Dolphin Lodge [2000] QBCCMCmr 428 (24 August 2000)

RA MeekREFERENCE: 0238-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14161
Name of Scheme:	Dolphin Lodge
Address of Scheme:	4 First Avenue BURLEIGH HEADS QLD 4220

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

Nicole Tronc, the owner of lot 4


RA MeekI hereby order that the application by the owner of lot 4, Nicole Tronc, for an order to the effect that the exclusive use allocation of common property for car parking purposes be invalidated, is dismissed.

I further order that the owner / occupier of lot 4 shall park in a car space allocated to any of the other lots only if –

• The occupier of that lot does not have a car or other vehicle;

• A lot is unoccupied for a period of time (eg. no occupier or only occupied on weekends).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0238-2000

“Dolphin Lodge” CTS 14161

The applicant Nicole Tronc, the owner of lot 4, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), presumably to the effect that the alleged common property exclusive use allocations for parking be invalidated.

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 pertinent facts

In the supporting grounds, the applicant states that –

I have been told by the other members of the body corporate committee that I must park on the street and that the other owners have an exclusive car parking entitlement except me. The searches done regarding by-laws being registered at the time I purchased my unit are the same as they are now – there are none – but they insist that the by-laws done in 1995 never had to be registered at all. ... I shouldn’t be the only owner without a car space.

The applicant states that a search of records indicates that there are no registered by-laws for the scheme. Further, that “the body corporate has raised the issue of the car parking in 1975 but there has been no clear resolution of the matter. There have been continual discussions over the next 25 years”.

The applicant’s basic contention is that there were no exclusive use by-laws recorded with the plan when she searched, or caused to be searched, the register prior to her purchase, and as such she is now entitled to a declaration that no exclusive use by-law allocations exist.

The contrary argument is this: namely that this body corporate has been in existence for a substantial period of time, and that in fact exclusive use by-laws were enacted at a time when there was not a requirement to record the same with the Register of Titles. Nevertheless, a by-law granting exclusive use of car parking spaces to seven of the eight lots, but excluding lot 4, was adopted at a meeting in 1975, and has been observed by all owners, including successive owners of lot 4, until the applicant came to purchase her lot in 1999.

The applicant acknowledges that this issue of car parking arrangements has been dealt with. The applicant however does not concede that such arrangements constitute what should now be regarded as exclusive use by-laws. The applicant states –

Originally in 1975, the first vote regarding these car parking spaces was simply that someone put forward a motion and someone else seconded it. The owners of unit 4 were present but nothing was noted as to their agreeing or not agreeing in the minutes but in the very next body corporate meeting, the issue of car parking spaces was raised again and alternatives for parking for unit 4 were put forward. I cannot understand why unit 4 was singled out as to having car parking rights taken from them and that alternatives would have or must have had to be part of an agreement if any original consent was given.

I do not consider that anyone, including the applicant, could now claim to know what was in the mind of the owners at that meeting some 25 years ago. I consider we can only rely on the evidence provided by the minutes of that meeting, and subsequent minutes, and other evidence which is available. I will say though that the records of this body corporate, as least regarding this matter, are reasonably complete, such that a resolution of this dispute can be achieved.

The minutes of the AGM held on 5 October 1975 record that –

It was moved Mrs Field and Sec. By Mr Haks that we acknowledge the practice that units 1 and 5 have a lock up garage and units 2, 3, 6, 7, and 8 have been allocated car port space. ...

Amendment. The motion was amended to include “Provided that the owners of Unit 4 have the right to use a car port should one be vacant anytime.

The amendment was carried and then became the motion. The motion was carried.

It should be noted that the owners of all eight lots, including lot 4, were present, or represented, at this meeting. Moreover, the type of resolution required was not specified, and nor was there any indication of the vote (ie. for / against / abstain).

The lack of a car parking space for lot 4, and possible alternatives, was discussed at a general meeting held on 25 January 1976, and again at the AGM held on 19 June 1977. The minutes of the 1977 meeting record that –

A considerable discussion took place regarding car accommodation for Unit No. 4. This unit is the only one in the block without car accommodation. The owners Mr and Mrs Jessop realise this, but would like some definite area for parking, particularly during the pre holiday period.

Subsequently, in 1985 (some ten years after the relevant meeting), there is correspondence addressed to the body corporate by the then owners of lot 4, Vic & Leone Napier, which I consider to be very relevant to the issue of the car parking arrangements. That letter states in part –

As our unit was not allocated a car space, due to the fact that there was none available at that time, there being only seven (7) carports, we approached Mr and Mrs Knight to ascertain if they would be willing for us to use that carport. ... they advised as that, as they had no use for the space, we could have it as they would be only too happy for us to use it and solve the problem, rather than see it empty. This information was conveyed to the October meeting of the Body Corporate, at which Mr Knight was present, and was included in the minutes of that meeting. These minutes were accepted and adopted as a true record of the previous meeting, at the following meeting of the body corporate.

It was the Napier’s who sold their lot (lot 4) to the applicant. Mr Napier has provided a statutory declaration, which declares in part as follows –

A copy of the by-laws ... was given to Mr Geoff Last, Real Estate Agent of PRD Realty ... to be passed on to the probable purchaser of our unit, Unit 4. Instructions were also given that the matter of allocation of parking spaces be explained to any interested purchaser.

Mr Last informed me that this information was passed on with the by-laws to Ms Tronc who finally purchased the unit. I was also informed that she was quite willing to accept the arrangement as per the by-laws prior to purchasing Unit 4 ... .

I am aware that the body corporate promulgated a set of by-laws in 1995, however I do not consider that the body corporate is entitled to rely on these, as by 1995, there was certainly a requirement to lodge for recording with the registrar of titles any amendment to the by-laws. By this time, by-laws could not simply be adopted by a body corporate, even if it was alleged that these by-laws were simply a restatement of the existing or applicable by-laws.

The relevant legislation

The law affecting this dispute includes two former pieces of legislation, which I must refer to.

Section 13, headed By-laws, of Building Unit Titles Act 1965, which was the legislation which applied to the meeting of the body corporate held in 1975, provided that –

The by-laws shall provide for the control, management, administration, use and enjoyment of the units and the common property and shall include-

a) The by-laws set forth in the First Schedule to this Act which shall not be added to, amended or repealed except by unanimous resolution;

b) The by-laws set forth in the Second Schedule to this Act which may be added to, amended or repealed by the body corporate.

Until by-laws are made in that behalf the by-laws set forth in the First Schedule and Second Schedule to this Act shall as and from the registration of the building units plan be in force for all purposes in relation to the parcel and the units and common property therein.

By-law 3(f) of the First Schedule by-laws then provides –

The body corporate may grant to a proprietor the right to exclusive use and enjoyment of common property, or special privileges in respect thereof, provided that any such grant shall be determinable on reasonable notice unless the body corporate by unanimous resolution otherwise resolves.

Section 5, headed Savings and transitional, of the Building Units and Group Titles Act 1980 (which repealed the Building Units Title Act of 1965) provided in paragraph 11, headed Maintenance of exclusive use, etc, of, and special privileges in respect of common property, as follows –

Where immediately before the appointed day a proprietor of a former lot was entitled, whether pursuant to a resolution of the body corporate under the former Acts or pursuant to a former by-law, to a right of exclusive use and enjoyment of or special privileges in respect of any of the former common property, the proprietor for the time being of the lot shall continue to be entitled to that right or those special privileges and the resolution or former by-law, as the case may be, shall be deemed to be a by-law made pursuant to section 30(7).

Finally section 287 of the current Act, namely the Body Corporate and Community Management Act 1997 is relevant to this dispute. That section provides in its entirety that –

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Right to exclusive use by-law
287.(1) This section applies if, immediately before the commencement,
the registered proprietor for the time being of a lot (the “lot”) in an existing
1980 Act plan was entitled, or purportedly entitled, under a resolution of the
body corporate, to a right of exclusive use and enjoyment of, or a special
privilege in respect of, any of the common property under the existing 1980
Act plan, but no exclusive use by-law for the purpose of the right or special
privilege had been agreed to.
(2) A by-law giving effect to the resolution is taken to have been agreed
to by the body corporate under the 1980 Act before the commencement.
(3) However, the body corporate must not deposit the by-law for
recording by the registrar under the 1980 Act unless the lot owner, within a
reasonable time before the end of 18 months after the commencement, asks
the body corporate to deposit the by-law for recording.
(4) Despite subsection (2), if action (including a failure to take action) by
the body corporate in relation to the depositing the by-law for recording is
the subject of an application under the dispute resolution provisions, it is
competent for the adjudicator, in deciding whether to order the body
corporate to deposit a by-law for recording, to consider whether it is
equitable in all the circumstances for the order to be made, having regard
especially to the following—
(a) the interests of other persons having an estate or interest in lots
included in the new scheme;
(b) the extent to which the right or privilege mentioned in
subsection (1) has been exercised or apparent before and after the
commencement.
(5) The order of the adjudicator may include—
(a) a direction for a variation or modification of the provisions of the
by-law to be deposited for recording; or
(b) a direction that no by-law be deposited.
(6) A by-law may be deposited for recording under an order of the
adjudicator mentioned in subsection (4) even though more than 18 months
have elapsed after the commencement.

My determination

I consider that under the Building Units Titles Act 1965 (the 1965 Act) there was no requirement to record with the Registrar of Titles exclusive use allocations. Moreover, I consider that there was no requirement for a unanimous resolution in order for the body corporate to grant to a proprietor exclusive use of part of the common property. The only requirement for a unanimous resolution under section by-law 3(f) of the first schedule was if the body corporate resolved to change the procedure whereby it granted or determined the grant of exclusive use of common property, or special privileges in respect of common property.

The applicant suggests that the motion resolved at the 1975 AGM was equivocal, and that there was no evidence that the then owners of lot 4 agreed to the allocation of car parking spaces. Moreover, the applicant then states that the owners of lot 4, at the very next meeting, again raised the issue of car parking.

I do not agree with the applicant’s interpretation of the 1975 meeting, and subsequent events. I consider that the applicant has adopted this interpretation as it supports her contention that no exclusive use allocation was agreed to. The applicant is entitled to this view, however it is not a view which I am willing to accept as accurately reflecting the position which the body corporate agreed to and adopted.

All owners attended, or were represented at, the 1975 meeting. That meeting confirmed an allocation of the 7 car parking spaces between the 8 lots. Lot 4 was specifically excluded. There appears to be general consensus that this occur, although clearly the owners of lot 4 sought to make some arrangement for parking, which is understandable. I consider that there must have been some good reason, known to all owners (including lot 4) at the time, which justified the allocation, and further, the exclusion of lot 4. This possibly reflected the value of the original purchase price of the lots when the original plan was registered. Possibly, the sale contracts for all lots, excepting lot 4, included a reference to a car parking space. Moreover, I consider that it is reasonable to assume that the then owners of lot 4 were fully aware of, and accepting of, the reason why they did not receive a car space.

This position was accepted by the then owners (Mr and Mrs Jessop) and by the subsequent owners (Mr and Mrs Napier). Moreover, it is clear that Mr and Mrs Napier continued to accept this position all through the 1980’s (reference letter to the body corporate in 1985) and right through to the time of the sale of their lot to the applicant in 1999. Moreover, there is evidence that they instructed their agent on sale regarding the car parking situation, and required that the agent bring this to the attention of any prospective purchaser. Whether the agent did this, and if so, whether the applicant is now simply refusing to acknowledge that such information was given to her, is not for me to know.

However I am satisfied that the arrangement regarding the allocation of exclusive use of common property for car parking purposes (the allocation) which was formalised at the 1975 meeting, subsisted at all relevant times, and was accepted by all former owners of lot 4, continued to operate when the applicant purchased her lot in 1999. I do not consider that the applicant can now simply deny the existence of the allocation, and simply allege that when she searched the register, no by-law allocating common property existed.

Whilst it would have been more difficult for the applicant to discover the existence of the allocation, the allocation nevertheless arose in circumstances where the body corporate was not required to record such allocation with the Register of Titles. Moreover, the various succeeding pieces of legislation have preserved the allocation, such that I consider that all owners are entitled to rely on the terms of the motion carried in 1975 as a valid allocation of exclusive use of common property for parking purposes. I conclude that the applicant is now bound to observe the allocation.

Proposed order and concluding comments

I intend to dismiss the application in the terms as sought by the applicant, in essence that the alleged common property exclusive use allocations for parking be invalidated.

I intend to go one step further and given an interpretation of the by-law with the view to preventing further disputation. I understand that the applicant has adopted the practice of parking in any space which if vacant at the time of her return at the parcel. This has caused disputation with other occupiers who consider that as an owner or occupier of a certain lot, they have an entitlement to use the car space allocated to that lot. I consider this a reasonable expectation of any occupier, and I can understand how upon returning to the parcel to find the applicant’s vehicle parked in their allocated space, the occupier would have cause for grievance. Moreover, I consider the applicant’s actions in this regard unreasonable.

The motion relevantly states that –

Provided that the owners of unit 4 have the right to use a car port should one be vacant any time.

I consider that this does not refer to a short term vacancy of a car port. Rather, in order to operate effectively, and to avoid possible disputation, it must be interpreted as allowing the owner / occupier of lot 4 to use a car space allocated to any of the other lots only if –

• The occupier of that lot does not have a car or other vehicle;

• A lot is unoccupied for a period of time (eg. no occupier or only occupied on weekends).

In these circumstances, I consider that the owner / occupier of lot 4 would be entitled to occupy that car space, whilst the relevant circumstance continues. However, the owner / occupier of lot 4 would need to stop parking in that space immediately the relevant circumstances changed. I intend to make an order to the effect that the owner / occupier of lot 4 not park in any car parking space allocated to another lot, unless either of the above circumstances exist.

Finally, I consider that this body corporate should now given further consideration to reviewing its by-laws and to recording the same with the Registrar of Titles, given that the 1995 review of by-laws was ineffective, for the reasons stated above.

The provisions of section 287 of the Act, which I have set out above, are relevant here. The 18 month period referred to in that section has now expired, however, clearly the section contemplates that an application might be made to an adjudicator, even though more that 18 months have elapsed, for an order requiring the body corporate to deposit a by-law (setting out the allocation the subject of the 1975 motion) for recording with the Register.

I acknowledge however that the terms of this order will now serve as notice to any future intending purchaser of lot 4 of the allocation, provided that they conduct a search of orders under the Act.
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