Bayview Villas [2002] QBCCMCmr 16 (14 January 2002)

DJ ReardonREFERENCE: 0509-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7035
Name of Scheme:	Bayview Villas
Address of Scheme:	142 The Esplanade, Paradise Point

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

Grant de George and Rosalba Portelli, the Co-owners of Lot 1

DJ ReardonI hereby order that the application for the following order:

“I Grant de George as owner/occupier of Unit # 1 and committee member of the body corporate wish to seek the approval of our proposal to allow the stowage of a small boat/trailer in the courtyard area attached to unit 1. I also seek the approval of modification to the gate within the lot to allow access to the boat/trailer into the courtyard”

is dismissed.2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0509-2001

“Bayview Villas” CTS 7035

The applicants, the Co-owners of Lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“I Grant de George as owner/occupier of Unit # 1 and committee member of the body corporate wish to seek the approval of our proposal to allow the stowage of a small boat/trailer in the courtyard area attached to unit 1. I also seek the approval of modification to the gate within the lot to allow access to the boat/trailer into the courtyard.”

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)).

I note that the community management statement for the scheme identifies the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) as the regulation module that applies to the scheme.

In this application, the applicants seek approval to stand a boat and trailer on an area of common property, which is the subject of an exclusive use by-law in favour of Lot 1. The applicants also seek approval to make an alteration to a gate, located within the boundaries of the same area of common property.

From the material before me it is evident that the applicants raised the issue of making an alteration to the fence in a letter to the chairperson dated 20 November 2000. This was followed with a further letter of 25 April 2001 in which the applicants requested that the matter of the alteration to the fence be considered at the next general meeting, scheduled for 17 June 2001. At a committee meeting of 13 May 2001, the committee resolved that the motion proposed by the applicants raised two issues (the alteration to the fence, and the standing of a boat and trailer on an exclusive use area of common property) and therefore should be separated into two motions. The notice for the annual general meeting of 17 June 2001 details the two motions as re-phrased by the committee, and indicates that a resolution without dissent is required for both motions.

In the minutes of the annual general meeting of 17 June 2001, reference is made to the motions relating to the applicant’s requests that are currently in dispute. It is apparent that the motions were not voted on, and the following statement is recorded in the minutes: “Mr de George of Unit 1 was advised that if he wished to resubmit these motions as special resolutions, he could submit them, as such, in General Business in the following extraordinary general meeting for consideration at the next extraordinary general meeting.”

While I note that an extraordinary general meeting was held immediately after the annual general meeting, I am unsure whether this statement was intended to indicate that the matters would be considered as special resolutions at the extraordinary general meeting of 17 June 2001, or whether the statement indicates that the applicant could resubmit his motions at the 17 June 2001 meeting for consideration at a general meeting to be held at a later date.

In any event, it is apparent from a reading of the minutes of the extraordinary general meeting of 17 June 2001 that the matters were not subsequently considered and decided at the meeting.

In a letter dated 18 December 2001, the secretary for the body corporate advised the Commissioner’s Office that the applicants had sold their lot. A title search confirms that the applicants are no longer the registered owners of Lot 1. In a telephone conversation with an officer of the Commissioner’s Office on 7 January 2002, one of the applicants indicated that he wanted to proceed with the application (notwithstanding that the lot has been sold) because the new owner had an interest in obtaining approvals as sought in the application.

It is evident from the material before me that for a number of reasons outlined previously, owners have not had an opportunity to vote on whether or not to approve the applicants’ requests. As the body corporate has not had this opportunity, I would normally consider making an order that the body corporate consider the matters at the next general meeting for the scheme. However in this case I do not consider that the applicants have a continuing interest in the matters raised in the application (given that the applicants have sold their lot), which would warrant making an order in those terms. As I will explain in more detail below, I consider that if the new owner wishes to seek similar body corporate approvals as those sought by the applicant, it is for the new owner to request the approvals after providing the body corporate with sufficient and specific details of their particular proposals. For these reasons I intend to dismiss the application.

More specifically, if the new owner wishes to stand a vehicle on common property it is for the new owner to seek body corporate approval after providing full details of the request. The body corporate must then consider the circumstances and detail of the request and make a reasonable decision in accordance with the Act. If the new owner considers that the body corporate makes an unreasonable decision, or otherwise breaches the requirements of the Act, the owner could make an application to the Commissioner’s Office seeking a determination of the matter.

Similarly, if the new owner wishes to make an alteration to the fence, the owner should provide the body corporate with proper detail of the proposed alteration and request that the body corporate approve the proposal. As above, the body corporate must then make a reasonable decision in accordance with the Act in response to the request. If the owner believes that the body corporate’s decision is unreasonable, the owner can make a dispute resolution application to the Commissioner’s Office.

While I intend to dismiss the application for the reasons stated above, I would like to make a few brief comments regarding some issues raised in the application.

Firstly, the Act allows owners to propose motions for consideration at general meetings of the body corporate. If an owner submits a motion, it should be included on the agenda for the meeting in the words proposed by the owner. The committee is not permitted to alter the wording of the motion unless specifically authorised by the owner. If the motion (if carried) would conflict with the Act, the Standard Module, the by-laws or would be unlawful or unenforceable for another reason, the person chairing the general meeting has a power to rule the motion out of order in accordance with section 47 of the Standard Module.

There also appears to be concern in the body corporate regarding the types of resolutions required for the types of proposals submitted by the applicant. The body corporate should refer to section 114 of the Standard Module, which makes provision for improvements to common property by an owner of a lot. Generally, improvements are required to be authorised by special resolution unless the three criteria in section 114(2) are satisfied. If the criteria are satisfied, then usually the improvement is required to be authorised by ordinary resolution of the body corporate.

The other main issue concerned whether the use of the words “for courtyard and garden purposes” as used in by-law 22 relating to exclusive use of areas of common property, included the storage of vehicles on the exclusive use area. Clearly, the parking of vehicles would not be normally described as a “garden purpose”. However, the concept of “courtyard purposes” is a more difficult matter to address.

The Act does not provide a definition of “courtyard purposes”. The New Shorter Oxford English Dictionary provides a number of meanings of the word “court” including “an enclosed area”, and “a clear space enclosed by walls or buildings” and defines “court yard” as “a court especially one adjacent to a house”, however does not describe “courtyard purposes”.

Given that this matter is not clear under the legislation and it is not an essential aspect of resolving the current application, I do not intend to make a determination on this point at this time. If in the future a dispute arises on this point, an interested person could lodge a formal dispute resolution application and a determination would be made after parties were given a full opportunity to make submissions on this issue.

Finally, in some documents relating to the application, comments are made regarding the maintenance of the fence located in the exclusive use area of common property. In relation to this matter, I would like to refer the body corporate to the final sentence of by-law 22 which provides “The proprietor for the time being of the subject lot shall be responsible for the maintenance and care at all times and in all respects of the relevant area”.



2y