Marriner Views [2004] QBCCMCmr 58 (30 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0530-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9252
Name of Scheme:	Marriner Views
Address of Scheme:	Cnr Garfield Tce & Fern Street SURFERS PARADISE QLD 4217

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

Penelope Marguerite McGovern, the co-owner of lot 36

I hereby order that the application by Penelope Marguerite McGovern, the co-owner of lot 36, for an order that the owners of lot 36 be allowed to erect a small storage cupboard on common property, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0530-2003

"Marriner Views" CTS 9252

The applicant, Penelope Marguerite McGovern, the co-owner of lot 36, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

To be allowed to erect a small storage cupboard on common property like the many others that are there.

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 49 lots recorded under a building format plan of subdivision.

The application

The applicant seeks to overturn a motion submitted by her but not carried at an EGM of the body corporate held on 24 June 2003. The motion sought permission for the construction of a storage cupboard in the basement car park. The motion, being an improvement to common property for the benefit of a lot, required a special resolution. The motion was lost by a no vote of 24. The vote in favour of the motion was 4 with 2 abstentions.

The applicants’ grounds focus on two issues. Firstly, the alleged actions / inactions of the committee over a considerable period of time relating to this issue. Secondly, her basis for approval of the storage cupboard as per the motion.

I consider that the applicant’s emphasis in her grounds on the first of the two issues is misplaced. The submission of the committee in response to the application provides a different explanation of the interaction between the applicant and the committee regarding the proposed storage shed. I conclude that it is not necessary for me to determine which version is correct or at least, more correct. The issue for determination is the latter; namely the approval sought for the storage cupboard. I am certainly not going to give approval for the storage cupboard on the basis of certain alleged actions of the committee. The reasonableness or merits of the installation of the storage cupboard must be assessed independently of the first issue raised by the applicant.

I consider that the applicant’s grounds in support of her proposal for the storage cupboard are limited. She states –

The place we proposed for this cupboard would have no inconvenience to anyone as there is already a cupboard on the proposed wall. The chairman stated that before we know it people would be requesting to have cupboards here, there and everywhere. At this point I asked why would it matter as long as it was not a hazard. Surely the walls belong to all as this is a common area. ...

This is essentially the totality of the applicant’s statement in support of her application for overturning the no vote to the resolution and allowing her proposal. With respect, it is lacking and does not address significant and obvious issues. Firstly, how does the applicant explain the very high level of opposition to her proposal. I am not satisfied by the implication that comments of the chairperson significantly prejudiced her proposal. The chairperson’s comment was inappropriate to the extent that it was a statement by him personally as an owner of his voting intention. These are irrelevant. As chairperson, he is not there to indicate his own views. However he is entitled to express the preferred view of the committee provided it is sound and reasonably based. For example, "the committee recommend a no vote to this proposal for the reasons that ...". This is acceptable. The vote against the applicant’s proposal of 6:1 was a very clear rejection of the proposal; a resounding defeat. It was not a close call. I consider that the applicant has not sought to justify her proposal in anything but a general way. To overcome a no vote of 6:1 against, I suggest a far more reasoned and detailed analysis of the merits of the proposal was required.

Secondly, I am concerned that the applicant has not sought to address, or even expressly acknowledge, what I consider to be an very relevant issue. As the committee’s submission points out –

The ... basement car park consists of a combination of individual lot number exclusive use car parks which but up to a left or right side wall and 16 car parks in central open positions with no wall accessibility. Only 12 wall cupboards have been built.

The lot 36 exclusive use car park of Ms McGovern’s is in an "open" position with no wall access.

Every other cupboard that has been built is in a position against the walls within the car park allocation to a particular lot. As the park of Ms McGovern’s is in an open space she had originally requested a cupboard extending from the basement ceiling. This was investigated by the building manager and the body corporate committee members and deemed to be not possible. Subsequently Ms McGovern made her request to install the cupboard on a common property area other than her own allocated car space. ...

The closest the applicant’s material gets to acknowledging this aspect is one of two photos the applicant has included with the comments "where I’d like the proposed cupboard" and "my car park".

The applicant’s failure to acknowledge and address this issue is of concern to me. The applicant only alludes to this with the statement " ... why would it matter as long as it is not a hazard". It matters relevantly in my view for at least one significant reason. If the applicant is allow a cupboard on common property independently of her car parking space, then presumably the 15 other owners with central car parks would all reasonably expect a similar entitlement. Is this possible? Is there enough wall for up to 16 lots to do this. This issue clearly was of concern to the members of the committee, and I suggest, to owners generally in voting so clearly against the proposal.

I agree with the applicant that the walls, as common property, belong to everyone. However this does not mean that individual owners have an absolute right to use them for their own purposes. Common property must be administered, managed, and controlled reasonably and for the benefit of all owners. Any request by an owner to make improvements to common property for the benefit of that owner must be considered in the context of the potential or likely detriment to all owners in their use of the common property.

I conclude that the application must fail. The applicant has not established or justified the reasonableness of what she seeks. I consider the potential detriment to other owners from the proposal to outweigh the merits of the proposal. According this application is dismissed.