Casa Del Mar [2003] QBCCMCmr 345 (23 January 2003)

Last Updated: 7 September 2007

C G YOUNGREFERENCE: 0575-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16153
Name of Scheme:	Casa Del Mar
Address of Scheme:	99 Old Burleigh Road, BROADBEACH QLD 4218

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

Betty Penelope MITCHELL, as the owner of Lot 5,



C G YOUNGI hereby order that within two (2) months of the date of this order, the body corporate must at its sole cost prepare and lodge a new Community Management Statement with the Registrar of Titles incorporating the reinstatement of the area of exclusive use common property that was originally granted to the owner of Lot 5 by By-law 13 as recorded on the registered plan on 3 July 1996, and subsequently incorrectly altered in the new Community Management Statement recorded on 26 August 1999. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0575-2002

"Casa Del Mar" CTS 16153

The applicant, Penny Mitchell of Lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

"That a new Community Management Statement to re-register the exclusive use as it was shown on the plan attached to the Notification of Change of By-laws dated 3^rd April 1996. Furthermore all expenses for preparation and lodgement is to be borne by the Body Corporate."

JURISDICTION:

This is a dispute between an owner (the applicant Penny Mitchell of Lot 5) and the body corporate (the respondent) concerning a reduction in an area of common property granted for the exclusive use of the owner of Lot 5, in the new Community Management Statement recorded on 26 August 1999. This is a matter that comes within the dispute resolution provisions of the legislation (see sections 182, 183 and 223 of the Act).

General powers of an adjudicator in making an order:
Section 223(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, 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:

In accordance with section 194 of the Act, copies of the application were provided to the body corporate (committee) as the respondent in the dispute, and to all owners, with an invitation to each to respond to the application. Submissions were received from H Allen of Lot 2 and N & I McFarlane of Lot 4.

The applicant states that the original area of exclusive use grant to the owner of Lot 5, recorded on 3 July 1996, included the whole of the area between the wall structures bordering the entrance ramp to the north, and the stairwell to the south, and the back wall to the east. The sketch plan accompanying the new Community Management Statement ("CMS") recorded on 26 August 1999 shows this exclusive use area to have been reduced by an area of around a metre in width along the northern wall.

The applicant wishes to enclose the whole of the walled area (the original area) by installing a tilt-a door at its entrance. A motion to this purpose was put to the annual general meeting held on 13 July 2002 and passed as a special resolution for the installation of an improvement on common property (under exclusive use – see section 124 of the Standard Module regulations). It was at this meeting that the change in the exclusive use area was brought to the attention of the applicant, and others, by Mrs Kelly of Lot 2. She says having been "led to believe" that the strip along the wall had been originally determined to be for the storage of rubbish bins. However the meeting noted that the area was unsuitable as bins could not be moved past each other without trespassing onto the exclusive use area - if the exclusive use northern boundary was enclosed by a wall or fence, it would be impossible.

DETERMINATION:

In order to better determine this application, on 21 January 2003 I conducted a teleconference with the applicant and the Body Corporate Manager (Glenys of Strata and Body Corporate Services Pty Ltd) representing the body corporate.

I have studied the relevant: original by-law and sketch (July 1996); the new CMS by-law and sketch (August 1999); and the plan of the building as registered on 3 April 1996. Nowhere in any of the three plans does it show the strip area along the ramp wall being designated for use as a bin holding area. Nor is there any mention or explanation in the minutes of the annual general meeting held on 29 July 1999 (when the new CMS was voted on) regarding the reduction in the area – there is a comprehensive explanatory note to the CMS motion regarding a number of matters, but nothing concerning the altered exclusive use area for Lot 5.

The absence of any notation on the registered plan that the strip area was for a designated purpose (eg rubbish bin holding), coupled with the lack of any mention of the alteration in the explanatory note to the new CMS motion, lead me to believe the alteration was a mistake. The hatching of the relevant area in the original sketch plan is by horizontal lines, with the top hatching line vaguely in line with the new northern boundary of the exclusive use. Whether the surveyor who drew the sketch, Robert Buckle, took this hatching line to be a new boundary, perhaps because it was darker than the others, is one possibility, but only conjecture.

Regardless of why the alteration occurred, the legislation requires that a motion to pass a CMS where there is a change in an excusive use grant, can only be passed by a resolution without dissent (see sections 55(1) and 55(3)(a) of the Act). The minutes show the motion was only passed by a special resolution, and therefore incorrectly.

Over three years have now passed since the error was made. Also, when purchasing the lot, the applicant (or her solicitor) should have inspected the Registrar of Titles plans to determine exactly what was recorded as the property and rights pertaining to Lot 5. There is an equitable doctrine which provides that acquiescence to a state of affairs over a period of time may make it inequitable for the state of affairs to be changed to accommodate an error made.

However I do not consider that the circumstances here warrant such treatment. That is, I consider the exclusive use area should be restored to what was originally given, namely all of the walled area between the pillars.

My order is for the body corporate to prepare a new CMS to incorporate this reinstatement and to lodge it with the Registrar for recording. The cost should be borne by the body corporate. Under the provisions of section 55(4) (b) the committee may handle the matter without the need for any authorisation by the body corporate in general meeting.