Ferry Court [2001] QBCCMCmr 13 (11 January 2001)

RA MeekREFERENCE: 0564-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6316
Name of Scheme:	Ferry Court
Address of Scheme:	82 Ferry Road, SOUTHPORT QLD 4215

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

Neville Edwin Davey, the co-owner of lot 1



RA MeekI hereby order that the application by Neville Edwin Davey, the co-owner of lot 1, for an order that the adjudicator order the body corporate to convene an EGM to consent to the recording of a new CMS whereby the by-laws be amended to include the allocation of exclusive use areas for car parking, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0564-2000

“Ferry Court” CTS 6316

The applicant Neville Edwin Davey, the co-owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the adjudicator order the body corporate to convene an EGM to consent to the recording of a new CMS whereby the by-laws be amended to include the allocation of exclusive use areas for car parking as follows.

The owner or occupier of a lot for the time being as shown in Column 1 below has exclusive use to the rights and enjoyment of the car space or spaces shown in Column 2 below.

(The applicant then sets out the lot number with his proposed corresponding car space allocation).

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 applicant states that there are 13 lots in the scheme, and a total of 49 car spaces. The plan was registered in 1989, but at no time since then has there been an exclusive use allocation of the car spaces. The applicant then states –

At present, the owners of lots 2 – 13 believe they have the right to occupy four (4) car spaces each which totals 48 car spaces leaving the applicant one (1) car space. In order for the body corporate to act reasonably in allocating car spaces each lot should be allocated three (3) which totals thirty-nine (39) for the use by the customers of owners or occupiers.

The applicant has not indicated in his grounds that he has submitted his proposal to a general meeting of the body corporate for approval, and that such motion has been defeated. Rather, the applicant seeks that I order a general meeting be convened whereat presumably the body corporate is to be further ordered to consent to the recording of a new CMS whereby the by-laws be amended to include the allocation of exclusive use areas for car parking as he proposes. It is not the practice of this office to require or direct owners in a scheme to vote in a particular way.

I suggest that the application has failed to evidence a dispute. Section 192(1)(a) of the Act provides that –

An application for an order of an adjudicator – must be made by a person ... who is a part to, or is directly concerned with, a dispute for which an adjudicator may make an order under this chapter ...

“Dispute” is defined in section 182 to include a dispute between the owner of a lot in a scheme and the body corporate for that scheme. Whilst the applicant has identified parties to a potential dispute, the applicant has failed to evidence a dispute. Before a dispute about the allocation of common property car parking spaces could arise, I suggest that there must at least be a motion considered by the body corporate in a general meeting which proposes such an allocation.

In the circumstances, it is incumbent on the applicant to first submit his proposal to the body corporate in general meeting in the form of a motion requiring a resolution without dissent. If such motion is carried, then the applicant’s purpose will have been achieved. However, if the motion is not carried, then given that the motion requires a resolution without dissent, the applicant would be entitled to make application to this office for an order that the motion was “not passed because of opposition that in the circumstances is unreasonable” (see section 223(3)(u) of the Act). The failure of the body corporate to carry the motion would constitute a dispute on which an application could be made. In such an application, it would be incumbent on the applicant to establish that the opposition to his proposed allocation of common property, was unreasonable in the circumstances.

This application is dismissed for the reason set out above.

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