Salvatore Court [2000] QBCCMCmr 254 (1 June 2000)

RA MeekREFERENCE: 0734-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9000
Name of Scheme:	Salvatore Court
Address of Scheme:	51 Jellicoe Street COORPAROO QLD 4151

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

Giuseppe Pennisi and Ginetta Pennisi, the owners of lot 3

RA MeekI hereby order that the application by Giuseppe Pennisi and Ginetta Pennisi, the former owners of lot 3, for orders that -

1. That the by-laws be amended so that we have the exclusive use of garage area;

2. That the body corporate be required to prepare, sign and register a change of by-laws granting exclusive use of the area to the owners lot 3, similar in effect to the original Notification of By-laws dated 21 June 1994,

is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0734-1999

“Salvatore Court” CTS 9000

The applicants Giuseppe Pennisi and Ginetta Pennisi, the owners of lot 3, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. That the by-laws be amended so that we have the exclusive use of garage area.

2. That the body corporate be required to prepare, sign and register a change of by-laws granting exclusive use of the area to the owners lot 3, similar in effect to the original Notification of By-laws dated 21 June 1994.

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)).

The applicants seek that I overturn a vote of one lot owner against a motion to record a change to the community management statement, granting the applicants the exclusive use of part of the common property.

I do not intend to restate the applicant’s grounds to this application, except to point out certain facts.
The applicant’s state that it was represented to them at the time of purchase that the lot “included the exclusive use of a second garage”, but that “we are now informed that the change of by-laws granting us the exclusive use area has not been registered”. The difficulty I have with these statements is that the applicant, as the purchaser, was entitled to search the register to determine that the exclusive use represented to them had in fact been recorded. Either they or their solicitor should have checked the register. In the circumstances, perhaps the applicants should consider the potential negligence of their legal advisers in this regard.

Secondly the mere fact of use of the exclusive use area by the applicants since the purchase of the unit does not satisfy me that the applicants are entitled to the relief which they seek.

In the grounds there is a supporting statutory declaration of the solicitor who acted for the original developer, and who convened the first AGM. He states that at that meeting the body corporate resolved to grant exclusive use of an additional car parking space to the then owner of lot 3. Subsequently, the solicitor declares that –

The original owners subsequently sold lots 1, 2, 4, 5 & 6. Each of those contracts contained provisions disclosing the proposed exclusive use area in favour of lot 3 and the change of by-laws. The original owner initially retained lot 3.

I have received a submission opposing the application from the owner of lot 2, Harry Leo Roberts. In his submission, Mr Roberts states that –

Information on the exclusive use of the garage in question by the owners of no. 3 was not supplied to my solicitor which I purchased unit 2. ... The information only came to light when the body corporate sent a copy of the by-laws and designated parking areas to all owners. ...

In response to this, I sought a copy of all the original sale contracts from the applicants, in order to establish the contention that all purchasers were notified of the exclusive use area prior to their purchase. To date, copies of those contracts have not been supplied, and I note that lot 3 has now been sold. I assume that some compromise has been reached with the incoming purchaser regarding the alleged exclusive use area.

In all the circumstances, I am not prepared to order in terms as sought by the applicants, as former owners of lot 3. Rather than this being an oversight which I should now correct, thus affecting the rights of existing owners, I consider that this is in fact a situation of oversight, or apparent negligence, of the original owner of the lot, or their legal adviser, in failing to ensure the recording of the exclusive use by-law. I consider that this is now a situation of estoppel, whereby the former owner of lot 3 is estopped from asserting a right of exclusive use, on the basis that other persons have acted to their detriment in purchasing a lot in the scheme without knowledge of the alleged exclusive use by-law. The applicants have failed to evidence to me that all subsequent owners in the scheme were notified prior to their purchase of a lot.