The Goodwin [2005] QBCCMCmr 379 (14 July 2005)

Last Updated: 19 July 2006

REFERENCE: 0163-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18288
Name of Scheme:	The Goodwin
Address of Scheme:	1 Goodwin Street KANGAROO POINT QLD 4169

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

Bree Van Gaal, the owner of lot 22

I hereby order that the application of Bree Van Gaal, the owner of lot 22, for several orders against the Body Corporate for The Goodwin related to the applicant’s parking of her vehicle, and specifically seeking modification of certain aspects of the common property to better facilitate that parking, is resolved with the consent of all parties on the following terms: • That the steel gate wall directly behind the car park of lot 22 (car park 22 steel wall) not be moved; • That the steel gate wall with gate directly behind the car park of lot 27 (car park 27 steel wall) be moved eastwards and reaffixed to the furthermost point of the concrete pillars to which the car park 27 steel wall is presently affixed, and that the gate in this wall no longer be used for access to the bicycle storage area except in case of emergencies; • That the blue industrial bin presently located on common property immediately adjacent to car park 22 steel wall be moved, and at all future times (except when placed out for emptying) be located immediately adjacent to car park 27 steel wall; • That a new lockable gate be installed in car park 22 steel wall so as to enable access to the bicycle storage area; • That the body corporate organise the quotations and approve the modifications as set out, but subject to first advising Bree Van Gaal, the owner of lot 22 the total cost of the modifications and confirming with Ms Van Gaal that she is prepared to proceed with the modifications at the notified cost; • If Ms Van Gaal objects to such cost, then she is required, within a reasonable time, to obtain and provide to the body corporate committee her own written quotation for undertaking all aspects of the modifications. The body corporate committee is thereafter required to reasonably consider the merits of the quotation provided by Ms Van Gaal; • That within two (2) weeks of completion of the modifications, Ms Van Gaal shall pay to the body corporate by way of reimbursement the cost of the modifications as set out, and previously notified to her; • That the body corporate use reasonable endeavours, consistent with its maintenance of all car park common property, to ensure that the common property immediately adjacent to car park 22 steel wall is kept free from rubbish.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0163-2005

"The Goodwin" CTS 18288

The application

The applicant, Bree Van Gaal, the owner of lot 22, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997, quote:

1. We request a site visit by all parties involved and the tribunal.
2. The caged area be moved back to behind the pylon ... to enable me to reverse out from my car park (lot 22) and leave the car park in a forward motion instead of reversing for over 30 meters and around a corner with no means of seeing oncoming traffic.
3. For the above area to then be formally attached to lot 22 as exclusive use by changing the community management statement.
4. That the industrial sized refuse bin situated behind my car park (lot 22) is moved to the area outside of the basement car park and be located adjacent to the wash down bay next to the industrial sized bin presently located there.

The scheme

Department of Natural Resources, Mines and Energy records show that the "The Goodwin" community titles scheme was created under a building format plan of subdivision. The scheme land consists of some 91 lots and common property, and is primarily used for residential purposes.

A new community management statement shows that the Body Corporate and Community Management (Standard Module) Regulation 1997 applies to the scheme.

Jurisdiction

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 addition, section 266 of the Act provides an adjudication may be limited to making an order with the consent of all parties to the application. Section 276 headed Orders of Adjudicators specifically provides in (5) that:

(5) If the adjudicator makes an order in a form agreed to by the parties to the application following mediation or conciliation, the order--
(a) may include only matters that may be dealt with under this Act; and
(b) must not include matters that are inconsistent with this Act or another Act.


The dispute

The dispute concern the parking of a vehicle or vehicles in the car park of lot 22, which is part of that lot, by the owner of lot 22. The applicant alleges difficulty with the parking of vehicles on the lot due to the location of the car park and in particular the location of a steel gate wall on common property at the rear of the car park, and the placement of a large steel bin immediately adjacent to this wall.

The applicant raised a number of objections in respect of the steel gate, including objections in the nature of breaches of local authority requirements. There is negligible evidence of this but in any event such objections should be referred to the local authority. They are not matters within my jurisdiction, and this office is not an enforcement mechanism for requirements of other agencies or authorities.

In my view, this dispute would not be resolved on the basis of some technical validity or invalidity of a long passed but disputed resolution. Rather, this dispute is to be resolved based on the reasonableness or otherwise of the objections which the applicant has raised in respect of the difficulties with parking.

Inspection and informal mediation of dispute

At the request of the applicant, I undertook an inspection of the scheme and met with the parties on Monday 20 June 2005. Assisting me at the inspection and meeting were:

• The applicant, Bree Van Gaal, the owner of lot 22;
• The applicant’s partner and occupier of the applicant’s lot, Maxwell Kelly;
• The applicant’s father, Robert Van Gaal;
• The body corporate chairperson, Jennifer Rowe Kelly;
• Committee member, Caroline Nestor;
• Committee member, Ian Shaw;
• The building manager, Dan Hanaford.

After a physical inspection of aspects of the dispute, and a hearing of the parties view, the parties began to move toward discussion of a possible solution. Noting this mood, I facilitated an informal mediation, as much simply to canvass possible resolution options as to actual mediation of the dispute. The informal mediation however eventually, with the benefit of some indication by me of my views on aspects of the evidence, resulted in a mediated agreement of the dispute.

Informal mediation and consent order of an Adjudicator

At the informal mediation facilitated by myself at the time of the inspection, a mediated agreement of the dispute was reached between the applicant and the body corporate. The applicant confirmed her agreement with the terms of this mediated agreement in correspondence to the body corporate chairperson of 30 June 2005, and the committee of the body corporate, by flying motion sent on 23 June 2005 (with 5 votes in favour and nil against) resolved that the body corporate agreed to the terms of the mediated agreement "in settlement of the dispute regarding the car park area". The parties have further requested that this mediated agreement of the dispute be recorded in the form of a consent order of an Adjudicator.

I am satisfied that the terms of the mediated agreement are appropriate for recording as a consent order of an adjudicator and accordingly, I hereby make an order recording such mediated agreement of the parties. I will add that I consider the mediated agreement to be a just and equitable resolution of this dispute. The parties will note that I have made minor additions to the mediated agreement, which do not change or alter the agreement determined by the parties, but which in my view are necessary to facilitate the carrying into effect of the order.