Scarborough Beach Resort [2007] QBCCMCmr 489 (16 August 2007)

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

Trinit Pty Ltd, the Owner of lots 105, 109, 110, 403, 404, 405, 407, 501, 504, 505, 506, 507, 605, 607, 702, 707, 804 and 902

I hereby order that the application for declaratory orders granting -
1. "an extended allocation period for the allocation of exclusive use storage areas in accordance with section 174(2)(b) of the Body Corporate and Community Management Act 1997" ; and
2. "that the Body Corporate consent to a New Community Management Statement to record the final allocation of exclusive use areas as advised by the Original Owner." is dismissed.

In lieu I order as follows –

1. that the Applicant shall on or before 31^st October 2007 inform the body corporate of the details of allocations of exclusive use storage areas restricted to Level A and any other storage areas not already shown on a plan headed "Plan Showing Exclusive Use Areas For Level B Storage Purposes" and dated 28^th September 2005 and recorded in a community management statement on 3^rd November 2005, in accordance with section 174(3)(a) of the Body Corporate and Community Management Act 1997 and the reasons for decision attached to this Order;
2. that the body corporate shall lodge a request to record a new community management statement showing the authorised allocations currently in place and the newly authorised allocations as detailed by the Applicant within three months after 31^st October 2007.

I further order that -

3. the list of lots, exclusive use areas and purposes shown on Schedule E of the community management statement recorded on 3^rd November 2005, shall, in relation to a plan headed "Plan Showing Exclusive Use Areas For Level B Storage Purposes" and dated 28^th September 2005, have effect as if the owners of those respective lots had exclusive use and enjoyment over those areas of common property shown as storage areas on the said Plan and listed at Schedule E, until such time as a new community management statement is recorded showing specific identification in a by-law granting or allocating such exclusive uses.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0301-2007

"Scarborough Beach Resort" CTS 34680

APPLICATION

This is an application dated 4^th April 2007 by Trinit Pty Ltd (the Applicant), who is the original owner of the scheme and current owner of Lots 105, 109, 110, 403, 404, 405, 407, 501, 504, 505, 506, 507, 605, 607, 702, 707, 804 and 902 in the scheme, for a declaratory order granting an extension of time to allocate exclusive use storage areas in accordance with section 174(2)(b) of the Body Corporate and Community Management Act 1997; and that the body corporate consent to a new Community Management Statement which records the final allocation of exclusive use areas.

JURISDICTION

"Scarborough Beach Resort" Community Titles Scheme 34680 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997. (Accommodation Module). There are 75 lots in the scheme created under a Building Format Plan of subdivision.

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-

(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)).

SUBMISSIONS

The Applicant says that the scheme was registered on 18^th November 2005 and that By-law 36 authorises the original owner, which the Applicant is, to allocate exclusive uses of storage areas during the "allocation period." A number of storage areas have already been allocated to purchasers of units in their contracts of sale. There are still unsold lots and storage areas which have not been allocated. The "allocation period" has now expired, and the Applicant seeks an extension of time in which to allocate the currently used storage areas to owners, and the remaining storage areas to the unsold lots.

The Applicant provides a copy of the first community management statement (the first CMS) lodged in the Land Titles Registry and a copy of a proposed new community management statement (the new CMS). It says that when the first CMS was registered, the surveyor –

The Applicant provides a copy of an example contract of sale showing copies of plans which were attached to the contracts at Schedule 1. Plan no. D006 3EXUA for Level A is dated 10^th July 2003, and shows storage areas S1 – S20 and S43. Level B plan number D0063EXUB, also dated 10^th July 2003, shows storage areas S21 – S41. The size of the storage areas varies between 3sq.m (S23) and 7 sq m (S40), and the plans are both marked "subject to construction and final survey."

A draft copy of a community management statement (the draft CMS) was also attached to the contracts of sale at Schedule 4. The draft CMS shows a proposed allocation for storage areas for lots 401, 402, 403, 404 ,405, 406, 407, 408, 501, 502, 503, 504, 505, 506, 507, 508, 601, 602, 603,604, 605, 606, 607, 608, 701, 702, 703, 704, 705, 706, 707, 708, 801, 802, 803, 804, and 805. (37 lots with Lot 805 having two areas.)

The first CMS now lodged, a file copy of which was provided by the Applicant showing an execution date of 29^th September 2005, shows purportedly allocated storage areas to Lots 1, 202, 408, 502, 508, 601, 602, 606, 608, 701, 702, 705, 708, 801, 802, 803, 804 and 805 with Lot 408 having 2 areas. (19 storage areas) The first CMS has a plan attached for Level B showing storage areas mostly of 4 square metres in size but five being of 5 square metres in size. The 19 purportedly allocated storage areas are all on Level B, numbered 1 – 20 with no number 14 shown. There is no plan for Level A lodged with the CMS. There are also no written references in the first CMS to a Level A plan or to allocations of storage areas to any other lots, other than the 18 lots mentioned in this paragraph.

The new CMS proposed by the Applicant shows that Lots 1, 202, 401, 402, 403, 404, 406, 407,408, 501, 502, 503, 504, 506, 507, 508, 601, 602, 603, 604, 605, 606, 607, 608, 701, 702, 703, 704, 705, 706, 707, 708, 801, 802, 803, 804 and 805 will all have allocated storage areas, with Lots 408 and 801 having two areas. (39 areas). The proposed allocated areas are shown on two plans, Level A and Level B. Level B has 19 storage areas numbered 1 – 19, with the sequence of numbering having been changed but the shape and position of the storage areas remaining identical; and the Level A plan has 20 storage areas numbered S21 - S40, five being of 5 square metres in size and the remainder being 4 square metres in size.

The Applicant also provided additional material in support of its application, being letters dated 14^th May 2007, after this application was made, from George Belperio, sole director of Trinit, showing that lots 105, 109, 110, 210, 403, 404, 405, 407, 501, 504, 505, 506, 507, 605, 607, 702, 707, 804 and 902, consent to this application. The letters in respect of lots 403, 407, 501, 504, 506, 507, 605, 607, 702, 707 and 804 state –

All these lots are owned by Trinit save for Lot 210 which has been sold since 14^th May 2007.

Whilst this is an application for a declaratory order, the Commissioner on 19^th April 2007 decided to seek submissions from all lot owners on this matter.

Kimberley Bondeson, (Dr Bondeson) owner of Lot 310 opposes the application. She says that "the Storage areas in question should remain as common areas."

Gary Ferguson, owner of Lot 805; Brian Connel, Colin Finch and Geoffery Gale of Lot 601; Campbell Macauley of Lot 503; Raymond Huntley of Lot 801; Stuart Earle of Lot 306; Davina and Scott McGinley owners of Lot 604; David Harrigan, owner of Lot 603 ; Boris and Ludmila Sharff, owners of Lot 104; Victoria Jones and Paul Rourke of Lot 706 - all agree to the extension of time sought by the Applicant and the necessary amendment to the community management statement. None of them gave reasons in their identical and brief submissions.

Greg Williams (Mr Williams) owner of Lot 203 and secretary of the body corporate opposes the application. He says that the Applicant has no need to "do any allocating or reallocating." He fears that Trinit might allocate unallocated storage to some of its own unsold units to make them more attractive to buyers. Any changes will disadvantage some owners now since too much time has passed. He adds that the body corporate intends to lease out some of the vacant and unallocated storage areas, which will raise funds thereby reducing contributions from owners. He also sent in a second submission on behalf of the owners of Lots 707 and 110 which are lots owned by the Applicant. Mr Williams believes that the Applicant is trying to advance his own interests, and that changes will cause chaos.

Ivor Loveridge and Janis McLoughlin for Raftfield Pty Ltd (Raftfield) and IJLM Pty Ltd, owners of Lot 1, oppose the application saying that the storage cages in "B2" are common property and should be managed by the body corporate for the benefit of all. Any change from this should require a vote at a general meeting.

Jillian Griffiths and Jack Perry (Ms Griffiths and Mr Perry) owners of Lot 202, object to the application. Their lot is currently allocated exclusive use of S16 on "sketch C" when they purchased Lot 202 on 2^nd December 2005. They signed the contract on 31^st October 2003. The proposed new "S16" allocated to Lot 202 will give them a reduced space from 5 square metres to 4 square metres which is not what they contracted to purchase, and the proposed new position of the storage area is unsuitable. They do not want their storage space re-allocated but would agree to re-allocation of the unsold lots and unallocated storage spaces if it does not affect what they contracted to buy. They were told by the Applicant that if they wanted to keep their storage space they should sign a letter supporting this application but having looked at the difference between the existing CMS and the proposed CMS, they see that this is "not an accurate statement."

Ross Filmer (Filcorp) owner of Lots 608 and 708 says that he did not know about this until invited to make a submission. He feels that the current arrangements should not be changed.

Daniel and Susan White, directors of Scarborough Dreaming Pty Ltd , owner of Lot 901, support the application. They say that they believe that the failure to lodge the plan for Level A was a surveyor’s mistake and should be rectified.

David Moody and Margaret Moody owners of Lot 803 consent to the application. They mention the mistake by the surveyor. They say they will be disadvantaged if the Level A plan is not recorded, because they have a contract giving them a storage area and otherwise they won’t have one, and they will face a decrease in the value of their lot.

The body corporate made a submission through his solicitors objecting to the application. It says that the CMS was recorded on 3^rd November 2005 (although the Applicant says it was 18^th November 2005) and in the recorded first CMS, 18 of the 75 lots have exclusive use of allocated storage spaces. The body corporate relies on section 174 Act which says that an allocation of exclusive uses has no effect unless it is made within the one-year period after recording the community management statement, or as extended by an adjudicator which extension cannot be for more than 2 years ( ie 3rd November 2007).

It points out that the proposed Level B plan differs from the recorded Level B plan in a number of respects, including the moving of the location of the numbers of several storage areas, eg. S15 is proposed to be S3. The explanation for the moving about of storage areas is not "immediately apparent" to the body corporate. It disputes the story about the surveyor omitting to lodge the plan for Level A and says -

The body corporate says that the unallocated storage areas should remain as the body corporate’s common property, and the committee is not willing to leave the allocation up to Trinit since the initial lodging period has ended. They add that there are no just and equitable grounds provided by Trinit for things to be changed. The body corporate appears to leave room for further discussion by requesting in its submission that Trinit provides a statement from the surveyor; an explanation of how the storage areas were intended to be allocated; copies of original plans and any variations; and an explanation of why the Applicant thinks it can seek to re-allocate storage area without a resolution without dissent of the body corporate. Finally, the body corporate wants an explanation as to why some owners have storage and others have not.

The Applicant exercised its right of Reply.

It says that Dr Bondeson never had storage allocated to her lot under her original purchase contract or in the original CMS, so she will not suffer any detriment by the lodgement of the new CMS, whereas some lot owners (not specified) have paid higher prices for their lots and not yet received their storage spaces.

Trinit says that Raftfield is the company of the on-site manager in Lot 1. It has storage space under the first CMS. It says -

The Applicant believes that Raftfield is objecting not on any " proper basis" but because it wants to be able to charge a letting fee for storage spaces. Storage should not be for benefit of all owners but for benefit of those who have paid for the spaces. It responds that no general meeting is required to change the status of the storage areas, if this application is successful, but that it is within the power of Trinit as original owner.

The Applicant states that Mr Williams’ submissions in respect of Lots 707 and 110 should be disregarded, since Mr Williams is not the owner of those lots and the submission was late. The Applicant is the owner of lots 707 and 110 and Mr Williams had no authorisation to make a submission for those lots. In respect of the submission for Mr Williams’ own lot, lot 203 was not allocated storage space under the purchase contract or the first CMS. Trinit objects strenuously to the allegation that it will take advantage of its power to grant storage spaces and that this will cause disputes. It says –

The Applicant points out that Ms Griffiths and Mr Perry agree with the re-allocation provided that their own storage space is left alone. Trinit will -

Further, that no approval is required from lot owners should the allocation period be extended as the storage areas purchased by them and included in their purchase contracts have not changed. It is only the allocation of the correct (emphasized) storage areas "which is required."

Trinit says that there was only ever sufficient storage areas for units from Level 4 upwards. It denies that "no allocation was made originally in relation to Level A storage areas" and says "allocation was made for Lot Owners as contained within their purchase contracts... but that the Level A....Plan was mistakenly omitted by the surveyor" when the CMS was lodged.

The Applicant encloses a letter dated 27^th June 2007 from surveyor Statewide Survey Group Pty Ltd (Statewide) to it, which says that the drawing for Level A was completed on or before 19^th September 2005 and was inadvertently omitted from the plans sent to the Applicant’s solicitors. The plan was only given to Trinit on 21st November 2006 after the "oversight was discovered." The letter states that Trinit’s lawyers had been sent draft copies of Level A plan before that date.

In support of its application, Trinit states that " No lot owner will be materially prejudiced in the allocation." It says that it has not given lots still owned by it any storage areas and has in fact given some up where "there has been a shortfall."

On 25th July 2007, I caused administrative staff to seek a copy of the Level A plan referred to in Statewide’s letter from the Applicant’s solicitors. The solicitors responded that the Level A plan had been provided in the application, and confirmed that the only Level A plan existing was dated 21^st November 2006. On 26^th July 2007, I wrote to Statewide asking for a copy of the Level A plan referred to in their letter dated 27^th June 2007 to Trinit. On 31^st July 2007, Statewide advised by letter that -

This was not discovered until early November 2006. Statewide then " plotted a hardcopy of the said drawing, executed it on 21^st November 2006 and forwarded it to Mr Belperio."

On 8^th August 2007, this Office received unsolicited material from the Applicant complaining about the body corporate’s engagement of a solicitor in relation to this matter. This material has not been considered as part of this application as it appears to raise a completely separate issue about the powers of the committee or the proper use of body corporate funds, and was received after the time for making submissions had closed. This Office has no "policing" powers, and if the Applicant wishes to pursue this matter it might be the subject of a separate application for dispute resolution.

DETERMINATION

In this application, the Applicant, Trinit, seeks further time in which to authorise allocations of exclusive uses of common property in respect of storage areas in the scheme and an order that the body corporate consent to a new community management statement drawn up by Trinit. By section 174 Act, an original owner may seek more time than one year in which to make allocations of common property for exclusive uses, after the recording of the relevant community management statement, and an adjudicator may grant an extension of time no longer than two years after the recording of that community management statement. (Section 174(3)(a) Act).

The Act envisages that this is an enabling provision in the setting up of a body corporate. However, in this matter, there is some objection by certain lot owners and the body corporate to the extension being granted, and I am of the view that this application does not fall squarely within the provisions of section 174, for reasons which I shall set out below.

The first CMS for this scheme was recorded on 3^rd November 2005. The Applicant is therefore outside the "base allocation period" of one year in making its application, but within the extension deadline of two years. The first CMS contains within it, a provision that the original owner may allocate certain parts of the common property for exclusive use of lot owners, and that the body corporate shall ensure that the details of allocations made by the original owner are recorded in a new community management statement. (Clause 36.1 and Clause 36.4). Clause 36 does little more than state the provisions of the legislation. (Sections 174 and 175 Act.)

Exclusive uses can only be created as by-laws as set out at section 171 Act.

Section 171 Act states –
Requirements for exclusive use by-law

(1) The common property or body corporate asset to which an exclusive use by-law for a community titles scheme applies must be--

The by-laws for the scheme are set out in Schedule C to the first CMS. Clause 36 refers to the power of the original owner to grant exclusive use by-laws but does not grant any exclusive use areas. The "allocations" set out at Schedule E are not referenced to Schedule C and nowhere in the first CMS are the allocations actually granted. The words of the grant, such as for example–

are missing.

It must be assumed that Schedule E of the first CMS intended to grant allocations of exclusive use areas for garden beds, planter boxes and storage areas to the lots mentioned in Schedule E. However, these exclusive uses were not "specifically identified in the by-law" as required by section 174(1)(a).

Section 171 (3) Act states -

(3) If an exclusive use by-law authorises the allocation of common property,(as does clause 36 of the first CMS) ...... for the purpose of the by-law--

(i) the allocation is revoked under the by-law (if the by-law provides for the revocation of an allocation); or

(A) consenting to the recording of the new community management statement that does not incorporate the exclusive use by-law; or

(B) in which the lot owner voted personally.

If the exclusive use by-laws were allocated by Trinit as an authorised person, (Section 171(1)(b(i)), the allocation can only attach to a lot if that owner agrees in writing before the allocation is made.

Submitters Jillian Griffiths and Jack Perry owners of Lot 202, say that they were allocated exclusive use of storage area S16 in their contract of sale which settled on 2^nd December 2005. They signed their contract on 31st October 2003 before the currently lodged Level B plan was drawn by Statewide on 28^th September 2005. They might therefore have consented in writing to the allocation of S16 as their storage area prior to such allocation being made in accordance with section 171(3) Act. Whilst the draft CMS and draft plans attached to the draft contract sent in by the Applicant as part of this application, showed no storage at all for Lot 202, the plans are dated 10^th July 2003 and marked "subject to construction and final survey." I have no evidence as to the date on which Ms Griffiths and Mr Perry knew of their "allocation" or consented in writing to the exclusive use storage area S16 being allocated to Lot 202.

Lot 1 also had no storage area proposed in the draft CMS attached to the draft contract but has been "allocated" storage on the first CMS, S13. There is equally no evidence as to whether the owners of Lot 1 consented in writing to the allocation of this storage area prior to its allocation.

At the time of the recording of the first CMS, the Applicant owned several lots and might have previously consented in writing to exclusive uses being granted to lots owned by it in accordance with section 171(3), although Trinit presents no evidence of prior written consent. Other lot owners might have consented in writing by signing their contracts of sale when buying "off the plan", if the proposed area to be allocated was specified in the contract. However, both these scenarios are an awkward way of demonstrating compliance with the legislation, when it appears to have been the intention of Trinit to identify exclusive uses in the by-laws, which it failed to do.

In Dainford Ltd –v- Smith [1985] HCA 23; (1985) 155 CLR 342, a majority decision of the High Court held that the area of common property, the exclusive use of which was conferred on a lot-owner, did not need to be identified by the by-law itself, and that a by-law would be valid even though the identification was made by reference to another document or to some extrinsic facts. This does not exactly cover the situation here, where the area of common property is clearly defined but that the grant needs to be identified perhaps by reference to other documents. However, the case is relevant in that it explored the possibility of looking outside a community management statement. Contrarily, the ease by which a prospective purchaser could obtain the necessary information by searching a registered plan was of particular importance to all the judges in this case and formed part of the dissenting judgment of Mason J. (at page 352).

Exclusive uses have no effect until the day the registrar records the community management statement containing the by-law. (Section 179 Act). Even though the Schedule E allocations were not created as by-laws, I am concerned that the first CMS purporting to allocate specific storage areas to specific lots was as from 3^rd November 2005 available for viewing as a public document to any prospective purchaser.

If the "allocations" of the first CMS are recognised, they cannot be changed or taken away from those lots purporting to hold exclusive uses, without prior written consent of those owners, and a resolution without dissent of the body corporate at which the motion is to remove the exclusive use. ( Section 171(3)(b) Act as set out above)

Schedule E of the first CMS affects only 18 lots on Level B, (Lot 408 having 2 spaces) so the question of whether prior written consent can be somehow inferred, or whether an intention to create exclusive uses can perfect a grant of exclusive uses, is only relevant to owners of those 18 lots. (Lots 1, 202, 408, 502, 508, 601, 602, 606, 608, 701, 702, 705, 708, 801, 802, 803, 804 and 805 )
.
The Applicant says that this application is made to correct a surveyor’s mistake. I do not accept the explanations given by the Applicant and Statewide that a Level A Plan had been drafted and completed (but not printed and executed so therefore did not ‘exist’ in hard copy) prior to the lodging of the first CMS and that it should have been lodged with the first CMS on 3^rd November 2005. If the Level A plan now proposed is the plan which should have been lodged, it makes a nonsense of the Level B plan which was actually lodged, since some allocations of storage space now proposed on the Level A plan are already allocated to the same lots on the existing Level B plan, eg. lot 805, currently allocated S20 on the Level B plan is to be allocated S40 on the Level A plan; and Lot 801 currently allocated S10 on the Level B plan, is to be allocated S38 and S39 on the Level A plan. This cannot have been on the original "Level A" plan which was not recorded (or in any event did not exist according to Statewide.)

The Applicant says the new plans respectively for Levels A and B are the correct plans, and reflect what has now been constructed on site. To the Applicant, it therefore does not matter that the Level A plan was originally omitted, although this appears to be a large part of its argument. The Level A plan was not only "not recorded" it was not correct either, (even though it did not exist according to Statewide.)

I have attempted to look at the effect of changes proposed to each of the lots to which storage space is "allocated" or proposed to be allocated. Several lots will suffer only a slight change in position on Level B – Lots 606, 608, 508, 702, 705, 709, 803 and 804. There is to be no change for Lot 502. Lots 601 and 602 will be better off, getting an additional square metre of storage on the same level. Lot 801 has to change level from Level B to Level A but now receives two storage spaces. Lot 805 loses a storage space on Level B but gets two square metres more of storage space on Level A. Lots 1, 701, 708, and 802 keep the same area on the same floor but will have a little further to walk.

However, the proposed change for Lot 202, owned by submitters Ms Griffiths and Mr Perry is clearly detrimental. Lot 202 is currently "allocated" S16 but will now find S16 about 40m away and shrunk in size from 5sq m. to 4 sq m. It is not true to say that " No lot owner will be materially prejudiced in the allocation," as the Applicant avers.

The Applicant says that it will –"make every attempt to ensure that their allocation will not be reduced in size if the application is granted..." but that is exactly what this application proposes. It also offers to swap a Trinit-owned storage area with Lot 202 "if needs be."
Rijvan Pty Ltd (Rijvan) owner of Lot 408 also suffers, having under the first CMS two areas of 5 square metres each "allocated" and under the proposed plans having two areas but one now being 4 square metres. There is no submission from Rijvan.

I have looked at the submissions from the owners who support the application, but without giving any reason for their support. Gary Ferguson, owner of Lot 805 will receive S40 on Level A but currently has S20 "allocated." Brian Connel, Colin Finch and Geoffery Gale of Lot 601, currently have S4 "allocated" to their lot but will get the larger area S4 on re-allocation; Campbell Macauley of Lot 503 currently has no allocation but will have S26 on Level A; Raymond Huntley of Lot 801 currently has S10 as lodged but will be allocated S38 and S39 on level A; Stuart Earle of Lot 306 currently has no storage space and is not allocated any; Davina and Scott McGinley owners of Lot 604 currently have no storage space, but will get S31 on Level A; David Harrigan, owner of Lot 603 currently has no storage, but stands to get S30 on Level A; Boris and Ludmila Sharff, owners of Lot 104 have no storage and will not be allocated any storage; and Victoria Jones and Paul Rourke of Lot 706 currently have no storage but will be allocated S36 on Level A.

The Applicant says that Trinit is not gaining any benefit from the re-allocating and recording of the Level A plan although it is noted that the proposed 5 square metre allocations, the larger areas S21, S22, S23, S24 and S25, are to be allocated respectively to lots 403, 404, 407 and 501, lots currently owned by Trinit, as well as to Lot 406 owned by Jan Naslund and Jeanette Orre who purchased on 3^rd January 2007 from Trinit.

The Applicant also says that it has "given up" storage on some lots owned by it to meet a shortfall. It is noted that Lots 405 and 505 owned by Trinit have no storage space allocated to them on either of the proposed Level B or Level A plans, but there was never any storage space allocated to these lots in the first CMS in any event, although those lots are documented in the draft CMS attached to the draft contract of sale as being lots to which storage space would be allocated.

Since the allocations of storage space were only ever intended for lots from the 4^th level upwards, there appears only to be a "shortfall" because Lot 1 and Lot 202 were sold with "allocated" storage spaces. Lots 405 and 505 do not now have storage spaces to meet this " shortfall."

I find that the failure to lodge Plan A was not an oversight. I find that the plans now proposed to be lodged, Plan A and Plan B, are new plans, and have the effect of altering the intended "allocations" at Schedule E of the first CMS. I do not accept the Applicant’s contention that the "granting of the extension will allow the rectification of this oversight" or that the "correct allocation was set out in each owner’s purchase contract and the First CMS," since the first CMS will of necessity clash with the proposed CMS.

The Applicant has provided no evidence that owners " may be currently using storage spaces (in regards to the Level B plan) which they did not in fact purchase due to the surveyor’s error with the Plans attached to the First CMS," nor has such evidence been made in submissions.

I also find that the process now proposed by the Applicant is defective in that it is only the body corporate which can seek to record a new community management statement, and not the Applicant as original owner. The legislation requires that original owner must provide to the body corporate a list of allocations of common property within the base period or an extension of it as given by an adjudicator of this Office. By-law 36.3 also envisages this procedure. After that, the body corporate must ensure that the details of the allocation are recorded, as per the legislation and By-law 36.4.

The new CMS proposed by the Applicant contains the same defect in that there is no actual allocation or grant of the exclusive uses to those Lots listed in the new Schedule E. Any community management statement should be amended to show words of grant under a by-law, and such an amendment to a community management statement can only be made by the body corporate.

The allocation of exclusive use areas by reference to "Sketches A, B and C" are also misnomers, in that in neither the first CMS, nor the proposed CMS, are any of the plans marked "A","B’ or "C" and there are no other "sketches" apparent.

In respect of the body corporate’s notion that it might be able to hire out unallocated storage areas on the common property, I find this would give the body corporate an unexpected advantage since it is clear from the draft plans attached to the draft contracts that lots on the fourth level upwards were to have storage areas allocated to them.

I do not wish to make an order that the "allocations" in the first CMS, albeit defective, are invalid. The intentions of the Applicant and those owners who thought they were receiving "allocations" under the written Schedule E and the lodged Plan B were clear.

The Applicant shall have an extension of time in order to allocate only those additional 20 areas shown on the Level A plan, and/or any other areas of storage spaces in the scheme, which may not be referred to in this application. The original owner may only allocate exclusive uses of common property by demonstrating the written consent of individual lot owners receiving the allocated storage areas.

The "allocations" made on the first CMS may only stop applying to a lot if the lot owner agrees in writing before the passing of a resolution without dissent consenting to a new community management statement which does not contain the exclusive use by-law or in which the lot owner votes personally, in accordance with Section 171(3)(b) Act. If owners merely wish to "swap" allocations between themselves, "agreed allocations", they may do so under a re-allocation agreement and by advising the body corporate of the details in accordance with section 174(1) Act. Such allocations must also be recorded in the community management statement to be effective. There is no time limit for the making and recording of a re-allocation agreement.

I recognise that the Applicant has sold lots to owners, promising them certain areas of common property for their exclusive use and that now requires a re-shuffle of storage areas. If there are any lot owners who will be aggrieved in relation to Trinit fulfilling an expectation on a contract of sale, that it is not a matter for the body corporate but for individual owners to take up with Trinit.

An authorised or agreed allocation has no effect unless details of the allocation are given to the body corporate, (Section 174(1) Act) and subsequent lodging in a community management statement (Section 175 Act). The allocations by the Applicant are to be given to the body corporate on or before 31st October 2007. The body corporate must record a new community management statement within three months of 31^st October 2007. The community management statement lodged by the body corporate should contain words of grant in respect of the allocations.

The body corporate does not need a resolution without dissent or special resolution in order to record the new community management statement where the new community management statement " is different from the existing statement only to the extent necessary ...for recording the details of allocations of common property... made under an exclusive use by-law." (Section 62(4)(e) Act). The committee, acting for the body corporate, may lodge a community management statement where such is the only change proposed. A decision of the committee is a decision of the body corporate (Section 100 Act). For the avoidance of doubt I order that the body corporate may through its committee lodge the new community management statement even though the amendments reflect not only the new allocations but also provide for the amendment of Schedule C to make reference to Schedule E, and the description of the plans with regard to "sketches, A, B and C."

Thereafter there is nothing to stop the body corporate at any time from changing or reallocating exclusive use areas as agreed by the body corporate without dissent at a general meeting and recording subsequent new community management statements.

Number of Scheme:	34680
Name of Scheme:	Scarborough Beach Resort
Address of Scheme:	89 Landsborough Road SCARBOROUGH QLD 4020

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Scarborough Beach Resort [2007] QBCCMCmr 489 (16 August 2007)