Welsby Place [2000] QBCCMCmr 334 (6 July 2000)

Number of Scheme:	24227
Name of Scheme:	Welsby Place
Address of Scheme:	41-43 Welsby Street NEW FARM Q 4005

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

Mytan Pty Ltd as trustee, Kathryn Sarah Arndt and Gregory Raymond Fee, the owners of lots 1, 2 and 7 respectively

I hereby order that motion 2 considered by the body corporate at the extraordinary general meeting held on 12 August 1999 shall be deemed to have been carried by resolution without dissent.
I further order that the body corporate shall, within 1 month of the date of this order, endorse its consent on the new community management statement.
I further order that the body corporate shall, within 3 months after the date on which its consent is endorsed on the new community management statement, lodge the new community management statement for recording by the registrar of titles.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0584-1999

"Welsby Place" CTS 24227

The applicants Mytan Pty Ltd as trustee, Kathryn Sarah Arndt and Gregory Raymond Fee, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order requiring the body corporate manager to prepare and lodge a new community management statement and plan of survey of exclusive use of common courtyards, garages and parking spaces to allocate them to the owners of the units.

Section 223(1) of the Act 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 –

In the supporting grounds, the applicants state that at the time of sale, Mrs Steinfort, a director of the original owner represented to two of the applicants, as the potential purchasers of lots 1 and 2, that the units incorporated an exclusive use courtyard and a lock up garage. The applicants further state that the contracts of sale for lots 1 and 2 included a condition specifying exclusive use of a garage but not the courtyards. The applicants further state that the contract for the sale of lot 7 included a condition specifying exclusive use of an allocated parking space. The applicants further state that as the courtyards were already fenced off at the time of purchase, and on the basis of the representations made by Mrs Steinfort, they believed that the courtyards were already part of the lots being purchased, and no further enquiry was made as to whether there was an exclusive use by-law registered. The applicants further state that they have attempted on two occasions to have the exclusive use by-laws approved by the body corporate, but on each occasion Mrs Steinfort has voted against the motions.

All owners were invited to respond to the application. One submission was received from a firm of solicitors purporting to act on behalf of the owner of lot 6, Independent Finance Group Pty Ltd. The owner of lot 6 is in fact Deidre Una Steinfort, who has owned the lot since 12 June 1998. However, the body of the solicitors’ submission refers to Mrs Steinfort, and I take it, therefore, that Mrs Steinfort did in fact instruct the solicitors to act on her behalf, even if they incorrectly stated the ownership of the lot.

The submission states, in essence, that the matters disclosed in the application are between a vendor and purchaser and should be dealt with through other legal avenues. The submission concludes that the application is not within the ambit of Chapter 6 of the Act.
I note from the contracts of sale for both lots 1 and 2 that the provision of a car parking space/garage was included in each instance as a special condition of the contract. I further note that in neither instance was any reference made to an enclosed courtyard, although the plan of exclusive use (which subsequently transpired not to be registered in the titles office) attached to the contract for lot 1 represented exclusive use areas attached to lots 1, 2, 3 and 4, and, separately, exclusive use areas (seemingly carports or garages) for lots 1, 2, 4, 5, 6, 7 and 8.

The exclusive use areas depicted on the plan referred to above have not been registered in the titles office and therefore are of no force or effect. It is for this reason, of course, that the applicants have been attempting to remedy the situation by taking the steps outlined in the application.

I do not accept the submission that all of the matters disclosed within the application fall outside the ambit of Chapter 6 of the Act. Whilst it is correct that certain matters relate to what could amount to a misrepresentation under the contracts of sale, and as such should properly be dealt with in a court of competent jurisdiction, the issue of whether an owner’s opposition to a motion requiring a resolution without dissent is reasonable falls squarely within section 223 of the Act. I therefore consider that, to that extent at least, I have jurisdiction to determine this matter.

I note that, apart from submitting that I do not have jurisdiction to deal with the application, Mrs Steinfort’s solicitors do not deny the allegations made by the applicants as to the representations in respect of the carports/garages and the courtyards.

The extraordinary general meeting at which the motion to approve the new community management statement was considered was held on 12 August 1999. Notice of the meeting was given on 19 July 1999, thereby allowing for the minimum period of 21 days notice (section 43 of the Standard Module). As the new community management statement contained an exclusive use by-law, the consent of the body corporate to the statement was required to be in the form of a resolution without dissent (section 55(2) of the Act). The minutes of the meeting reveal that Mrs Steinfort was present at the meeting, together with the proxies and nominees of the applicants. Mrs Steinfort’s levies were in arrears at the time of the meeting, and she was therefore only able to exercise a vote on a motion requiring a resolution without dissent. Motion 2 was just such a motion, and Mrs Steinfort voted against the motion. Although the minutes state that Mrs Steinfort was the owner of lots 3, 4, 5 and 6, Mrs Steinfort advised the meeting that she had sold lot 5. Accordingly, Mrs Steinfort was only entitled to exercise her vote in respect of lots 3, 4 and 6. The result of the voting should therefore have been 3 "Yes" and 3 "No", although this does not alter the outcome, namely that the motion was defeated.

It is now for me to determine if Mrs Steinfort’s opposition to motion 2 was unreasonable. As stated, Mrs Steinfort’s solicitors did not deny on her behalf the allegations in the application as to the representations made by Mrs Steinfort to two of the applicants in respect of the courtyards (lots 1 and 2) and the carports/garages. In addition, the contracts of sale for lots 1 and 2 include a special condition as to the availability of a garage/parking space in each instance. Furthermore, the allocation of carports/garages to each of the lots in the scheme is beneficial to each of those lots. Finally, the allocation of the courtyards to lots 1, 2 3 and 4 would in fact have benefitted two of the lots owned by Mrs Steinfort. I also note that at the first annual general meeting, held on 16 October 1998, Mrs Steinfort voted in favour of a new community management statement which allocated the exclusive use areas which the applicants are now seeking. However, the same motion involved the body corporate agreeing to an area of land being excised from the common property at the rear of the scheme and being transferred to Mrs Steinfort’s son, Alexander Anthony Steinfort, in consideration of the payment by her son to the body corporate of the sum of $1.00. The applicants voted against the motion, as they had received independent advice that the value of the area in question was approximately $100,000.00. I therefore consider that Mrs Steinfort’s later opposition to motion 2 considered at the extraordinary general meeting held on 12 August 1999 was unreasonable.

I note that since the meeting held on 12 August 1999, the ownership of lots 3 and 4 has transferred to Brendan Sean Steinfort. I am satisfied that as both of these lots will benefit from the allocation of the exclusive use of a courtyard and a garage/carport, that it is just and equitable for me to make an order that motion 2, considered by the body corporate at the extraordinary general meeting held on 12 August 1999 shall be deemed to have been passed by resolution without dissent. I have also ordered that the body corporate shall endorse its consent on the new community management statement and thereafter lodge it for recording by the registrar of titles.

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Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Welsby Place [2000] QBCCMCmr 334 (6 July 2000)