Hocking Court [2000] QBCCMCmr 23 (20 January 2000)

RA MeekREFERENCE: 0608-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9091
Name of Scheme:	Hocking Court
Address of Scheme:	Hocking Street NAMBOUR QLD 4560

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

Jean Isobel English, the owner of lot 1

RA MeekI hereby order that the application by Jean Isobel English, the owner of lot 1, for several orders that –

1.	The owner, lot 3, be directed to cease forthwith “exclusive use” by herself or her tenant of the common property below her floor area and surrounding area enclosed by parcel boundaries and the existing dividing fences between existing original cottage (lot 3) and additional brick units 1 and 2.
2.	The body corporate ... be advised that its interpretation and proposed action under the BCCM Act in relation to removal of dividing fences originally illegally installed which Council approved at time of title registration and now confirmed by Registrar as common property, be confirmed.
3.	The ruling of the chairman committee meeting 25.9.99 on the use by Mrs Kirby, without a proxy, of a voting paper to record her votes as invalid under section 33 of Act and therefore absent, be confirmed;

is dismissed.
n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0608-1999

“Hocking Court” CTS 9091

The applicant Jean Isobel English, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. The owner, lot 3, be directed to cease forthwith “exclusive use” by herself or her tenant of the common property below her floor area and surrounding area enclosed by parcel boundaries and the existing dividing fences between existing original cottage (lot 3) and additional brick units 1 and 2.

2. The body corporate ... be advised that its interpretation and proposed action under the BCCM Act in relation to removal of dividing fences originally illegally installed which Council approved at time of title registration and now confirmed by Registrar as common property, be confirmed.

3. The ruling of the chairman committee meeting 25.9.99 on the use by Mrs Kirby, without a proxy, of a voting paper to record her votes as invalid under section 33 of Act and therefore absent, be confirmed.

Section 223(1) 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 this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

There is nothing essentially new in the on-going dispute involving this body corporate. What the applicant is now seeking, by way of order 1, is to require the owner of lot 3, Helen Margaret Davis, (the respondent), to agree to the recording of exclusive use by-laws in respect of the common property of the scheme. The applicant states –

The relevant sections of the BCCM Act require that should a lot owner seek to use common property “exclusively” and deny the remaining owners their rights of enjoyment of the said portion a certain procedure must be followed. This begins with an application to the body corporate and agreement on the terms of negotiation. In this case an offer is open to approve such an application if Mrs Kirby agrees to the registration of appropriately worded by-laws to effect a validation of the minutes of meeting 1.2.1988 unanimously approved but not registered on each title at the time.

In response to the application, I have the benefit of a submission from Mr EJ Kirby on behalf of the respondent. That submission seeks that the orders sought by the applicant be dismissed, and further that the minutes of a committee meeting chaired by a Max Cray be declared void.

In respect of the first order sought by the applicant, Mr Kirby responds that –

The decisions made by under the Town Plan are “in perpetuity” and over ride Body Corporate law, also they give Helen her statutory right to the use of the space under unit 3, as well as imposing on the body corporate the onus of due care and responsibility to maintain her rights. They have a statutory obligation. ... You cannot therefore direct Helen or her tenant to act in accordance with Order 1. ...

It seems to me that this continuing dispute is merely an extension of the matters which were determining by this office at first instance in applications 48 and 75 of 1997, and largely confirmed by the Tribunal on appeal of those matters. For the purposes of making this order, I have reconsidered the Tribunal order of Mr KM Flick.

The Tribunal did not say that the respondent had a statutory right to the use of the space under unit 3, or that such right over rode body corporate law, as is alleged on behalf of the respondent. What the Tribunal did say (page 7, line 10) was that –

Now the body corporate may make application to council to seek approval for another area (for vehicular parking for lot 3). But it would seem to me that until this is done that they have to provide – and it should be, in my view, provided – that lot 3 be able to use this common property area until appropriate applications are made....

The application to which the Tribunal is referring is an application to the local authority for approval of an alternative area of common property for off street parking by the owner or occupier of lot 3. I am unaware whether such application has been made by the body corporate, and if so, the outcome of that application. However it seems to me that this is the pre-requisite before the respondent can be required to cease parking on the common property under lot 3. However, it seems further clear to me that the respondent’s right to continue to use the common property under lot 3 is subject to certain very clear restrictions, including that –

•

the respondent does not have exclusive use of such area, and in terms of the tribunal’s order, and if the body corporate wishes to make use of parts of this area, excepting that part required for vehicular parking, then it can require the owner of lot 3 to give access to the area (see page 8, line 38);

•

the right of the owner or occupier of lot 3 to continue to use the common property under that lot is restricted to vehicular parking. The decision of the Tribunal did not extend to, or authorise, any other use, including for example, the location of washing facilities or storage areas. I consider that the body corporate is lawfully entitled to insist or require that the owner or occupier of lot 3 cease any other use of the common property excepting vehicular parking.

In the circumstances, I intend to dismiss the first of the orders sought by the applicant, since I do not consider the respondent has exclusive use of the area under that lot, but rather has the right to continue to use part of the area for vehicular parking, until the local authority authorises another part of the common property for this purpose.

I now turn to the issue of how exclusive use might be granted in respect of the common property. The applicant states that the respondent has been offered exclusive use of the common property under her lot, provided that she also agree to accept the responsibility for external maintenance of her lot, which the applicant alleges was the understanding at the time of purchase of the lots.

In the Tribunal decision, it states that –

... I am of the view that the owner of lot 3 should make an application to the body corporate for exclusive use of this property – this common property (ie. the area under lot 3). If that is not forthcoming from the body corporate, then she has the right to apply to the referee for an order seeking the change of the body corporate’s order and, of course, in due course, to come to the Tribunal for a final determination of the matter.

I am unaware whether the respondent has ever sought the approval of the body corporate to the grant to her of exclusive use of the common property under her lot 3. Such motion would require a resolution without dissent in order to be carried. Consequently all owners who vote would need to vote in the affirmative. I assume that the sticking point has been, and will continue to be, the refusal of the respondent to accept that the grant of exclusive use of such area be subject to the respondent accepting responsibility for external maintenance of her lot. The other owners are unlikely to allow the grant of exclusive use, without such condition.

So it is clear that a stalemate will arise whereby the respondent will continue to have the right to use the parking provided under the lot, unless and until the body corporate makes application to the local authority proposing alternative parking arrangements. If the local authority refuses an application to this effect, and insists that the provision for off street parking be maintained on the common property under lot 3, then it is arguable that the body corporate might resolve, I suggest by ordinary resolution, to charge the respondent a rental for continued use of the common property in question. The respondent might allege that any such charge is not reasonable and for the benefit of owners in the body corporate’s administration, management and control of the common property. However this would be a matter for an adjudicator to determine in consequence of an application to this office. Certainly, the Tribunal did indicate that there may have to be some compensation, if I can put it that way, in relation to the exclusive use of this property ... .

The second order sought by the applicant relates to confirmation of the actions of the body corporate in resolving to remove all existing dividing fences. Again, the purpose of this resolution appears to be to in some way to induce the respondent to agree to the above mentioned exclusive use by-law. This matter appears to have been the subject of motion 4 resolved at the committee meeting held on 25.9.99. That motion provided that an order be placed with successful tenderer ... for dividing fence removal and clothes line re-arrangement approved at committee meeting 28.8.99. Order to require work to commence after receipt of commissioner’s decision on dispute action set down in motion 5 below.

It is noted that the above resolution was carried at a committee meeting. The current dividing fences are an improvement to the common property of the scheme. What is being proposed is the removal of common property improvements. The Act and standard module are silent on the question of the removal of improvements to common property, although this question does arise from time to time in respect of bodies corporate. The view taken by this office in respect of such matter is that the type of resolution required for such motion to be carried is the same type of resolution which would be required if the improvements were being proposed for the common property. For example, if an ordinary resolution was required for the construction of the improvement, then similarly an ordinary resolution would be required to authorise the removal of the improvement.

It is clear that improvements to common property can only be authorised by the body corporate in general meeting, and the type of resolution required depends on the value of the improvements, or alternatively, the cost of removal of the improvements. Given that the decision to remove the existing fences was made at committee level, then the decision is in my view, invalid.

The final order sought by the applicant is a ruling that the chairperson’s decision to invalidate the respondent’s voting paper submitted for the committee meeting on 25.9.99, be confirmed. The applicant suggests that there is no ability to submit a voting paper in respect of a committee meeting and that consequently, the submission of a voting paper by the respondent is invalid and of no effect.

I do not intend to address this issue in any detail, as I consider it a pointless exercise for several reasons, and will only contribute to the level of disputation in this body corporate, rather than resolving any. Whilst strictly the applicant and chairperson are correct in that a voting paper is not a legitimate means of attendance at a committee meeting, I consider that this approach misses the point and potentially will only lead to further disputation within this body corporate.

Given that it would appear that all members of the body corporate are members of the committee in any event, then a meeting of the committee is a meeting of all owners anyway and in my view, rather than being convened as a committee meeting, should be convened as a general meeting of the body corporate. It seems to me that in the circumstances, the use of committee meetings is a deliberate attempt to exclude the representation of the respondent, and this approach is without merit, and should be avoided.

Moreover, it seems pointless to me that the applicant is trying to confirm the chairperson’s ruling that the respondent’s vote not be accepted, on a technical basis. At a committee meeting, all matters are dealt with by simple majority. Consequently, it is really irrelevant in the context of a committee meeting, if the respondent votes in the negative, as she can be outvoted by a simple majority. Consequently, nothing is achieved by having the respondent’s vote invalidated, as motions (at committee meetings) can be resolved by majority vote anyway.

Further, it seems to me that there have been certain matters dealt with at committee meetings which are probably beyond the power of the committee. For example, the resolution to remove existing fences requires either an ordinary resolution or a special resolution of the body corporate in general meeting.

It is my recommendation to this body corporate that it use of committee meetings be strictly limited, and certainly not used in circumstances where matters of continuing disputation are being considered. For example, motion 3 at the committee meeting of 25. 9.99 sought to provide that exclusive use by-laws be drawn up. All parties know how contentious an issue this is, and nothing will be achieved by having such matter considered at a committee meeting. Exclusive use by-laws can only be approved by the body corporate in general meeting in any event, and then, only by resolution without dissent.

I consequently, refuse to order in terms as sought by the applicant in order 3.