Tiberion Lodge [2000] QBCCMCmr 39 (31 January 2000)

RA MeekREFERENCE: 0613-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13023
Name of Scheme:	Tiberion Lodge
Address of Scheme:	Cnr Sixth Ave & Kingsford Smith Pde, Maroochydore QLD 4558

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

RA MeekI hereby order that the application by the body corporate of Tiberion Lodge seeking an order giving effect to motion 9 headed New Community Management Statement considered at the annual general meeting of the body corporate held on 26 August 1999, but not carried, due to the dissenting vote of one owner, is approved.

I further order that the dissenting vote of the owner of lot 4, Aileen Cecelia Gregory, is overturned.

I further order that the body corporate is hereby authorised to implement or give effect to the terms of motion 9, as if it had been carried by resolution without dissent, in particular by lodging the new Community Management Statement for recording with the Registrar of Titles in the form proposed at the AGM of the body corporate held on 26 August 1999. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0613-1999

“Tiberion Lodge” CTS 13023

The applicant, the body corporate for Tiberion Lodge, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The body corporate seeks an order to permit lodgement of a new CMS.

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)).

In the supporting grounds, the body corporate states that at the AGM on 26 August 1999 (the meeting) motions 6, 7 and 8 were resolved, however motion 9 proposing the recording of a new CMS (which was required to action motions 6, 7 and 8) was defeated by a “no” vote from Aileen Gregory, the owner of lot 4 (Gregory). Gregory’s voting paper suggests the basis of her “no” vote in respect of motion 9.

The body corporate states that Gregory’s principal objection is the inclusion in the proposed by-laws of by-laws 13 to 17. By-laws 1 to 12 appear to be the standard third schedule by-laws. By-laws 13 to 17 are headed Duties of Owner, Use of toilets and drains, Legal Costs and Interest, Air-conditioning, and Signage respectively. The body corporate submits that the non-inclusion of these additional by-laws was rejected as unacceptable by other owners. The body corporate states –

It was considered that the first 12 would not suffice for administrative purposes of this body corporate. Note also that the existing by-laws total 45 in number, spanning 3 separate legislative Acts. As a consequence, existing by-laws are inappropriate and outdated, hence the proposed upgrade of by-laws.

The body corporate are of the opinion that as motions 6, 7 and 8 were resolved, by the appropriate resolutions, then one dissatisfied lot owner should not be able to stand in the way of lodgement of the proposed New CMS.

The body corporate seek an order that I overturn the dissenting vote of Gregory in respect of motion 9. This I have power to do (see section 223(3)(u)) if I am satisfied that a motion requiring a resolution without dissent was not passed because of opposition that in the circumstances was unreasonable.

Motion 9 proposes that the body corporate consent to the recording of a new CMS “to reflect the body corporate resolutions of motions 5, 6 and 7 prior to the affixing of the ... seal ...”. I assume that the reference to 5, 6 and 7 is an error, and should read, 6, 7 and 8.

Gregory voted as follows in respect of the motions –
Motion 6 Change of By-laws No Special resolution
motion 7 Contribution schedule lot entitlements Yes Resolution without dissent
motion 8 Interest schedule lot entitlement Abstain Resolution without dissent
motion 9 New CMS No Resolution without dissent

On Gregory’s voting paper, she twice states to the effect “I vote (Yes) if existing body corporate by-laws are replaced by by-laws 1 to 12 only”.

On the basis of Gregory’s voting as evidenced by the voting paper, motions 6, 7 and 8 were carried. Motion 9 is the implementing motion authorising the recording of a new CMS incorporating the changes approved in resolutions 6, 7 and 8. Motion 9 correctly requires a resolution without dissent because of the proposed changes contained in motions 7 and 8, that is the changes to the contribution and interest schedule lot entitlements. However, the fact remains that if the body corporate had only submitted motion 6, and proposed in that motion that a new CMS be recorded incorporating proposed by-laws 1 to 17, then such motion would only require a special resolution, and consequently the “no” vote of Gregory would not prevent the recording of the new by-laws. In the current scenario, Gregory has succeeded in preventing the adoption of the new by-laws, only because of the requirement of a resolution without dissent for a totally separate change to the proposed CMS, a change which Gregory has either voted “yes” to (motion 7) or abstained (motion 8). Moreover, it is clear that Gregory’s objection is not in respect of motions 7 and 8, but motion 6.

Given the above scenario, I intend to order in terms as sought by the body corporate. In fact I consider that I am only short-circuiting the procedure that I outlined above. That is, all the body corporate would need to do to record the proposed by-laws 1 to 17 is to deal with this matter separately, and not as part of a motion requiring a resolution without dissent. To dismiss this application and to require the body corporate to go to the extended procedure of putting up motion 6, and then motions 7 and 8 separately, would merely lead to further (and unnecessary) expense on the part of the body corporate.

As part of my determining this application, I have considered the submission of Gregory which outlines her reasons for voting against motion 9. Gregory is concerned at a number of matters. However I consider that her objection is for the most part unreasonable. Gregory considers that parts of by-laws 13 to 17 are contrary to the Act. However, I consider that any concerns in this regard are overcome by the fact that any by-law, or part thereof, which is inconsistent with the Act or applicable regulation module, is invalid and of no effect. Gregory also suggests that some of the by-laws are unnecessary as they are covered in the Act or standard module. Again, I do not foresee any real harm or detriment arising from this. Whilst this might be suggestive of double handling, I consider that it is preferable to have a revised set of by-laws, rather than by-laws arising under three separate legislative enactments.

In respect of Gregory’s point 8, I do not see the relevant of the granting of a lease at a separate meeting to the current inquiry.

Finally, in postscript, Gregory’s comments appear to me to suggest a personal gripe against the owners or occupiers of lot 1. Again, I do not consider these matters to be relevant to the current inquiry. n