La Pacifique [2006] QBCCMCmr 433 (7 August 2006)

Last Updated: 19 December 2006

REFERENCE: 0349-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9876
Name of Scheme:	La Pacifique
Address of Scheme:	60 Goodwin Terrace BURLEIGH HEADS QLD 4220

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

Graham and Robyn Absalom, the Co-owners of Lot 2

I hereby order that Motion 12 Increase in Exclusive Use Area for Lot 2 on the agenda of the Annual General Meeting of 24 February 2006 is deemed passed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0349-2006

"La Pacifique" CTS 9876

The La Pacifique community titles scheme (La Pacifique) consists of 49 lots and common property. The community management statement for La Pacifique indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources Mines and Water records show the scheme is registered as Building Units Plan 5320.

APPLICATION

This application was made by Graham and Robyn Absalom, co-owners of Lot 2 and also the caretaking service contractor for the scheme (applicants) on 12 May 2006 under the Body Corporate and Community Management Act 1997 (Act). The Applicant sought orders against the Body Corporate for La Pacifique (respondent) in the following terms:

That the Commissioner for Body Corporate and Community Management declare Motion No 12- increase in exclusive use area for lot 2 - included in the agenda of the annual general meeting dated 24 February 2006 resolved as a resolution without dissent.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the Body Corporate and to all owners, with an invitation to the Committee and all owners to respond to the matters raised in the application. Submissions were made on by four owners, but the Committee declined to make a submission. The applicants did not avail themselves of the opportunity to inspect and respond to submissions (see sections 246 and 244 of the Act respectively).

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

JURISDICTION

I am satisfied that this is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

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)).

MATTERS IN DISPUTE

The application relates to the applicant’s request for an expanded exclusive use area adjoining their lot. The facts of the dispute can be summarised as follows.
The applicants purchased Lot 2 and the Management Rights for the scheme in March 2003. Lot 2 is adjacent to a common property lawn and its situation is such that it apparently has limited privacy and security. There is an existing open exclusive use area and the applicants sought Body Corporate approval for an expanded exclusive use area which they intend to pave and enclose "...in a manner in keeping with the rest of the balcony areas on La Pacifique, at our cost."

The request to increase Lot 2’s exclusive use area was put to the Annual General Meeting (AGM) on 24 February 2006. Of the 49 lots in the scheme, 23 votes were cast in favour, one against and no abstentions. As a motion requiring a resolution without dissent, the motion was lost.

The only dissenting vote was cast by the owners of Lot 10. These owners wrote to the Body Corporate in April stating that at the time of the vote they were not aware of the details and that having since discussed the matter they are now willing to support the motion. At the meeting the applicants had explained the circumstances and the Chairman had given his opinion that the proposal would have no detrimental affect on the Body Corporate. However the owners of Lot 10 were not personally present at the meeting and provided a voting paper only.

The four submissions lodged by owners support the application. One notes that the current exclusive use area for Lot 2 is "...inadequate and of little use...".

DETERMINATION

Sections 170 to 178 of the Act provide for exclusive use by-laws. Section 62(2) of the Act provides that the consent of a body corporate to record a new community management statement (including one which records new exclusive use by-laws) must be by resolution without dissent. . Section 105 of the Act provides that a motion is passed by resolution without dissent only if no votes are counted against the motion.

An adjudicator must make an order that is just and equitable in the circumstances. This includes, but is not limited to, the orders contemplated in Schedule 5 of the Act. This list specifically includes at item 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.

Accordingly it is clearly within the capacity of an adjudicator to deem a failed motion requiring a resolution without dissent to be passed.

As the apparent dissent to this motion has been withdrawn, it is within the capacity of the applicants to resubmit the motion to a latter general meeting of the Body Corporate to reconsider. However, as the matter has proceeded through the dispute resolution process I do not propose to require the applicants to pursue that avenue.

Given the correspondence from the owners of Lot 10, and the absence of any objection from any other owners either at the AGM or through submissions, I am satisfied that there is no further dissent to this motion. Accordingly it is appropriate to deem this motion to be passed. I have made an order to this effect.