Villa Al Mare [2006] QBCCMCmr 482 (30 August 2006)

Last Updated: 19 December 2006

REFERENCE: 0126-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	31112
Name of Scheme:	Villa Al Mare
Address of Scheme:	2087 Gold Coast Highway MIAMI QLD 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Carl Leigh and Elizabeth Leigh, the co-owners of Lot 1

I hereby order that the application for orders to appoint a body corporate manager, restrain swearing, and restrain parking on the common property, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0126-2006

"Villa Al Mare" CTS 31112

Application

Villa Al Mare Community Titles Scheme (Villa Al Mare) is a 2 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Small Schemes Module Regulation (Small Schemes). The scheme is designed for residential purposes.

This application was by Carl Leigh and Elizabeth Leigh, the co-owners of Lot 1 (applicants) against Darthaven Pty Ltd, the owner of Lot 2 (respondent). The applicants are seeking orders to appoint a body corporate manager, restrain swearing, and restrain parking on the common property.

Decision

General failure to follow proper procedures

It is concerning to read the submissions detailing the significant disagreements between the two respective owners of the two units in this scheme. It seems that relatively small matters of disagreement have been exaggerated by a failure of the owners to communicate with any spirit of compromise and cooperation.

Further, it appears that one of the applicants has exacerbated the disagreements by unilaterally acting as chairperson and secretary and failing to follow proper procedures. In particular, this person appears to be seeking to rely on what was described as a "casual conversation" by the representatives of lot 2 as instead being a formal body corporate meeting that granted the applicants various authorities to make alterations to the scheme.

For future reference, there is no fixed chairperson for a duplex under the Small Schemes Module. Each lot owner simply nominates one person to serve on the committee and these two persons will hold the positions of secretary and treasurer jointly unless agreed otherwise (Small Schemes, 12). An annual general meeting should be held each year (Small Schemes, 37). If proper procedures are followed then it would be difficult to mistake the annual general meeting for a casual conversation as notice of the general meeting must normally be given at least 21 days before the meeting and this agenda must contain the budgets and each item of business to be considered at the meeting (Small Schemes, 21-32).

Dismissal of application due to the sale of lot 2

Under the Act, an adjudicator to whom an application is referred may make an order that is just and equitable to resolve a dispute of the kind covered by the Act (Act, 276).

The present application is based on conduct of representatives of the respondent as occupiers of a lot in the scheme. As the respondent has now sold its lot it seems questionable that there is any continuing dispute over which I have jurisdiction to make the orders sought. Even if I have jurisdiction to make the orders sought, as a matter of discretion I would refuse to make the orders sought on the basis that the respondent selling their lot has rendered those orders unnecessary.

The application is therefore dismissed. It remains to be seen if the applicants and the new owners of lot 2 can agree on the engagement of a body corporate manager, the avoidance of swearing, and on appropriate parking arrangements for the occupiers of both lots.

Order

The application is dismissed as the respondent is no longer the owner of a lot in the scheme.