Stonham v Jadran Court Body Corporate
[2012] QCATA 190
•18 June 2012
| CITATION: | Stonham v Jadran Court Body Corporate [2012] QCATA 190 |
| PARTIES: | Joseph Edward Stonham (Applicant) |
| v | |
| Jadran Court Body Corporate CTS13870 (Respondent) |
| APPLICATION NUMBER: | APL423-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Charles Brabazon QC, Member |
| DELIVERED ON: | 18 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Affirm the decision of the adjudicator dated 18 August 2011 – except that the sums of money in the fifth paragraph are amended to include the additional sum of $2,255. 2. Order the body corporate for Jadran Court to repay to Mr Stonham, forthwith, that part of the $2,255 that he may have already paid to it, in excess of the contribution payable for unit 2. 3. Otherwise remit the matter to the adjudicator for any further necessary orders or directions. 4. Reserve any issue about costs. |
| CATCHWORDS: | Strata titles – appeal – remit to adjudicator |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an appeal by Mr Stonham against orders made by an adjudicator on 18 August 2011.
Mr Stonham owns Lot 2 in “Jadran Court”, at Labrador. There has been much conflict between him and the body corporate.
The adjudicator’s reasons are clear, thoughtful and comprehensive. Mr Stonham appeals against only one factual finding. In paragraph 48 of the reasons, the adjudicator said that he had to pay the $2,255 in invoice 260620. That was because it was for internal fencing rather than boundary fencing which is paid for by the body corporate.
Mr Stonham has provided written submissions. He submits that the $2,255 was actually spent on boundary fencing. The invoice itself refers to “rear fencing”, and its various items seem consistent with that. The work was in timber – the boundary fences are timber, while pool fencing is metal.
The body corporate has made no submissions to contrary effect. It is appropriate to accept Mr Stonham’s submissions. He says that he has already paid the $2,255 to the body corporate, to ensure that he was entitled to vote at meetings. He should recover his payment – less the share that he would have to contribute, in any case.
The adjudicator’s reasons and orders are mainly concerned with long-standing disputes about the exclusive use area, which is attached to Mr Stonham’s unit 2. The plan at p4 of the reasons shows the EUA surrounding unit 2.
Mr Stonham wants to erect a fence, or screen, to physically separate his EUA from the common property. He also wants to put up a new garden shed on his EUA.
The adjudicator expressed general approval for those projects. He said that there should be a general meeting to consider them. In each case he went on to say, “in the event that the body corporate in general meeting refuses to give approval for (the project) Mr Stonham may be entitled to make a further application to this office seeking to overturn the decision on the grounds that the decision was unreasonable”.
According to Mr Stonham’s letter of 23 March 2012, he has sought approval for his projects at two meetings. He says that his notices have been ruled out of order, being told that “they are unenforceable for want of a survey.”
It will be apparent that there is no question about the adjudicator’s orders, which could be the subject of an appeal (apart from the invoice for $2,255). Mr Stonham’s concern is not about the orders – it is about the body corporate’s response to those orders. That remains a matter for the adjudicator to deal with. It is surprising that the body corporate has not been astute enough to accept the adjudicator’s clear threats, expressed in polite language, about the consequences of failing to accept his suggestions.
Two final remarks may be of some assistance. The adjudicator had an inspection of the building, while a reading of the material on the file alone makes it very difficult to understand the impact of fencing or screening along the edge of the EUA. The photographs are incomplete and unhelpful. It may be that some alteration to the boundaries of the EUA would be the only workable solution to the present conflict. But that is a matter for the parties to decide.
Secondly, it seems to be clear that there is no need for a survey. The only possible dispute could be about the exact positioning of the boundary line of the EUA which is parallel to the southern wall of Unit 2. Some common sense and the use of a tape measure should fix it with sufficient certainty. I am not sure if the measurements on sheet 1 of the surveyor’s plan, headed “Building Units Plan No 1234” are also of assistance.
These are the formal orders:
(a)Affirm the decision of the adjudicator dated 18 August 2011 – except that the sums of money in the fifth paragraph are amended to include the additional sum of $2,255.
(b)Order the body corporate for Jadran Court to repay to Mr Stonham, forthwith, that part of the $2,255 that he may have already paid to it, in excess of the contribution payable for unit 2.
(c)Otherwise remit the matter to the adjudicator for any further necessary orders or directions.
(d)Reserve any issue about costs.
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