Pacific Court [2005] QBCCMCmr 389 (20 July 2005)

Last Updated: 19 July 2006

REFERENCE: 0080-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14731
Name of Scheme:	Pacific Court
Address of Scheme:	60 Pacific Parade BILINGA QLD 4225

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Leonard and Noline Ardill, the owner of Lots 1 and 2

I hereby order that Troy De Filippis, the owner of Lot 5 must not use, or permit the use of: 1. A part of Lot 1 on Building Units Plan 329 without the proper authorisation from the owner of Lot 1. 2. A part of Lot 2 on Building Units Plan 329 without the proper authorisation from the owner of Lot 2.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0080-2005

"Pacific Court" CTS 14731

APPLICATION

This application is by Leonard and Noline Ardill, the owner of Lots 1 and 2 (applicants) against Troy De Filippis, the owner of Lot 5 (respondent). The applicants are seeking an outcome that the respondent, either now or in the future not use a part of a Lot owned by the applicants to park a vehicle.

JURISDICTION

"Pacific Court" Community Titles Scheme 14731 is a 7 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate secretary for distribution to the owner of each lot (excluding the applicants) and the committee. A submission was received from a lot owner supporting the application. The respondent has not made a submission in response to the application even though he was given notice of the application by the secretary on or after 10 February 2005. Matthew Greer, a subsequent occupier of the respondent’s lot was given notice of the application by the Commissioner’s Office on 17 June 2005. Mr Greer did not respond to the invitation to make a written submission on the matters raised in the application.

DETERMINATION

The applicant’s main submissions were to the effect that the respondent, during the period between 11 December 2004 and 28 January 2005 used a car space or car spaces belonging to the owner of Lots 1 and 2 without their permission. The applicants state that when requested, the respondent had refused to remove the car or cars and a trailer containing a boat. The applicants also state that the respondent contends that he can park a vehicle wherever he wished. As a consequence of the respondent’s actions, the applicants believe that it is difficult to obtain occupiers for their Lots. The applicants seek unhindered use of their Lots.

The respondent is aware of the application given that he has informed an officer of the Commissioner’s Office by telephone on 15 June 2005 that he no longer occupies Lot 5. The applicants were advised that the respondent no longer occupies Lot 5. By letter dated 5 July 2005, the applicants informed the Commissioner that they still wish to have the matter determined on the basis that the respondent could return at any time.

The plan of subdivision for "Pacific Court" (BUP 329) indicates that each Lot included in the scheme consists of a unit within the building and another area on the southern side of scheme land. The applicants state that these areas are carports. These areas are not common property, but part of each respective lot. Consequently, the 177 Sq.ft area adjacent to the southern end of the building marked "Part of 1" is owned by the owner of Lot 1; the 161 Sq.ft area on the southern side of scheme land marked "Part of 2" is owned by the owner of Lot 2; and the 161 Sq.ft area on the southern side of scheme land marked "Part of 5" is owned by the owner of Lot 5. The owner of these Lots has a proprietary interest in these areas to the exclusion of the owners or occupiers of other Lots in the scheme.

For the following reasons, I consider that it is just and equitable that an order be made even though the respondent no longer occupies Lot 5. The owner of a lot in a community titles scheme does not have a right to use another persons’ property without that persons’ authority. I am satisfied that the respondent did use the applicants’ property without their authority. It is also possible that the respondent may, without authorisation, again use a Lot owned by the applicants. Consequently, I have made the order in the terms sought by the applicants.