Campari [2001] QBCCMCmr 555 (6 November 2001)

C G YOUNGREFERENCE: 0381-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5636
Name of Scheme:	Campari
Address of Scheme:	45 Galloway Drive ASHMORE QLD 4214

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

C G YOUNGI hereby order that Motion 4, for the sealing of the toilet pedestal, voted on at an extraordinary general meeting of the body corporate held on 7 May 2001, was passed as a special resolution in accordance with the requirements of section 98 of the Body Corporate and Community Management Act 1997. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0381-2001

“Campari” CTS 5636

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“To overturn Motion 4 of EGM 7/5/01 and approve the following:

Motion 4 – Common Property Pedestal (Special Resolution).

That the common property pedestal located in the exclusive use area by Unit 3 be sealed off to the satisfaction of Council & on inspection, Council be requested to alter the Rate Book accordingly.”

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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

Motion 4 of the agenda of the extraordinary general meeting held on 7 May 2001 was lost on a vote of 7 votes in favour, 2 votes against and 2 abstentions. It reads –

“That the common property pedestal located in the exclusive use area by Unit 4 be sealed off to the satisfaction of Council, and on inspection, Council be requested to alter the Rate Book accordingly. (Note: Council have advised that the toilet is not required under the Building Code adopted in 1990).

(Explanatory Note) The subject toilet is not used and has been sealed off for some time to prevent vandalism. As such, its sealing off would not disadvantage any owner and would in fact save each owner an amount of $34 per annum.”

The body corporate states that on the first occasion the matter was presented to owners was at the annual general meeting held on 3 March 2001 with a vote of 5 in favour, 3 against and 2 abstentions.

The requirements for the passing of a “special resolution” are set out in section 98 of the Act, which states –

98 Counting of votes for special resolution

(1) This section applies if a motion is to be decided by special resolution

at a general meeting of the body corporate for a community titles scheme.

(2) One vote only may be exercised for each lot included in the scheme,

whether personally, by proxy or in writing.

(3) The motion is passed by special resolution only if—

(a) the votes counted for the motion are more than the votes counted

against the motion; and

(b) the number of votes counted against the motion are not more than

25% of the number of lots included in the scheme; and

(c) the total of the contribution schedule lot entitlements for the lots

for which votes are counted against the motion is not more than

25% of the total of the contribution schedule lot entitlements for

all lots included in the scheme.

At the extraordinary general meeting of 7 May, there were only 2 votes recorded against the motion. The 2 abstentions are just that, not votes against the motion. Accordingly the requirements of sub-section 3(b) above are met – there would need to be 3 votes against to reach the 25% mark (11 lots), 2 votes constitutes less than 25%. Sub-section 3(a) is met – 7 for and 2 against. In regard to 3(c), the registered plan shows the lot entitlements all equal for all lots, and under the transitional provisions the lot entitlements of owners under both the Contribution and Interest Schedules are therefore equal. Accordingly the application of subsection 3(c) (which does not appear to have been calculated or at least noted in the minutes) is of no account because of this equality.

Accordingly, Motion 4 did pass as a special resolution - it appears that the meeting did not understand the requirements for a special resolution in stating that the motion failed. My order reflects this state of affairs.

The body corporate can therefore proceed to seal the toilet. I regard the toilet as a facility for the use of owners, and of any employed gardener in particular, despite its reported location on an area of common property over which the owner of Lot 3 has exclusive use, subject to access by owners and other persons with a reasonable right to use it. It seems that it is redundant and the body corporate should resolve its use. However it will need to consider its alternative use in light of By-law 2(14 which the body corporate has referred to. However that is a matter beyond this application and I am merely repeating the information given by the body corporate.
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