Kavel Close [2005] QBCCMCmr 111 (28 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0479-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18158
Name of Scheme:	Kavel Close
Address of Scheme:	21 Campbell Street Torquay Qld 4655

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Mr Andrew Mauric, the Owner of lot 2.

I hereby order that the application 1. To remove the Secretary, Rhondda Garnham from her position; 2. To update the by-laws in accordance with the Act and Council regulations for parking; and 3. To remove Adriana Hanayeer as Chairperson of the body corporate is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0479-2004

"Kavel Close" CTS 18158

The scheme
The scheme is a subdivision of 4 lots registered under a building unit plan of subdivision, now known as a building format plan. The Standard Regulation Module applies to this scheme.

Application

The applicant has sought the following orders of an adjudicator:
1. To remove the Secretary, Rhondda Garnham from her position;
2. To update the by-laws in accordance with the Act and Council regulations for parking; and
3. To remove Adriana Hanayeer as Chairperson of the body corporate.

Jurisdiction

Section 227(1)(b) of the Body Corporate and Community Management Act 1997 provides that a dispute between an owner or occupier of a lot and the body corporate, is a dispute which may be resolved under the dispute resolution provisions of the Act.

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)).

Background
The applicant believes that the Secretary, Rhondda Garnham should be removed from her position as she is not fulfilling the duties of her office. In particular it is claimed that the Secretary

1. is failing to enforce parking by-laws;
2. failed to take action to stop noise nuisance;
3. is failing to keep the complex clean and tidy;
4. is failing to maintain the gardens;
5. has cut down a large tree without approval;
6. placed a hose under paving without approval; and
7. was not properly appointed because the person who nominated her for election to the position of Secretary was not a member of the Body Corporate.

The applicant also claims that he has been the target of a campaign directed against him in because by-laws are being selectively enforced against him but not against other residents. In particular he has received notices of continuing contravention relating to:

1. storage of his boat on the common area even though he had previously done so for several years;
2. the type of plants which he keeps in garden beds outside his unit;
3. having a hose-reel mounted on the wall outside his unit;
4. having an awning over an upstairs window.

I do not propose to make a determination regarding the enforcement of the contravention notices at this juncture as these notices are currently the subject of Dispute Resolution Application 548-2004, made to the office on 23 August 2004.

Submissions

A submission was received from L Garnham, the Secretary/ Treasurer for the body corporate addressing each of the matters raised by the applicant. A second, more general submission was made on behalf of the owner of lot 4.

Ms Garnham is not aware that an ongoing problem exists regarding parking in breach of the by-laws but submits that there was an issue with the parking of the applicant’s boat in the visitor’s parking area. It is acknowledged that owners do park outside their garage areas temporarily and that this area is technically common property. However, by-law 2 provides that vehicles may be parked on common property with the consent of the body corporate and further, by "flying vote" 3 out of 4 owners voted in favour of allowing a single vehicle to park temporarily in front of the garage for each unit.

Ms Garnham denies that the building is not clean and adequately maintained and further states that neither she nor the permanent occupant of lot 4 are aware of any on-going noise nuisance.

In relation to the allegation that the gardens are not watered, it is submitted that the gardener waters the garden whenever he attends the complex to mow the grass. It is further submitted that the hose placed under the pavers is not visible and facilitates the watering of gardens on common property. Further, the body corporate recently agreed to the installation of an automatic watering system.

Ms Garnham advises that the large tree was removed by the gardener as it had rotted at ground level and fallen against the building. This was confirmed in a letter from the gardener, Mr Max McClelland.

In relation to the allegation that she was not properly appointed to the position of Secretary because the person who nominated her for election was not a member of the Body Corporate, Ms Garnham advises that the owner of lot 4 appointed his mother, Ms Adriana Haneveer to be his proxy at the AGM to be held on 20^th March 2004. A copy of the proxy form dated 12 March 2004 was provided.

Determination

Removal of the Secretary

The applicant has sought the removal of the Secretary, Rhondda Garnham from her position as the applicant believes she is not fulfilling the duties of her office and also on the ground that. In particular it is claimed that the person who nominated her for election to the position of Secretary was not a member of the Body Corporate.

Having regard to the submissions received and evidentiary material provided, I am unable to accede to this request.

Firstly, I am satisfied that the owner of lot 4 appointed his mother, Ms Adriana Haneveer to be his proxy at the AGM to be held on 20^th March 2004. Consequently, Ms Haneveer was entitled to nominate Ms Garnham for election to the position of Secretary.

Secondly, I have no power to overturn the election of a duly elected committee member. If the applicant and other lot owners are dissatisfied with her performance, they are able to elect another person to that position at the next AGM.

Parking

The applicant has also requested this Office to update the by-laws in accordance with the Act and Council regulations for parking.

I am of the view that at this stage, there are no grounds to warrant my intervention in the affairs of this Body Corporate. By-law 2 provides that vehicles may be parked on common property with the consent of the body corporate and further, by "flying vote" 3 out of 4 owners voted in favour of allowing a single vehicle to park temporarily on common property in front of the garage for each unit. From my reading of the correspondence between the Hervey Bay City Council and the body corporate, no objection can be raised to this arrangement if these areas of common property are not allocated as permanent parking areas.

I do note however from the photographic evidence provided by the applicant, that occupants of certain units have parked vehicles on common property in breach of By-Law 2. Under section 94(1) of the Act, the body corporate has a duty to enforce the by-laws and further, should not discriminate by enforcing by-laws selectively against certain residents but not others.

Removal of Chairperson

I can see no basis upon which I can order the removal of Adriana Hanayeer as Chairperson of the body corporate. Under section 10 of the Body Corporate and Community Management (Standard Module) Regulation 1997, a lot owner or a family member over the age of 18 (i.e. a parent, spouse, brother or sister, or child of a lot owner) can be a member of the committee.


I have therefore dismissed this application.