Oceana on Broadbeach [2004] QBCCMCmr 51 (27 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0510-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24163
Name of Scheme:	Oceana on Broadbeach
Address of Scheme:	100 Old Burleigh Road BROADBEACH QLD 4218

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

Body Corporate for Oceana on Broadbeach

I hereby order that the application by the body corporate of Oceana on Broadbeach for an order declaring that:- 1. Pursuant to section 276(3) of (the Act) that motion 17 put to the AGM on 30 October 2002 requiring a resolution without dissent was not passed because of opposition was, in the circumstances, unreasonable; and 2. Motion 17 as put to the AGM of the body corporate on 30 October, 2002 be given effect, and other ancilliary orders, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0510-2003

"Oceana on Broadbeach" CTS 24163

The applicant, the Body Corporate for Oceana on Broadbeach has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

1.	A declaration that:-
a)	Pursuant to section 276(3) of (the Act) that motion 17 put to the AGM ... on 30 October 2002 requiring a resolution without dissent was not passed because of opposition was, in the circumstances, unreasonable; and
b)	Motion 17 as put to the AGM of the body corporate on 30 October, 2002 be given effect.
2.	An order that the community management statement in the form annexed hereto be recorded at the Land Titles Office and the Department of Natural Resources; and
3.	An order that the body corporate is authorised to make minor amendments to the community management statement ... so that it may be recorded; and
4.	An order that the owners be directed to give consent in writing to the recording of the community management statement ... ; and
5.	An order that in default of such consent being given by the owners, that John Garbett is authorised to sign a consent on their behalf; and
6.	All necessary orders and directions to give effect to the above orders; and
7.	Such further or other orders as the Commissioner or Adjudicator thinks fit.

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 98 lots under a building unit plan (now a building format plan) of subdivision.

The application

The application, made by the body corporate, seeks primarily an order that overturns certain "no" votes to a resolution on the basis that those "no" votes are determined to be opposition that in the circumstances is unreasonable.


An order to this effect is contemplated in Schedule 5 to the Act headed "Adjudicator’s Orders", quote -

10. If satisfied a motion (other than a motion for reinstatement of scheme land or termination or amalgamation of the scheme) considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable--an order giving effect to the motion as proposed, or a variation of the motion as proposed.

The applicant’s grounds are lengthy and do not need to be restated in any detail. Suffice to say that much of the statement of grounds is by way of background information leading to consideration of the relevant motion at an AGM of the body corporate held on 30 October, 2002. The motion in question sought that the body corporate consent to the recording of a new CMS deleting the existing exclusive use by-law numbered 30 and adopting a new exclusive use by-law 30 for the scheme. My understanding of the change proposed is that in the original by-law it refers to the use as being "for the purpose of car parking only" whereas the proposed by-law states the use as "for the purpose of car parking and other ancillary uses and for that purpose make improvements (including for example) the installation of storage units) ..." . The vote on the motion at the AGM held on 30 October, 2002 was lost on the following basis –

Votes in favour 46
Votes against 11
Abstentions 4

The basis submitted for the orders sought is set out in paragraphs 22 and 24 of the applicant’s grounds, and are briefly that in March 2003, the body corporate circulated a letter to all owners "to gauge continuing support for the installation of storage units as proposed by resolution 17". The outcome was as follows -

Votes in favour 47
Votes against 2
Abstentions 2

The body corporate submits that of the 11 owners who voted "no" to the original motion, "only 2 responded to the circular – one voting no and the other abstaining (and) no response was received from the remaining 9".

The submission concludes –

The body corporate says that the failure of the resolution without dissent was unreasonable because:-

a)	The adoption of the new CMS did not in any way compel owners to install storage units or incur any expense unless they so chose.
b)	The adoption of the new CMS did not in any way interfere with or prejudice the existing right of use and access of owners to their designated car parking bay or to areas of common property.
c)	The lack of storage space within the unit complex is an ongoing concern which affects the majority of owners and severely impacts upon their use and enjoyment of their residential property.
d)	The installation of the proposed powder coated storage units within individual parking bays is a safe, secure and affordable solution to the storage problem.
e)	The body corporate has over many years made numerous attempts to resolve the storage issue. From extensive enquiries made by the body corporate it is of the opinion that the installation of individual storage units are proposed by motion 17 is the only viable solution available.

This office sought submissions from all owners in the body corporate regarding the application. Submissions were received from 14 owners; 10 of which are supportive of the application and 4 of which oppose the application.

Determination

Whilst I have considered fully the applicant body corporate’s submission, and the submissions of all owners who have supported the application, I cannot conclude that the opposition of the original 11 owners the motion 17 was in the circumstances, unreasonable.

I consider that the circular to owners which suggested a much lower level of opposition to the motion, and on which the body corporate relies heavily as part of its grounds, cannot be considered to have validity as a measure. The only true measure of support or opposition to a proposal is the vote taken in respect of the proposal (or motion) at a general meeting. A circular to owners is not a motion considered at a general meeting. Owners would be aware of this, and know that there is no compulsion to reply. I consider that if the body corporate wanted a truly objective measure of any reduction in support, then it should have put the proposal (or motion) to another meeting of the body corporate. This is the only objective measure from which any variation could be validly assessed.

My thoughts regarding the circular are confirmed by the opposition expressed to this current application. 4 owners have opposed the application; this is double the number who opposed the motion in replying to the circular. This in itself suggests that no weight can be attached to the outcome of the circular.

If, rather than the circular, the body corporate had convened a further general meeting, at which the result of a reconsideration of the motions were as per the response to the circular, then the outcome of the application might have been different. However this is not what occurred and I am not prepared to consider that the circular carries the same or even similar weight as a motion considered at a general meeting of the body corporate.

Another consideration in my dismissal of this application is the level of the original opposition. 11 of 57 (19.3%) opposed the application and a further 4 owners abstained. Almost 1/5th of voting members to a motion is not an insubstantial amount of opposition. In applications of this nature the level of the original opposition is of significant importance to the determination of whether the opposition was in the circumstances unreasonable. The motion required a resolution without dissent. Given this requirement, I conclude that the level of dissent was not insubstantial and cannot be merely ignored or considered as inconsequential. The level of dissent must be considered in any determination of whether or not the opposition to a motion is unreasonable.

Further, I am concerned that too much time has elapsed between the original determination of the motion, and the making of this application. In applications of this nature, I consider that the making of an application should be reasonably proximate in time to the motion being considered. Whilst the time limitation in section 242 of the Act of three months is not applicable to the validation, rather than the invalidation, of a motion, I do consider it analogous. The intent of the section is to ensure that any application is reasonably contemporaneous with the consideration of the motion in question.
In this instance, there is some 9 months between the consideration of the motion and the making of the application. Owners are in effect being asked to justify their objection to a motion well in excess of 9 months after voting on a motion.

I have not specifically considered the actual arguments for the dissent being unreasonable outlined in paragraph 24 of the grounds. I consideration that the matters I have outlined are of such weight as to dissuade me from concluding that the opposition to the motion was unreasonable, and given this, that it is not necessary to consider the specific allegations of unreasonableness. I also note that whilst the applicant body corporate did set out reasons why it considered that the opposition to the motion was unreasonable, and whilst there were submissions of 10 owners supporting this, there were also submissions by four owners who have also set out reasons for not overturning the original "no" vote to the motion. Again, for the reason expressed, I have not considered these specifically. Without embarking on a specific merits assessment of both, I conclude that there is clearly still opposition to the motion being carried. I suggest that the body corporate must negotiate this proposal further, and that it is not currently entitled to the orders which it is seeking. Accordingly I have dismissed this application.