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O'Quinn Street Apartments [2008] QBCCMCmr 427 (17 November 2008)

Last Updated: 10 December 2008

REFERENCE: 0595-2008


ORDER OF AN ADJUDICATOR


MADE UNDER PART 9 OF CHAPTER 6


BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997


Number of Scheme:
30714
Name of Scheme:
O’Quinn Street Apartments
Address of Scheme:
4 O’Quinn Street TOOWOOMBA QLD 4350

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

Wendy Colbran, a Committee Member and owner of lot 1


I hereby order that resolutions 2 (Removal of Mrs Wendy Colbran as Ordinary Committee Member), 3 (Change to By-Law 1 – Noise), 5 (Change to By-Law 4 – Damage to Lawns Etc), 6 (Change to By-Law 5 – Damage to Common Property), 8 (Change of By-Law 8 – Appearance of Lot), 9 (Change to By-Law 10 – Garbage Disposal), 11 (New Community Management Statement – Allocation of Exclusive Use Areas), 12 (Addition of By-Law 12 – Recovery of Costs), 13 (Addition of By-law 13 – Repairs, Maintenance and Alterations), 14 (Addition of By-Law 14 – Notice of Defect), 15 (Addition of By-Law 15 – Insurance Liability), 17 (Addition of By-Law 17 – Aerials, Receivers & Condensers), 18 (Addition of By-Law 18 – Air Conditioners), 19 (Addition of By-Law 19 – Right of Entry), 20 (Addition of By-Law 20 – Obstruction of Driveways & Paths), 21 (Addition of By-Law 21 – Smoke Alarms), 22 (Addition of By-Law 22 – Contractors) and 23 (Addition of By-Law 23 – Notices and Promulgation of By-Laws) purportedly passed by the body corporate at the Extraordinary General Meeting (EGM) on 9 August 2008, are valid resolutions of the meeting.

I further order that resolution 4 (Change to By-Law 2 – Vehicles), as passed at the EGM on 9 August 2008, is a valid resolution of the body corporate, provided the words “any damage caused to common property by these vehicles will be at the occupiers risk and liability” in paragraph (b) of the exceptions to the proposed by-law, are deleted.

I further order that resolution 10 (Change of By-Law 11 – Keeping of Animals) is a valid resolution of the body corporate, provided that paragraph 11(b)(v) is deleted from the proposed by-law and paragraph 11(b)(vi) is renumbered as paragraph 11(b)(v).

I further order that resolution 16 (Addition of By-Law 16 – Water Apparatus), as passed at the EGM on 9 August 2008, is a valid resolution of the body corporate, provided paragraph 16.1 is deleted from the proposed by-law.

I further order that resolution 7 (Change to By-Law 6 – Behaviour of Invitees), purportedly passed by the body corporate at the EGM on 9 August 2008, was at all times void.

I further order that the body corporate is deemed to have consented, under section 62 of the Body Corporate and Community Management Act 1997, to the recording of a new community management statement containing the by-laws which were approved at the EGM of 9 August 2008, as varied by this order.

I further order that, in all other respects, this application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0595-2008


“O’Quinn Street Apartments” CTS 30714


Application


This application is by Wendy Colbran, a committee member and owner of lot 1, against the body corporate, seeking final orders in the following terms:


  1. That motions 2 through 23 be declared invalid.
  2. That two motions submitted by the owner of lot 1, Wendy Colbran on 16 May 2008 must be included on the agenda of the next general meeting.
  3. That the next general meeting of the body corporate be held in Queensland.
  4. That the adjudicator make any other order deemed necessary.

On 7 August 2008 I issued the following interim order in respect of this matter:


I hereby order that the application for an order deferring the holding of the extraordinary general meeting (EGM) scheduled to be held at 11am on Saturday, 9 August 2008, is dismissed.


I further order that pending a final determination of the dispute, the body corporate must not implement any resolution passed pursuant to motions 2 to 23 of the EGM that is to be held at 11am on Saturday, 9 August 2008.


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).


Jurisdiction


“O’Quinn Street Apartments” is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). The scheme was registered as a building format plan of subdivision on 14 October 2002.


The current Standard Module commenced on 30th August 2008, replacing the previous Standard Module that operated from July 1997 (Previous Module). A number of provisions of the Standard Module are the same, or substantially the same as provisions in the Previous Module despite the provisions having different section numbers. These provisions are generally to be dealt with as replacements of the similar provisions of the repealed legislation and anything done under the Previous Module will not generally be affected by the commencement of the present Standard Module (sections 209 -216, section 20 Acts Interpretation Act.). Where relevant, references will be made to the Previous Module in parentheses after the current module reference.


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 12 August 2008, a copy of the application was provided to the body corporate care of Ann R Body Corporate Managers Pty Ltd (the Body Corporate Manager) for distribution to the owner/s of each lot (excluding the applicant), 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


In addition to the five submissions received in response to the application for interim orders, a further three submissions were received in response to the application for final orders.


The owners of lot 7 made submission to the following effect:


The owners of lot 2 made submission to the following effect:


The secretary, Michael Cullen, made further submission in response to the final orders sought, as follows:


Ms Colbran exercised her right to inspect the submissions and, after requesting an extension of time within which to reply, replied to those submissions on 24 September 2008. I found Ms Colbran’s reply to submissions unnecessarily lengthy and, to the extent that it went beyond responding to matters raised in the submissions, irrelevant. When applicants are informed of their right to inspect and reply to any submissions made, they are advised that, under section 244 of the Act, their reply must be limited strictly to matters canvassed or issues raised in the submissions. In particular, they are warned not to raise new material or issues in their reply. I have disregarded those parts of Ms Colbran’s reply that do not relate to matters canvassed or issues raised in the submissions. The relevant parts of her reply were to the following effect:


Determination


Issues Yet to Be Determined


With respect to the second order sought, as part of my interim decision, I found that the two motions submitted by the applicant on 16 May 2008 conflicted with the legislation and were unlawful and unenforceable. I therefore decline to make a final order in the terms sought by the applicant in this respect. As stated on page 4 of the reasons for my interim decision, the applicant may wish to redraft her motions to comply with the legislation and resubmit them to the secretary for consideration at a future general meeting.


I also decline to make the third final order sought by the applicant, that the next general meeting of the body corporate be held in Queensland. Section 75 (previously section 44) of the Standard Module makes provision for the place of general meetings. Section 75 contemplates general meetings being held not more than 15km (measured in a straight line on a horizontal plane) from scheme land. However, if the committee notifies the owners of its intention to hold the meeting at a stated place more than 15 km from scheme land, and allows them a reasonable opportunity to object in writing to the proposed place, the meeting may be held at the place unless written objections to the proposed place of meeting are given by or for owners of at least 25% of the lots included in the scheme. Based on the record of attendance of the last two general meetings, at least, it is apparent that more owners are able to attend meetings held interstate than in Queensland and that a quorum is able to be achieved at interstate venues, but not necessarily in Queensland. While I acknowledge that holding meetings interstate makes it difficult for the applicant to attend in person, she is not prevented from submitting a voting paper and did so for the EGM the subject of this dispute.


That leaves the only other order sought by the applicant, apart from any other orders deemed necessary, as the declaration that motions 2 through 23 are invalid. At the EGM held on 9 August 2008, each of motions 2 to 23 were passed by six votes for and 1 vote (that of the applicant) against.


In addition, because the matter was raised in the submission in response to the interim orders sought, I will also give consideration to whether the application is frivolous, vexatious, misconceived or without substance.


Applicable Law


169 Content and extent of by-laws


(1) The by-laws for a community titles scheme may only provide for the following—


(a) the administration, management and control of common property and body corporate assets;


(b) regulation of, including conditions applying to, the use and enjoyment of—


(i) lots included in the scheme; and


(ii) common property, including utility infrastructure;

and


(iii) body corporate assets, including easement areas relevant to common property; and


(iv) services and amenities supplied by the body corporate;

(c) other matters this Act permits to be included in by-laws.

(2) If there is an inconsistency between a by-law and a provision (the other provision) of the community management statement that is not a by-law, the other provision, to the extent of the inconsistency, prevails.

180 Limitations for by-laws

(1) If a by-law for a community titles scheme is inconsistent with this Act (including a regulation module applying to the scheme) or another Act, the by-law is invalid to the extent of the inconsistency.


Example for subsection (1)—


If a by-law for a community titles scheme purporting to give a body corporate manager, service contractor or letting agent exclusive use of common property is inconsistent with the regulation module applying to the scheme, the by-law is invalid to the extent of the inconsistency.


(2) Subsection (1) does not apply to an inconsistency between a by-law and a local law or UDA by-law if the inconsistency is about keeping animals on scheme land.


(3) If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.


(4) A by-law can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.


Examples—


  1. A by-law can not prevent the owner of a lot from leasing or mortgaging a lot.

2 A by-law can not prevent the sale of a lot to a person under or over

a particular age.

(5) A by-law must not discriminate between types of occupiers.


Example—


A by-law can not prevent a tenant from using a pool on the common property.


(6) A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.

Motion 2 – Removal of Committee Member


In this regard, the applicant argues that an explanatory note accompanied the motion submitted by the owner of lot 6 and that this explanatory note was not included with the Notice of EGM. When the applicant refers to an “explanatory note” it appears that she refers to a letter dated 24 January 2008 from a co-owner of lot 6 to the body corporate manager requesting that a motion to remove the owner of lot 1 from the committee be included on the next EGM agenda. The applicant also argues that the text under motion 2 on the voting paper was deliberately misleading and failed to explain the reason why the submitter proposed the motion.


With respect to the applicant, I do not agree that Ms Cullen’s letter of 24 January 2008, or parts of it, as alleged by the applicant, is an “explanatory note”. Section 71(5) of the Standard Module provides that the voting paper must state a motion submitted by a lot owner in the form in which it was submitted without amendment. A reading of the letter of 14 January 2008 quite clearly shows that the motion the co-owner of lot 6 wished to include on the agenda of the next general meeting was “THAT the Owner of Lot 1 be removed from the Committee.” I do not agree that the inclusion of section 25 (now renumbered as section 33) of the Standard Module and the “text under motion 2” to which the applicant refers in any way misled owners or contravened section 71(5) of the Standard Module. No owner (including the applicant, who voted “no”) has made submission suggesting that they were misled in voting on motion 2. Nor do I consider it relevant that the applicant believes that motion 2 failed to explain the reason why the submitter proposed the motion. It is not necessary for owners to explain why they are submitting particular motions. Although the legislation provides a mechanism for owners to include explanatory material, it does not oblige them to do so. Section 33(2) of the Standard Module, specifically, does not require any reason to be given, simply provides that a committee member’s position becomes vacant if the member is removed from office by ordinary resolution of the body corporate.


It appears to me that the applicant’s arguments are misconceived and without substance. The voting results of the EGM held on 9 August 2008 show that motion 2 was passed by ordinary resolution. I intend to order that motion 2, as passed by the body corporate at the EGM on 9 August 2008, is a valid resolution of the body corporate. In the circumstances, I do not propose to give consideration to Ms Colbran’s allegation that she has been denied committee member access to the books and records of the body corporate since the date of the EGM.


Motion 3 – Change to By-Law 1- Noise


The applicant states that people have varying levels of tolerance to noise. She alleges that, to determine what is an acceptable level of noise, it must take into consideration not only the nature and level of the noise disturbance, but the frequency and the time of day or night that the disturbance occurs. She further states that lawful and legal noise is governed by the Environmental Protection Act and the Summary Offences Act.


The applicant’s concerns in relation to the proposed addition appear to me to have no legislative basis. They are misconceived and without substance. The subject matter comes within the ambit of section 169 of the Act and the proposed by-law does not breach any of the limitations mentioned in section 180 of the Act. Determining whether any by-law (including the standard by-laws listed in Schedule 4 of the Act) has been breached will always involve a certain degree of “subjectivity”, as the applicant terms it. One of the body corporate’s general functions is to enforce the community management statement (including any by-laws for the scheme). The body corporate must act reasonably in anything it does in that regard, including making, or not making a decision (see section 94, Act). If the applicant believes that the body corporate is acting unreasonably in its application of the by-laws, then she may choose to pursue that matter at the time. On the face of it, I see nothing inherently unreasonable about the by-law itself and I decline to order that the motion approving it (which was passed by six votes to 1), is invalid.


Motion 4 – Change to By-Law 2 – Vehicles


In this regard, the applicant argues that an approval given under the replacement by-law is not required to state the period for which it is given, unlike the existing by-law, that the term “relevant occupier” can be arbitrary, that it is unreasonable to make owners or occupiers responsible for vehicles of their invitees and that, in so far as it proposes to make the occupier responsible for any damage caused by vehicles parked with their consent, it imposes a monetary liability.


The applicant’s first comment merely points out a difference between the existing and proposed by-law, without objection. I do not agree that the term “relevant occupier” is arbitrary. Quite clearly the “relevant occupier” is the occupier who is granting permission to another occupier to park in a space allocated to them. I see nothing inherently wrong with making owners or occupiers responsible for the behaviour of their invitees at least to the extent provided for in existing by-law 6 which requires an occupier to take reasonable steps to ensure the occupier’s invitees do not behave in a way likely to interfere with the peaceful enjoyment of another lot or common property.


The only objection I have to proposed by-law 2 is its attempt to make an occupier liable for any damage caused to common property by tradesman or removalist vehicles. Any assertion of liability pursuant to the by-law would be wrong at law as a by-law of this nature is invalid as seeking to impose a monetary liability contrary to the Act (Act, 180 (6))[1].


Under the terms of section 180(1) of the Act, I consider it reasonable to allow by-law 2, as passed at the EGM on 9 August 2008, to stand, by severing the words “any damage caused to common property by these vehicles will be at the occupiers risk and liability” in paragraph (b) of the exceptions.


Motion 5 – Change to By-Law 4 – Damage to Lawns Etc


In this regard the applicant argues that the effect of the proposed by-law is that all owners do not have the same rights over all of the common property. The applicant states that an owner or an occupier may only have exclusive use to the rights and enjoyment of, or other special rights about common property if authorised by the body corporate. She further states that, on 16 February 2004, the body corporate decided each owner be allocated exclusively the use of the garden/s beside each unit for maintenance. She concludes by stating that the existing requirement for the approval to state the period for which it is given is removed under the proposed by-law.


There are no exclusive-use by-laws registered for this scheme over common property garden areas so regardless of what the body corporate may or may not have decided on 16 February 2004, at this point in time, no owner has rights of exclusive use over any part/s of common property. I do not agree that proposed by-law 4 purports to grant exclusive or different rights over common property. I can see no legislative basis for interfering with it. My comments in relation to by-law 3 are equally applicable here.


Motion 6 – Change to By-Law 5 – Damage to Common Property


In this regard the applicant argues that “Workmanlike manner” can be arbitrary and “amenity” is all those factors that combine to form the character of an area and include present and likely future amenity. She states that the proposed by-law can include an unwelcome change in the external presentation of the scheme building caused by a departure from the building’s colour scheme, materials, style, etc.


The arguments presented by the applicant provide no legislative basis to invalidate this by-law. My comments in relation to motion 3 are equally applicable here.


Motion 7 – Change to By-Law 6 – Behaviour of Invitees


In this regard, the applicant argues that the effect of the proposed by-law is to cause “the owner or an occupier of a Lot” to be liable for or subject to the possibility of compensation. She states that a by-law must not impose a monetary liability upon an owner or an occupier in a community titles scheme. She further argues that it cannot be made an absolute obligation that an owner of a lot must take all steps to ensure that any lessee, licensee, tenant or other occupier of a lot or their invitees comply with the provisions of the by-laws nor that an owner or occupier be held responsible for damage caused by someone else; that of itself is unreasonable.


Any assertion of liability pursuant to this proposed by-law is wrong at law as a by-law of this nature is invalid as seeking to impose a monetary liability contrary to the Act (Act, 180 (6))[2]. Under the terms of section 180(1) of the Act, I consider it reasonable to invalidate motion 7 and allow the existing by-law 6 to stand.


Motion 8 – Change of By-Law 8 – Appearance of Lot


In this regard, the applicant doesn’t state any objection, merely notes that the existing by-law is to be deleted and replaced with the proposed by-law. I do not propose to give any further consideration to it. The applicant’s assertion of invalidity, when no objection is specified, is, in my view, vexatious. Motion 8 is a valid resolution of the body corporate.


Motion 9 – Change of By-Law 10 – Garbage Disposal


In this regard, the applicant argues that the proposed by-law grants lots 2, 5 and 6 enjoyment of common property to the exclusion of lots 1, 3, 4 and 7. She further argues that the effect of this by-law is that all owners do not have the same rights over all of the common property. Either it is common property or it is exclusive use. She states that an owner or an occupier may only have exclusive use to the rights and enjoyment of, or other special rights about common property if authorised by the body corporate.


I do not agree that this by-law is discriminatory. Section 180(5) provides that a by-law must not discriminate between types of occupiers. In my view, proposed by-law 10 does not discriminate between types of occupiers, but rather, makes different provision for the storage of garbage bins based on the different configuration of lots within the scheme. The registered plan reveals that the private yards of lots 1, 3, 4 and 7 border common property and are able to be accessed via the common property without traversing the internal parts of any lot. The private yards of lots 2, 5 and 6 do not border common property and are not able to be accessed via common property without traversing the internal parts of those lots. It is unreasonable to expect the owners of lots 2, 5 and 6 to drag wheelie bins through the internal parts of their lots to enable their bins to be stored in the their private yards. It is not unreasonable for the owners of lots 1, 3, 4 and 7 to have to store their bins in their private yards, as they can be accessed from common property without traversing the internal parts of the lots.


The applicant’s arguments are misconceived. In the circumstances, I am not prepared to invalidate resolution 9.


Motion 10 – Change of By-Law 11 – Keeping of Animals


The applicant makes submission to the following effect:


I do not agree that by-law 11(b)(iii) is inconsistent with by-law 16. Nor do I agree that the requirement to keep an animal for which consent is given, free of disease and vermin and de-sexed, unreasonable, or contrary to the legislation. The ability of the committee to request the “immediate” removal of an animal would, of course, be subject to the process prescribed in the legislation for by-law breaches.


Having said this, however, the applicant has correctly identified a typographical error in the proposed by-law. Any reference in the proposed by-law to “by-law 14”, is clearly incorrect, and should refer to by-law 11. Further, to the extent that proposed by-law 11 seeks to impose a monetary liability by having occupiers indemnify the body corporate for any loss or damage caused by an animal for which consent has been given, it is invalid. Further, it is my view that existing paragraphs 11.1 and 11.2, although not invalid, are superfluous given the proposed by-law.


In the circumstances, I intend to order that motion 10 is a valid resolution of the body corporate, provided that paragraph 11(b)(v) is deleted and paragraph 11(b)(vi) is renumbered to paragraph 11(b)(v).


Motion 11 – New Community Management Statement – Allocation of Exclusive Use Areas


The applicant argues as follows:

I note that an adjudicator has previously made the following orders in relation to the allocation of exclusive use areas[3]:


I hereby order that the proposal to allocate the seven (7) common property parking spaces by way of exclusive use as contained in motion 1 considered by the body corporate at the EGM held on 7 October, 2004, was not passed because of opposition that in the circumstances was unreasonable.


I further order that the motion is valid and that the body corporate shall now take all necessary steps to give effect to the proposal, including the preparation of the relevant by-law and exclusive use allocation plan, and lodgement of the same for registration.


I further order that this approval of the motion is subject to the following allocation of the seven (7) visitor car parking spaces which shall be reproduced in the relevant recorded exclusive use by-law, namely –

If the applicant disagreed with the adjudicator’s order, she could have exercised her appeal rights at the appropriate time. I am not prepared to revisit now, a matter that was investigated and determined in 2004. In fact, I have no jurisdiction to do so. In the circumstances, I do not believe it is necessary for the body corporate to seek general meeting approval to give effect to the action required under the above order. Section 62 of the Act provides for the form of consent of the body corporate to the recording of a new community management statement for the scheme. Section 62(4)(b) of the Act provides that the consent need not be in the form of a resolution without dissent or special resolution if the new statement is different from the existing statement only to the extent necessary for compliance with the order of an adjudicator for the recording of the new statement. By virtue of section 62(7) of the Act, at most, an ordinary resolution would be required. Six out of seven owners have voted to consent to a new CMS in the terms described in motion 11. In the circumstances, I am not prepared to invalidate motion 11.


Motion 12 – Motion 12 – Recovery of Costs


In her grounds, the applicant queries what “costs” are referred to, ie whether “costs” goes beyond maintenance contributions.


The applicant’s comments are frivolous and without substance. Motion 12 does not even contain the word “costs”. It refers only to “maintenance contributions”. The applicant’s objections have no basis. Changes to the Standard Module in 2003 in fact now obligate the body corporate to take action to recover outstanding contributions[4] and this is not a restricted issue for the committee in any event (section 42(i)(e)(i), previously 26(1)(e)(i), Standard Module). The by-law is therefore superfluous (although not invalid), as the legislation provides for the committee to commence legal proceedings to recover outstanding contributions.


Motion 13 – Repairs, Maintenance and Alterations


The applicant argues that:

I cannot see any legislative basis to invalidate this by-law. The applicant’s arguments are without substance. Provided paragraph (b) is applied to require occupier’s to replace windows within the boundaries of their lot only and not windows for which the body corporate is responsible, I see no inconsistency between it and the legislation.


Motion 14 – Notice of Defect


Here, the applicant appears to suggest that proposed by-law 14 is inconsistent with the “Power of Entry” provision in legislation. I do not see any inconsistency with Section 163 of the Act. If anything, by-law 19 is superfluous, although not invalid. Section 163 of the Act provides a comprehensive power to enter a lot. The applicant’s arguments are misconceived.


Motion 15 – Insurance Liability


The applicant states that “An adjudicator does not have the jurisdiction to consider local or other public authority regulations or ordinances etc.”


I disagree and, in any event, the jurisdiction of adjudicators is irrelevant to the content of a by-law. A by-law is valid if its subject matter comes within the ambit of section 169 of the Act and it does not breach any of the limitations mentioned in section 180 of the Act.


Motion 16 – Water Apparatus


The applicant argues that the proposed by-law seeks to impose a monetary liability upon an owner or occupier and that it is unreasonable to impose an absolute obligation that an occupier must ensure that all water taps in his lot are properly turned off after use, or be responsible for the actions of another occupier.


The applicant validly raises the objection in section 180(6) that a by-law must not impose a monetary liability on the owner or occupier of a lot, in respect of paragraph 16.1. I do not have any objection to the remainder of proposed by-law 16. I propose to order that paragraph 16.1 be severed, but otherwise, motion 16 is a valid resolution of the body corporate.


Motion 17 – Aerials, Receivers & Condensers


The applicant notes that this differs from existing by-laws 8.1 and 5.2 and appears to suggest that the proposed by-law is inconsistent with “Improvements” section of legislation.


I do not see any inconsistency with the provisions made for authorising improvements in the Standard Module. By-law 17 can operate in conjunction with these.


Motion 18 – Air Conditioners


The applicant appears to suggest that the proposed by-law is inconsistent with a previous resolution of the body corporate of 12 September 2006 and also the “Improvements to common property provision”. I do not see any such inconsistency and believe that by-law 18, like by-law 17, can operate in conjunction with legislative provisions regarding improvements to common property.


Motion 19 – Right of Entry


The applicant appears to suggest that the proposed by-law is inconsistent with the “Power of Entry” provision of the legislation. I do not see any inconsistency with section 163 of the Act. If anything, by-law 19 is superfluous, although not invalid. Section 163 of the Act provides a comprehensive power to enter a lot.


Motion 20 – Obstruction of Driveways & Paths


Here, the applicant appears to suggest that proposed by-law 20 is inconsistent with proposed by-law 2, although she does not specify how. Although both by-laws make provision for parking on the common property, I do not see why the two by-laws cannot operate together. By-law 2 makes specific provision for parking on the common property. By-law 20 makes specific provision for obstruction of paths and driveways, while also making general provision for parking on common property.


Motion 21 – Smoke Alarms; Motion 22 – Contractors; Motion 23 – Notices and Promulgation of By-Laws


In relation to motion 21, the applicant appears to suggest that proposed by-law 21 is inconsistent with State Fire and Rescue laws. She states that, in any event, if an owner has a legislative obligation with respect to the installation of a smoke alarm (Fire and Rescue Service Act 1990), the obligation is enforced in accordance with the applicable legislation, not the Act.


In relation to motion 22, the applicant appears to suggest that proposed by-law 22 is inconsistent with the Power of Entry provision of the legislation and that it is unreasonable to expect an owner or occupier to avoid instructing a contractor/workman within the boundaries of a lot for any repair or maintenance to be carried out on personal property.


In relation to motion 23, the applicant states that it is a requirement under the Residential Tenancies Act 1994 that the lessor/agent provide a tenant with a copy of the body corporate by-laws. This is enforced in accordance with the applicable legislation, not the Act.


Just because a by-law makes similar provision to another law on the same subject matter does not mean that the by-law is inconsistent with the other law. The by-law and the other law may operate in conjunction. It is only if the by-law is inconsistent with the other law, that its validity under section 180(1) of the Act becomes relevant, and even then, only to the extent of the inconsistency, is the by-law invalid. The applicant has not alleged any specific inconsistency with other laws in respect of the by-laws the subject of motions 21, 22 and 23 and I am not persuaded to invalidate them based on her arguments, which I regard as misconceived and without substance.


Application – Frivolous, Vexatious, Misconceived or Without Substance?


I have dismissed two of the three specific final orders sought by the applicant. In relation to one of the orders sought, she has had some success. Of the 22 resolutions passed at the EGM of 9 August 2008, challenged by the applicant and investigated by me, I have declared 1 void and severed parts of 3.


Overall, I found the application to have very little merit. I consider some aspects of it as frivolous, vexatious, misconceived and without substance. I recognise the frustration of owners in the scheme, as expressed via the submissions process, in having to deal with the applicant as a member of their body corporate. Nevertheless, because I did find deficiencies with 4 of the 22 resolutions challenged, I cannot dismiss the application in its entirety and am therefore precluded from making a costs order against the applicant in the terms of section 270(3) of the Act. However, I draw the applicant’s attention to section 270(3)(b) of the Act which enables an adjudicator to have regard to previous applications made by the applicant when considering whether to make a costs order against them in the event that an adjudicator dismisses an application for being frivolous, vexatious, misconceived or without substance. The comments I have made here are able to be considered by any adjudicator investigating any further applications made by Ms Colbran.



[1] White Caps [2008] QBCCMCmr 130 (17 April 2008)
[2] White Caps [2008] QBCCMCmr 130 (17 April 2008)
[3] O'Quinn Street Apartments [2004] QBCCMCmr 277 (28 May 2004)
[4] See now section 145(2) of the Standard Module


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