Glades Easthill North [2008] QBCCMCmr 298 (25 August 2008)

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

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Glades Easthill North [2008] QBCCMCmr 298 (25 August 2008)

Last Updated: 19 September 2008

REFERENCE: 0444-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32506
Name of Scheme:	Glades Easthill North
Address of Scheme:	Easthill Drive ROBINA QLD 4226

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

Karl Eliasson, a co-owner of lot 5

I hereby order that the body corporate for Glades Easthill North Community Titles Scheme 32506 is deemed to have authorised Karl Eliasson, a co-owner of lot 5, to erect the existing shade sails on the common property for the scheme at the rear of lot 5, for the benefit of lot 5, under section 113 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 and the owners of lot 5 must maintain the shade sails and the associated infrastructure in good condition.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0444-2008

“Glades Easthill North” CTS 32506

Application

This application is by Karl Eric Robert Eliasson, a co-owner of lot 5 (applicant), against the body corporate, seeking final orders in the following terms:

1. That the result of motion 29 at the 2008 AGM be dismissed.
2. That the shade sails at lot 5 be approved as erected.
   

On 12 June 2008 I issued the following interim order in respect of this matter:

I hereby order that, pending a final determination of this application, the body corporate for Glades Easthill North community titles scheme 32506 (including its committee or any member of its committee) must not take any action to remove the shade sails in respect of lot 5.

This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

Motion 29 was recorded as follows in the minutes of the AGM of 8 May 2008:

MOTION NO. 29
LOT 5 SHADE SAILS – ATTACHMENT F

Options A and B, reading as follows, were put to the meeting and were declared Lost by Special Resolution:

“Option A Approve the Shade Sails

That the shade sails as erected at Lot 5 (as approved by last two years annual general meetings), be approved by special resolution.”

AND

“Option B Require the Removal of the Shade Sails

That the Body Corporate requires the owners of Lot 5 to remove within 30 days of the date of this meeting all portions of the shade sail structure in the exclusive use area of Common Property assigned to Lot 5.

That the shade sails as erected at Lot 5 (as approved by last two years annual general meetings) be approved by special resolution.”

VOTE: A: 30 B: 16 ABSTAIN: 4

POLL VOTE A: 2258 B: 1145 ABSTAIN: 288

Background

The applicant provided the following information by way of background:

• In July 2004 he received approval from the committee to erect shade sails on his property. The purpose of the sails was to provide relief from the intense sun, as lot 5 faces due west.
• After construction, Messers Huddy and Butlin lodged an application with the Commissioner’s Office seeking an order that the shade sails be removed. They argued that the sails erected differed from the sails proposed and approved by the committee. The order required the applicant to submit a request for approval of the shade sails to a general meeting of the body corporate.
• At an AGM held on 13 July 2006, the shade sails were approved.
• Mr Huddy submitted a further dispute resolution application to the Commissioner’s Office arguing that the format of the motions and therefore the vote at the AGM was unlawful. The order required that the matter be put to the next AGM.
• At the AGM held on 17 May 2007, the applicant’s motion to approve the shade sails was passed by special resolution. However, Mr Huddy had submitted a motion requiring that the shade sails be removed (which was lost) and again made application to the Commissioner’s Office again arguing that the format of the motions and therefore the vote at the AGM was unlawful. The order again required the matter to be submitted to the next AGM for a new vote.
• At the AGM held on 8 May 2008, two motions regarding the applicant’s shade sails were submitted. The applicant’s motion was lost by special resolution with 31 votes in favour and 16 against.
  

The applicant’s grounds are to the following effect:

• Considers that the earlier order, where it provided instructions to the format of the motion, prejudiced him. If the motion could have been worded as a normal motion with alternatives, those alternatives would allow for a vote on majority rather than a special resolution. The special resolution outcome led to a vote of 31 in favour with 16 against which in effect gave him a 2/3 majority but an overall loss.
• States that there was a mistake in the text of motion 29 put to the AGM on 8 May 2008 in that the last paragraph of Option B clearly should not have been inserted. It is quite obvious, the applicant states, that owners could have been misled by the mistake and might have voted for Option B when they meant to vote for Option A. The applicant lost his motion by only one vote.
• Believes that an explanatory note included by Messers Huddy and Butlin in relation to their motion was intentionally erroneous. The applicant states that their incorrect claim that he had erected the shade sails without first seeking approval was misleading and an obvious attempt to alienate him from any new owners who were not aware of the history of the matter.
• Believes that his situation is similar to that of an earlier case involving lot 21. The owners of lot 21 had received approval from the then committee (including Mr Huddy and Mr Butlin) but having constructed their awnings, were advised that the construction differed from the approval and were initially ordered to remove them. The owners of lot 21 were eventually provided with approval (from the Commissioner’s Office) for their awnings to remain.
• States that there are many other examples of homes within both Glades Easthill North and South, where residents have erected shade sails, pergolas, awnings and other similar structures to protect them from the sun and improve their outdoor living options. All these structures have received approval from the relevant body corporate committee, including several passed at the May 2008 AGM. These cases provide evidence of precedence and reinforce the applicant’s belief that he has been isolated for attack by two disgruntled former committee members.
• Believes that the number of applications by Messers Huddy and Butlin is indicative of their vindictive nature, and that they are disgruntled by their untimely dismissal from the original body corporate committee. Their actions have managed to drag this matter on year after year for approximately three years now, creating disharmony in the community and huge worry for his wife and him and their young children.
  

Jurisdiction

“Glades Easthill North” is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module). The scheme was registered as a building format plan of subdivision on 28 April 2004.

This is a dispute between an owner and the body corporate that falls within the dispute resolutions provisions of the Act (see ss.226, 227 & 228).

Procedural matters

On 30 June 2008, a copy of the application was provided to the body corporate care of Mr Attillio Danieletto of Challenge Strata Management (the Body Corporate Manager) for distribution to the owner/s of each lot (excluding the applicant) and the committee, with an invitation to respond to the matters raised in the application.

A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Submissions

A total of 37 submissions were received in response to the application for final orders. Of these 37 submissions, 33 were supportive of the applicant and the making of the orders sought. Several of these owners made specific comment to the following effect:

Lot 6

• The shade sail in question has been approved on two separate occasions, however, has been continually objected to on minor technicalities by Huddy and Butlin, who have a personal vendetta against the applicant and anyone else who voted in favour of their removal from the committee in January 2006;
• The shade sail is not in any way contrary to the by-laws or the eye as it is at the rear of the house and certainly does not encroach on their outlook or view.
  

Lot 10

• They have lived in the complex since it was built and are fully aware of the history of the sails. The committee at that time approved the construction. They live a couple of houses away and the sails are not instrusive in any way.
• They are also golfers and the sails are not unsightly or even noticeable from the golf course on the opposite side of the river. In fact, during discussion about the debacle with friends who also play golf, their response was “what sails? – I’ve never noticed them”.
• This is a deliberate attempt by two disgruntled people who have made it their business to hound the applicant’s family.
  

Lot 38

• The applicant’s account is factually true. His opinions about the strange motivations that have kept it going so long are plausible. The costs for all owners have been substantial but completely unnecessary and the community is disgusted at the anger expressed against a young family for no reason at all.
• It is likely that the shade sails as originally erected, with permission, were slightly larger than authorised but they are in a part of the estate where few can ever see them (certainly not the complainants) and none of the neighbours have complained about them. Nothing is to be gained by demolishing them.
• The complainants should be restrained from continuing to lodge complaints and spend body corporate money so irresponsibly.
• They urge the adjudicator to act in accordance with the wishes of a majority of the members (the proposal at the last AGM failed to gain a two-thirds majority by one vote) and order that the shade sails, as erected, be approved.
  

Lot 35

• The owner states that he has been unable to explain to his wife why a motion that has the majority of votes as “yes” in fact means the motion is lost.
• The community appears to be unable to settle the dispute. A decision needs to be made by an outside party that is clear, final and hopefully cannot be challenged as he does not want to be voting on the same issue again at the next AGM.
• He has viewed the photos of the shade sails and observed them from the golf course where they are most visible and does not consider them out of place or an eyesore.
  

Lot 60

• State that they were unable to vote at the last AGM.
• Comment that it is so sad that Huddy and Butlin have caused so much upset in this once friendly, happy community.
• She would like to see the shade sails stay for the young children.
  

Lot 25

• This has been a long drawn out saga for the applicant’s family and one that has been equally frustrating for other members of the community. On more than one occasion it seems that errors by the then body corporate managers resulted in Mr Huddy and Mr Butlin having grounds to make submission to the Commissioner’s Office in an effort to make the applicant’s family remove their shade sails.
• A map showing the layout of the complex is attached to the submission, noting that neither Mr Huddy nor Mr Butlin are in a position where the shade sails are remotely visible from their lots. It is beyond comprehension why these two individuals are so determined to prevent this family from protecting their children from the damaging effects of the sun in the only outdoor play area they have.
• In the harsh Queensland sun it is impossible to enjoy outdoor living without having protection both from the damaging ultraviolet and from the heat. Their home also faces West which means that they have significant exposure to the sun when it is at its hottest.
• They also put in an application to the committee for approval in writing to erect shade sails. The approval was granted and the sails installed, however, Mr Butlin threatened to take the matter to the Commissioner’s Office and demanded that the approval be overturned and the shade sails removed as it was his view that the committee did not have the authority to grant approval. They then submitted a request for approval at the AGM which was granted.
• All owners should have the right to improve the quality of their outdoor life both in the aspects of safety and in comfort, and also to improve the appearance of their property in which all have made significant investments.
• Under the current by-laws, owners can have any form of “free standing” shade umbrellas and they can be any size and any colour. The applicants have chosen to install quality sails in keeping with the colour scheme of the complex that give maximum protection from the harmful effects of the sun for their children.
  

Secretary and owner of lot 74

• The matter of the legality of the size of the shade sails should have been dealt with by proper use of infringement notices in a timely manner some years ago. The fact that this was not done and that the shade sails are not obvious to view nor causing offence to either of the neighbours suggests that they be allowed to stay, providing that their erection is not considered to be setting a precedent of any sort.
  

Two of the 37 submissions made were against the applicant and the orders sought being made. They made specific submission to the following effect:

Lot 45

• The applicant should not be allowed to keep the sails he erected on his property.
• When he first erected the sails, they were far too big for his property. She is amazed his neighbours have not complained (they would have no views because of the sails) but know that they do spend a fair amount of time overseas.
• She worked for Sunland as the Sales consultant on Easthill at the time the sails were erected and the applicant was told then they were too big for his backyard.
• She does not agree with the applicant’s version of events regarding the sails and feels he has changed the truth of the situation to suit his needs, although she does not elaborate further.
  

Lots 28 & 48 (Huddy & Butlin)

• The shade sails at Lot 5 have been the subject of two previous adjudications arising from applications that they submitted, not “several” as stated by the applicant in his application. In the first (0312A-2006) they documented the history of the shade sails matter, with evidence of every step. The second, (0512-2007) raised errors of process.
• The application contains no grounds of substance to support the requested outcome. They respond to the applicant’s points in turn, as follows:
  

The applicant claims that he was prejudiced by an earlier ruling of the Commission

• This claim appears to refer to the adjudicator’s order 0512-2007 and appears to now question that determination. They are unaware of any appeal against that order by the applicant and therefore consider it reasonable to assume that the applicant accepted it, since he submitted a special resolution to the 2008 AGM requesting approval of his shade sail structure, as the adjudicator recommended. Having lost the vote at the 2008 AGM, he now claims that the adjudicator’s order prejudiced him, but fails to state how.
  

The applicant claims “... a vote of 31 in favour with 16 against which in effect gave me a 2/3 majority but an overall loss.”

• This statement is false. The minutes of the AGM held on 8 May 2008 correctly record that the voting on Motion 29 was 30 votes to 16 with 4 abstentions. The attempt to obtain approval was unsuccessful because the required 2/3 majority was not achieved.
  

The applicant claims that a typing error in the motion could have misled those who voted and caused them to vote against his motion.

• This assertion has no credibility since the subject of these unapproved shade sails has been documented several times in Committee and General Meeting agendas and minutes, along with circulation of dispute applications and the adjudicators’ subsequent orders. It is clear that all lot owners would be familiar with the issues involved and would have voted accordingly.
  

The applicant claims that the explanatory text to their AGM motion contains an “intentional error” in that they claimed the applicant had erected the shade sails without first seeking approval.

• This statement is false. The explanatory note does not contain any such error. They correctly stated that the applicant had erected the shade sails after being refused approval. A copy of their motion and explanatory note is attached.
• The applicant initially requested approval for two small shade sails of specified size and position. This was granted. He then requested approval for two very large sails. This was refused, but he installed them anyway.
  

The applicant claims that the case of an awning at lot 21 provides him with a precedent.

• The awnings are, in fact, retractable window awnings. They are an attachment to the lot and do not constitute a structure erected upon an exclusive use area of common property. As such, the matter of approval fell within the powers of the committee of the day.
• The awnings at lot 21 do not satisfy the applicant’s claim to a “parallel to his circumstances” and certainly constitute no precedent in this case. If the applicant had elected to attach similar awnings to his lot, approval would probably have been routine.
• The dispute over the awnings at lot 21 related solely to the colour of their material, not the size, position or structure. The applicant was a member of the committee that sought via a dispute resolution application to have the awning colour changed. He is therefore well aware that his attempt to claim that lot 21’s awnings provide a precedent for his shade sails is baseless.
• There is no precedent on which the applicant can rely. He is the only owner who has erected a shade sail structure that covers most of the exclusive use area assigned to his lot and has done so when approval to do so has been refused. He is thus the author of his own misfortune.
• An undesirable precedent would be created if the applicant were permitted to retain his shade sails.
  

They state that the balance of the application contains a series of intemperate defamatory statements that attempt to impugn their characters and are irrelevant to the real issue, which is that the applicant has failed to obtain either prior or retrospective approval for his shade sails, even after he has been given opportunities to put it to the vote at two successive AGMs, as ordered by two adjudicators (0312A-2006 and 0512-2007).

Mr Huddy and Butlin go on to state that they are seriously concerned that many parts of the application contain statements that are false and misleading. They itemise each account and provide their version of events, supported in each case by relevant documentation. They point out that:

• The existing shade sail structure has never been approved. The purported approval of the committee, of which the applicant was a member, in February 2006 was invalidated by order 0312A-2006.
• The applicant erected shade sails for which approval had been specifically refused.
• Neither Mr Butlin nor Mr Huddy were on the original body corporate committee which provided the initial approval for the smaller shade sails originally proposed. Both the initial approval for the small sails (July 2004) and the subsequent refusal of approval for the larger sails (January 2005) were provided by a committee of one person that represented the developer who held proxies from all lot owners. Their election to the committee did not occur until the first AGM, on 24 February 2005.
• Mr Butlin and Mr Huddy were not removed from the committee following a vote of no confidence via an EGM held on 6 January 2006. The committee, which included them, was deposed and replaced by a committee that included the applicant.
• The AGM held on 13 July 2006 did not provide the applicant with a vote in his favour. The motion was an ordinary resolution and the adjudicator in order 0312A-2006 said that the matter could not be determined by ordinary resolution and that a special resolution would not have succeeded with the votes that were recorded.
• Their application to the Commissioner’s office preceded the 2006 AGM and was concerned with the attempted approval of the shade sails by the committee that included the applicant.
• The application that resulted in order 0512-2007 was made jointly by Mr Butlin and Mr Huddy on the basis that the vote counts in the published minutes differed from those announced at the meeting and also showed that the applicant had won approval for his shade sails, when, in fact the result of voting was 30 in favour, 17 against, 3 abstentions.
• The vote at the 2008 AGM was, in fact, 30 (not 31) in favour with 16 against and 4 abstentions.
• Mr Butlin is not a committee member on the new committee from the 2008 AGM. He was neither nominated nor elected. The applicant has since apologised for this mistake, stating it was not his intention to provide incorrect information.
• Both applications 0312A-2006 and 0512-2007 were lodged as disputes only against the body corporate, not the applicant.
  

They conclude by seeking an order that the illegal shade sails be removed and note that since the original small sail sizes and positions were deemed approved by the adjudicator in 312A-2006, the applicant would have the option of utilising that approval and erecting sails which accord with the original specified sizes and positions.

I regarded two of the submissions received as neutral.

Committee
A facsimile was received from the body corporate manager notifying me of a resolution of a committee meeting on 16 July 2008 that “Because members of the committee are divided on whether to support or oppose the application, the committee will not lodge a formal submission in response to the application but will leave it to individual members to make their own submissions.”

Lot 44

• A decision in favour of the applicant could become a precedent not only to bypass the by-laws but to give power to approve structures already erected which do not accord with the by-laws.
• Doesn’t believe shade sails are appropriate for the estate with its small lots.
• Is aware of two situations where properly installed sails were torn away by very high winds. In one case, flying bolts damages parked cars.
• Shade sails can fade, retain debris and become untidy. There are better alternatives within existing by-laws.
• Mentions many of the points raised by Mr Butlin and Mr Huddy.
• Would be happy to see a compromise provided any decision can be quarantined to Lot 5 and not become a precedent for future decisions or after the event approvals for structures which infringe the by-laws.
  

The applicant did not exercise his right to inspect the submissions or reply to them.

Determination

It has previously been determined that the shade sails the subject of this application required the approval of the body corporate in general meeting by special resolution[1]. The applicant attempted to gain that approval at the AGM held on 8 May 2008, after a motion passed at the 2007 AGM which purported to grant approval was declared void and it was suggested that the matter be considered again at the next general meeting. The relevant motion considered at the 2008 AGM was motion 29, recorded in the minutes of the meeting as detailed above. It is apparent from the results of voting on motion 29, that 30 owners voted to approve the shade sails as currently erected. I am not convinced that the 16 votes recorded for option B, to remove the shade sails, is as robust, as I concur with the applicant that the inclusion of the extra text could have confused owners and led owners who in fact agreed that the shade sails should be approved, to vote for their removal instead. Having said this, I acknowledge that none of the owners making submissions claims to have been misled, and that the results of voting on the same issue at the 2007 AGM were very similar (30 votes for, 15 against and 3 abstentions for Motion 14 which sought to approve the shade sails; 16 votes for, 29 against and 3 abstentions for Motion 18 which sought to have the owners of lot 5 remove the shade sails), although both motions considered at the 2007 AGM were subsequently ruled invalid.

In any event, the applicant appears to concede that the motion which most recently sought approval for the shade sails as erected failed, because, despite his claims to the contrary, one of the prerequisites for the passing of a motion by special resolution was not met, although only by a narrow margin.

Section 106 of the Act specifies the prerequisites for the passing of a motion by special resolution as follows:

106 Counting of votes for special resolution

(1) This section applies if a motion is to be decided by special resolution at a general meeting of the body corporate for a community titles scheme.

(2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing.

(3) The motion is passed by special resolution only if—

(a) for a meeting notice of which is given—

(i) before the commencement of subparagraph (ii) — the votes counted for the motion are more than the votes counted against the motion; or

(ii) after the commencement of this subparagraph—at least two-thirds of the votes cast are in favour of the motion; and

(b) the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme; and

(c) the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme.

In this scheme there are 80 lots and contribution schedule lot entitlements of 5,851. In this case there are three tests as to whether a motion has passed by special resolution. Firstly, two-thirds of the votes cast (which excludes abstentions[2]) must be in favour of the motion. It is this first limb of the test that failed to be satisfied, with 65.21% of the votes being in favour of the motion, rather than 66.66%. The applicant in fact needed another two votes for Option A in order to successfully gain approval by special resolution.

The second test is that the votes against the motion are not more than 20 lots (that is 25% of the total number of lots). This requirement was met, with 16 votes against the motion (for Option B). The third test is that the votes against the motion not represent more than 1,464 contribution lot entitlements (that is 25% of all entitlements). The lot entitlements for the 16 minuted votes against the motion totals 1,145, satisfying the third test.

In these circumstances, the applicant appears to challenge the failure of the body corporate to approve the improvements. The body corporate has a statutory obligation to act reasonably in administering the common property and body corporate assets for the benefit of owners and enforcing the community management statement (including any by-laws).[3] The applicant, in effect, argues that the opposition to motion 29, Option A, was unreasonable. In accordance with Schedule 5 of the Act an Adjudicator may agree to a proposal by the owner of a lot to make improvements on or changes to common property, if satisfied that the body corporate’s decision about the proposal is unreasonable.

The sole issue for determination in this dispute then becomes whether the 16 dissenting voters (those who voted for Option B) unreasonably voted “no” to the motion put forward by the applicant.

If satisfied the body corporate’s decision about a proposal by the owner of a lot to make improvements on common property is an unreasonable decision, an adjudicator does have power to ratify the proposal on stated terms.[4] However, such a discretionary power is not exercised lightly.[5]

The question for me to determine is whether the 16 votes that prevented Option A of Motion 29 from passing constituted an "unreasonable" decision of the body corporate.

The appropriate test is to determine whether it is just and equitable to override the opposition because the opposition was unreasonable when viewed objectively. I do not consider there is any particular formula or test for reasonableness and note that the High Court has supported a view that a paraphrase can place an unwarranted gloss on relatively plain words applying a test of reasonableness.[6] The preferred approach is to determine objectively whether the votes against Option A constitute opposition that in the circumstances is unreasonable.

In determining whether votes against a motion constitute opposition that in the circumstances is unreasonable it is necessary to consider all the material facts. What is material will vary from case to case but typically the requirement for an adjudicator to make a just and equitable decision involves some balancing of the interests of the majority and minority and raises questions of fairness.[7] It is relevant to consider if any minority opposing the proposal will suffer any real prejudice if their objection is overruled.

While 16 votes were recorded against the relevant motion, only two submissions were received in opposition to this application, representing three lot owners. All owners have been given an opportunity to make a submission in respect of this application. The body corporate manager confirmed on 3 July 2008 that copies of relevant material had been distributed to owners. I have no hesitation in overruling opposition on the basis it is unreasonable where no submission has been provided to justify the opposition.

Even if the opposition of the three owners who made submission opposing the applicant is regarded as reasonable, it constitutes insufficient opposition in light of the 33 submissions received in support of the applicant. Based on the submissions received in response to this application, 33 owners approve of the shade sails and only 3, possibly 4, disapprove.

I have carefully read and considered the competing submissions received in respect of this dispute. In light of those submissions and the information provided and being mindful of the fact that decisions made in general meetings ought not to be lightly set aside, I consider that the opposition to the shade sails as erected was unreasonable and I order accordingly.

In my view, the dissenting voters, in order to demonstrate that their dissent was reasonable, would have to, firstly, make submission in response to this application and secondly, show that the shade sails in some way interfered with their use of their lots or the common property. Only two submissions, possibly three at most, (if you regard the submission by the owner of lot 44 as opposing the applicant), are against the shade sails being approved. Further, of the reasons put forward as reasons for their dissent, none evidence any interference with their use of their lot or the common property, except perhaps that of the owner of lot 44, who was willing to compromise in any event. I further note that had all owners who made submissions in support of the applicant voted as such at the 2008 AGM, Motion 29 would have been passed by special resolution. I note further that, based on the results of voting on Motion 29 at the 2008 AGM, there is not sufficient support amongst owners to have the sails removed.

Given the submissions made in response to this application, the fact that this issue has been considered at two previous AGM’s without a definitive result, and that owners are most desirous of having the issue resolved once and for all, I think it just and equitable to make an order deeming the shade sails erected on the common property at the rear of lot 5 to have been approved by the body corporate as if they had been approved by special resolution of the body corporate

The applicant should be aware of the requirements of section 130 of the Accommodation Module in relation to giving the body corporate notification of the nature and value of the improvements if the premium for reinstatement insurance required to be taken out is likely to increase. (Appropriate enquiries with the body corporate’s insurer should be made in this regard.) In the event that the premium does, in fact, increase because of the existence of the improvements, the body corporate may recover the increase in premium from the applicant[8]. In addition, details of the improvements must be recorded in the Register of Authorisations Affecting the Common Property in accordance with section 145(3) and (4) of the Accommodation Module. The applicant will be responsible for maintaining the improvements in good condition.

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[1] Glades Easthill North [2006] QBCCMCmr 469 (28 August 2006)
[2] See Windsor Shores at Seaforth [2007] QBCCMCmr 451 (30 July 2007) for an explanation of this issue.
[3] See sections 94 & 152, Act
[4] See clause 17 of schedule 5 to the Act
[5] 19th Avenue [2004] QBCCMCmr 529 (3 November 2004), p4
[6] McKinnon v Treasury [2006] HCA 45 per Hayne J at paragraph 61. Waters v Public Transport Corporation (1991) 173 CLR 349.
[7] Points North  [2004] QBCCMCmr 423 (2 September 2004), CJ Carrigan, at paragraph 44. Ocean Plaza Apartments  [2004] QBCCMCmr 452 (23 September 2004), CJ Carrigan, at paragraph 26.
[8] See s 129 Accommodation Module