Ocean Royale [2001] QBCCMCmr 67 (9 February 2001)

RA MeekREFERENCE: 0288-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10179
Name of Scheme:	Ocean Royale
Address of Scheme:	4 Brittania Avenue BROADBEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate of Ocean Royale

RA MeekI hereby order that the application by the Body Corporate for Ocean Royale for orders that -

1.	give effect to motion 12 proposed at the AGM of the body corporate held on 22 October 1999, or in the alternative;
2.	the body corporate acquire part of lot 1 for the use and convenience of the lot owners in the scheme

is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0288-2000

“Ocean Royale” CTS 10179

The applicant, the Body Corporate for Ocean Royale, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. The applicant is seeking an order giving effect to motion 12 proposed at the AGM of the body corporate held on 22 October 1999, or in the alternative

2. The applicant is seeking an order the body corporate acquire part of lot 1 for the use and convenience of the lot owners in the scheme.

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 the body corporate wishes to remodel the foyer to improve the ambiance of the foyer and the overall general appearance of the building. The remodelling of the foyer involves the conversion of part of a lot to common property and vice versa. “The “exchange” of property is essential to the body corporate’s remodelling plans”. A motion proposing the “exchange” was tabled at the AGM held on 22 October 1999. The motion, requiring a resolution without dissent, was defeated by a vote of 17 in favour and 2 against. The body corporate states that it believes that the opposition to the motion was unreasonable.

Two owners voted against the proposal. It seems that one of those owners have now sold their lot, and the incoming owner is in favour of the proposal. It is said of the other owner, Mr Walter Robert Kurzman (Kurzman) that he had indicated to a member of the committee that “he would vote “yes” if the body corporate paid him, and he would continue voting no unless and until the body corporate paid him. Mr Kurzman did not provide any other reason for voting “no””.

The body corporate states –

The applicant submits voting “no” merely because the body corporate refuses to pay for a “yes” vote is unreasonable. Under the circumstances, the applicant submits that it is appropriate to make an order giving effect to motion 12 on the basis the opposition to the motion is unreasonable.

In a submission in response to the application, Kurzman states –

... I own unit 5 ... and also reside there. As the proposed foyer will be directly underneath and in front of my unit I will be probably the only unit owner adversely affected. As my unit is on the first floor I will have the roof of this construction altering the view from my unit. If this follows the theme of the building and is mainly white I will also have a problem with the glare off the sails and structure. At present I have a garden like aspect from my balcony. I also feel as the entrance to the foyer is being moved away from the building noise will be a factor when guests are arriving and departing. ... Taking all these facts into consideration I am sure you will appreciate that my quality of residency will be affected. Should I wish to sell this unit this will definitely depreciate the value of the property.

I have been misquoted ... by the other party. At no time have I had a conversation with Ms Margaret Farrell regarding my “no” vote. I have already contracted her and she intimated that it was a mistake. I insist that this complete paragraph is taken from the applicants form. It is a complete fabrication to misrepresent my case. ...

I intend to dismiss this application. There are a number of matters which concern me. Firstly, the delay in making the application. The body corporate considered the motion at the AGM held on 22 October 1999, but the application was not made until 31 May 2000, approximately some seven months later. Though section 193 of the Act is not applicable, I am concerned at the length of time that has elapsed before the making of the application. I consider that the delay was such that Kurzman might have considered the matter closed.

Secondly, in light of Kurzman’s comments regarding the impact of the proposal on his lot and its amenity, I requested from the applicant drawings and other attachments to the motion. These included “drawing of the proposed entry area”, “birds eye view of proposed upgraded reception foyer”, and “part ground floor plan of proposed reception lobby”. Basically I wanted to get some idea of the proposal. Notwithstanding the request, copies of these drawings or plans were not made available. I consider this has hampered my ability to properly investigate and determine this matter.

Finally, and most importantly though is the objection of Kurzman. The objections raised by Kurzman are on their face reasonable. Moreover, the explanation provided is completely at odds with the body corporate’s version of events. The body corporate application does not in any way seek to address the concerns of Kurzman, which I consider to be reasonable. If the body corporate’s response to this is that it was unaware of these concerns, then somewhere along the line there has been a significant breakdown in communication.

Certainly, given what I now know to be the basis of the objection of Kurzman, I can place very little if any reliance on the grounds provided by the body corporate as providing a basis for considering the “no” vote to be unreasonable. In the circumstances, I consider the reasons explained by Kurzman for voting “no” to the proposal are not prima facie unreasonable. Given the failure of the body corporate to address any of these concerns, I am simply not in a position to order in accordance with that sought by the body corporate. For this reason principally I intend to dismiss the application.



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