Vantage [2004] QBCCMCmr 283 (31 May 2004)

Last Updated: 30 September 2005

REFERENCE: 0076-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15536
Name of Scheme:	Vantage
Address of Scheme:	98 Holman Street KANGAROO POINT QLD 4169

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

I hereby order that the application by Robyn Taylor, the owner of lot 11, for an order - 1. To gain body corporate agreement that I can install garage storage (in one of my parking bays) to the dimensions (or the volume) supplied by the Building Manager (5m x 2.2m x 2.2m) and included as a condition to my contract to purchase unit 109 Vantage Apartments; 2. Alternatively, if I have to install a standard storage unit in order to effect my move on 19 February, ie prior to resolution, the second option for an outcome would be to gain approval to install additional storage to the volume supplied by the Building Manager and included as a condition to my contract to purchase unit 109 Vantage Apartments, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0076-2004

"Vantage" CTS 15536

The applicant, Robyn Taylor, 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 –

1. To gain body corporate agreement that I can install garage storage (in one of my parking bays) to the dimensions (or the volume) supplied by the Building Manager (5m x 2.2m x 2.2m) and included as a condition to my contract to purchase unit 109 Vantage Apartments.
2. Alternatively, if I have to install a standard storage unit in order to effect my move on 19 February, ie prior to resolution, the second option for an outcome would be to gain approval to install additional storage to the volume supplied by the Building Manager and included as a condition to my contract to purchase unit 109 Vantage Apartments.

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, 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 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)).

The scheme

The scheme is a subdivision of 43 lots registered under a building unit plan (now a building format plan). The regulation module applying to the scheme is the accommodation module.

The application and submissions

This office sought submissions in respect of the application from the committee and all owners. I do not intend to set out in any detail the applicant’s grounds, nor the contents of submissions in response. I am satisfied that all parties are aware of the position of the other from the application, submissions and the right of reply processes. I therefore intend only to refer to those materials necessary for a determination of the issues raised.

Determination

I intend to dismiss this application for two reasons. Firstly, in both the alternative outcomes sought, the applicant seeks the granting of relief on the basis of "a condition to my Contract to purchase unit 109". Moreover, in her grounds the applicant strongly relies on the terms of her contract as the basis for her entitlement to relief in this matter. The contract the applicant refers to is her contract of purchase of the unit in question.

However, the relief sought by the applicant in this application is against the body corporate. The body corporate is not a party to the contract. If the applicant is seeking to enforce or fulfil a term of her contract, then I suggest that the applicant needs to commence legal proceedings against the other party to that contract, namely the vendor. The body corporate is not a party to the contract, and is in no way required to observe or fulfil the terms of the contract.

Secondly, so far as the terms of this application do involve a dispute between the applicant, as an owner, and the body corporate, in its control, management and administration of common property, I conclude that a dispute has not yet been evidenced. The applicant proposes the erection of a storage shed (an improvement) within the two common property car parking spaces (or one of them) which have been allocated to her lot by way of exclusive use. An improvement to common property for the benefit of a lot is dealt with in section 113 of the Accommodation module, quote –

113 Improvements to common property by lot owner--Act, s 159 [SM, s 114]
(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless--
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.
(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section41--
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

Section 123 headed Improvements is also relevant here, given the allocation of the car parking spaces by way of exclusive use, quote –

123 Improvements--Act, s 173 [SM, s 124]
(1) An exclusive use by-law may authorise the lot owner who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.
(2) Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.
(3) If the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made.
(4) However, the making of the improvement mentioned in subsection (3) must be authorised by a special resolution of the body corporate if the value of the improvement is more than $250.

I have considered the terms of the exclusive use by-law for car parking and find that it does not specifically provide for the "making of changes" as the applicant proposes here (ie. a storage shed).

Consequently, you will note that an improvement to common property for the benefit of a lot, even where exclusive use has been granted, requires a special resolution of the body corporate in general meeting in order to be authorised. Consequently, the committee has no power to determine such a proposal, and the apparent refusal of the committee to so authorise the proposal is of no effect. The applicant will need to propose a motion for inclusion on the agenda of a general meeting. If such motion is not carried, the applicant will then have a right to make application to this office on the basis that the body corporate has acted unreasonably. However, in any such application I suggest that any reference to the terms of the contract under which the applicant purchased the property will be irrelevant.