Carseldine Gardens [2008] QBCCMCmr 119 (9 April 2008)

Last Updated: 30 April 2008

REFERENCE: 0165-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20288
Name of Scheme:	Carseldine Gardens
Address of Scheme:	16 Stay Place CARSELDINE QLD 4034

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

the Body Corporate for Carseldine Gardens

I hereby order that the owner of lot 54 is to comply with by-law 1.1 regarding the parking of cars in the scheme by ensuring that her car is parked in the garage attached to her lot and not on the driveway in front of her lot. I hereby order that the owner of lot 54 is to pay to the applicant the adjudication fee of $57 as the respondent failed, without reasonable excuse, to participate in the departmental conciliation.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0165-2008

“Carseldine Gardens” CTS 20288

Scheme

Carseldine Gardens consists of 69 lots and common property on a Standard Format Plan (Previously referred to as a Group Title Plan). The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation.

Application

This application is brought by the Body Corporate (applicant) against the owners of lot 54 (the respondents) seeking the following order:

• that the owner of lot 54 be ordered not to continue contravention of parking by-laws
• that the respondent be ordered to pay the adjudication fee of $57 as the conciliation failed because the respondent did not attend
  

Background

The applicant body corporate is seeking to enforce certain by-laws against the occupiers of lot 54 regarding installation continual breaches of the scheme by-laws. The applicant states that the owner of lot 54 has been issued with numerous breach notices for multiple breaches of the following nature:

• parking in visitor bays;
• parking in driveways;
• failure to have an annual termite inspection in accordance with the by-laws;
• speeding within the complex; and
• littering of common areas.
  

The relevant parking by-law provides as follows:

By-Law 1 – Parking

1.1 Where an occupier (or occupiers) of a lot has at any time more than one car parked within Carseldine Gardens complex, one car must be parked in the garage attached to the occupiers lot and the remaining car or cars shall be parked in designated parking areas. An occupier who has one car must park in the attached garage, not on driveways in front of dwellings as this forms part of common property. However a 5 minute drop off and car washing is permitted in the driveways.

The applicant states that

• the respondent does not use the garage attached to her lot but rather parks on common property in front of her lot;
• the respondent was issued with a Notice of Continuing Contravention of a Body Corporate By-law on 22 October 2007, which she has ignored;
• the applicant body corporate is therefore seeking an order that the respondent is not to park her vehicle in the driveway as it proposes to gather the required evidence to pursue the matter in the Magistrates Court where a penalty may be imposes for failure to comply with the order of an Adjudicator.
  

Submissions

Pursuant to section 243 of the Act, submissions were sought from all lot owners including the respondent. Twelve lot owners other than the respondent made submissions.

Each of the twelve submissions from lot owners supported the action taken by the body corporate and many lot owners expressed the view that after several years of non-compliance with the by-laws by the respondent, it was time to take some decisive action.

Jurisdiction

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[1]

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 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. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Section 283 of the Act specifically provides that, with the consent of the body corporate, the order of the adjudicator may include a change of a body corporate’s financial year and of the dates when later financial years will begin.

Decision

I have reviewed the Community Management Statement for this scheme and note that the registered by-laws include the following:

1.1 Where an occupier (or occupiers) of a lot has at any time more than one car parked within Carseldine Gardens complex, one car must be parked in the garage attached to the occupiers lot and the remaining car or cars shall be parked in designated parking areas. An occupier who has one car must park in the attached garage, not on driveways in front of dwellings as this forms part of common property.

I also note that on 22 October 2007 the body corporate manager issued a Notice Regarding Likely Future Contravention of a Body Corporate By-Law to the respondent, Ms Amber-Jo Stanley, stating that the respondent contravened the above by-law in the following manner – You have one vehicle, and it is constantly parked in the driveway, rather than within your lot garage, further, guests to your lot park overnight on the driveway to your lot.

Secondly, the applicant seeks an order that the respondent be required to pay the adjudication fee of $57 due to her failure to attend a conciliation session, giving rise to the need for the applicant to make an application for adjudication. I reviewed our records and note that a certificate was completed on 7 February 2008, stating that the application was referred to the commissioner owing to the failure of the respondent to make a reasonable attempt to participate in conciliation.

In this regard, section 280 of the Act provides as follows:

280 Order for payment of application fees
(1) This section applies if—
(a) the applicant for an adjudication application made a conciliation application for the same dispute; and
(b) the respondent to the adjudication application was the respondent to the conciliation application; and
(c) the commissioner ended the conciliation application under section 252K because the respondent failed, without reasonable excuse, to participate in the department conciliation.
(2) If asked by the applicant, the adjudicator may order the respondent to pay to the applicant the amount paid by the applicant under section 239(1)(c) as fees for the conciliation
application and adjudication application.

I believe that the above notice was issued in compliance with section 183 of the Act relating to the issue of such notices and also note that the respondent failed to make a reasonable attempt to participate in conciliation. I therefore propose to grant the order sought as set out below under the heading “Orders”.

In the event of non-compliance, this order may be enforced in the Magistrates Court[2] and can result in a penalty of up to 20 penalty points (currently $1,500).

Orders

For the above reasons, I propose to make the following orders:

The owner of lot 54 is to comply with by-law 1.1 regarding the parking of cars in the scheme by ensuring that her car is parked in the garage attached to her lot and not on the driveway in front of her lot.

Pursuant to section 280 of the Act, the owner of lot 54 is to pay the adjudication fee of $57 as the conciliation failed because the respondent failed, without reasonable excuse, to participate in the departmental conciliation.

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[1] See sections 227, 228, 276 and Schedule 5 of the Act
[2] sections 286 and 287 of the Act