Terralina Court [2005] QBCCMCmr 586 (21 October 2005)

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

I hereby order that the motion numbered 2 and headed Exclusive use area – Swimming Pool considered by the body corporate at the EGM held on 26 May 2005, but not carried and declared lost because of the dissenting vote of one owner, is declared to have been carried.

I further order that the body corporate is authorised to lodge for recording with the Registrar of Titles a new Community Management Statement for the scheme incorporating the exclusive use by-law the subject of the motion.

I further order that the Community Management Statement may include any other additional matter provided that the same has been authorised by the body corporate in accordance with all legislative requirements.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0456-2005

"Terralina Court" CTS 1764

The applicant, the body corporate for Terralina Court, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

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

(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 is a subdivision of 8 lots recorded under a building unit plan (now a building format plan) of subdivision. The regulation module applying to the scheme is the standard module.

At the EGM of the body corporate held on 26 May 2005, the body corporate failed to resolve a motion proposing the grant of exclusive use of common property to the owner of lot 1, and the recording of a new by-law to this effect. The proposed grant of exclusive use was made subject to "the owner of lot 1 be(ing) responsible for filling in the Pool and maintaining the area in a safe manner". The motion, requiring a resolution without dissent, was declared lost with 4 votes for the motion, but one against.

The applicant body corporate seeks to overturn the dissenting vote, and have the motion declared carried, such that exclusive use of the pool area is granted to the owner of lot 1. An adjudicator does have power to overturn a dissenting vote on a motion considered at a general meeting and requiring a resolution without dissent, if satisfied that the motion was not passed because of opposition that in the circumstances is unreasonable. If so, an order can be made giving effect to the motion as proposed, or a variation of the motion as proposed.

It is unusual for a body corporate, or at least a majority of those members who chose to vote for the motion, to seek to grant exclusive use of an asset which most bodies corporate would consider to be an integral and presumably valuable part of the common property, namely the swimming pool. However, there are facts and circumstances which appear to justify or explain this position and moreover, those facts and circumstances do not appear to be in dispute. Those facts and circumstances appear to me to be reasonably well set out in the statement of grounds, and as the accuracy of these facts and circumstances is not called into question in submissions, I see no point in restating them here. Suffice to say, there is clear evidence to the effect that a previous owner of lot 1 in fact "purchased" to pool area from the body corporate, although this appears not to have been evidenced by way of recording of a previous exclusive use by-law.

Further, it is clear that the pool is currently in a state of disrepair, cannot be used, and requires substantial maintenance. In fact, the next motion considered at the same meeting proposed that the body corporate repair the pool and impose a special contribution of $2000 per lot to do this. Relevantly, this motion was rejected, with 4 votes against, and only 1 vote in favour.

I consider the two motions need to be considered together. That a majority of those members of the body corporate who chose to vote do not want to undertake repairs to the pool, and additionally, those same members, want to relieve the body corporate of liability for the pool by transferring it by way of exclusive use to the owner of lot 1 on certain conditions.

There has been one dissenting vote. That owner has provided a submission in respect of the application. In her submission, this owner acknowledges the "sale" of the pool to the owner of lot 1. The owner then goes on to indicate that she sees the pool as a valuable asset for the future. However, it is clear from the voting pattern that other owners do not consider this to be so. The owner concludes that she "intends never to sell our unit" but feels "reasonably sure that most of the other units will change hands during (the next 5 years). No significance can be attached to this point. It is not relevant who might remain owners in the future; rather it is the views of the current owners which are relevant.

In the circumstances, I intend to order in terms as sought. I am satisfied in the circumstances that it is reasonable that the proposal in the motion be implemented and that the owner of lot 1 be granted exclusive use of the pool area. Parties should be aware that I have come to this view not simply on the basis of the alleged purchase of this area by a former owner of lot one (the failure of the then owner to formalise this "purchase" at that time was a matter for them), but rather because of all the circumstances pertaining to the pool, and the clear view of a majority of owners that they do not want the responsibility of reinstating it to good working order and as well, are prepared to grant exclusive use of the pool to the owners of lot 1 on certain conditions.

Number of Scheme:	1764
Name of Scheme:	Terralina Court
Address of Scheme:	24 Queen Street YEPPOON QLD 4701

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Terralina Court [2005] QBCCMCmr 586 (21 October 2005)