Harbour Heights [2004] QBCCMCmr 79 (10 February 2004)

Last Updated: 30 September 2005

REFERENCE: 0608-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30476
Name of Scheme:	Harbour Heights
Address of Scheme:	Breakwater Drive Roslyn Bay YEPPOON QLD 4703

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Juris Towers Pty Ltd, the owner of lot 2

I hereby order that pursuant to section 174(2)(b) of the Body Corporate and Community Management Act 1997, the period for making allocations of exclusive use car parking areas to individual lots in the scheme under the allocation power contained in the relevant exclusive use by-law numbered 22, is extended until 5 August 2004.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0608-2003

"Harbour Heights" CTS 30476

The applicant, Juris Towers Pty Ltd, the owner of lot 2, has sought the following order of an Adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

For the purposes of section 174(2)(b) of the Act the time for making exclusive use allocations pursuant to the by-law be extended until the 5^th August 2004.

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 the supporting grounds, the applicant states that the CMS was registered on 6 August 2002, at which time, 5 of the additional common property garages had not been allocated by way of exclusive use. The relevant by-law provides that the body corporate may allocate the remaining carparks A to H as exclusive use areas subject to the provisions of the Act as it wishes. The Act provides in respect of such allocations -

174 Making allocations
(1) An authorised or agreed allocation has no effect unless details of the allocation are given to the body corporate.
(2) Also, an authorised allocation has no effect unless--
(a) if paragraph (b) does not apply for the allocation--the allocation is made in the period (the "base allocation period") ending 1 year after the recording of the relevant community
management statement; or
(b) if a period (the "extended allocation period") for making the allocation is stated in an order of an adjudicator under the dispute resolution provisions--the allocation is made in the extended
allocation period.
(3) An order mentioned in subsection (2)(b)--
(a) may only state a period ending later than 1 year, and not later than 2 years, after the recording of the relevant community management statement; and
(b) may be sought or made before or after the base allocation period ends.
(4) If an order mentioned in subsection (2)(b) is made about an authorised allocation after the base allocation period ends, the base allocation period is taken never to have applied to the allocation for
subsection (2).
(5) In this section--
"relevant community management statement", for an authorised allocation, means--
(a) the community management statement that first includes the exclusive use by-law; or
(b) for a community titles scheme that is to be progressively developed--the new community management statement that replaces the existing community management statement.

I note that the base allocation period has now expired, and this application seeks an extended allocation period in which to allocate the remaining exclusive use car parking areas. Section 174(2)(b) provides for the making of an order granting to the body corporate an extended allocation period. However, section 174(3) limits the length of any extended allocation period to not later than 2 years after the recording of the CMS. Given this date was 6 August 2002, then I conclude that any order I make for an extended allocation period must not be beyond 5 August 2004. I further note that it is irrelevant that this application has been made after the base allocation period has ended.

The applicant concludes it grounds with –

For this reason the owner wishes to extend the allocation period to the maximum permitted under section 174(2)(b) to enable the remaining unit and unallocated garages to be disposed of.

This office sought submissions from all owners and the body corporate committee regarding the application. No submissions were made, and this office was informed by a Mr Strelow, the secretary of the body corporate, that all owners were in agreement with the original application, and that no owner would be making a submission.

In the circumstances, I am satisfied that an order for an extended allocation period is required to be made under section 174(2)(b) in order to allow this body corporate to complete its allocation of all common property exclusive use car parking areas. I have ordered accordingly. I note that there are certain "notifying" requirements set out in sections 175 and 176 of the Act which I have set out hereunder.

175 Notifying allocations
(1) The body corporate must lodge a request to record a new community management statement (the "first subsequent statement") showing--
(a) all authorised allocations made in the base allocation period; and
(b) all authorised and agreed allocations currently in place when the body corporate consented to the recording of the first subsequent statement.
(2) Also, if an extended allocation period applies for an authorised allocation, the body corporate must lodge a request to record a new community management statement (the "second subsequent statement")
showing--
(a) all authorised allocations made between the end of the base allocation period and the end of the extended allocation period; and
(b) all authorised and agreed allocations currently in place when the body corporate consented to the recording of the second subsequent statement.
(3) The request to record the first subsequent statement must be lodged within 3 months, or a longer time stated in an order of an adjudicator under the dispute resolution provisions, after the end of the base allocation period.
(4) If the body corporate is required to lodge a request to record a second subsequent statement, the request must be lodged within 3 months, or a longer time stated in an order of an adjudicator under the dispute resolution provisions, after the end of the extended allocation period.
(5) If the body corporate fails to lodge the request to record the first subsequent statement as required under this section, all authorised and agreed allocations made in the base allocation period cease to have effect.
(6) If the body corporate fails to lodge a request to record a second subsequent statement as required under this section, all authorised and agreed allocations made between the end of the base allocation period and the end of the extended allocation period cease to have effect.
(7) An order mentioned in subsection (3) or (4) relating to an authorised allocation may be sought or made before or after the 3 months mentioned in the subsection end and, if the order is made after the 3 months end, the allocation is taken to have remained in effect despite the 3 months having ended.

176 Notifying further allocations
(1) Within 3 months, or a longer time stated in an order of an adjudicator under the dispute resolution provisions, after the taking effect of a further allocation, the body corporate must lodge a request to record a new community management statement showing all allocations currently in
place when the body corporate consented to the recording of the new statement.
(2) If the body corporate fails to comply with subsection (1), the further allocation ceases to have effect.
(3) An order mentioned in subsection (1) may be sought or made before or after the 3 months mentioned in the subsection end, and if the order is made after the 3 months end, the allocation is taken to have remained in effect despite the 3 months having ended.
(4) In this section--
"further allocation" means an agreed allocation, other than an allocation shown in a subsequent statement under section 175(1) or (2).