8, Peter Leslie Lloyd is authorised to continue to use his gas barbeque within the confines of his lot notwithstanding the terms of resolution 6 headed Gas Barbeques carried at the AGM of the body corporate held on 24 August 2004.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0633-2004

"Nautilus Three" CTS 18043

The applicant, Peter Leslie Lloyd, the owner of lot 8, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

To permit the use of gas barbeque as voted upon at the AGM on the 24^th August. Gas barbeques have been banned as from the end of October.

The applicant has also sought an interim order, quote –

To continue using the barbeque pending the final outcome.

The scheme is a subdivision of lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the Standard Module.

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 is a subdivision of 22 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the Accommodation Module.

At the AGM of the body corporate held on 24 August 2004, the body corporate resolved under motion 6 headed Gas Barbeques that gas barbeques be banned from the complex because of the risk of gas explosion due to faulty appliances. The vote was 11 in favour, with 3 against.

In his grounds the applicant states –

I have purchased a new barbeque and have been using this BBQ for over 10 months. I feel I am being discriminated against by the manage(?) of the complex in not being permitted to continue using my Barbeque. I and many others in the complex will be disadvantaged by the banning of the BBQ’s.

In additional correspondence, the applicant states –

Since moving to the Gold Coast from Wollongong last year, I renovated my small back garden. I paved the garden purchased a new garden setting and barbeque to enable me to enjoy the lifestyle that Queensland offers. ... The total cost for this was $2393.00.

This office sought submissions from the body corporate committee regarding the terms of the interim order sought. The manager informed this office that the notice of application and invitation to make a submission was sent to specified committee members on 5 November 2004. To date, no submission has been received in response to the application.

At this time, I am considering the terms of the interim order only. What the applicants seeking is that he be permitted to continue to use his gas barbeque pending a final order being made. I consider that no significant detriment can arise from such order being made. Moreover, I have not been provided with a submission which raises any such concerns. In the circumstances, I intend to make the interim order as sought.

This application will now proceed to further submission, investigation, and final determination. However, before proceeding to seek submissions from all owners regarding the application, I require the applicant to provide a further statement to this office to be incorporated as part of his application, explaining –

1. What is the discrimination he is alleging arises from the body corporate determination; and
2. What is the disadvantage he will suffer from the banning of the BBQ.

Currently, the applicant’s explanation of these aspects is scant, even non-existent. If the applicant fails to provide a basis for his allegations, it is possible his application might be dismissed as being without substance.

In connection with this statement, I will point out to the applicant that the onus is upon him to establish or propose a basis on which it might be determined that the body corporate determination in respect of the BBQ is unreasonable and should be invalidated. I await receipt of such statement, before proceeding further.