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Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders |
Last Updated: 29 February 2008
REFERENCE: 0700-2007
ORDER OF AN ADJUDICATOR
MADE UNDER PART 9 OF CHAPTER 6
BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997
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Number of Scheme:
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17533
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Name of Scheme:
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Solitaire Riverside
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Address of Scheme:
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20 Riverview Parade SURFERS PARADISE QLD 4217
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TAKE NOTICE that pursuant to an application made under the abovementioned Act by
Jacmay Pty Ltd, the Owner of Lot 9
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I hereby order that the application for the following order:
I seek to rectify the Community Management Statement, such that a new
CMS is recorded which is consistent with the statement for which
the body
corporate gave its consent to on 13 February 1997. Having regard to the
allocation of car and storage space allocations,
that lot 9 be allocated car
spaces 14/15 and storage space 9.
is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0700-2007
“Solitaire Riverside” CTS 17533
Solitaire Riverside community titles scheme (Solitaire Riverside) consists of 18 lots and common property. The community management statement (CMS) for Solitaire Riverside indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 101716.
APPLICATION
Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Jacmay Pty Ltd, Owner of Lot 9 (applicant) on 28 August 2007. The applicant sought orders against the Body Corporate for Solitaire Riverside (respondent) in the following terms:
I seek to rectify the Community Management Statement, such that a new CMS is recorded which is consistent with the statement for which the body corporate gave its consent to on 13 February 1997. Having regard to the allocation of car and storage space allocations, that lot 9 be allocated car spaces 14/15 and storage space 9.
PROCEDURAL MATTERS
This application was lodged following a determination by the Commissioner that the dispute was not appropriate for departmental conciliation.
Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to the Committee and all owners to respond to the matters raised by the application. Submissions were made by the Committee and by eight owners. The applicant inspected the submissions received and made a written reply.[1]
A dispute resolution recommendation was made referring the dispute to departmental adjudication.
MATTERS IN DISPUTE
The application relates to the allocation of exclusive use car spaces. The facts of the dispute, as outlined in the application, submissions and reply to submissions, can be summarised as follows.
The applicant purchased Lot 9 from the developer Tacsan Australia Pty Ltd (Tacsan) on 7 July 1995, with settlement on 7 August 1995. The contract indicated that Lot 9 was allocated car spaces 14 and 15. Correspondence then occurred between the applicant’s solicitors and the then Body Corporate Manager (BCM) regarding whether Lot 9 had been allocated spaces 14/15 or not, and it seems the contract of sale for Lot 8 also indicated an allocation of spaces 14/15.
On 13 February 1997 an Annual General Meeting (1997 AGM) resolved to change the exclusive use by-law regarding car space allocations and the result was that Lot 9 retained car space 14/15. The amended by-laws were lodged on 14 May 1997 and refer to a resolution on 14 April 1997.
It seems that applicant uses the lot infrequently and until the end of 2006 had no problem accessing car spaces 14 and 15. However they then encountered other owners using the spaces, and discovered a new CMS was lodged in 2000 which changed the car space allocation of Lot 9 to spaces 12 and 13. The applicant claimed it never received notice of a meeting to approve a new CMS, and asserts the CMS was not validly approved.
Body corporate records show that AGM on 26 May 2000 (2000 AGM) passed Motion 10 to record a new CMS in accordance with an attached schedule. The minutes indicate that the motion required a special resolution, and the recorded voting was seven votes in favour and nil against.
After the applicant raised concerns, on 12 April 2007 the Committee concluded that an error may have been made in the CMS. However they said that in the absence of any evidence they could not take any further action and it was up to the affected owners to pursue the matter. The applicant says they wrote to the Owners of Lots 7 and 8 who refused to consent to a new CMS.
The submission from the Committee is that it neither supports nor opposes the application. However it provides information about the history of the car park allocations in the scheme and available Body Corporate records. These are included in my determination where relevant.
The Owner of Lot 7 objects to the application. Their comments include:
They purchased in October 2006 in reliance on the current CMS;
The applicant has acquiesced in the status of the car parks by the failure to pursue the matter in the seven years since the CMS was registered;
The applicants did not consult with them, but they did write to the applicant in May 2007 following a ‘threatening’ letter to the Owner of Lot 8;
The current CMS was properly authorised and registered and the car parking plan is consistent with the original allocations and by-laws of the building;
There are no meeting minutes or other correspondence to support the applicant’s position;
Form 7[2] is defective as the resolution was not without dissent and the meeting was not appropriately or properly convened;
The Limitation of Action Act 1974 precludes the applicant to pursue the remedies sought because of the substantial time elapsed;
The Owner of Lot 8 also objects to the application. His comments include:
In November 1996 they received a call from the Body Corporate telling them to park in spaces 16/17 and in September 2006 they were told to park in spaces 14/15. They say they have never been able to park in 14/15 because, although they only visit once year, the applicant leaves a car there or “...the T bar lock is up.”;
He received a letter date 16 May 2007 from the applicant claiming that the applicant was allocated spaces 14/15 on the contract, and they were allocated 12/13. The letter says that if they did not consent to an adjustment of the CMS within seven days they would make an application to the ‘Tribunal’ with an order for costs against them. Accordingly they feel the applicant did not make a reasonable attempt to conciliate;
He believes the handwritten 14/15 on the applicant’s contract was in error as they were also told they were allocated 14/15 when they paid their deposit in August 1995;
He claims car spaces were discussed are a general meeting in November 1996 and the developer agreed that 14/15 belonged to Lot 7; and
He did not know about the change to the by-laws in 1997, that he was out of the country at the time, but he claims the Committee was aware if his dissent and so he disputes that those by-laws were approved without dissent.
Identical submissions have been made by six other owners also opposing the application. The comments include that the applicants have had many years to object to the current CMS, and that the Owners of Lot 7 and 8 should not have to change the spaces that they have used for seven years, consistent with the registered CMS.
The applicant primarily responds to the submission from Lot 7 and says:
In regard to the alleged delay, the applicant had a car parked continuously in spaces 14/15 from December 1999 until September 2004, and then had use of the spaces until September 2006, and never had difficulty using the spaces;
In regard to the alleged meeting in November 2006, the issue was resolved by the passing of the resolution without dissent in February 1997;
Although the minutes indicate the applicant was represented at the 2000 AGM by voting paper, they deny receiving notice of the AGM or submitting a voting paper on the motion;
The minutes of the 2000 AGM show that the new CMS was approved by a special resolution but under section 62 of the Act this was insufficient to change an exclusive use by-law; and
The applicant is prejudiced by not being able to use the car space he is entitled to, which has an adverse impact on the value of his lot.
I sought further information from the Body Corporate regarding the application. It advised:
There is no record of any general meeting occurring on or around 14 April 2007, with the only general meeting in that year being the 1997 AGM;
There is no record of ‘Annexure A’ referred to in Motion 11 of the minutes of the 1997 AGM;
There are no Committee minutes or correspondence relating to the registering of the change of by-laws in 1997;
There is no record of the notice of meeting of the 2000 AGM, including the attachments to the CMS motion;
Three letters between the former BCM and the Body Corporate’s solicitors regarding the preparation of the current CMS were supplied;
There are no records indicating whether the 2000 AGM was sent to Lot 9, but financial records indicate that Lot 9 was receiving contribution notices at least; and
Voting tally sheets, proxy forms and voting papers are available for the 2000 AGM and these include a voting paper for Lot 9.
On receiving a copy of the voting paper submitted by Lot 9 for the 2000 AGM the applicant conceded that they did receive notification of the meeting and gave consent to the CMS. However, they submit that the CMS was a procedural requirement only and would not have affected the car park allocations.
JURISDICTION
Subject to the issues arising regarding the time limit for making this application, which I will discuss in the course of my determination, I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[3]
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:
(a) a claimed or anticipated contravention of the Act or the CMS; or
(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or
(c) a claimed or anticipated contractual matter about -
(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)).
DETERMINATION
The main issues for consideration in this matter are whether the CMS currently recorded for the scheme was validly approved and what the correct exclusive use car space allocations for the scheme are.
Time limit for the application
One of the submissions claims that the application is precluded by the Limitations of Actions Act 1974. That legislation imposes time limits within which actions must be commenced in courts in Queensland, and if legal proceedings are not commenced they are out of time and cannot proceed unless there are special circumstances. However that legislation does not apply to adjudications under the body corporate legislation.
However the body corporate legislation does set some time limits on disputes. Section 242 of the Act places a limit of three months on applications seeking to invalidate a committee or general meeting, a meeting resolution, or a committee election. When an application is lodged out of time, the Act requires the Commissioner to proceed as if the application had been in time and provides that the adjudicator may waive non-compliance with the time limit for good reason.
The applicant has not specifically sought an order to invalidate a meeting or a resolution. But in disputing the CMS that was purportedly approved by the Body Corporate on 26 May 2000, variously on the basis that no meeting occurred, that they were not given notice of the meeting, that an incorrect resolution type was applied, and that the recording of the CMS was procedural only, it is arguable that the applicant is in effect seeking to invalidate the 2000 AGM resolution. In this regard the applicant is approximately seven years outside the time limit.
The applicant’s reasons for not pursuing the matter earlier were that they were not aware until late 2006 of any change to the CMS or the car space allocations. However, having been aware of this issue since at least by 7 November 2006, when his solicitors wrote to the BCM, the material provided does not indicate why action in this Office was not commenced until 21 August 2007.
In an appeal of a previous adjudicator’s order to the District Court, Dodds J set out the basis for waiving compliance with the time limit. His Honour stated:
“As to waiving compliance for good reason ... the objects of the Act, for instance section 5(a) and (h) mitigate against too strict or legalistic a view about good reason for waiving non-compliance with the time limit. What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought. The applicant, being the person seeking the waiver, will have the task overall of satisfying the adjudicator that the time limit should be waived in all the circumstances.”
I will consider these criteria in turn. As noted, the length of the delay is significant. I am not aware of any previous adjudication where a delay even approaching that length has been waived.
The applicant initially stated they were not aware of the 2000 AGM or the resulting CMS. That would have required me to accept that the applicant did not receive the notice or the minutes of the AGM in the absence of any evidence that any other owner did not receive the material or that the applicant experienced difficulty receiving other Body Corporate correspondence (including levy notices). It would also require me to accept that the applicant did not notice that (to their knowledge) there had been no AGM for that year, and that the BCM or Secretary deliberately or in error recorded a voting paper from the applicant.
On being presented with a copy of a voting paper signed on behalf of Lot 9, the applicant has accepted that notification of the 2000 AGM was received and the motion was consented to. They now imply that they did not realise the car parking spaces were affected. In general terms I would argue that there is an onus on a voter to inform themselves of the effect of a motion before they decide to vote in favour of a motion. If a voter is unclear as to the effect of the motion they should ask the Committee, discuss the issue at the meeting or not cast a vote in favour of the motion.
However, even if I accepted the argument that the applicant was not aware of the affect of the new CMS, I am not satisfied that the applicant has given any cogent reason for taking over nine months to pursue their rights once they became aware of the CMS and its contents. There is little indication as to what occurred since the exchange of some correspondence in late 2006.
The next issue is the effect of the delay on others. In general (and this is the purpose of the time limit) owners have an expectation that meeting decisions will not be reconsidered for an indefinite period. The current and former owners of Lots 7 and 8 have relied on the current CMS for seven years and argue that they are entitled to continue to do so. But no party on either side of the argument has provided any evidence as to why they would be materially disadvantaged by using one car space over another.
The final criterion established by Dodd J is whether, apart from non-compliance with the time requirement, an applicant would be entitled to the relief sought. This appears to require a merits assessment of whether the applicants would ordinarily have been entitled to the outcome sought if the application had been lodged in time. While the extent of the delay and the reasons for the delay are persuasive grounds to refuse to waive the non-compliance with the time limit, there is benefit in the parties better understanding the issues arising here. Accordingly I will proceed to an assessment of the issues.
History of exclusive use car space allocations
Solitaire Riverside was registered on 17 February 1995 under the Building Units and Group Titles Act 1980 (BUGTA), which applied prior to the current Act. At that time the by-laws for the scheme were contained in Schedule 3 of BUGTA, which include no exclusive use allocations.
A Notification of Change of By-laws was registered on 28 August 1995, having been signed for the scheme by the company nominee and sole proprietor of Tascan (Hiro Tado) on 22 March 1995. This replaced the BUGTA by-laws with 38 new by-laws. By-law 34 provided as follows:
It is unclear whether Tacsan actually advised the Committee in writing of the car space allocations. Correspondence in 1995 indicates that the then BCM was trying to clarify with the developers why an (unspecified) change in arrangements had been made, and asking that it revert back to the contract. I have not been provided with details as to what occurred over the following 18 months.
On 3 June 1997 a further Notification of Change of By-laws was registered. It was signed by the then BCM purportedly pursuant to a resolution without dissent passed on 14 April 1997. The change was to amend the By-laws by the addition of the following:
LOT NUMBER CAR SPACE STORAGE SPACE
1 28/29 1
2 26/27 2
3 24/25 3
4 22/23 4
5 20/21 5
6 18/19 6
7 12/13 7
8 16/17 8
9 14/15 9
10 30/31 10
11 34/35 11
12 32/33 12
13 11/36 13
14 1/2 14
15 3/4 15
16 5/6 16
17 7/8 17
8 9/10 18
It is noted that the new By-law 39 appears to be in addition to the existing By-law 34.
While the notification to add By-law 39 refers to a resolution without dissent on 14 April 1997, it seems the change was approved at the AGM held on 13 February 1997. The meeting minutes in regard to Motion 11 indicate that allocations attached to the meeting papers (no record is available) were passed as a resolution without dissent but with the alteration that Lot 7 allocated 16/17 rather than 12/13 and Lot 8 allocated 12/13 rather than 16/17. The Committee says that, as far as it is aware, the allocations in By-law 39 conform to the meeting notice and minutes. The meeting minutes do not record the actual voting for Motion 11 but do show that Lot 8 was personally present at the meeting and that Lots 7 and 9 were represented by proxies.
As part of the transitional provisions following the commencement of the new Act on 13 July 1997, the first CMS for the scheme was automatically registered on 15 July 2000.[4] This standard CMS stated that the by-laws for the scheme were those in effect as at 13 July 2000. Accordingly, the by-laws continued to be those registered in August 1995 and June 1997.
On 26 May 2000 the 2000 AGM passed Motion 10 to record a new CMS. On 1 December 2000 the purported current CMS was recorded. It was lodged on 16 November 2000 and executed on 14 November 2000 by Worcester and Co Solicitors. The new by-laws included By-law 13:
Schedule E indicates that the allocated car spaces are predominantly the same as the former By-law 39 except that Lot 7 is allocated spaces 16/17, Lot 8 is allocated spaces 14/15 and Lot 9 is allocated spaces 12/13.[5]
The Committee advises that it has searched the Body Corporate records and contacted the BCM and solicitor who prepared the current CMS. They say that they can find no indication of why the new CMS was proposed or why the allocation of car spaces was changed. Moreover the Committee cannot confirm what, if any, schedule was attached to the meeting notice.
Legislative requirements to grant exclusive use
Sections 170 to 178 of the Act provide for matters relating to the granting of exclusive use rights in respect of common property or body corporate assets. An exclusive use allocation must be specified in an exclusive use by-law in the CMS. Under section 171(2) of the Act, an exclusive use by-law, other than one contained in the first CMS for the scheme, may only attach to a lot or stop applying to a lot if the lot owner agrees in writing before passing the resolution to record a new CMS or the lot owner votes in the resolution. Similar provisions existed in the Act (then numbered section 134) at the time of the 2000 AGM, although the section has been amended.
Section 62 of the Act provides for the body corporate consent to record a new CMS. Subsection (2) specifies that the consent must be in the form of a resolution without dissent. Subsection (3) includes an exception that a special resolution would be sufficient where the difference between the existing CMS and the new CMS is limited to a change in by-laws, but this exception does not apply if the change is to an exclusive use by-law. Although this section has been amended since the 2000 AGM, the section applying at that time (then numbered section 55) included a similar requirement.
Approval of the current CMS
The key question in this dispute is whether the current CMS was validly approved.
The applicant initially argued (apparently based on advice in 2006 from the Body Corporate) that there was no evidence of any general meeting which approved the CMS. However it does not now appear to be disputed that the 2000 AGM approved the CMS.
The applicant then argued that they did not receive notification of the AGM. However the applicant has now accepted that they did receive notification of the AGM.
The applicant has also argued that the motion to approve the new CMS was incorrectly a special resolution. While I agree that the motion should have been a resolution without dissent, the minutes show that seven votes were received in favour and none against. It is also clear from the applicant’s voting paper that the applicant was represented by voting paper at the AGM and voted in favour at the motion. Accordingly, on the basis of the minuted voting and the voting tally sheet, I am satisfied that the motion did pass as a resolution without dissent. The incorrect labelling of the motion in the minutes is not sufficient to invalidate the motion in these circumstances.
Finally the applicant has indicated that it was their belief that the recording of the CMS was a procedural requirement only and did not affect the allocation of car parking spaces. Given that the applicant previously denied any knowledge of the meeting and of the current CMS, it is difficult for them to now sustain an argument as to their understanding of the purpose of Motion 10 or the contents of the CMS.
It is certainly the case that many pre-1997 schemes recorded their first CMS in the three years following the commencement of the new Act in accordance with the transitional provisions. However there is nothing in the transitional provisions that required the first CMS recorded by the Body Corporate to include identical by-laws and exclusive use allocations to those which existed previously. Moreover there is nothing in Motion 10 itself which suggests that the by-laws would be unchanged, although the motion specifically notes that the lot entitlements would remain unchanged. A brief scan of the 2000 CMS and the previous by-laws indicates some substantial changes in the by-laws. Accordingly I find it difficult to believe that anyone viewing the by-laws prior to voting could have believed that the new CMS was a procedural step only and did not include or permit any changes.
It is unfortunate that there are such limited records relating to the 2000 AGM and to the preparation of the current CMS, and particularly the absence of the meeting notice with the schedule to Motion 10. However, the limited correspondence existing between the former body corporate manager and the solicitors who prepared the current CMS indicate an intention that the by-laws be ‘reviewed’ rather than simply duplicated in the newly required CMS format.
In the absence of any evidence that a body corporate or other person has provided a lot owner with misleading or confusing information, I consider that there is an onus on a voter to read meeting papers and inform themselves of the effect of a motion before they decide to vote in favour of a motion. The applicant has provided no detail or evidence to support any claim they were mislead in regard to the contents or purpose of Motion 10, or any other circumstance which would displace the presumption that they knew what they were voting for.
While the schedule referred to in Motion 10 is no longer available, no party has provided any evidence that what was included in that schedule was not what was ultimately recorded. Although there is no documentation prior to or after the meeting indicating the specific intention of the owners to alter the car space allocations, similarly no documentation refers to most of the other changes to the by-laws. The absence of such evidence, particularly when there is no evidence of a specific intention to leave the allocations unchanged, is not sufficient to shift the presumption that the CMS that was approved and recorded reflected the intention of the Body Corporate.
The applicant has conceded that it did give consent to the recording of the new CMS and so, in the circumstances and with the evidence now available, the voting paper dated 11 May 2000 can be viewed as evidence of agreement to the exclusive use by-laws contained in the CMS.
I do note that there are some potential issues with the CMS.
The former section 50(3) of the Act, which applied at the relevant time, required that a body corporate have the new CMS before it, in the form to which it is to be recorded, when it gives consent to the new CMS.[6] In the absence of a copy of the 2000 AGM meeting notice it is not clear exactly what was before the Body Corporate when it voted on Motion 10. However it does appear that the Body Corporate’s solicitor’s had submitted a complete draft CMS in February 2000 and there is nothing to suggest that the entire document was not included in the meeting notice. Moreover, neither the applicant nor any other owner has disputed the CMS on this basis.
Secondly, I note that section 65[7] of the Act requires that a CMS be lodged for recording within three months of the date on which consent was given by the body corporate. This CMS was consented to on 26 May 2000 but not lodged until 16 November – nearly six months later. It may have been that the Body Corporate attempted to lodge the CMS earlier but that, for some technical reason, it was refused. For the following reasons, I do not consider that it is necessary in the circumstances to investigate that issue further.
Regardless of the circumstances, I do not consider that this procedural defect is sufficient to determine that it would be just and equitable in the circumstances to invalidate the CMS nearly eight years after it was apparently validly consented to and when no owner has ever challenged the CMS on that basis. Moreover, I note that there is precedent for an adjudicator to order the registration of exclusive use car park allocations that were validly consented to by a body corporate but, for a procedural technicality, was not validly recorded.[8]
I have found no evidence to substantiate the claim that the resolution passed at the 2000 AGM was invalid or that the CMS is otherwise invalid. Adjudicators are empowered to make an order that is ‘just and equitable in the circumstances’[9] and so I have considered whether for any other reason it would be just and equitable to require the Body Corporate to record a new CMS including the applicant’s preferred car parking arrangements. However I do not consider this outcome would be just and equitable for all owners.
All owners since November 2000 (or, for those who were owners at the time, since May 2000) were or should have been aware of the by-laws in regard to exclusive use car spaces. There is no ambiguity or inherent unreasonableness in the allocation. No party has provided any evidence that they are disadvantaged by the use of one allocation over another. Without any clear evidence that the Body Corporate (as opposed to the developed) ever intended otherwise, I do not consider there is any justification to interfere with owners’ decision in 2000 regarding the car space.
Exclusive use allocations prior to November 2000
While I have not found any basis to invalidate the current CMS or the resolution at the 2000 AGM, I will comment on the parties’ claims in relation to the allocations existing prior to the current CMS.
Although the meeting date referred to on the Notification of Change of By-laws form registered in 1997 appears to be incorrect, I have been provided no evidence to support a claim that the 1997 AGM was invalid or that the recorded by-laws did not accord with the resolution.
The Owners of Lot 7 and 8 have alleged that they were not aware of the changes or the meeting, but the minutes indicate that both lots were represented personally or by proxy at the 1997 AGM. I note that the meaning of ‘resolution without dissent’ is that no vote is cast against the motion. Therefore, while an owner may have expressed ‘dissent’ on a motion to the Committee at some time, if they do not specifically cast a vote against the motion at the relevant meeting, or do not direct their proxy to cast a vote against the motion, that dissent will not be recorded and the motion may be passed.
In respect to the claims of all parties, I note that if the developer or any other former owner misled an owner by advising them of a car space allocation that the developer or the Body Corporate did not then put in place, the party may seek legal advice regarding their capacity to pursue the issue in an appropriate forum. My jurisdiction is to determine what allocations have been made in the by-laws, and not what was in any sale contract. I have no capacity to intervene in the contractual relationship between a current owner and a former owner or the original developer.
Conclusion
On the material available to me I have found no basis to invalidate the resolution to record the current CMS which was passed at the 2000 AGM. Furthermore, I have been provided with no evidence that the CMS that was ultimately recorded was not consistent with the CMS which all owners consented to at that meeting. Moreover I have no evidence that any owner was misled in regard to the contents or purpose of the new CMS, or that the CMS is for any other reason invalid. In the absence of any such invalidity, I find no just and equitable reason to alter the CMS which has been in place for over seven years. Accordingly I have dismissed the application.
Given that I have found no basis to make the order sought by the application, I am also of the view that there is insufficient to waive the three month time limit established by section 242 of the Act, to the extent that the effect of the outcome sought by the applicant is to invalidate Motion 10 passed at the 2000 AGM.
[1] See sections 246 and 244 of the Act respectively
[2] It appears that the submission
is referring to the Form 17 Notification of Change of By-laws which was lodged
in May 1997 under the
Building and Group Titles Act 1980, which
previously applied to this
scheme.
[3] See sections 227,
228, 276 and Schedule 5 of the Act
[4] See section 339 of the Act. Pursuant to section 337 of the Act the scheme was taken have an ‘interim statement’, which was not recorded, from the establishment of the scheme under the new Act. The interim statement, which included the by-laws as they had existed immediately prior to commencement of the Act, applied until the Body Corporate recorded a new CMS or, if this did not occur within three years after commencement, until the standard statement was recorded three years after commencement.
[5] In addition, Lot 18 is allocated spaces 9/10, altering what may have been a typographical error in By-law 39 in which Lot 8 was allocated four spaces and Lot 18 none.
[6] I note that the current
section 54(3) expressly does not require the new CMS to be before the
body corporate in the form which it is to be
recorded.
[7] A similar requirement
existed in the former section 56 of the Act, which applied at the
relevant time.
[8] Valma
Court [2002] QBCCMCmr 413 (25 June
2002)
[9] Section 276(1) of
the Act
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