Jemo Court [2008] QBCCMCmr 441 (26 November 2008)

Number of Scheme:	15643
Name of Scheme:	Jemo Court
Address of Scheme:	153 Government Road LABRADOR QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Molly Weeks, the owner of Lot 8

I hereby order that the application for an order by Molly Weeks, the owner of Lot 8 against the body corporate for Jemo Court community titles scheme 15643 seeking an outcome that the Body Corporate lodges a new community management statement, is dismissed.

The scheme
“Jemo Court” community titles scheme 15643 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).

Application
This application is by Molly Weeks, the owner of Lot 8 (Applicant) against the Body Corporate seeking an outcome that the Body Corporate lodges a new community management statement (CMS) outside the time for lodging the statement stated in section 65 of the Act.

The Applicant has named Mr Whiteley of Lot 5, Ms Hartley of Lot 7 and Ms Pembshaw of Lot 11 as affected persons.

The Applicant states that on 22 January 2007, the Body Corporate considered allocating exclusive use of various parts of common property to Lots 8, 9 and 11. The Applicant referred to a cross hatched area on Building Units Plan 104969 and provided a copy of a document titled ‘”A” Exclusive Use (Courtyard) Plans’ where areas marked adjacent to these lots have been noted ‘Additional Lot 8’, ‘Additional Lot 9’ and ‘Additional Lot 11’. The Applicant says a vote was held and the one person who disagreed—Sandra Cole of Lot 10— sent a letter to change her vote. The Applicant provided a copy of a letter dated 10 September 2007 signed by SJ Cole stating “I have change (sic) my opinion on the division of vacant land at Jemo Court. At the time of my decision I didn’t understand the cost involved...I now wish for this to go ahead as soon as possible”. The Applicant says Strata and Body Corporate Services did not put this information into the Titles Office.

The Applicant submits that at another meeting dated 17 November 2007, the matter of additional common property was raised and passed regarding Lots 5 and 7. She refers to a plan numbered 07.1218.01 stating a fence has been built between the common property marked on the plan as allocated to Lots 7 and 8. The Applicant states the secretary, Mr Whiteley has indicated the Body Corporate decision has not been put into the Titles Office and he didn’t realise there was three months to do it.

She says he suggested putting the matter to another vote but she doesn’t want the matter to go to a vote as there are a lot of new owners. The Applicant states this had been voted on at 2 meetings and everyone concerned is in agreement, the fences have been put up and she has been maintaining the area. The Applicant also provided a statement of reasons to support consideration of this matter outside the three month time frame. This statement listed 12 reasons including: she has made changes in line with the decision; all 11 owners have voted this matter in twice; colour bond fences have been put up; the area is not much good to anyone else; the area is safe for the use of grandchildren; and she and her husband have been maintaining the area since December 2007.

Submissions to the Commissioner
The Commissioner provided a copy of the application to Mr Whiteley 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). On 14 October 2008, Mr Whiteley informed the Commissioner that the notice had been distributed to the lot owners.

Mr Whiteley made submissions agreeing that the Body Corporate should be able to lodge a new CMS with the Titles Office to register the exclusive use areas as voted on at the general meetings of January and November 2007. He says the registering of the January 2007 resolution was not completed by the then body corporate manager and three months had passed after the November 2007 resolution by the time he contacted the Titles Office.
He says payments have been made to the surveyor, fencing has been completed, he is not aware of anyone who previously voted having an issue registering a new CMS, and he is not aware of any changes in circumstances that would alter the agreed resolution without dissent.

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 community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s 276(1), Act).

Decision
Background
The Body Corporate was created by the registration of Building Units Plan 104969 on 28 October 1996. The Plan identifies the buildings, the eleven lots included in the scheme and the common property. Generally, the common property includes those parts of scheme land not included in a lot.

On 14 February 1997, the Registrar of Titles recorded 37 by-laws on the Plan, including By-Law 37 which entitled the owners of the lots to exclusive use for courtyard and garden purposes of parts of common property identified on the attached ‘Sketch Plan’ titled ‘”A” Exclusive Use (Courtyard) Plans’. The By-Law contains various conditions. As a Standard Community Management Statement applies to the scheme, this By-Law still applies (s 337 and 339, Act)

The Applicant provided a copy of the minutes of the Annual General Meeting dated 22 January 2007. A motion proposing “that the owners of lots 8, 9 and 11 be granted additional exclusive use of the areas cross hatched on the attached plan” was lost with one no vote being recorded. Present at the meeting was Mr Doversand, Miss Bowron, Ms Hartley, Ms Weeks and Ms Pembshaw. Ms Cole submitted a voting paper. A search of the land titles registry of the Department of Natural Resources and Water indicates that at the time of this meeting: Molly Weeks owned Lot 8; Boon Ghee Chua owned Lot 9; and Sheila Pembshaw owned Lot 11.

The Applicant also provided a copy of the minutes of the Annual General Meeting dated 17 November 2007. Motions 5 and 6 were passed by resolution without dissent that the owners of Lots 5 and 7 are granted exclusive use of the areas cross hatched on the attached plan. A document provided by the Applicant and titled ‘Explanations’ states “Motion 5 and 6 and the previous motion passed for lots 8, 9 and 11 at the AGM on 22 January 2007. The exclusive use areas will become the responsibility of the identified unit holders to upkeep, hence saving maintenance payments by the Body Corporate”. A ‘Plan For Exclusive Use’ by Alan Sullivan Consulting Surveyor numbered ‘07.1218.01’ was included in the application. This Plan identifies exclusive use areas marked A to K. Present at this meeting were Mr Doversand, Mr Whiteley, Ms Hartley, Mrs Weeks, Ms Cole and Ms Pembshaw.

Applicable law
An exclusive use by-law is a by-law that attaches to a lot and gives the occupier exclusive use to the rights and enjoyment of common property (s 170(1), Act). An exclusive use by-law specifically identifying the common property to which it applies may attach to a lot only if the lot owner agrees in writing before the passing of a resolution without dissent consenting to recording a new CMS to incorporate the by-law or the owner votes personally in the resolution (s 171(2)(a), Act).
If the body corporate consents to a new CMS, it must be prepared in a way that is consistent with the consent (s 63 and s 64, Act).
The body corporate must, within 3 months after it consents to the recording of the new CMS, lodge a request with the registrar to record the new CMS (s 65, Act). A by-law comes into force on the day the registrar records the CMS containing the by-law (s 179, Act).

The result of voting on a motion at a general meeting is declared by the person chairing the meeting (s 93, Standard Module). The minutes of a general meeting must show the votes for and against each motion voted on (s 96, Standard Module).

Annual General Meeting dated 22 January 2007
The Applicant has relied on the letter dated 10 September 2007 from Sandra Cole to support her view that a resolution has been passed to grant exclusive use of common property to the owners of Lots 8, 9 and 11. While the terms of the letter may reflect what the Applicant is contending, I do not consider the letter is sufficient for a determination to now be made to overturn the resolution of the meeting. This letter is dated almost 8 months after the resolution of the meeting and there is no evidence that the Body Corporate has attempted to change or rescind the resolution made at the meeting. The declared result of voting on the relevant motion as indicated in the minutes of the meeting is that the motion was lost. This declaration still applies despite the claimed intent of the letter.

While it would seem the owners of Lots 8 and 11 supported the motion, given the recorded attendance at the meeting it would appear that the owner of Lot 9 did not vote on the Motion. There is no indication that this owner agreed in writing prior to the meeting to the exclusive use allocation. Where there is to be a specific identification of the common property to be allocated, the owner must indicate agreement to the allocation (s 171(2)(a), Act). Further, despite the Commissioner’s invitation, neither the owner of Lot 9 and 11 supported the application. Over 22 months has now passed since the meeting. There is no evidence either owner wants or still wants to have a grant of exclusive use over common property. In my view, the Applicant has not substantiated her claim that everyone is in agreement.

For these reasons, I do not consider there is a basis for making a determination to overturn the minuted resolution or to now require the Body Corporate to proceed to having a new CMS lodged to reflect the proposal stated in the motion.

Annual General Meeting dated 17 November 2007
While it was resolved at this meeting to allocate common property for the exclusive use of the occupiers for the time being of Lots 5 and 7, it is evident from a search of the land titles registry that the Body Corporate has not lodged a new CMS to record the relevant by-law. Clearly, the section 65 three month limit has not been complied with.

It would seem the surveyor’s plan proposing the allocation makes provision for the additional allocations to Lots 8, 9 and 11. The passing of Motions 5 and 7 does not authorise the additional allocations to Lots 8, 9 and 11. Further, I do not consider the Applicant can seek an order to have the resolutions implemented for the sole reason that this plan includes an additional allocation to Lot 8.

Conclusion
The Applicant has provided reasons for waiving the legislated three month time limit with respect to the additional allocation she is seeking for her Lot. As I stated above, in my view the relevant motion submitted to the January 2007 meeting has not been passed. The Body Corporate was under no obligation to lodge a new CMS including the additional allocation. The letter from Ms Cole did not oblige the Body Corporate to lodge a new CMS. However, the Body Corporate could have convened another general meeting to reconsider the motion. It is apparent that this has not happened. In these circumstances, the owners of Lots 8, 9 and 11 could not presume they each had exclusive use of a part of common property. A by-law does not apply until such time as the new CMS containing the by-law is recorded by the registrar (s 179, Act).

The allocation of additional exclusive use areas to those identified in By-Law 37 must be properly considered again by the Body Corporate. I appreciate the concerns the Applicant may have given there are new owners. However, I do not consider there is any basis to make an order compelling the Body Corporate to record the exclusive use allocations proposed in January 2007.

In my view, the Applicant must submit an appropriate motion for the consideration of the Body Corporate taking into account the provisions of the legislation, including those I referred to above. Other owners may also choose to similarly submit a motion. An owner proposing to obtain the benefit of an allocation of common property may for example, explain to the lot owners the reasons for seeking the allocation. A person who submits a motion may give the secretary an explanatory note than is not longer than 300 words (s 73, Standard Module). This note is included in the notice of the meeting given to lot owners. Consideration may also be given to using the ‘Plan for Exclusive Use’ by Alan Sullivan Consulting Surveyor numbered ‘07.1218.01’ if it is still applicable. A general meeting may be called with the authorisation of the committee or subsequent to the receipt of a requisition from the owners of at least 25% of the lots included in the scheme to the secretary, or in that person’s absence, the chairperson (s 65 and s 67, Standard Module).

It may be that owners would not oppose the proposed additional allocations. If a motion relating to an allocation of exclusive use is passed, the committee should take steps to ensure a new CMS is lodged with the registrar within the three month time limit. If a motion is lost, an owner may choose to make a dispute resolution application seeking an outcome for example, to overturn the resolution arguing that the opposition was unreasonable. If an adjudicator is satisfied the motion was not passed because of opposition that in the circumstances was unreasonable—the adjudicator may make an order giving effect to the motion as proposed (schedule 5, clause 10, Act).

In conclusion, it is not appropriate that an order is made firstly, to change the resolution made by the Body Corporate at the meeting held in January 2007 or secondly, to require the implementation of resolutions made at the meeting held in November 2007 with respect to allocating common property for the exclusive use of Lots 5 and 7. For these reasons, the outcome sought is dismissed.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Jemo Court [2008] QBCCMCmr 441 (26 November 2008)