Casablanca Domes [2005] QBCCMCmr 65 (7 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0447-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18334
Name of Scheme:	Casablanca Domes
Address of Scheme:	47 Vassey Esplanade TRINITY BEACH QLD 4879

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

Guiseppe Grimaudo and Corinne Laurelle Grimaudo, the co-owners of lot 11

I hereby order that the application for orders: A. That the body corporate for Casablanca Domes community titles scheme 18334 consent to the Form 1 Development Application submitted to Cairns City Council under cover of letter dated 11 November 2003 from the applicants’ architect, Mr David Quigley of Circa 2000 Architecture Construction. B. Further, and or in the alternative, an order that Mr Alan Scanlan as chairman and the owner of the majority interest in the scheme consented for and on behalf of the body corporate for Casablanca Domes by his conduct to the erection of a steel framed structure as a restaurant to lot 11 Casablanca Domes at the time the framework was erected. is dismissed under section 270(1)(b) of the Body Corporate and Community Management Act 1997 on the basis that the dispute should be dealt with in a court or tribunal of competent jurisdiction.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0447-2004

"Casablanca Domes" CTS 18334

ORDERS SOUGHT:

The applicants, Giuseppe Grimaudo & Corinne Laurelle Grimaudo, have sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

A. That the body corporate for Casablanca Domes community titles scheme 18334 consent to the Form 1 Development Application submitted to Cairns City Council under cover of letter dated 11 November 2003 from the applicants’ architect, Mr David Quigley of Circa 2000 Architecture Construction.
B. Further, and or in the alternative, an order that Mr Alan Scanlan as chairman and the owner of the majority interest in the scheme consented for and on behalf of the body corporate for Casablanca Domes by his conduct to the erection of a steel framed structure as a restaurant to lot 11 Casablanca Domes at the time the framework was erected.

JURISDICTION:

The application evidences a dispute between the owners of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) 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)).

SCHEME DETAILS:

Casablanca Domes registered as a building format plan on 15 June 1994 and comprises 11 lots. The scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). It is primarily used for residential purposes, although lot 11 is operated as a restaurant.

BACKGROUND:

The applicants provided the historical background to the present dispute, and concluded that it is unreasonable for the body corporate not to consent to the Development Application because:

1. All requirements of the Cairns City Council as regards the development have been complied with;
2. The structure the subject of the development approval simply replaces a previously existing structure which was approved; and
3. The chairman of the body corporate by his conduct authorised the replacement of the structure which was erected pursuant to the building permit issued by the former Mulgrave shire Council.

In the supporting grounds the applicants referred to conversations alleged to have taken place over a number of years between the chairperson Mr Scanlan and the applicants’ architect, and between Mr Scanlan and the former owner of lot 11, Mr Michael Musso, amongst others.

The body corporate committee and all owners were invited to respond to the application. A submission was received from Mr Scanlan, in his capacity as chairperson and also as a director of the majority lot owner in the scheme.

Mr Scanlan categorically denied many of the applicants’ assertions, particularly in relation to alleged conversations with various parties. He also challenged many of the applicants’ grounds in relation to the engineering reports, the reconfiguration of the lot and the rectification of the structure.

In their reply, the applicants repeated their earlier assertions.

DETERMINATION:

In considering the material before me I have concluded that the evidence could only satisfactorily be tested if the parties and their witnesses were able to be cross examined. The process of departmental adjudication involves an examination of material submitted in writing, and although I have a limited power to conduct investigations and interview parties (section 271 of the Act), there is no provision under the Act for an adjudicator to conduct a hearing or to take evidence on oath.

I have therefore concluded that the matter is one which should be determined in a court or tribunal of competent jurisdiction (section 270(1)(b) of the Act) and I have dismissed the application accordingly. I have exercised the power to make this order without investigating the detail of the application (section 270(2)(a) of the Act).