Peninsula [2000] QBCCMCmr 359 (20 July 2000)

P J HANLYREFERENCE: 0202-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9865
Name of Scheme:	Peninsula
Address of Scheme:	Clifford Street SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Peninsula CTS 9865

I hereby order that motion 9 considered by the body corporate at the annual general meeting held on 12 February 2000 shall be deemed to have been carried by resolution without dissent.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0202-2000

“Peninsula” CTS 9865

The applicant, the Body Corporate for Peninsula, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

It is respectfully recommended that the Commissioner order the vote by Mrs bagley of lot 26 be deemed void and of no effect, and that motion 9 therefore be approved as passed to enable the amended community management statement to be duly registered.

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 –

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)).

In the supporting grounds, the applicant states that motion 9 sought the approval of the body corporate to a new community management statement which allocated exclusive use of car space L124 to the owner of lot 89 and took away from the owner of lot 89 the right to exclusive use of car space L125. The applicant further states that the necessity for such action arose because of the need to construct a new passenger lift between basement levels 1 and 2 in the scheme, which in turn necessitated the demolition and reconstruction of car space L125 which had previously been allocated to the owner of lot 89. The applicant further states that, as the new community management statement included a change to an exclusive use by-law the motion was required to be carried by resolution without dissent. The applicant further states that it considers the dissenting vote of the owner of lot 26 to be unreasonable, as the parking space in question does not impact upon this owner in any way.

All owners were invited to respond to the application. A response was received from the owner of the lot to whom the new car space was intended to be allocated, and from the owner who voted against the motion. The dissenting owner withdrew her dissenting vote, and requested that motion 9 be “approved as passed”.

In view of the fact that the owner of lot 26 has withdrawn her opposition to motion 9, I have ordered that that motion be deemed to have been carried by resolution without dissent.

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