Gemini Towers [2006] QBCCMCmr 446 (11 August 2006)

Last Updated: 19 December 2006

REFERENCE: 0220-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14084
Name of Scheme:	Gemini Towers
Address of Scheme:	23 -27 Griffith Street NEW FARM QLD 4005

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

Ira Trevor Smith, the Owner of lot 25

I hereby order that the application for the following order: That the outcome of Motion 1 of the EGM held on 21 February – "Improvement to common property for the benefit of a lot owner" be invalidated. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0220-2006

"Gemini Towers" CTS 14084

THE SCHEME

"Gemini Towers" is a community titles scheme registered on a building unit plan (now described as a building format plan). The scheme comprises 33 lots and common property and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module)
APPLICATION

The applicant has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

That the outcome of Motion 1 of the EGM held on 21 February – "Improvement to common property for the benefit of a lot owner" be invalidated.
BACKGROUND

The Voting Paper issued to lot owners for the Extraordinary General Meeting scheduled for Tuesday 21 February 2006 included the following Motion:

Improvements to common property for the benefit of a lot owner.

Person Proposing: Peter Wilson – Unit 64

Resolution Required: Special Resolution

Moved that the body corporate authorises the owners of lot 17 (unit 64) to make an improvement to common property, being the fixing of a pontoon catwalk to common property as described in the accompanying plans to allow access to a proposed pontoon on his existing mooring lease.

This authorisation is conditional on written acceptance by the owner of lot 17 of the conditions contained in the draft special resolution (prepared by McCullough Robertson Lawyers) that is attached to this notice.

Body Corporate and Community Management (Standard Module) Regulation 1997, s114 Improvements to common property by lot owner – Act, s159.

Mr. Wilson has satisfied all requirements and the committee supports his application to make an improvement to the common property for the benefit of the owner of lot 17 (unit 64). The committee notes that the proposed improvement requiring approval is the fixing of the catwalk to the common property at the land-ward end only.

This motion was put to the Extraordinary General Meeting on Tuesday 21 February 2006 and carried with 16 votes in favour and 1 vote against.

In support of the application, the applicant makes the following submissions:

• It is not correct to refer to the proposed structure as an "improvement to common property".
Rather, the proposed structure is to the benefit of one particular lot and there is no apparent benefit to other members of the body corporate;
• the wording of the motion is a device to avoid the contentious option of applying directly for exclusive use of common property;

• An engineer’s report obtained regarding the subject matter of the motion, stating that detailed examination of the wall is not possible and offering other options for attaching the catwalk to the retaining wall, indicates that the proposal does not involve an improvement to the common property;
• It seems unreasonable for one owner to be allowed a "windfall" of obtaining sole rights to use and operate a jetty, the construction of which would quite likely prevent the body corporate from ever collectively constructing or using another jetty;
• It would be preferable to have a pontoon mooring as a community amenity with benefits to the body corporate as a whole;
• By not obtaining independent legal advice as to the body corporate’s position and the ramifications of giving exclusive rights to one owner, the body corporate committee has not given adequate consideration to the proposal;
• The committee was remiss in not making lot owners aware that it was being asked to give irrevocable exclusive use of common property with long term property value implications.

SUBMISSIONS

The Commissioner issued the Body Corporate with formal notice of the application in
accordance with section 243 (1) of the Act. In accordance with section 243(2) of the Act, the Commissioner also invited the Body Corporate Committee, the body corporate manager and all lot owners to make written submissions about the application.

Submissions were received from the Body Corporate Committee, the Body Corporate Manager and from 2 individual lot owners.

The Body Corporate Committee made the following submissions:

• There was no defect in the manner that the EGM was called or the way votes were counted on Motion 1;

•	Although the applicant uses the terms "alienation of part of the common property", and "alienation of corporate property and legal rights", he does not propose that the resolution should be invalidated on the grounds that it should have been decided under the provisions of Part 5, Division 4 of the Act dealing with Exclusive Use by-laws.
•	The proposal was for an improvement to common property for the benefit of a lot owner and "improvement" is defined in Schedule 6 of the Act as follows:
(a)	the erection of a building; and
(b)	a structural change; and
(c)	installation of air conditioning;

and under the Acts Interpretation Act "change" includes an addition.

•	A special resolution was required by section 114 of the Standard Module Regulation;
•	The Brisbane River, including the mooring site, is not common property and the body corporate does not have rights or entitlements over the mooring site;
•	Section 41 provides that a motion must be submitted for consideration of a general meeting before the meeting is held and it is not possible for the applicant to submit a motion to a general meeting for consideration at that meeting;
•	The applicant did not propose an amendment to the motion from the floor of the meeting;
•	The boundary between the common property and the river is a reinforced concrete retaining wall;
•	The mooring will be located on permit area PBAS5054 issued by the Port of Brisbane Authority issued to Mr. Wilson, the owner of lot 17 (unit 64);
•	The only component located on common property is a reinforced concrete slab (1.5 M wide, 2M long and .3M thick) with a .2M thick reinforced concrete cantilevered slab that will extend approximately 1M over the Brisbane River. This cantilevered slab will form the fixing point for the catwalk at the landward end. During construction, a section of the existing slab will be removed to allow installation of 2 concrete piers and a replacement slab will be installed at the same level as the existing slab;
•	The functionality of the area will be unchanged and it will continue to be available for use by all lot owners and occupants;
•	The area is currently used as a short term parking area for trade vehicles and deliveries;
•	The committee obtained independent engineering and legal advice to protect the interests of the body corporate;
•	The owner of lot 17 originally proposed that the walkway would be attached directly to the existing slab but as a result of the engineering advice obtained by the body corporate, the owner of lot 17 was required to provide a proposal that did not involve additional load being placed on the existing wall;
•	The motion was proposed by the owner of lot 17 and not by the Committee;
•	Owners were merely asked to approve the fixing of the catwalk to common property at the landward end. The resolution does not give away legal rights to a mooring as approval for installation of 2 mooring piles was previously given in 1984;
•	The draft wording was prepared by McCullough Robertson at the expense of Mr Wilson;
•	Regardless of the benefits of a communal boat mooring or pontoon, it is not possible for the body corporate to install a pontoon on permit area PBAS5054 as this area has been the subject of an individual permit since 1984;
•	There is an existing privately owned pontoon at the scheme that was recently placed on the market, yet the applicant did not show any interest in acquiring that pontoon personally, or to propose that the body corporate acquire the pontoon;
•	If the application is unsuccessful the body corporate seeks reimbursement of $1,156.65 being the costs involved in responding to the application.

Two individual lot owners supported the application.

One individual submission merely stated that they believe the subject resolution should be invalidated.

The second individual made the following submissions:

• Unless construction of moorings was of a "marina design" the site can only accommodate 2 or possibly 3 moorings;

•	The sole usage has an element of unfairness because, as there is already another private mooring in existence, the erection of another means that other owners would never have the opportunity to have a mooring;
•	A few years ago another lot owner sought permission for construction of a new pontoon and walkway with an invitation to other lot owners to use it if they so wished but that application was refused;
•	The approval of the construction should be subject to an agreement allowing other Gemini Towers owners the right of access to the new facility subject to mutual agreement with the owner of lot 17.

JURISDICTION

Section 227(1)(b) of the Act provides that a dispute between an owner or occupier of a lot and the body corporate for a community titles scheme is a dispute which may be resolved under the dispute resolution provisions 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)).

DETERMINATION

I have reviewed the various plans provided by the body corporate and have made the following observations:

• In the mid 1980’s the Brisbane Port Authority granted to the then owner of lot 17 a permit to use and occupy a 268 square metre area of Crown Land (i.e. over the Brisbane River), abutting the land on which Gemini Towers is constructed (Lot 1 on RP 129255, Parish of North Brisbane, County of Stanley);
• The subject area is marked on plans attached to the application. It is approximately 20 metres wide and extends between 12 and 14 metres from the retaining wall which forms the boundary between the scheme land and the crown land;
• The permit states that the area is to be used solely for construction, erection and/or placement of facilities for berthing or mooring of vessels;
• Originally it was intended that the pontoon catwalk would be anchored directly into the retaining wall;
• Following receipt of engineering advice by the body corporate, the plans have been revised so that the fixing point for the catwalk will not be the retaining wall but a .2M thick reinforced concrete cantilevered slab that will extend approximately 1M over the Brisbane River. The load placed on the retaining wall would be minimised by installing two concrete piers behind the wall below ground level and a new slab area will be poured at existing ground level over the 2 concrete piers;
• The functionality of the area will be unchanged and it will continue to be available for use by all lot owners and occupants.

The term "improvement" is defined in Schedule 6 of the Act as follows:

(a)	the erection of a building; and
(b)	a structural change; and
(c)	installation of air conditioning;

I also note that under the Acts Interpretation Act "change" includes an addition.

In my view, the proposal to affix the concrete slab and pontoon catwalk to common property as described in the plans, involves an improvement to common property rather than a grant of exclusive use. The boundary of the scheme land is the retaining wall which abuts the Brisbane River. The Brisbane River is Crown Land, and as noted above, in the mid 1980’s the Brisbane Port Authority granted to the owner of lot 17 a permit to use and occupy a 268 square metre area of the river.

The subject special resolution gives the owner of lot 17 a right to affix the concrete slab and pontoon catwalk to common property so as to enable that owner to access an area of Crown land (i.e. the Brisbane River) over which the Crown has granted certain exclusive rights.

Section 114 of the Standard Module states:

114 Improvements to common property by lot owner
(1) The body corporate may, if asked by the owner of a lot, authorise the
owner to make an improvement to the common property for the benefit of the
owner’s lot.
(2) The improvement must be authorised by special resolution of the body
corporate unless--
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot
included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the
authorised improvement is not likely to promote a breach of the owner’s
duties as an occupier.
(3) An authorisation may be given under this section on conditions the
body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good
condition, unless excused by the body corporate.

A special resolution requires that two-thirds of all those voting for or against (not of all lot owners) be in favour and not more than 25% of all lot owners be against. The results of the vote were
16 votes in favour and 1 vote against. Consequently, I believe that the resolution was valid and I therefore propose to dismiss this application.

Finally, I note that the body corporate seeks reimbursement of $1,156.65 being the costs involved in responding to the application if the application is unsuccessful. However, as an adjudicator I have very limited jurisdiction to award costs.

Section 270(1)(c) of the Act allows an adjudicator to dismiss an application if it appears to the adjudicator that the application is "frivolous, vexatious, misconceived or without substance". The Act goes on to provide that if an application is dismissed under section 270 (1)(c), an adjudicator may order costs against the applicant "to compensate the person against whom the application was made for loss resulting from the application" (section 270 (3)). In this instance, I have dismissed the application on its merits, and not on the basis that the application is frivolous, vexatious, misconceived, or without substance. As a result, I do not intend to make a costs order under section 270 (1)(c).