Waimarama [2000] QBCCMCmr 64 (10 February 2000)

P G DanielsREFERENCE: 0551-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8767
Name of Scheme:	Waimarama
Address of Scheme:	242 Esplanade PIALBA QLD 4655

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

1. I hereby order that all owners in the Waimarama Body Corporate are deemed to have given their prior written agreement to the resolution without dissent provided in order 2.

2. P G DanielsI further order that Waimarama Body Corporate is deemed to have passed a resolution without dissent consenting to the recording of a new community management statement that includes an exclusive use By-law that gives each owner of lots 1 to 10 the exclusive use of the car space corresponding to the lot number on Plans A and B that were part of motion 12 at the Annual General Meeting of the Body Corporate on 27 June 1999 PROVIDED THAT the car spaces may only be used for the parking of vehicles. This order takes effect as a resolution without dissent.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0551-1999

“Waimarama” CTS 8767

The applicant, the Body Corporate, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

Overrules the one dissenting vote on Motion 12 “Exclusive Use – Car Spaces” on the grounds that the car space allocation was made at the Annual General Meeting of the Body Corporate on 14 October 1986 and that the allocation was confirmed in General Discussion at the Annual General Meeting held on 4 May 1998 at which time the Body Corporate Manager was instructed to obtain a Plan of Exclusive Use and to convene a general meeting to approve the plan.

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 Body Corporate for this scheme held its annual general meeting on 27 June 1999. The Body Corporate considered two motions relating to a proposed exclusive-use by-law for the use of car spaces. There are currently no exclusive-use By-laws. The relevant motions are numbered 12 and 18. They provide as follows:

“Motion 12 Proposed by the Committee

Resolution without Dissent

Moved that the by-laws be amended to include the following by-laws:

Exclusive Use – Car Spaces

That the Owners for the time being of Lots 1, 2, 4, 5, 7 and 8 shall have the exclusive use of that part of the common property as identified by lot number on the attached Plan “A” for themselves and their licences, such exclusive use area shall be used for the parking of vehicles only.

Exclusive Use – Car Spaces

That the Owners for the time being of Lots 3, 6, 9 and 10 shall have the exclusive use of that part of the common property as identified by lot number on the attached Plan “B” for themselves and their licences, such exclusive use area shall be used for the parking of vehicles only. 1 against

7 in favour

Motion 18 Proposed by the Committee

Resolution without Dissent

Moved that under Section 55 of the Body Corporate and Community Management Act 1997, the Body Corporate consents to the recording of a new Community Management Statement whereby it amends Schedule C to include exclusive use by-laws and recovery of costs by-laws. The Body Corporate will cause the new Community Management Statement to be recorded with the Registrar of Titles as soon as practicable. 1 abstained

2 against 5 in favour”

Sections 50 and 55 of the Act provide that a new community management statement may only be recorded if a Body Corporate consents to the statement by the passing of a resolution without dissent. A resolution without dissent is defined by section 97 of the Act as a resolution where no vote is counted against the motion. In respect of motion 12 there was one vote counted against the motion. There were two votes counted against motion 18.

The owner of lot 9, Mr Warren Lee voted against both motions 12 and 18. Mr Lee is the respondent to the application.

The reason why Mr Lee voted against both motions is as follows. The car parks are on two levels, A and C. I have been provided with plans that show the proposed allocation of car spaces on these two levels. Lots 1, 2, 4, 5, 7 and 8 are on level A. Lots 3, 6, 9, and 10 are on level C. The respondent opposed the allocation of car spaces for various reasons. I will detail those reasons that I find are of relevance to this application:

1.	The car space allocations differ considerably in area. The areas on Level A are all 19m² in area. The areas on level C are 36m² lot 3, 40m² lot 6, 24m² lot 9 and 27m² lot 10. The applicant obviously cannot complain about the allocation of 24m² compared to the areas of 19m² allocated on Level A. He is unhappy about the fact that his car space on level C is the smallest in area. Additionally, he states that there is a log bolted to the floor that shortens the length of the car space. The log has been placed there to prevent vehicles moving forward and damaging utilities at the end of the car space.
2.	If exclusive-use By-laws are recorded owners will no longer be able to use all car spaces.
3.	The security of the car spaces on level C is not as good as on Level A. The applicant states that the carpark on Level A is surrounded by vandal proof concrete walls with a large single remote control door that automatically shuts after entry and presumably exit. Conversely, there is latticework enclosing the carpark on Level C and it is necessary for all four roller doors to be kept shut to provide a vandal proof enclosure.

The applicant’s case can be stated as follows. The car spaces have always been used by owners/occupiers of lots as it was proposed in the plans for the exclusive use By-law. There have been physical numbers on the spaces indicating to which lot they were allocated since 1986. The respondent has told me that he did inspect the lot when he purchased it in late 1996. He did observe the numbering system on the car spaces. The respondent has never lived in lot 9. He has leased it to only one tenant who has always used the one car space which has been assigned. The respondent counters the applicant’s case by arguing that when he bought lot 9 in 1996 there were no exclusive-use By-laws and he was informed by his solicitor that he could park in any of the car spaces on the common property. The applicant feels justified in rejecting an exclusive-use By-law that gives him a smaller and less secure car space than other car spaces enjoyed by owners/occupiers.

I must assess the actions of the Body Corporate in not passing motions 12 and 18 referred to above in terms of sections 87 and 114(1) of the Act. These sections provide as follows:

ú

Body corporate’s general functions

87.(1) The body corporate for a community titles scheme must—

(a)	administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
(b)	enforce the community management statement (including the by-laws affecting the common property); and
(c)	carry out the other functions given to the body corporate under this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under subsection (1).

Body corporate’s duties about common property etc.

114.(1) The body corporate for a community titles scheme must—

(a)	administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners; and
(b)	comply with the obligations with regard to common property and body corporate assets imposed under the regulation module applying to the scheme.

Sections 87 and 114(1) of the Act provide that a Body Corporate must administer, manage and control the common property reasonably and for the benefit of owners.

I take into account the following factors in determining whether there has been a contravention of sections 87 and 114(1) in this matter.

There is significant support for the recording of the by-laws amongst owners. There are 10 lots in this scheme. Seven owners voted in favour of the recording of the by-laws. Only one owner, Mr Lee, voted against the relevant motion to amend the By-laws. Two owners, Mr Lee and the owner of lot 7 voted against the motion to record a new community management statement. I asked Ms McKinnon why the owner of lot 7 would vote in favour of a motion to approve a By-law but vote against a motion consenting to the recording of a new community management statement containing the By-law. Ms McKinnon suggested that the owner may have misunderstood the effect of the motion in respect of the CMS.

It seems appropriate to me that the ten car spaces be assigned by way of exclusive-use to the ten owners in this Body Corporate. If they are not assigned, then each owner is in an uncertain state as to where they will park or indeed if there will be enough parking to accommodate their vehicles.

The issue to be resolved is whether the respondent, Mr Lee, can validly object to being assigned car space 9. I do not think his objection is reasonable. Whilst his car space is smaller than others on Level C and marginally less secure than parking on Level A, the simple fact is that some owner has to be assigned space 9. It seems to me to be appropriate and reasonable that all of the spaces including space 9 be assigned as they have always been used. I find that the failure of the Body Corporate to pass a resolution that consents to the recording of a new CMS with the exclusive-use By-law is unreasonable and as such constitutes a contravention of sections 87 and 114 of the Act. In making this finding, I am of course aware that the failure of the Body Corporate to pass the relevant resolution is largely attributable to the respondent’s opposition. I propose to allow the application.
I will order that the Body Corporate is deemed to have passed a resolution without dissent consenting to the recording of a community management statement with the new By-law.

I will make a further order relating to the requirements of section 134(2) of the Act. That section provides as follows:

(2) An exclusive use by-law that specifically identifies the common property or body corporate asset to which it applies, other than an exclusive use by-law contained in the first community management statement for the scheme—

(a)	may attach to a lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the new community management statement to incorporate the exclusive use by-law; and
(b)	may stop applying to the lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the new community management statement that does not incorporate the exclusive use by-law.

It will be observed that exclusive use rights cannot attach to or stop applying to a lot without obtaining the consent of the lot owner(s) prior to the passing of a resolution giving or taking away the rights. This ensures that an owner cannot be given or lose rights through the passing of a resolution without prior knowledge of the matter and the giving of consent. This is important as an owner may not wish to be given rights where there are accompanying obligations such as maintenance or in contrast lose important and valuable rights.

I am informed that the owners of lots 1, 2, 7 and 9 did not give consents prior to the meeting on 27 June 1999. Mr Lee owns lot 9. It is understandable that he would not have given consent. The owners of lots 2 and 7 voted in favour of the By-laws although as I have stated above the owner of lot 7 voted against the recording of a new community management statement. I am not concerned that the owners of lots 2, 7 and 9 did not give consents prior to the meeting. One owner is the focus of this application and the other two voted on the relevant motions. From their actions, I can judge their positions on the matter. The owner of lot 1 is in a different category. That owner did not vote at the meeting. I am informed that the owner of lot 1 knows about this application and the proposed assignment of exclusive-use car spaces. I have been provided with minutes of an extraordinary general meeting on 14 August 1999. The owner of lot 1 attended this meeting through its nominee R List. The thrust of the meeting was to obtain approvals for the construction of the latticework and garage doors for the car park on level C. Further, Ms McKinnon was given approval to bring this application. In these circumstances, I form the view that the owner will not be confronted with my orders without prior knowledge of this matter.

In these circumstances, I propose to make a further order that deems the owners of all lots have given consents to the new By-law.