Reflection On The Sea [2008] QBCCMCmr 380 (15 October 2008)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Henry Vujica, the owner of Lot 1005

I hereby order that the application by Henry Vujica against the body corporate for Reflection On The Sea community titles scheme 34963 seeking either of the following outcomes:

That the Body Corporate prepare a new community management statement (CMS) to record the ‘S1’ authorised exclusive use allocation, endorse its consent to the new CMS and have the new CMS recorded at the Department of Natural Resources and Water; or
That the resolution opposing Motion 7 at the Annual General Meeting dated 28 March 2008 be overturned, that a new CMS be prepared by the Body Corporate recording the Exclusive Use Area, that the Body Corporate endorse its consent on the new CMS, and that the new CMS be recorded at the Department of Natural Resources and Water,

is dismissed.

The scheme
“Reflection On The Sea” community titles scheme 34963 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application is by Henry Vujica (Applicant) against the Body Corporate seeking an outcome that the Body Corporate prepare a new community management statement (CMS) to record the ‘S1’ authorised exclusive use allocation, endorse its consent to the new CMS and have the new CMS recorded at the Department of Natural Resources and Water. The Applicant also seeks an alternative outcome to overturn the opposition to the exclusive use Motion 7 at the Annual General Meeting dated 28 March 2008, that a new CMS be prepared by the Body Corporate recording the Exclusive Use Area, that the Body Corporate endorse its consent on the new CMS and that the new CMS be recorded at the Department of Natural Resources and Water.

Submissions to the Commissioner
The Commissioner provided a copy of the application to Ernst Body Corporate Management (Body Corporate Manager) for distribution to the owner of each lot (excluding the Applicant) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

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

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act).

Background
The scheme was created on 20 January 2006 when the Registrar of Titles registered SP 166407 and the first community management statement (s 24, Act). Levels A and B of the registered plan are principally common property.

The first CMS included By-Law 47 “Exclusive Use Area – Car Park” and By-Law 48 “Exclusive Use Area – Storage”. By-Law 47 attached to various lots included in the scheme and specifically identified Level A and B common property areas that were allocated to lots for car parking and storage. By-Law 48 attached to various lots included in the scheme and specifically identified Level A and B common property areas that were allocated to lots for storage. By-Law 48(b) provided “The Original Owner is authorised to allocate the exclusive use of that part of the Common Property to the Occupiers of Lots specified in a written notice to the Body Corporate. When the allocations are made they will be identified in Schedule E under the heading By-Law 48 and this by-law will attach to the relevant lots”. Schedule E indicated that 26 areas of common property—shown on Plans marked ‘A’ and ‘B’—were allocated for storage purposes. ‘Plan A’ prepared by Bennett & Bennett and dated 27 November 2003 showed the area marked ‘S1’ in the north-eastern corner of Level A. Lot 1005 was not allocated exclusive use under By-Law 48. Schedule E did not identify the area marked ‘S1’ as being allocated to a lot.

In February 2006, the Applicant purchased Lot 1005. The Applicant says that prior to settlement it was agreed between the solicitors for the Original Owner (the seller) and the solicitors for the purchaser that the Applicant would be granted storeroom marked ‘S1’ on the plan annexed to the application at Annexure 3. The Annexure 3 plan is the same as ‘Plan A’ dated 27 November 2003 included in the First CMS. The Plan highlights the area marked on the Plan as ‘S1’ in the north-eastern corner of Level A.

On 4 August 2006, the Registrar recorded a new CMS for the scheme (Dealing 709823127) containing By-Laws 47 and 48 in similar terms to those included in the First CMS. The schedule E allocations under By-Law 48 are also similar with the exception of an allocation to: Lot 1302 of ‘Area S4’; and Lot 2002 of ‘S3’. The CMS included a ‘Plan A’ prepared by Bennett & Bennett and dated 27 November 2003 which showed the area marked ‘S1’ as being in the same part of common property on Level A as stated in the ‘Plan A’ included in the First CMS. Lot 1005 was not allocated exclusive use under By-Law 48. Schedule E did not identify the area marked ‘S1’ as being allocated to a lot.

The Applicant says he was not advised the ‘S1’ allocation had not been recorded until 1 February 2008 when Allens Arthur Robinson (solicitor) informed Wilson Ryan Grose Lawyers (for the Applicant) that “Due to an oversight the (CMS) reflecting your client’s exclusive use of storage area S1 has not yet been recorded...Our client is arranging for this matter to be brought to the body corporate’s attention”.

At the Annual General Meeting dated 28 March 2008, Motion 7, “That the Body Corporate sign the...CMS (that)...amends Schedule E by allocating Storage Area S1 to the exclusive use of Lot 1005...” was lost by resolution without dissent.

On 11 July 2008, the Registrar recorded a new CMS for the scheme (Dealing 711776871) containing By-Laws 47 and 48 in similar terms to those included in CMS 709823127. The schedule E allocations under By-Law 48 are also similar with the exception of an allocation to Lot 1005 of ‘Area S1’ on ‘Plan A’. The CMS includes ‘Plan A’ prepared by Bennett & Bennett and dated 27 November 2003 showing the area marked ‘S1’ as being on the same part of common property on Level A as stated in the ‘Plan A’ included in the previous CMS.

Decision
The Applicant submits the allocation of the ‘S1’ area was validly made by the Original Owner in accordance with the Act and that the Body Corporate has failed to comply with section 175 of the Act by not lodging a CMS to record the allocation. The Applicant says he has used the area exclusively since February 2006 and that the Body Corporate has and is continuing to permit him to use the area to the exclusion of others. The Body Corporate did not make any submissions. No owners have opposed the application.

The Applicant seeks an order to allow the Body Corporate to prepare a new CMS to record the ‘S1’ allocation or to give effect to Motion 7 proposed to the 2008 AGM. Basically, the Applicant seeks recognition of the allocation of common property under By-Law 48 to Lot 1005.

The CMS for the scheme lodged by Allens Arthur Robinson Lawyers on 8 July 2008 and recorded by the Registrar on 11 July 2008 includes the allocation of the area ‘S1’ to Lot 1005 on the same part of common property as shown on the ‘Plan A’ included in the application at Annexure 3. The Applicant does not make any submissions about this CMS even though the application was made on 21 August 2008. As the CMS records the allocation the Applicant is now seeking to be recorded, I am satisfied there is not a dispute to be determined.

Number of Scheme:	34963
Name of Scheme:	Reflection On The Sea
Address of Scheme:	Marine Parade & McDonald Street COOLANGATTA QLD 4225

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Reflection On The Sea [2008] QBCCMCmr 380 (15 October 2008)