Cairns Village Resort [2004] QBCCMCmr 673 (3 September 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by
the body corporate for Cairns Village Resort

I hereby order that the interim order made on 5 March 2004, as follows -

that, in respect of the exclusive use areas of lot 99, owned by William and Jannine Nason (respondents), and pending a final determination in respect of this dispute:

1. The body corporate is to have access to all exclusive use areas that contain electrical switchboards for the purposes of maintaining the electrical infrastructure. Access is to be on the following terms:
a. The respondents are to provide the chairperson of the body corporate with copies of keys to these areas within 7 days (at the cost of the body corporate). However, except in an emergency, the body corporate is only to use these keys to access the areas after notification to the respondents;
b. If access is for routine inspections or to perform scheduled work then 7 days notice is to be provided to the respondents by telephoning the reception area during office hours. Any change to scheduled work requires 24 hours’ notice;
c. If access is required as a result of an electrical fault then the body corporate is to provide notice to the respondents by telephoning the reception area during office hours or the after hours contact number outside office hours. This notice is to be given prior to access, except in an emergency when notice is to be provided as soon as practicable;
d. The body corporate is responsible for supervision of any access to the exclusive use areas and for leaving the areas in the same condition in which they were found.

2. The body corporate is entitled to offer occupiers use of the common property swimming pool and the adjacent exclusive use areas that offer toilet facilities, barbecue facilities and a rotunda. Access is to be on the following terms:
a. The respondents are to provide the chairperson of the body corporate with copies of any keys to these areas within 7 days (at the cost of the body corporate);
b. If the body corporate offers these facilities to occupiers at times the resort did not regularly offer the facilities in the past then the body corporate has the responsibility to keep those areas in a clean and tidy condition at those times;
c. Neither the body corporate or the respondents may discriminate against who may use these facilities based on which lot the person occupies.

3. The respondents are to, within 7 days, return the barbecue (including the hotplate and gas bottle) to the barbecue area. The body corporate is to pay the reasonable costs of supply of gas to the barbecue.

is extended pending a final determination of the dispute.

This is an interim order and will remain in effect for a period of not longer than ten months. It is the responsibility of the applicant to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0080-2004A

"Cairns Village Resort" CTS 18161

Pursuant to this application, the body corporate (applicant) sought interim access to exclusive use areas of lot 99 in the scheme, lot 99 being owned by William and Jannine Nason (respondents). On 5 March 2004 an interim order was granted that gave interim access to certain exclusive use areas on the terms specified in the order above.

In a separate application the body corporate sought to invalidate the community management statement of the body corporate, which would have also invalidated the grant of exclusive use over the areas in dispute.^[1] Pursuant to that application an order was issued on 25 June 2004 declaring that the grant of exclusive use was oppressive and unreasonable. This order required the body corporate to lodge a new community management statement within 1 year to remove the grant of exclusive use. However, presumably the body corporate has not yet done this and has therefore sought the extension of the interim order on this application.

The body corporate is presently entitled to lodge a new community management statement pursuant to the order of 25 June 2004 that would remove the grant of exclusive use over the disputed areas (Act, 62(4)). I therefore have some questions regarding why the body corporate is seeking an extension of the interim order rather than proceeding to lodge a new community management statement. However, I understand that the parties have been involved in settlement negotiations to try to resolve a number of other issues in dispute between them. Presumably, the body corporate has refrained from lodging the new community management statement pending this attempt to reach a negotiated settlement.

The solicitors for the body corporate have now informed this office that settlement negotiations have not been successful. The respondents’ solicitors have said that their client has been observing the terms of the interim order but consider that the subject matter has been resolved by the order of 25 June 2004 and any challenge to the occupation authorities would need to be the subject of a separate application. This seems to be correct to the extent that specific provisions of the legislation deal with the body corporate authorising access to areas covered by exclusive occupation authorities (Accommodation Module, 89(6)). However, I do not agree that the subject matter of the present application has been resolved until such time as a new community management statement removing the grant of exclusive use is registered.

The interim order is presently due to expire by 5 September 2004 and I therefore consider it appropriate to extend the operation of this interim order (Act, 279). The body corporate is required to lodge the new community management statement before 25 June 2005. I will therefore extend the interim order for a period of ten months from today to cover that period.

Number of Scheme:	18161
Name of Scheme:	Cairns Village Resort
Address of Scheme:	Corner Anderson Road and Bruce Highway CAIRNS QLD 4870

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Cairns Village Resort [2004] QBCCMCmr 673 (3 September 2004)