Myconos Resort [2003] QBCCMCmr 209 (7 November 2003)

Last Updated: 17 May 2005

REFERENCE: 0213-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29367
Name of Scheme:	Myconos Resort
Address of Scheme:	45 Sixth Avenue MAROOCHYDORE QLD 4558

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Body Corporate of Myconos Resort

I hereby order that the period in which the Myconos Resort body corporate can lodge a request to record a new community management statement showing all authorised allocations made in accordance with by-law 38 of the scheme, as specified in section 175(3) of the Body Corporate and Community Management Act 1997, is extended to 3 months from the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0213-2003

"Myconos Resort" CTS 29367

Application

Myconos Community Titles Scheme (Myconos Resort) is a 16 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). It contains a ten story concrete building designed for residential purposes.

This application is by the body corporate for Myconos Resort (applicant) seeking an order for the lodgement of a new community management statement for the scheme. The reason provided for this is that the body corporate wishes to lodge a new community management statement which will include detailed plans of the exclusive use car allocations for the complex.

An adjudicator order would be unnecessary for notification of these allocations if a statement showing these allocations had been lodged in a timely manner. However, the body corporate says that delays in obtaining the plans mean that the time has now passed when the body corporate would ordinarily be able to lodge this statement and an adjudicator order is therefore required.

Background

The request to register the first community management statement for Myconos Resort was lodged on 14 June 2001. By-law 38 of this statement provides that "The original owners may allocate to owners of lots exclusive use of areas to be used as car parks or for storage within 12 months from the date the Community Management Statement is recorded". These original owners are identified at item 5 of the first community management statement.

The applicant has not suggested that the original owners failed to allocate exclusive use areas according to this by-law. Rather, the applicant has requested an extension of time to lodge a new community management statement which will include detailed plans of the exclusive use areas that were actually allocated.

Submissions

The applicant’s main submissions were to the effect that:

•	The original owners of the scheme were responsible for preparing a car parking allocation plan that would enable the body corporate to lodge a new community management statement showing these allocations;
•	The car parking allocation plans were returned to the body corporate late; and
•	As a result of the plans being returned late, the body corporate needs an order to allow it to lodge a community management statement late.

The secretary of the body corporate was required to give notice of the application to all owners in the Myconos Resort. No individual owners have provided any submissions in respect of the application.

Decision

Allocation of exclusive use areas

The Act makes provision for exclusive use by-laws (Act, 170). Exclusive use by-laws typically specifically identify the area of common property that relates to each lot. However, in the first community management statement, exclusive use by-laws often simply provide a manner for allocating or agreeing on exclusive use areas. Subsequent community management statements can then specifically identify the exclusive use area that has been allocated or agreed for the benefit of each lot. The Act regulates the manner in which exclusive use areas can be allocated or agreed (Act 174, 175, 176).

The exclusive use by-law for Myconos Resort specifies that the original owners were entitled to make initial allocations of exclusive use areas. Under the terms of the by-law these areas were to be allocated within a period of twelve months from the recording of the first community management statement for the scheme. There is no suggestion that this was not done.

However, the Act requires that after allocations are made they must be notified to the body corporate and recorded under a new community management statement. In this instance, the time limit for the body corporate lodging this new community management statement has expired (Act, 175(3)). The body corporate is therefore seeking an order extending the time in which it can lodge this new community management statement.

Reason for seeking order

The body corporate has claimed that its failure to lodge a new community management statement on time was caused by delays in obtaining the plans that detailed the allocations of exclusive use areas made by the original owners.

It appears that the body corporate could have made better efforts to ensure it was provided with the plans in good time. However, in the circumstances, it seems appropriate to grant the body corporate the order sought rather than deprive the owners of the benefit of any exclusive use allocations that were properly made.

Order

For these reasons, I make the order above.