Manly Crest [2006] QBCCMCmr 134 (17 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0770-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32944
Name of Scheme:	Manly Crest
Address of Scheme:	586-614 Manly Road, Wakerly QUEENSLAND 4154

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

the Body Corporate for Manly Crest

I hereby order that the application by the Body Corporate for Manly Crest for an order that the owner of lot 29 be ordered to reinstate the boundary fencing to a minimum height of 2.0 metres, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0770-2005

"Manly Crest" CTS 32944

The applicant, the Body Corporate for Manly Crest has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

That the owner of lot 29 be orderedto reinstate the boundary fencing to a minimum height of 2.0 metres.

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)).

This dispute concerns the height of the boundary fence of lot 29 owned by Paul Anthony Dunjey. The body corporate seeks that this owner be order to reinstate the boundary fence to a height of 2 metres.

I intend to dismiss this application.

Firstly, the requirements of the legislation have not been complied with. A continuing contravention notice has not been served upon Mr Dunjey. The Act provides that the first step in responding to an alleged by-law contravention is the service of a continuing contravention notice (see section 182).

Section 184(2) provides:

The body corporate may make an application under chapter 6 for resolution of the dispute only if the body corporate has given the owner or occupier a continuing contravention notice for the contravention the subject of the dispute.

The body corporate has failed to comply with very clear statutory obligations and procedures.

Secondly, even if the body corporate had served the required notice, I very much doubt it would have succeeded in this application. I have considered by-law 17 and can find no reference to a requirement to maintain a minimum fence height of 2 metres. I consider there is no basis whatsoever in by-law 17 for the requirement the body corporate is now seeking to impose.

This application is so poorly constructed and evidenced that had the respondent sought dismissal of the application under section 270 of the Act (frivolous, vexatious, misconceived and lacking in substance) and an order for reimbursement of reasonable costs in responding to the application, I would have very seriously considered such request.