Utopia Apartments [2000] QBCCMCmr 470 (15 September 2000)

P J HANLYREFERENCE: 0335-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13506
Name of Scheme:	Utopia Apartments
Address of Scheme:	16 Seashell Avenue MERMAID BEACH QLD 4218

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

Isabel Edith Patterson, the owner of lot 3



I hereby order that the resolution purportedly passed on or about 12 April 2000 that the owners of lots 1 and 2 shall be entitled to the exclusive use of an area of common property measuring 8.0 metres by 4.3 metres located immediately adjacent to lots 1 and 2 was at all times void, and is therefore of no force or effect.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0335-2000

“Utopia Apartments” CTS 13506

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

A declaration that a resolution purportedly made on or about 12 April 2000 and said to have created a by-law, is void or ineffective, and that the by-law purportedly created by the resolution is invalid or ineffective.

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’s solicitors state that contrary to the Act, the resolution regarding the by-law was not passed unanimously, but attracted the dissent of the applicant. The solicitors further state that the by-law purports to give exclusive use of utility infrastructure, which is common property, namely the electricity meter for the scheme. The solicitors further state that the by-law discriminates between occupiers in that it makes a gift of common property worth approximately $21,590.00 to the owners of 2 lots, namely Trevor and Anne Schramm, without conferring any commensurate benefit on the owners of the other 2 lots, which, in turn, makes the by-law oppressive and unreasonable. The solicitors further state that the requirements of section 134(2) of the Act have also not been met.

The other owners in the scheme were invited to respond to the application. Mrs Farrah, the owner of lot 4, stated that she does not oppose the granting of exclusive use to the owners of lots 1 and 2, and she therefore stands by her affirmative vote in relation to the matter.

A submission was also received from Mr and Mrs Schramm, the owners of lots 1 and 2, and from Mr Schramm, in his capacity as secretary.

Mr Schramm acknowledges that the granting of an area of exclusive use requires that a motion be passed by resolution without dissent. He states that he previously thought that it only required a special resolution. Mr Schramm expresses concern that the applicant has chosen to lodge a formal application as a first option for resolution.

In order for the body corporate to record an exclusive use by-law, it must consent to the recording of a new community management statement for the scheme in place of the existing statement for the scheme. The consent must be in the form of a resolution without dissent (section 55(2) of the Act).
The owners voted by postal ballot on a special resolution to amend the by-laws. The closing date for voting was 10 April 2000, and the secretary announced the result of the vote on 12 April 2000. Clearly the body corporate did not consent to the recording of the new community management statement in the manner required by the Act. Not only was the motion not passed by resolution without dissent, but also the owners did not have the new community management statement before them in the form in which it was to be recorded (section 50(3) of the Act). Accordingly, I propose to order that the resolution purportedly passed by the body corporate on or about 12 April 2000 was at all times void, and is therefore of no force or effect.

Having so determined, it is not necessary for me to consider the other grounds raised by the applicant.

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