Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

BY-LAWS - whether a body corporate can pursue by-law enforcement action against the respondent in circumstances where it was the respondent's adult child that purportedly contravened the by-laws

• [1] This dispute is about the purported contravention of the scheme's by-laws by the respondent's adult son.
• [2] I dismiss this application on the basis that by-law enforcement action ought to have been pursued against the said son directly and not the respondent. In other words, the son ought to have been named as the respondent under this application, and the person to whom the by-law contravention notices were issued.

• [3] The scheme, Summer Waters CTS 19297, comprises 91 lots and common property, and is regulated under the Standard Module.
• [4] The applicant is the body corporate.
• [5] The respondent named in this application is Jodi Rogers, who is the sole owner of Lot 54. She occupies this lot with her son.
• [6] The applicant body corporate brings this application in an attempt to enforce By-laws 4.1, 4.2, 5 and 6 against the respondent.
• [7] The applicant body corporate states that each lot in the scheme can accommodate three vehicles within the lot itself, one in the garage, one in the carport, and a small vehicle in the forecourt.
• [8] The applicant body corporate states that in or around July 2024, the respondent or an occupier of Lot 54 purchased a new vehicle, a white Mitsubishi bearing registration 370 IZA, and parked the same in the visitor parking spaces. It states that it left notes, reminders and emails for the respondent on 10 July 2024, 28 July 2024, 29 July 2024 and around August and September 2024.
• [9] On 10 July 2024, the respondent upon receipt of a note emailed the applicant body corporate indicating that the vehicle belongs to her 'young son who is currently awaiting a new starter motor'. She then sought body corporate approval to park the vehicle in the visitor parking spaces until the motor was replaced and the car was functional. This email is said to have bounced and was not delivered to the applicant body corporate.
• [10] Accordingly on 28 July 2024, upon receipt of a second note, the respondent expressed that she attempted to communicate promptly, and evidently resent her previous response.
• [11] Subsequently on 29 July 2024, the applicant body corporate seemingly consented to the respondent's son parking in the visitor parking spaces as per her request.
• [12] However, further notes were issued by the applicant body corporate to the respondent with multiple photographs dated between 28 July 2024 and 8 September 2024 of the vehicle being parked in visitor parking spaces, on common property roadways, and parked in the lot forecourt albeit protruding onto the common property roadway.
• [13] On 11 September 2024, the respondent replied to the applicant body corporate stating among other things that there were only two cars in the visitor parking spaces when her son parked the vehicle in question there.
• [14] On 4 December 2024, the applicant body corporate issued a further notice to the respondent citing a contravention of By-law 5.2(a). It states that despite this notice, the vehicle remained parked wholly on common property the next day.
• [15] Accordingly, the applicant body corporate states it issued a formal contravention notice on 11 December 2024 citing a contravention of By-law 4.2(b), and a second contravention notice on 13 February 2025 citing a contravention of By-laws 4, 5 and 6 against the respondent.
• [16] The applicant body corporate states that parking in breach of the by-laws persisted despite these contravention notices with the latest recorded contravention occurring on 24 February 2025.
• [17] In these circumstances, the applicant body corporate seeks the following order:

The resident/s of Lot 54 park all vehicles belonging to their Lot, including Mitsubishi 370 IZA, in accordance with SWBC By Laws 4.1, 4.2,5 and 6, and not use common property as part of their private holding.

• [18] The applicant body corporate lodged an application for department conciliation for this dispute on 19 March 2025.
• [19] On 17 April 2025, department conciliation concluded with the parties not having reached an agreement.
• [20] On 6 May 2025, the applicant body corporate lodged this application for department adjudication. Subsequently, the Commissioner's delegate sought further information under section 240 of the Act. On 30 May 2025, the applicant body corporate provided this information, and on the same day, the Commissioner's delegate provided a copy of this application and invited submissions from all owners and the respondent.
• [21] Subsequently, the respondent and the owner of Lot 44 made submissions.
• [22] The applicant body corporate did not obtain a copy of the submissions and did not reply to the same.
• [23] On 24 June 2025, the Commissioner referred the dispute to department adjudication.
• [24] On 23 July 2025, I requested further information from the applicant body corporate.
• [25] On 29 July 2025, the applicant body corporate respondent to my request. Subsequently, the respondent shared her views on the applicant body corporate's response.

(b) Jurisdiction and preliminary considerations

• [26] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the Community Management Statement ('CMS')[1] or about the exercise of rights or powers or performance of duties under the Act or CMS.[2] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[3] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [4]
• [27] Adjudicator's generally have jurisdiction to determine a dispute of this nature by virtue of sections 276(1)(a) and (b) of the Act (read together with section 227(1)(b) of the Act).
• [28] In this instance, the evidence indicates that the vehicle in question, i.e., the white Mitsubishi bearing registration 370 IZA, was and is under the possession and control of an occupier of Lot 54, who is not the named respondent in this application. The said occupier is the son of the respondent.
• [29] Accordingly, I raised as a preliminary matter, the question of why the applicant body corporate commenced by-law enforcement action against the respondent, Jodi Rogers, as opposed to her son, who had admittedly parked the vehicle in question on common property.
• [30] The applicant body corporate indicated that the respondent's son was at the time the first contravention was identified, only a minor. It states that the respondent had then made the decision to act on her son's behalf, which is why the matter has progressed in this manner.
• [31] The respondent vehemently denies that averment and claims among other things that by September 2024, her son was an adult.
• [32] In these circumstances, the contravention notices ought to have been issued against the respondent's son, and not the respondent herself.
• [33] For by-law enforcement matters, adjudicators cannot make orders against respondents who have not contravened any by-laws. Similarly, adjudicators cannot also make orders against persons that are not named as respondents. This would, among other things, would be contrary to the rules of natural justice.
• [34] Accordingly, I must dismiss this application.

• [35] In the circumstances of this dispute, there is no basis for by-law enforcement action to have been taken against the respondent. There is no evidence of the respondent contravening any of the scheme's by-laws.
• [36] For this reason, this application is dismissed.

[1] The CMS includes the scheme's by-laws

[2] Sections 276)(1)(a) and (b) of the Act

[4] See Brighton on Broadwater Breezes [2018] QBCCMCmr 243 at [8]