Edgewater Gardens [2000] QBCCMCmr 335 (10 July 2000)

C G YOUNGREFERENCE: 0164-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10507
Name of Scheme:	Edgewater Gardens
Address of Scheme:	21 Whelan Street SURFERS PARADISE QLD 4217

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

Sylvia TRANKALIS as the owner of Lot 7,



C G YOUNGI hereby order C G YOUNGC G YOUNGthat within four (4) months of the date of this order, the owner of Lot 61, Jia Pty Ltd, must at its own expense remove the structure of metal grilles and door erected to enclose an area of common property situated in the south-east corner of Level “A” of the building, being that area designated as space “65” in the sketch plan accompanying By-law 46. 2n


The above order was appealed to the District Court, Southport. On 25 October 2001, Judge Hall DCJ delivered the following order:

“THE ORDER OF THE COURT IS THAT –

Appeal dismissed. Order of the adjudicator affirmed in each case. No order as to costs in respect of each appeal.”2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0164-2000

“Edgewater Gardens” CTS 10507

The applicant, Sylvia Trankalis of Lot 7, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

1.

That the body corporate be ordered to issue continuing contravention notice to Jia Pty Ltd (Director W.J.Clemens) Lot 61 for breaching the by-laws and obstructing the lawful use of the common property and not allowing owners and tenants the use of common property in the basement car park including tool room, work bench and community power facility situated in the south east corner; and

2.

That the body corporate be ordered to remove offending compound in the southeast corner seized by owner Lot 61 for own exclusive use against the interest of all other lot owners which encompasses the tool room and which was not ratified in the annual general meeting of proprietors in 1992 in a resolution without dissent with 21 proprietors dissenting, signed as a true record by then Chairman, L. Dellow, then owner of Lot 61.

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)).

This one of three applications that I have before me for adjudication which concern the enclosure of an area of common property in the south-east corner of the building on Level “A” (as it is described in the registered plan). It is an irregular shaped area bounded by the “common store” area on the northern side, and the walls of the building on the eastern and southern sides. The applicant describes its size as representing five ordinary car parking spaces. I shall refer to it as “Space 65” for reasons that will be apparent later, and will refer to the enclosing structure as “the enclosure”.

The other two applications are Applications Ref. No’s 176-2000 and 178-2000, both of which have been submitted by Geoffrey Henville of Lot 40 (I recently made Order 177-2000 to a further application by this person concerning an unrelated matter). These two applications of Henville are similar to this application by Trankalis in that: Application 176-2000 seeks the removal of the enclosure, but by the owner of Lot 61 Jia Pty Ltd (occupied by William Clemens and Julie Georgeff) rather than by the body corporate as sought by Trankalis; and Application 178-2000 also seeks the service of a by-law contravention notice on the owner of Lot 61 to remove the enclosure.

Given the similarities of the applications, and because this application by Trankalis was the first to be lodged with this office, I propose to deal conclusively with the matter of the enclosure in this order and then determine Henville’s applications by reference to these reasons. All three orders will be issued together.

It is important that I also refer to a further application for this scheme which indirectly concerns the enclosure issue. Application 231-2000, lodged by the body corporate, seeks an order which will, amongst other things, effectively grant the owner of Lot 61 the exclusive use of Space 65. That application has been allocated to another adjudicator for determination. While it may have been more convenient for it to be dealt with in conjunction with these three applications, this office has had to contend with a large number of applications for “Edgewater Gardens” and a distribution amongst adjudicators was considered the best course for various reasons.

If Application 231-2000 is determined in a manner favourable to the owner of Lot 61, or it is found that exclusive use over Space 65 already exists, then that decision will have ramifications for the order I have made to this application. While either result will not as a matter of course authorise the retention of the enclosure, the co-owners of Lot 61 will have grounds for seeking the approval of the body corporate under section 124 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) for it to remain. It would therefore be unwise for me to order the immediate removal of the enclosure in the face of Application 231-2000 for these reasons.

Accordingly, there are two points I wish to convey to the parties –

(a)	the adjudicator dealing with Application 231-2000 will endeavour to make an order within four weeks of the date of this order. This will allow the parties time to consider their position within the six-week period allowed for an appeal against my order.

(b)

the time period of four months allowed for the order to take effect will, apart from catering for the situation in (a), allow the owner of Lot 61 (and perhaps others in a similar position) time to have an appropriate approval motion under section 124 put before the body corporate in general meeting. I am not ordering the body corporate to hold such a meeting and it will be a matter for the owner, and perhaps others, to decide how this is to be achieved.

I shall now deal with the substance of the application and give my reasons for the order made. The facts of the matter so far as are relevant in resolving this application, are as follows.

“Edgewater Gardens” was registered as a building units plan on 5 February 1982 and comprises 62 residential lots. Levels “A” and “B” of the scheme building are shown on sheets 7 and 8 of the registered plan respectively, both being designated as being for “garage and storage purposes only”. Both areas are wholly common property though on the plan have a large number of small areas depicted by broken lines, presumably meant to represent future car and storage spaces. They are not numbered or identified in any way.

Those “garage/storage” spaces depicted in the south-east corner of Level A of the building – the corner where Space 65 is situated – are two rectangular spaces set against the southern and eastern walls of the building. They lie within Space 65 area but together represent probably less than half its floor area. These two spaces are those referred to by the applicant as being, in her view, the only areas in this corner which were contemplated by the developer as being garage or storage spaces.

On 24 February 1982 a change of by-laws for the scheme was recorded by the Registrar of Titles. By-law 46 provided for the allocation of one or more car and/or storage spaces to owners. The allocations were to be accomplished by the developer Rooskye Pty Ltd delivering to the committee, within 12 months of registration, a written list of the allocations to owners by identified by reference to the numbered spaces shown on the sketch plan accompanying the by-law. I have viewed the by-law sketch plan held in the registry records and observe that it identifies the irregularly shaped area in the south-east corner with the number “65”. This is the area described earlier in these reasons which I have called “Space 65”. The two rectangle spaces shown on the registered plan are not shown on the by-law sketch plan at all. Clearly, Space 65 was contemplated as an area of common property for the exclusive use of an owner, and not the two rectangle spaces as originally shown. Space 65 was reproduced in a new sketch plan by Simpson Rayner, Surveyors. The differentiation between the spaces in this south-east corner shown on the registered plan and that shown on the By-law 46 sketch plan, Space 65, reproduced by Simpson Rayner, appears to have been misunderstood by the applicant.

For the purposes of deciding this and the other two applications, I do not need to examine or otherwise comment on the validity of By-law 46; the adjudicator dealing with Application 231-2000, to give effect to a recently failed exclusive use resolution, will be examining these issues. Whether or not Space 65 is an exclusive use area for the benefit of the owner of Lot 61 is irrelevant in determining the question of whether the enclosure was authorised, as will become apparent.

The respondent body corporate did not make a submission to the application. However, Mr Clemens, on behalf of Jia Pty Ltd, has made a submission as a person who may be affected by the order.

The assertion made by Clemens in his submission in respect of Space 65, namely that the “area referred to has never been common property”, is wrong. It is common property and will always remain common property; exclusive use does not change the nature of the area but only gives the benefiting owner exclusive rights to use the area.

In respect to the enclosure of Space 65, Clemens refers to a minute of a committee meeting held on 27 July 1993 which reads –

It was resolved to give consent and ratify the earlier decisions of the Body Corporate wherein enclosures to car spaces 49 and 50, 53, 54, and 65 were constructed.

(Adjudicator’s highlighting)

However the minutes of the previous annual general meeting held on 22 February 1992 show that the following motion was considered and rejected by the meeting –

Motion 10. Exclusive Use car bays

DEFEATED in a RESOLUTION WITHOUT DISSENT that the proprietors of Edgewater Gardens hereby give their consent to and ratify those fixtures currently erected within the boundaries of exclusive use vehicle bays and also consent to the construction of a similar structure within the exclusive use vehicle bay allotted to Unit G03 and furthermore that all costs associated with that construction is to be borne by the proprietor of Unit G03 and subject to any conditions and limitations imposed by the Gold Coast City Council and the Queensland Fire Department.

21 against.

(Adjudicator’s highlighting)

Section 37A of the Building Units and Group Titles Act 1980, the relevant legislation at the time, required that a resolution without dissent was necessary to authorise an owner to effect an improvement on common property for the benefit of the owner. Motion 10 sought, as well as for others, the ratification of the then existing enclosure around Space 65. Upon the defeat of this motion the body corporate should have acted to have all of the enclosures referred to, removed. Instead, the committee met around a year later, on 27 July 1993, and passed a contrary resolution to that of the body corporate in respect of the enclosures around 5 of the spaces, including the enclosure around Space 65. This resolution was passed both in contravention of section 37A of the Act and in defiance of the earlier body corporate refusal. It has no validity.

Mr Clemens has submitted copies of other documents none of which are evidence that the body corporate ever approved the erection of the enclosure. The documents include a letter from an LC Dellow, who describes he and his wife as the developers, which speaks of them having “retained an area at the South Eastern corner of the basement for our own private car space”. While this reference may be to Space 65 and Lot 61, it does not say anything about the enclosure.

I reiterate that: in this order I have not had to consider the matter of exclusive use over the car and storage spaces; and an authority from the body corporate is necessary for an owner to erect an enclosing structure on common property, regardless of whether the owner has exclusive use over the area or not. The co-owners of Lot 61, and others, were refused that authorisation by the body corporate’s resolution of 22 February 1992 and no proper authorisation has been given since.

For the foregoing reasons, my order is for the removal of the enclosure. The removal has been ordered in the manner, and for the reasons, described earlier in these reasons.

I have made the above order as the more appropriate one to those sought by the applicant. Under the “Dispute Resolution” provisions of the Act (see Part 9), adjudicators have a wide jurisdiction to resolve disputes, including in a manner that is just and equitable in the circumstances (see section 223(1) of the Act). The first order sought, for the body corporate to issue a by-law contravention order, is only delaying the process of having the owner of Lot 61 comply with the body corporate’s decision refusing authorisation of the structure. As well, in the second order sought the applicant seeks removal of the structure in any case. The second order inappropriately seeks the removal of the enclosure by the body corporate, putting it to the inconvenience and expense of a matter that should be rectified by the owner of the enclosure.2n