Maranoa Lodge [2009] QBCCMCmr 219 (11 June 2009)

Last Updated: 14 August 2009

REFERENCE: 0490-2009

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14665
Name of Scheme:	Maranoa Lodge
Address of Scheme:	6-8 Elizabeth Avenue BROADBEACH Q 4218

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

J Adsett, the occupier of lot 4

I hereby order that the body corporate for Maranoa Lodge shall, at its cost, cause the applicant’s vehicle to be returned to the parking bay by a tow truck operator, licensed under the Tow Truck Act within 48 hours of receipt of this order. I hereby declare that the applicant, Mr. Julian Adsett, is not liable for any costs incurred by the body corporate relating to the removal, storage or return of his motor vehicle.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0490-2009

“Maranoa Lodge” CTS 14665

Maranoa Lodge community titles scheme consists of 8 lots and common property. The community management statement for the scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation (Standard Module) applies and Department of Natural Resources Mines & Water records show the scheme is registered on a Building Format Plan (previously known as a Building Unit Plan).

APPLICATION

By way of an application dated 25 May 2009 the applicant seeks the following interim order:

That the respondent at its cost cause the applicant’s vehicle to be returned by a licensed tow truck operator under the Tow Truck act to the parking bay within 24 hours of this order without cost to the applicant.

The applicant is also seeking the following final outcomes:

1. That the respondent cause the applicant’s vehicle to be returned by a licensed tow truck operator under the Tow Truck act to the parking bay within 24 hours of this order if the Applicant’s vehicle has not already been returned under a prior order relating to this application.
2. That the respondent pay all the costs of and incidental to, incurred in relation to:-
   • (a) the towing of the Applicant’s vehicle from the parking bay on 19 May 2009;
   • (b) the storage of the applicant’s vehicle as a result of the respondent’s towing of the applicant’s vehicle; and
3. That the respondent reimburse the applicant any of the costs paid by the applicant on production of a receipt incurred in relation:-
   • (a) to the towing of the applicant’s vehicle from the parking bay on 19 May 2009;
   • (b) the storage of the Applicant’s vehicle as a result of the Respondent’s towing of the Applicant’s vehicle; and
   • (c) the towing of the applicant’s vehicle to return it to the parking bay,
   • (d) if not already paid direct by the Respondent.
4. A declaration that the respondent notwithstanding any signage on the common property, the by-laws or a resolution at a general meeting, does:-
   • (a) not have the power; and
   • (b) is not authorised,

to remove a vehicle belonging to an owner or occupier of a lot in the Scheme without first complying with the dispute resolution provisions of the Act.
5. That the Respondent remove the sign from common property.

BACKGROUND

The applicant is the occupier of lot 4 in this scheme and states that on 19 May 2009 his vehicle was parked in the parking bay. At approximately 9:15 am on that day, two men from a towing service knocked on his door and the following conversation took place:

Tow truck driver: are you the owner of the yellow beach buggy parked there?
Applicant: Yes
Tow truck driver: By order of the body corporate we are removing your car.
Applicant: Can I have your work number so I can call your superior to discuss.

Although the applicant requested the towing operators to wait until he had spoken to their superior, they proceeded to place the applicant’s vehicle on their tow truck and the vehicle had been removed when the applicant returned to the parking bay.

The applicant states that he did not receive any prior notice in the form of a letter, contravention notice or other form, advising that the applicant’s vehicle was breaching the body corporate’s by-laws or that it would be towed and removed from the parking bay.
The applicant further states that a sign is located on the common property facing two street locations and includes the following wording:

Warning Private Property
No unlawful Parking
Your vehicle will be towed
Away at your expense
Parking on private property is unlawful
The body corporate is entitled to have the vehicle removed
From the premises and to hold your vehicle until
Payment of its costs and expenses in removing your vehicle
The costs and expenses are $330 inclusive of GST
By parking your vehicle without permission from the
Body corporate you are consenting to the above terms
Tenants / residents only
All other vehicles will be towed away.
Vehicles parked on roadways or
Grassed areas, will be towed away
Vehicles not displaying current
Registration will be towed away.
To reclaim your vehicle please ph 0432301130
If you do not reclaim your vehicle within 5 days
Additional storage fees may be charged.

Although the applicant’s vehicle was not displaying a current registration sticker, at least 2 other vehicles parked in exclusive use areas or designated areas for parking of vehicles by owners or occupiers of lots, were not displaying current registration stickers. Photographs of the 2 vehicles and expired registration stickers were attached.

On 19 May the applicant caused a letter to be forwarded to the body corporate manager in relation to the towing of the applicant’s vehicle and a meaningful response has not been received. The applicant is of the view that having regard to sections 229(1) and 229(2)(a) of the Act, an order of an adjudicator is the only means by which a dispute between the applicant and respondent.

The applicant submits that there are three issues relevant to the dispute viz:
Whether the sign has legal effect on owners and occupiers.
The application of the by-laws in removal of a vehicle from common property
Whether the body corporate can resolve in general meeting to remove the applicant’s vehicle from the the parking bay notwithstanding the sign and by-laws.

The applicant believes that the sign does not apply to occupiers and owners because:

• owners and occupiers are authorised to park in the parking bay;
• consent to towing only relates to vehicles parked without permission of the body corporate and not to vehicles parking with the consent of the body corporate;
• the only basis for taking such action is through the by-laws and accordingly it follows that there is no authority for the body corporate to bind owners and occupiers to parking in accordance with the sign.;
• there is no specific or general power or authority for the body corporate to remove a vehicle belonging to an owner or occupier parking on the common property, and therefore no power no power or authority for the body corporate to make or carry out the statements contained in the sign with respect to the property of an owner or occupier;
• if there is a dispute between the body corporate and an owner or occupier section 229 of the act prescribes a particular dispute resolution process which muist be followed;
• the body corporate has no power to remove a vehicle in the absence of an order by an adjudicator;
  

The CMS does not contain any by-law authorising the towing of vehicles belonging to an owner or occupier. However if there was such a by law the correct procedure for the body corporate would be to issue a notice of breach and in the event of a failure to comply with such notice, an adjudicator or Magistrate is able to make orders regarding removal of a vehicle.

The body corporate cannot resolve to remove a vehicle belonging to an owner or occupier because there is no specific power given to the body corporate by the legislation and the only resolution that could be made would to bring a dispute resolution application pursuant to section 229 of the Act.

The applicant also requests that this matter be dealt with promptly because the subject vehicle does not have a roof and if not properly covered from the elements, will suffer damage.

SUBMISSION BY BODY CORPORATE

Having regard to the urgency with which the interim order was sought, the body corporate was requested to provide an interim submission by 5pm Thursday 28 May 2009.

The body corporate forwarded to this office a letter from “Q.P.T. Specialising in the removal of illegally Parked vehicles” in which it advised as follows:

• it was engaged by the body corporate to implement a contract for removal of vehicles from the site;
• the body corporate accepted the sign samples which were erected in the grounds;
• some 4 months later it removed the subject vehicle which is unregistered and therefore had no third party insurance coverage.
  

Given the limited relevance of the above document to the issues at hand, I wrote to the body corporate on 2 June, expressing my preliminary views and providing both parties with the opportunity to provide further information by 9 June.

JURISDICTION

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 authorization 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)).

DETERMINATION

This application relates to the removal of the applicant’s motor vehicle from the common property of the scheme at approximately 9:15am on 19 May 2009 by two men from a towing service who advised him that “By order of the body corporate we are removing your car”. The applicant is the occupier of lot 4 and has advised that his vehicle was then removed from the parking space allocated to lot 4.

The applicant has expressed the view that the vehicle has been unlawfully tampered with and unlawfully removed from the common property for the following reasons:

• there is no specific or general power or authority for the body corporate to remove a vehicle belonging to an owner or occupier parking on the common property;
• in particular, there is no by-law for the scheme which authorises the removal of a vehicle belonging to an owner or occupier;
• even if there was a by-law relating to parking on common property, the applicant did not receive any prior notice in the form of a letter, contravention notice or other form, advising that the applicant’s vehicle was breaching the body corporate’s by-laws or that it would be towed and removed from the parking bay.
• Section 229 of the Act prescribes a particular dispute resolution process which must be followed in order to resolve a dispute and in the absence of an order by an adjudicator, the body corporate has no power to remove a vehicle;
• The existence of the sign warning against illegal parking is irrelevant because it only purports to be addressed to persons other than owners and occupiers, owners and occupiers are authorised to park on scheme land.
  

As stated above, the only response received from the body corporate to date is correspondence from “QPT Towing” which is of limited relevance to the issues at hand.

As I previously stated in my “preliminary views” letter, the common property is owned by all owners of lots in the scheme as tenants in common (section 35). Further, all lot owners and occupiers are entitled to reasonable use and enjoyment of common property, and I am of the view that in general terms, parking of motor vehicles is a reasonable use of common property, subject to any valid by-laws that have been implemented to control parking within the scheme.

I am also of the view that the by-laws for this scheme do include a valid parking by-law. My investigation of records held by the department of Environment and Resource Management indicate that this scheme was established in August 1969 and therefore the standard By-laws contained in Schedule 1 to The Building Units Titles Act 1965 apply to this scheme with the addition of by-laws 42 to 47 which were made by the body corporate on 21 August 1969 . By-laws 42 to 47 grant to the owners of lots 1 to 8 a licence to use certain common property referred to as parking spaces 1 to 8. On the basis of the applicant’s advice that his vehicle was parked in the lot 4 parking bay, the only reasonable conclusion that I can reach is that the subject vehicle was illegally removed at the direction of a body corporate representative.

Had the vehicle been parked elsewhere on the common property, my opinion would be unchanged for the reasons set out below. On 6 June 1980, The Building Units Titles Act 1965 was replaced by the Building Units and Group Titles Act 1980. The effect of the transitional provisions contained in sections 5(10) and 5(11) of that Act is that the model by-laws contained in the Third schedule apply to the extent that the Third schedule by-laws are not inconsistent with the existing by-laws. In practical terms this means that the by-laws applicable to this scheme are original by-laws 42 to 47 and the model by-laws contained in the Third Schedule to the Building Units and Group Titles Act 1980. The Third Schedule by-laws include the following:

Vehicles

2. Save where a by-law made pursuant to section 30(7) authorises a proprietor or occupier so to do, the proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

Therefore, even if the vehicle had been parked on common property in breach of the by-laws, the body corporate would need to comply with Sections 182, 183 and 184 of the Act which, when read together, provide that contravention notices must be issued before any formal enforcement action is taken in respect of alleged by-law contraventions.

Subsection 184(2) provides as follows:
(2) 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 contravention notice for the contravention the subject of the dispute.

The effect of the above section is that it is only after an owner or occupier fails to comply with a contravention notice that the committee, or the body corporate in a general meeting, can decide to commence enforcement proceedings in the Commissioner’s Office or in the Magistrates Court.

Further, I do not believe that the body corporate is entitled to rely upon the wording of the “Private Property No Unlawful Parking” sign placed on common property. In my opinion, owners and occupiers are entitled to park on common property subject to any valid by-laws of the scheme and I do not believe that the wording of the sign could bind the applicant as the fundamental requirements for the formation of a valid contract are not present.

I therefore propose to make the following interim orders:

• that the applicant, Mr. Julian Adsett, is not liable for any costs incurred by the body corporate relating to the removal, storage or return of his motor vehicle.
• that the body corporate for Maranoa Lodge shall, it its at its cost, cause the applicant’s vehicle to be returned to the parking bay by a tow truck operator, licensed under the Tow Truck Act, within 48 hours of receipt of this order
  

The above orders do not dispose of this dispute in its entirety as the applicant has sought certain final orders in addition to interim orders. Therefore, this dispute resolution application will be further dealt with in accordance with the usual processes undertaken by this office which may include seeking further submissions from the respondents and other lot owners. A final order regarding the application will be made in due course.