Sanctuary Manors [2007] QBCCMCmr 227 (23 April 2007)

Last Updated: 21 May 2007

REFERENCE: 0801-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28773
Name of Scheme:	Sanctuary Manors
Address of Scheme:	38 Caseys Road HOPE ISLAND QLD 4212

TAKE NOTICE that pursuant to an application made under the abovementioned Act by William Cummings, committee member

I hereby order that the application for an order by William Cummings, a member of the committee for the body corporate for Sanctuary Manors community titles scheme 28773 against the body corporate seeking an outcome about the enforcement of By-Laws 22(c) and 23(a) of the scheme By-laws, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0801-2006

"Sanctuary Manors" CTS 28773

Application
This application is by William Cummings, committee member (applicant) against the body corporate seeking an outcome about the enforcement of by-laws 22(c) and 23(a).

The applicant’s main submissions are to the effect that 4 of the 7 members on the committee do not wish to carry out the duties of a committee member. He states that at the committee meeting dated 19 September 2006, some members suggested that there be no enforcement of the parking rule because 3 and 4 bedroom units usually had insufficient parking space in their garage. The applicant provided a copy of an undated letter he wrote to Unit 40 (as secretary) stating that parking a vehicle on common property violates the by-laws and the body corporate is required to enforce the by-laws.

Jurisdiction
"Sanctuary Manors" is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act). 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 claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (section 276(1), Act ).

Submissions
In accordance with the Act, submissions were called and a copy of the application was provided to the chairperson for distribution to the owner of each lot (excluding the applicant) and the committee. Submissions were received from the committee and a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

Challenge Strata Management made a submission on behalf of the committee (committee) opposing the order sought stating that the committee recognises its duties and obligations. It is submitted that the committee, at the meeting dated 19 September 2006 resolved to take proper and appropriate action against any resident found parking contrary to the by-laws. The committee says that the applicant has not any evidence that it has not done so. The committee has provided a copy of the minutes of its meeting dated 16 January 2007 which indicates that the residents of 4 lots had been given parking breach notices and that it was resolved to give by-law contravention notices to the residents of 2 of those lots who had not complied. The committee also says that the applicant has not demonstrated any particular breach of the by-laws which it is failing to address.

Submissions were received from 4 owners supporting the application. Dr Boon’s submission referred to the function of the body corporate to enforce the community management statement under section 94 of the Act. He also stated that the body corporate or the committee must enforce a by-law unless the by-law is changed.

The chairperson, Mr Baruch opposed the application stating that the assertion that some committee members are not carrying out their duties is incorrect. Submissions were received from 2 other owners opposing the application.

Various submissions also referred to a motion on the agenda of the Annual General Meeting dated 15 February 2007 (2007 AGM) about parking on driveways.

In his reply to submissions, the applicant states there continues to be violations of by-law 23A as the on-site managers have for the past 3 years been in violation by parking on scheme land with impunity. He states that if the manager is allowed to park in violation of the by-laws, then residents will also do so.

Further Information
In accordance with the investigative powers stated in section 271 of the Act, on 20 April 2007 I requested that the body corporate manager provide a copy of the minutes of the AGM. The manager provided this copy on the same date.

Determination
Section 94(1) of the Act provides that the body corporate’s general functions include enforcing the community management statement (including any by-laws for the scheme). Section 94(2) provides that the body corporate must act reasonably in anything it does under section 94(1). The by-laws form part of the community management statement (the CMS) for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers. Sections 184 and 185 state the preliminary procedures to be taken by a body corporate and a lot owner or occupier for by-law contraventions. For example, section 185 provides that a lot owner or occupier may only make a dispute resolution application about the contravention of a by-law if the body corporate has not, after notice from that person, given a contravention notice to the accused person (subject to special circumstances stated in section 186 applying).

The applicant seeks an order against the body corporate about the enforcement of 2 scheme By-Laws relating to parking vehicles. The applicant has made a reference to the occupier of lot 40 and in the written reply to submissions, to the on-site manager. However, the applicant has not demonstrated that he has presented these matters to the body corporate through its committee. As outlined above, the legislation provides a framework for the resolution of issues relating to claimed by-law contraventions. As a lot owner, the applicant is obliged to give proper notice to the body corporate if he reasonably believes that another owner or occupier has contravened a by-law and it is likely that the contravention will continue or be repeated (there is no suggestion that the special circumstances of the nature stated in section 186 of the Act exist). As a committee member, the applicant could have raised his concerns about an owner or occupier contravening by-laws at committee meetings. However, he has not provided any material showing that he has done so.

The applicant does refer to the committee meeting dated 19 September 2006. The copy of the minutes of this meeting provided by the applicant indicate that it was resolved "that the Managers be directed to issue a breach notice to any resident parking on common property or a visitor carspace contrary to the By-Laws and to report to the Committee any person who fails to comply with that notice for the Committee to consider enforcement action". In the absence of contrary material, neither this nor the resolution of the committee at its meeting dated 16 January 2007 supports the applicant’s contention.

In making the application, the applicant has to demonstrate that he is a party to, or is directly concerned with, a dispute to which the dispute resolution provisions apply (section 238(1), Act). Section 276(1) provides that an adjudicator may make an order to resolve a dispute. In this instance, the applicant identified the body corporate as the other party to the dispute. His case is that the body corporate is not enforcing 2 scheme by-laws. However, he has not shown that he or another owner or occupier has asked the body corporate to enforce these by-laws and the body corporate (or its committee) has refused to do so or that it is acting unreasonably with respect to the enforcement of a by-law or by-laws. On the contrary, it is evident from the minutes of 2 committee meetings that the committee has resolved to enforce the by-laws. In my view, these circumstances suggest that a dispute does not exist between the applicant as a committee member and the body corporate.

In these circumstances, it is not appropriate or necessary that an order be made restating obligations specified in the Act. For these reasons, the application is dismissed.

Submissions have referred to a body corporate decision about parking at the 2007 AGM. The minutes of the 2007 AGM indicate that owners voted to allow certain residents to park 1 car in the driveway of their villa under certain conditions (Motion 14). The minuted discussion on Motion 14 indicates that:

•	Dr Boon stated that the Motion conflicted with the scheme by-laws about parking. This conflict was acknowledged at the meeting.
•	There may be an issue about the validity of the by-law and the issue about parking generally was the subject of a pending dispute resolution application. The chairperson allowed the vote to proceed as "the adjudicator may be interested in knowing the general sentiment of owners", but "the Committee did not intend to implement its outcome until the adjudicator’s order was received".

Motion 14 relates to parking and it is apparent that scheme by-laws exist regulating parking. Given the terms of the outcome sought in this particular application, I do not intend to determine the validity or otherwise of the resolution on Motion 14 in making an order for this application. An owner who is concerned about the resolution may make an application seeking appropriate outcomes. In this regard, it should be noted that section 242 of the Act places a 3 month time limit for making an application seeking an order declaring void a resolution of the body corporate (this limit may for good reason be waived by an adjudicator). However, it may be relevant to note that given that the scheme by-laws are binding on the body corporate, it cannot make a management decision which is inconsistent with the terms of the by-law. Rather, body corporate members need to consent to the recording of a new CMS containing an appropriate amendment to the by-law.