Kellys Beach Resort [2002] QBCCMCmr 164 (27 March 2002)

DP GardinerREFERENCE: 0684-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3642
Name of Scheme:	Kellys Beach Resort
Address of Scheme:	7 Trevors Road BARGARA QLD 4670

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

Holmes-A-Count Pty Ltd as trustee for the Barard Superannuation Fund, the Owner of lot 11


DP GardinerI hereby order that the application for an order that the development application to the Burnett Shire for material change of use of scheme land from Multiple Dwellings to Accomodation Units made by the Body Corporate is void and that the application be withdrawn is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0684-2001

“Kellys Beach Resort” CTS 3642

The applicant Holmes-A-Count Pty Ltd as trustee for the Barard Superannuation Fund, the Owner of lot 11, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

“that the development application to the Burnett Shire Council for material change of use of scheme land from Multiple Dwellings to Accomodation Units made by the Body Corporate is void and that the application be withdrawn.”

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 contends that the body corporate does not have the power to make an application to the Burnett Shire Council in respect of the common property as each lot owner owns a share of the common property thus entitling only the lot owners to make such an application.

In light of these contentions, it is timely to consider the statutory framework of the Body Corporate and Community Management Act 1997 ( the Act ) in relation to the concept of the expression “body corporate”.

Part 2 of Chapter 2 of the Act contains formal provisions relating to Bodies Corporate, Section 31 provides that a body corporate is created for a scheme when that scheme is established. Section 32 provides that the members of the body corporate are the owners of all the lots in the scheme. Section 34(2) empowers a body corporate to sue and be sued in its corporate name.

Section 37(2) provides that ownership of common property vests in the owners of the lots comprising the scheme as tenants in common in shares proportionate to their lot entitlements. Section 38(1) empowers the body corporate to sue and be sued for rights and liabilities as if it were the owner of the common property.

Without traversing each one seriatim, it should also be noted that there are other provisions in the Act and in the various modules contained in the regulations and responsibilities of a body corporate which define the powers and responsibilities of a body corporate in different situations.

Taking all these provisions together, I consider that the decision of the body corporate taken at the meeting held on the 26^th August 2001 to apply to the Burnett Shire Council in respect of the common property is intra vires, i.e within power.

Should I be mistaken in this view, I consider that the passing of the resolution by a clear majority of lot owners authorising the body corporate to make an application to the Council effectively made the body corporate the agent of the lot owners for that purpose which in turn validates the application by the body corporate for a material change of use.

This view is reinforced when regard is given to the provisions of the Integrated Planning Act 1997 which in section 3.2.1 permits an application to be made for a material change of use in the approved form which must contain the written consent of the owner of the land. In the dictionary to the Act, the expression “owner of land” means the person for the time being entitled to receive the rent for the land or who would be entitled to receive the rent for it if it were let to a tenant at a rent.

The body corporate is the registered proprietor of the common property and is therefore competent to apply for or to consent to the application for a material change of use.

For the reasons set out above, I do not consider that any basis is shown to justify making the order sought and accordingly the application is dismissed.