La Porte D'Or [2005] QBCCMCmr 64 (4 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0636-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D’Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Joseph Haumann & Magdelana Haumann, the co-owners of lot 6

I hereby order that the application by Joseph Haumann and Magdelana Haumann, the co-owners of lot 6, for an order that the commissioner override / overrule the no votes cast for motion 16 for a resolution without dissent at the July 10th 2004 EGM, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0636-2004

"La Porte D’Or" CTS 12681

The applicants, Joseph Haumann & Magdelana Haumann, the co-owners of lot 6, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

The commissioner override / overrule the no votes cast for motion 16 for a resolution without dissent at the July 10^th 2004 EGM. The motion being to allow Lot 6 to have exclusive use granted for a car space on level A and marked as E181 shown on plan 7779-2 on the attached Michel Group Services Drawings sheets 1 and 2 dated 2/6/2004. The drawings being described later as attachment 5a and 5b.

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 is a subdivision of 181 lots in a building unit plan (now a building format plan). The applicable regulation module applying to the scheme is the standard module.

This dispute concerns the requested allocation to the applicants for exclusive use of common property of the scheme as a car parking space. The applicants submitted a motion to this effect to the EGM of the body corporate held on 10 July 2004. That motion was defeated. The vote was Yes 42, No 18, Abstain 13. For a resolution without dissent to be carried, there must not have been any "no" votes against the motion.

The motion specifically proposed that the by-laws be amended to include the following exclusive use by-law:

The owners of lot 6 shall be entitled to the exclusive use for themselves or their licensees of the car space on Level "A" and marked as E181 shown on the plans annexed.

The applicants have now made application for an order of an adjudicator that the resolution in question was not passed because of opposition that in the circumstances was unreasonable. If the adjudicator finds this to be the case, then he / she might order that the motion be given effect to.

I consider it useful to quote from the applicant’s grounds in part, however for easy of reference, I have numbered each statement quoted:

1. Lot 6 (apartment 301) is the only residential lot in The Golden Gate of 176 residential and 5 commercial lots without an exclusive use car space.
2. There is an obligation for a body corporate to provide each residence with an allocated car space.
3. The developer original sold 2 apartments without car spaces, Lots 6 and 10. Lot 10 subsequently purchased the only space car space from the Penthouse owner who had been given 2 spaces.
4. The developer had forgotten both lots 6 and 10 as they had been initially utilized as sales / admin space for his company for some time after construction.
5. Lot 6 did not have the opportunity to purchase a space as there were no other lots with 2 car spaces.
6. Lot 6 has the same interest and contribution schedule entitlements as other 2 bedroom apartments on the 3^rd and 4^th levels and is therefore being discriminated against.

The applicants grounds then go on to nominate the car space sought, discuss its current use, and refer to the motions they have submitted seeking exclusive use.

It is clear from the evidence that the applicants purchased a lot in the scheme which did not have an exclusive use car parking space allocated to it.

I intend to dismiss this application. In order to overturn the resolution in question, I must overturn the votes of 18 owners or 30% of those who voted either for or against the motion. This is a significant proportion of voting owners who expressed, by their vote, that the applicant’s proposal not be allowed. Moreover, the allocation of common property is not a minor matter. I consider that owners, and the body corporate as representative of all owners, are entitled to be circumspect about the circumstances in which common property is allocated to an individual owner, and the conditions, if any, on which this might be done. Turning specifically to consider some of the grounds mentioned by the applicants (as set out above).

Lot 6 (apartment 301) is the only residential lot in The Golden Gate of 176 residential and 5 commercial lots without an exclusive use car space.

The applicants knew this at the time of their purchase of their lot. Presumably they made an informed decision to proceed with their purchase on this basis.

There is an obligation for a body corporate to provide each residence with an allocated car space.

The applicants fail to clarify or specify this "obligation", or set out its legislative basis, and I am not aware of the basis of this obligation. Perhaps it is simply the applicants belief that such an obligation should exist. If the applicants believe that it is a local authority requirement, then they should direct their enquiries to that authority.

The developer original sold 2 apartments without car spaces, Lots 6 and 10. Lot 10 subsequently purchased the only space car space from the Penthouse owner who had been given 2 spaces.

I suggest that there is in this statement some guidance for the applicants. If the owners of lot 10 purchased a car space, from another owner and without intervention of the body corporate, then perhaps the applicants should seek a similar outcome with another owner. If circumstances do not permit this, this does not then mean that the issue becomes a body corporate responsibility to resolve. Moreover, perhaps the applicants might turn their mind to the "purchased" aspect. Why should the body corporate be expected to give something away when it has no legal or other obligation to do so. Perhaps the applicants’ motion might have received more favorable consideration had it proposed the allocation of common property but at market value.

The developer had forgotten both lots 6 and 10 as they had been initially utilized as sales / admin space for his company for some time after construction.

This may in fact have been the case. However, it does not alter the fact that the applicants made an informed decision to purchase their lot knowing it did not include an exclusive use car parking space. The developer’s failure does not become the body corporate’s responsibility, at least not in this circumstance.


Lot 6 did not have the opportunity to purchase a space as there were no other lots with 2 car spaces.

It is not relevant to my determination that the applicant did not have an opportunity to purchase a space. The fact is and remains; the applicants elected to purchase a lot without a car space allocation.

Lot 6 has the same interest and contribution schedule entitlements as other 2 bedroom apartments on the 3^rd and 4^th levels and is therefore being discriminated against.

If the applicants consider that the contributions schedule lot entitlements for the scheme are currently discriminatory, then I direct them to the provisions of section 48 of the Act whereby they might make application to the District Court or a Specialist Adjudicator for adjustment of the relevant contributions schedule lot entitlements.

Conclusion

It is very clear to me that the applicants are not entitled to the relief which they seek. The applicants have not displaced their onus of establishing to me that the opposition of other owners to their proposal was in the circumstances, unreasonable. To the contrary, it is the applicants expectation of the body corporate which I consider to be unreasonable. Accordingly, this application is dismissed.