San Remo [2003] QBCCMCmr 141 (30 September 2003)

Last Updated: 17 May 2005

REFERENCE: 0326-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11230
Name of Scheme:	San Remo
Address of Scheme:	22 Britannia Avenue BROADBEACH Q 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Tyre Treds Pty Ltd, as trustee the owner of lot 12

I hereby order that the motion purportedly passed by the body corporate at the annual general meeting held on 19 March 2003 to request the owners of lot 5 to restrict the renting of lot 5 to permanent tenants was at all times void.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0326-2003

"San Remo" CTS 11230

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That those motions not listed on the agenda and voting paper for the AGM of the body corporate for San Remo CTS 11230 conducted on Wednesday March 19^th 2003 be declared as invalid.

Section 276(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, concerning-

(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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

In the supporting grounds the applicant stated that the purported resolution of the body corporate to request the owners of lot 5 to rent their lot to "permanent tenants who have a greater interest in co-operating with other residents" is unlawful. The applicant referred to section 142(2) (now section 180(3)) of the Act, which provides "(i)f a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use".

All owners and the body corporate committee were invited to respond to the application. Submissions were received from the co-owner of lot 5 and from the co-owners of lot 4.

The applicant correctly points out that a motion cannot be considered at a general meeting unless it is included in the agenda of the meeting and shown on the voting paper accompanying the notice of meeting (section 52(5) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module)). There was no motion on the agenda of the annual general meeting dealing with the tenancy of lot 5 and therefore the purported resolution of the body corporate was void on that count.

The applicant also correctly points out that the motion purportedly passed by owners to restrict the tenancy of lot 5 to permanent tenants is unlawful.

The by-laws for this scheme were registered on 2 March 1981. They provide that each lot shall be used for residential purposes only. Section 180(5) of the Act also provides that a by-law must not discriminate between types of occupiers. Accordingly, owners should be aware that they cannot impose limitations or restrictions on owners who choose to let out their lots. The purported resolution of the body corporate would also have been void on that count, even if it had appeared on the agenda of the meeting. I have ordered accordingly.