Tower Mill Motor Inn [2009] QBCCMCmr 307 (20 August 2009)

Number of Scheme:	1918
Name of Scheme:	Tower Mill Motor Inn
Address of Scheme:	239 Wickham Terrace SPRING HILL QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Skafola Pty Ltd, the owner of Lot 13

I hereby order that the application by Skafola Pty Ltd, the owner of Lot 13 for interim and final orders against the body corporate for Tower Mill Motor Inn community titles scheme 1918 is dismissed.

The scheme
“Tower Mill” community titles scheme 1918 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application is by Skafola Pty Ltd (Applicant) against the Body Corporate seeking an outcome that common property be restored to its pre-licensing use. The Applicant states common property has been licensed by Queensland Liquor Licensing Division (QLLD) without the knowledge or approval of the committee or owners, and that Burnitt Investments Pty Ltd (Burnitt) and Transmetro Corporation Ltd (Transmetro) are controlling common property when they do not have the right to do so. The Applicant refers to an incident on 30 April 2008 which involved the police and states that Ron Davy has been informed by Peter Burnitt that he is banned from the licensed tavern including the licensed common property.

The Applicant has sought an interim order to cease the contravention involving common property immediately and that the QLLD be advised that common property and Lots 29 and 30 have been licensed without proper Body Corporate authorisation.

The Applicant has named Burnitt, Transmetro and all other owners as affected persons.

Jurisdiction
In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me even though affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application.

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 30 July 2009 I invited submissions from the committee and Burnitt regarding the interim order application. Simmonds Crowley & Galvin Solicitors, on behalf of Burnitt, sought and was granted an extension of time to make submissions to 17 August 2009.

Simmonds Crowley & Galvin Solicitors submitted the application be dismissed pursuant to section 270 of the Act as: no dispute exists pursuant to section 227 of the Act which has been identified by the Applicant which is or can be regulated by the Act; an adjudicator does not have jurisdiction under section 276 of the Act to make the orders sought; and the issue of use to which common property can be put by Burnitt has been subject to previous adjudications (Ref. Nos. 278-2008 and 1011-2007) and found to be too complex for the dispute resolution process, and is before the Supreme Court of Queensland, Proceedings Number 4088/08. It is stated that the notifications have been made to Mr Davy about his attendance on licensed premises under the Liquor Act 1992, a matter which is not reviewable by an adjudicator and not a ‘dispute’ pursuant to sections 227 and 228 of the Act.

Determination
The Applicant has made this application against the Body Corporate; a ‘dispute’ includes a dispute between a lot owner and the body corporate (s 227(1)(b)). The chapter 6 dispute resolution provisions relate to a dispute about: a contravention of the Act or the community management statement; the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; the adjustment of lot entitlement schedules; or certain matters involving a body corporate manager, service contractor and letting agent (s 228(1), Act).

The exclusivity of dispute resolution provisions apply to a dispute that may be resolved under chapter 6 by a dispute resolution process (s 229, Act). A department adjudicator may make an 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 (s 48(1), 149B and 276(1), Act). There is a question as to whether this application concerns a dispute between a lot owner and the Body Corporate about a matter that may be resolved by a department adjudicator.

In making this application against the Body Corporate, the Applicant has not shown for example, that the Body Corporate has made, or not made, a decision about any of the issues raised in the application. There is no evidence the Body Corporate gave any authorisation with respect to the QLLD license. In fact, the Applicant says the committee and owners had no knowledge of the license. Neither is there any evidence that for example, the Body Corporate has a legislative power or obligation to do something with respect to the license and it has decided not to do that thing. The Applicant has asked this office (presumably an adjudicator) to inform QLLD in the terms sought. A question about the QLLD granting a liquor license is not a matter that an adjudicator has jurisdiction to determine. To the extent the Applicant may seek an order that the Body Corporate provide a notification to QLLD; there is no evidence that the Body Corporate has been asked to take this action. It is evident a notification was given to Mr Davy by Burnitt about entering a licensed area on scheme land. There is nothing to suggest the Body Corporate was involved in the giving of the notification. Even if Burnitt was the respondent to the application, I agree with the submissions by Simmonds Crowley & Galvin that an adjudicator cannot make an order about for example, the validity of the notification given under the Liquor Act 1992. In this regard, the Applicant has not demonstrated that there is a dispute with the Body Corporate 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 underlying issue would appear to be the use of common property (an area which wholly or partly includes the area subject to the license mentioned in this application). This is an issue which has been dealt with in previous adjudications (Tower Mill Motor Inn [2008] QBCCMCmr 111 (3 April 2008) and Tower Mill Motor Inn [2008] QBCCMCmr 102 (18 March 2008)). To the extent these earlier applications dealt with issues relating to the use of the ground floor to operate a bar/restaurant, the adjudicators dismissed the application pursuant to section 270(1)(b) of the Act. The Applicant has not provided any material to suggest these findings would no longer be relevant given for example, subsequent events or decisions either in this jurisdiction or another. In fact, it is apparent from the submissions by Simmonds Crowley & Galvin that the issue of use rights is currently before the Supreme Court of Queensland.

For these reasons, I have dismissed the application for interim and final orders.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Tower Mill Motor Inn [2009] QBCCMCmr 307 (20 August 2009)