Puerto Vallarta [2001] QBCCMCmr 409 (25 July 2001)

RA MeekREFERENCE: 0251-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17063
Name of Scheme:	Puerto Vallarta
Address of Scheme:	25-27 Darrambal Street CHEVRON ISLAND QLD 4217

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

Cameron Glen Johnson, the co-owner of lot 1



RA MeekI hereby order that the application by Cameron Glen Johnson, the co-owner of lot 1 for an order that motion 10 put before the EGM of the Body Corporate for Puerto Vallarta on 12 April 2001 be declared out of order and all voting with respect to such motion be null and void, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0251-2001

“Puerto Vallarta ” CTS 17063

The applicant, Cameron Glen Johnson, 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 motion 10 put before the EGM of the Body Corporate for Puerto Vallarta ... on 12 April 2001 be declared out of order and all voting with respect to such motion be null and void.

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 “motion 10 seeks to implement exclusive use by-laws into the CMS for the scheme”. The applicant claims that the previous CMS “contained no exclusive use by-laws”. The applicant correctly states that the Act requires a motion proposing a new CMS containing a new or amended exclusive use by-law or by-laws requires a resolution without dissent (see section 55(1) of the Act). The applicant claims that the motion was invalid since it only required a special resolution. The applicant sought that the motion be ruled out of order. This request was refused. The applicant voted against the motion. This is not disputed. If the applicant’s contention is correct, the resolution will be invalid.

The chairperson of the committee has responded that the motion was voted upon as a special resolution as “it did not introduce exclusive use areas to the scheme. ... The original by-law 22 – Exclusive Use – Courtyards is enclosed for your perusal along with the new by-law 21 – Exclusive use. The committee sought legal advice on reviewing the by-laws and it was upon their advice that the committee submitted the CMS and the proposed special resolution.”

The applicant has replied to the chairperson’s submission, quote –

It can be noted the areas sought to be included in the proposed new CMS and the plan annexed as “A” thereto are much larger than that under the current CMS. The proposed new CMS seeks to amend the previous exclusive use by-laws thereby introducing larger areas of land subject to such exclusive use by-laws. ...

I have considered the exclusive use plan attached to the original recorded by-law, recorded on 1 November 1995 under dealing number 7007836754. It seems to me that the second plan attached to that by-law is the same plan as was attached to the proposed CMS the subject of motion 10. They appear to be a copy of one another. I therefore do not accept the applicant’s contention that the new by-law proposes exclusive use areas “much larger than under the current CMS”.

As for the wording of the by-law itself, whilst there have been some minor changes, the effect of the by-law is the same. I consider that section 55(3) of the Act is applicable. That section provides that “the consent may be in the form of a special resolution if the difference between the existing statement and the new statement is limited to differences in the by-laws (other than a difference in exclusive use by-laws)”.

I consider that there is no substantive difference in the former and new exclusive use by-laws. Whilst there have been minor changes in wording, the effect and intent of the by-law remains the same. I am satisfied that motion 10 required a special resolution, and not a resolution without dissent as alleged by the applicant. This application is dismissed.



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