Cairns Aquarius [2001] QBCCMCmr 58 (8 February 2001)

P G DanielsREFERENCE: 0005-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1439
Name of Scheme:	Cairns Aquarius
Address of Scheme:	107 The Esplanade CAIRNS QLD 4870

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

Shangani Holdings Pty Ltd the trustee owner of lots 78-81

1. P G DanielsI hereby order that the Body Corporate for Cairns Aquarius community titles scheme 1439 is deemed to have passed a resolution without dissent that consents to the recording of a community management statement (CMS) as follows:

• Lots 78 to 81 are to be identified by reference to Survey Plan 134768

• The schedule of lot entitlements is to be the same as currently registered with building units plan 70177 and building units plan of resubdivision 71130 except that the contribution schedule lot entitlement and interest schedule lot entitlement for lots 78-81 will be as follows:

o 78 148

o 79 147

o 80 147

o 81 147

• The by-laws are to be the same as those currently existing for the scheme except for the following changes

o The schedule to by-law 11 will be changed as follows. The car space numbers for lot 78 will be 90, 94 and 22. The car space numbers for lot 79 will be 79, 83 and 40. The car space numbers for lot 80 will be 36 and 37. The car space numbers for lot 81 will be 38 and 39. The car space numbers for lot 83 will be 34, 35, 88 and 89. The reference in by-law 11 to a plan of the car park floor marked with the letter “B” will be replaced by a reference to plan of exclusive use areas drawing No. 30619/001B. The owners of lots 78-81 and 83 are deemed to have given prior written agreement to the change to by-law 11 and exclusive use area drawing No. 30619/001B

o The reference in by-law 24 to lot 80 will be changed to a reference to lot 83 and the reference to an area outlined in red on the plan of the car park floor marked with the letter “B” will be replaced by a reference to an area marked “S1” on plan of exclusive use areas drawing No. 30619/001B PROVIDED THAT the owner of lot 83 consents in writing to the CMS containing the by-law prior to the CMS being submitted to Cairns City Council for the local government community management statement notation.

o By-law 36 and exclusive use plan IS 161213 in the CMS as considered by Cairns Aquarius at its annual general meeting on 15 December 2000 must be added to the By-laws PROVIDED THAT the following opening words of by-law 36 “The Owners of Lots 78, 79, 80, 81 and 82 respectively will have exclusive use for themselves and their licensees” are replaced with the following words “The occupiers of Lots 78, 79, 80, 81 and 82 will have exclusive use” AND reference to the word “owner” in the second sentence will be changed to “occupier”. The owners of lots 78-82 are deemed to have given prior written agreement to the new by-law 36 and exclusive use plan IS 161213.

2.	I further order that within 7 days of the date of this order Cairns Aquarius must prepare a CMS as provided in order 1 and which otherwise must have accurate information about Cairns Aquarius and must endorse its consent on the CMS.

3.	I further order that within 7 days of the date of this order Cairns Aquarius must sign a request to record the CMS as provided in order 2.

4.	I further order that within 7 days of the date of this order Cairns Aquarius must sign survey plan 134768.

5.

I further order that within 7 days of the date of this order Cairns Aquarius and Shangani Holdings Pty Ltd (Shangani) must sign and properly execute a contract and transfer of part of the common property to Shangani that Cairns Aquarius authorised to sell at an extraordinary general meeting on 15 September 2000.

6.	I further order that within a further 2 business days of the periods mentioned in orders 2 and 4 Cairns Aquarius must provide the CMS and survey plan to the trustee owner of lots 78-81 Shangani Holdings Pty Ltd (Shangani) or its solicitors.

7.	I further order that Shangani by itself or acting through its solicitors can only deal with those documents by seeking to obtain from the Cairns City Council, sealing of the survey plan and signing of the local government community management statement notation of the new CMS.

8.

I further order that within 2 business days of Cairns Aquarius receiving from Shangani or its solicitors the sealed survey plan and local government noted CMS and the sum of $50,000, Cairns Aquarius must lodge the sealed survey plan, request to record a CMS as provided in order 3, local government noted CMS and transfer of common property as provided by order 5 with the Registrar of Titles.

9.	I further order that the sum of $50,000 mentioned in order 8 must be placed into the trust account of solicitors for Cairns Aquarius and can be paid into Cairns Aquarius’ funds on registration and recording of the documents mentioned in order 8.

10.	I further order that the cost of Cairns Aquarius for preparation, lodgement, registration and recording of the documents mentioned in these orders must be paid by Shangani to Cairns Aquarius within 14 days of receiving an itemised account from Cairns Aquarius or its solicitors.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0005-2001

“Cairns Aquarius” CTS 1439

The applicant, Shangani Holdings Pty Ltd, the trustee owner of lots 78-81 (Shangani), has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

1.	Within 7 days body corporate sign SP 134768 as registered proprietor the common property comprised in it.
2.	Within 7 days the body corporate sign the community management statement submitted to the annual general meeting on 15 December 2000.
3.	In the alternative to 2 above within 7 days the body corporate sign a community management statement complying with the description of ‘the first new CMS’ in the facsimile of 13 December 2000 from McCullough Robertson to Miller Harris.
4.	Within 7 days the body corporate sign a request to record the community management statement referred to in 2 or 3 above, as the case may be.
5.	Within 2 days after signing the body corporate deliver to McCullough Robertson SP 134768, the new community management statement and the request to record the new community management statement, all signed by the body corporate, on receipt of an undertaking from McCullough Robertson not to deal with those documents in any way except to obtain from Cairns City Council:

(a) sealing of that plan; and

(b) signing of the local government community management statement notation on that new community management statement,

until the sum of $50,000 (which is the balance of the consideration Shangani Holdings Pty Ltd as trustee of the The Shangani Unit Trust agreed to pay or provide to the body corporate for the part of common property the body corporate resolved to sell to Shangani Holdings Pty Ltd as trustee of The Shangani Unit Trust) is paid to the trust account of the body corporate’s solicitors, to be paid to the body corporate forthwith on registration of that plan and recording of that new community management statement.

6.	If order 2 above is not made but orders 3 to 5 above are made, the body corporate at the applicant’s cost:

(a) and sign a community management statement complying with the description of ‘the second new CMS’ in the facsimile of 13 December 2000 from McCullough Robertson to Miller Harris and a request to record that community management statement;

(a) lodge those documents at the Department of Natural Resources promptly after lodgment of the plan and community management statement lodged pursuant to order 5 above.

7.	In the alternative to 6 above, within 7 days the body corporate dispatch to the persons entitled to notice of general meetings of the body corporate:

(a) a community management statement complying with the description of ‘the second new CMS’ in the facsimile of 13 December 2000 from McCullough Robertson to Miller Harris; and

(b) a notice for a general meeting of the body corporate, to be held not later than 28 days after dispatch of the notice, containing as a proposed resolution a resolution to approve that community management statement.

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 applicant seeks orders mainly relating to the recording of a community management statement that gives effect to development work that has been carried out to lots 78 to 81. The background is as follows.

Shangani and its predecessor trustee owner Como Investments Pty Ltd have carried out substantial renovation work to lots 78-81 throughout 2000.

The Body Corporate passed a resolution without dissent at a general meeting on 15 September 2000 to sell a part of the common property to Shangani for amalgamation with lot 78. Other ordinary resolutions to facilitate the sale were also passed.

Shangani requires a new community management statement for the following purposes:

1.	It is planned to lodge a new plan of subdivision as the boundaries within lots 78-81 are being changed and, as indicated above, part of the common property will be amalgamated with lot 78: section 51 of the Act;

2.	The schedule lot entitlements for lots 78-81 will change: section 57(1)(c). The combined lot entitlements for lots 78-81 and the scheme generally will remain the same;

3.

To reallocate exclusive use car spaces. Currently, lots 78-81 have 12 spaces. That will change to 10 spaces and those remaining spaces will be reallocated within lots 78-81. The other two spaces have been allocated to lot 83. Additionally, an exclusive use area for storage will be changed from lot 80 to lot 83;

4.	To assign exclusive use to lots 78-82 on the roof for air-conditioning units. The development work of Shangani in this regard has also benefited lot 82.

The Body Corporate considered a new community management statement providing for the above and other changes to the by-laws for the Body Corporate generally. The matter was considered at an annual general meeting on 15 December 2000. The voting papers state the following about motion 11:

“11. Adoption of Community Management Statement – Resolution without Dissent

(Proposed by the Committee of Cairns Aquarius CTS 1439)

THAT the body corporate resolve by resolution without dissent THAT the community management statement as tabled at the meeting be adopted as the new community management statement (CMS) for the Cairns Aquarius Community Titles Scheme 1439 and to authorise two committee members to use the body corporate seal to execute the new CMS.

PLEASE REFER TO THE EXPLANATORY NOTES ON EACH BY-LAW (ATTACHED TO THE COMMUNITY MANAGEMENT STATEMENT)

THE COMMUNITY MANAGEMENT STATEMENT WILL BE FORWARDED IN MAIL PRIOR TO THE ANNUAL GENERAL MEETING.”

The Body Corporate failed to pass a resolution without dissent. The applicant seeks orders that will allow a new community management statement to be recorded in respect of the matters detailed above and in the orders sought. Other consequential orders have also been sought.

Submissions have been sought from owners who dissented to the above motion. No submission has been received that objects to a new community management that addresses the matters relevant to Shangani. It seems some owners may have voted against the above motion as they were unhappy with changes to the by-laws affecting the body corporate generally.

In light of the above I have decided to make orders that will facilitate the Shangani development. I have also made orders regarding exclusive use of air-conditioning for lot 82 and exclusive use of car parking and a storage area for lot 83 as they are associated with the Shangani development. I have made a consequential change to the air-conditioning exclusive use by-law to ensure it refers to an occupier as this is consistent with section 133 of the Act. My orders do not result in any other changes to the scheme.

I have ordered that the new exclusive use plan 30619/001B is to be used for the car parking and storage area. I am informed that the plan numbers the car spaces as they exist with the current plan. No substantive changes are introduced. I decided to use the new plan for two reasons. Firstly, it is more accurate. For example, unlike the current plan, it indicates there are areas between car spaces 18 and 19, and 50 and 51. Secondly, the titles office may not record the old plan with a new community management statement due to changing requirements.

There are two other applications at the Commissioner’s office in respect of the community management statement considered by Cairns Aquarius. One of those applications, 702-2000, seeks an order that if the motion relating to the CMS is passed, then it be declared void. The applicants in application 702-2000 do not object to orders being made in this application. The applicants in the other application, 758-2000 seeks an order that would allow the CMS to be recorded. Those applications will be considered on their merits at a future time.