Boulevard North [2009] QBCCMCmr 21 (27 January 2009)

Last Updated: 19 February 2009

REFERENCE: 0552-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9833
Name of Scheme:	Boulevard North
Address of Scheme:	35 Broadbeach Boulevard BROADBEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Christopher, Thomas and Margaret Burrell, the owner of Lot 57

I hereby order that the application for an order by Christopher, Thomas and Margaret Burrell, the owner of Lot 57 against the body corporate for Boulevard North community titles scheme 9833 seeking: Orders declaring that the Annual General Meeting held on 23 February 2008 (2008 AGM) insofar as the consideration of and voting on motions 11, 12 and 13, and the Extraordinary General Meeting held on 3 April 2008 (2008 EGM) insofar as the consideration of and voting on motions 5, 6 and 7, miscarried in at least the following respects: (i) The material circulated by the committee was inaccurate and misleading and did not comply with the Act and the Standard Module regulation. (ii) The committee failed to act honestly and fairly and in accordance with the Act by recommending owners vote against the motions. (iii) The committee failed to act reasonably and in accordance with the Act in administering common property and in the performance of its duties by recommending owners vote against the motions. (iv) The committee misdirected itself by recommending owners vote against the motions on the basis the issues the subject of the motions were already the subject of an appeal to the District Court. (v) The committee acted contrary to the directions and reasons for decision given by the Adjudicator in dispute resolution Application 0176-2007 with respect to the motions and the conduct of the 2008 AGM. Orders declaring that the Body Corporate, acting through members of its Committee misdirected themselves and failed to act honestly and fairly and in accordance with the requirements of the Act and Schedule 1A to the Act — the Code of Conduct for Committee Voting Members, in the conduct of the proceedings and the proper consideration of the motions at the 2008 AGM and the 2008 EGM. Orders declaring that the 2008 AGM and the 2008 EGM are, to the extent declared by orders 1 and 2 above, void for irregularity. Orders declaring that motion 10A at the Annual General Meeting held on 25 February 2006 (2006 AGM) and requiring a resolution without dissent, was not passed because of opposition that in all the circumstances was unreasonable. Orders declaring that motion 11 at the Annual General Meeting held on 24 February 2007 (2007 AGM) and requiring a resolution without dissent, was not passed because of opposition that in all the circumstances was unreasonable. Orders declaring that motion 11 at the 2008 AGM and requiring a resolution without dissent, was not passed because of opposition that in all circumstances was unreasonable — and consequential orders giving effect to motions 11, 12 and 13 as proposed by the Applicants, or a variation of the motions as considered just and equitable in the circumstances. Orders pursuant to section 242(4) of the Act granting leave to the Applicants, to the extent necessary, to make this application and to seek the orders requested herein in relation to the 2006 AGM, the 2007 AGM and the 2008 AGM. Orders declaring that motion 6 at the 2008 EGM and requiring a resolution without dissent was not passed because of opposition that in the circumstances was unreasonable — and consequential orders giving effect to motions 6 and 7 as proposed by the Applicants, or a variation of the motions as considered just and equitable in the circumstances. To give effect to the orders sought in paragraphs 4, 5 and 6 above, consequential orders and declarations that: (i) The Applicants are entitled to the exclusive use of car spaces “AO” and “AM” and that the Body Corporate be directed to amend the by-laws as necessary and lodge an amended community management statement (CMS) to reflect that exclusive use. (ii) The truncation of car space “AO” by the Body Corporate was invalid and the Body Corporate is directed to amend the by-laws as necessary and lodge an amended CMS to correct that truncation. (iii) To give effect to order 9(i), an order that the Body Corporate consent to the recording of a CMS to amend schedule E to correct and record the re-allocation of car spaces as follows: Lot 58 Area “AL”; and Lot 57 Area “AM”. (iv) To give effect to order 9(ii), an order that the Body Corporate consent to the recording of a CMS to amend schedule E to correct the dimensions of car space “AO” inadvertently truncated (by being shortened by 0.8 metres) by an error in the exclusive use plan attached to the CMS recorded in 2001 as follows: Lot 57 Area “AO”. (v) Further orders that the committee is authorised to execute the new CMS to give effect to these changes, and arrange for the new CMS to be lodged for recording in the Department of Natural Resources and Mines as soon as reasonably practicable. Such further or other orders of declarations as to the Adjudicator seem appropriate, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0552-2008

“Boulevard North” CTS 9833

The scheme
“Boulevard North” community titles scheme is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application is by Christopher, Thomas and Margaret Burrell, the owner of Lot 57 (Applicants) against the Body Corporate. The application was made on 3 July 2008.

Outcomes sought

1. Orders declaring that the Annual General Meeting held on 23 February 2008 (2008 AGM) insofar as the consideration of and voting on motions 11, 12 and 13, and the Extraordinary General Meeting held on 3 April 2008 (2008 EGM) insofar as the consideration of and voting on motions 5, 6 and 7, miscarried in at least the following respects:
   • (i) The material circulated by the committee was inaccurate and misleading and did not comply with the Act and the Standard Module regulation.
   • (ii) The committee failed to act honestly and fairly and in accordance with the Act by recommending owners vote against the motions.
   • (iii) The committee failed to act reasonably and in accordance with the Act in administering common property and in the performance of its duties by recommending owners vote against the motions.
   • (iv) The committee misdirected itself by recommending owners vote against the motions on the basis the issues the subject of the motions were already the subject of an appeal to the District Court.
   • (v) The committee acted contrary to the directions and reasons for decision given by the Adjudicator in dispute resolution Application 0176-2007 with respect to the motions and the conduct of the 2008 AGM.
2. Orders declaring that the Body Corporate, acting through members of its Committee misdirected themselves and failed to act honestly and fairly and in accordance with the requirements of the Act and Schedule 1A to the Act — the Code of Conduct for Committee Voting Members, in the conduct of the proceedings and the proper consideration of the motions at the 2008 AGM and the 2008 EGM.
3. Orders declaring that the 2008 AGM and the 2008 EGM are, to the extent declared by orders 1 and 2 above, void for irregularity.
4. Orders declaring that motion 10A at the Annual General Meeting held on 25 February 2006 (2006 AGM) and requiring a resolution without dissent, was not passed because of opposition that in all the circumstances was unreasonable.
5. Orders declaring that motion 11 at the Annual General Meeting held on 24 February 2007 (2007 AGM) and requiring a resolution without dissent, was not passed because of opposition that in all the circumstances was unreasonable.
6. Orders declaring that motion 11 at the 2008 AGM and requiring a resolution without dissent, was not passed because of opposition that in all circumstances was unreasonable — and consequential orders giving effect to motions 11, 12 and 13 as proposed by the Applicants, or a variation of the motions as considered just and equitable in the circumstances.
7. Orders pursuant to section 242(4) of the Act granting leave to the Applicants, to the extent necessary, to make this application and to seek the orders requested herein in relation to the 2006 AGM, the 2007 AGM and the 2008 AGM.
8. Orders declaring that motion 6 at the 2008 EGM and requiring a resolution without dissent was not passed because of opposition that in the circumstances was unreasonable — and consequential orders giving effect to motions 6 and 7 as proposed by the Applicants, or a variation of the motions as considered just and equitable in the circumstances.
9. To give effect to the orders sought in paragraphs 4, 5 and 6 above, consequential orders and declarations that:
   • (i) The Applicants are entitled to the exclusive use of car spaces “AO” and “AM” and that the Body Corporate be directed to amend the by-laws as necessary and lodge an amended community management statement (CMS) to reflect that exclusive use.
   • (ii) The truncation of car space “AO” by the Body Corporate was invalid and the Body Corporate is directed to amend the by-laws as necessary and lodge an amended CMS to correct that truncation.
   • (iii) To give effect to order 9(i), an order that the Body Corporate consent to the recording of a CMS to amend schedule E to correct and record the re-allocation of car spaces as follows: Lot 58 Area “AL”; and Lot 57 Area “AM”.
   • (iv) To give effect to order 9(ii), an order that the Body Corporate consent to the recording of a CMS to amend schedule E to correct the dimensions of car space “AO” inadvertently truncated (by being shortened by 0.8 metres) by an error in the exclusive use plan attached to the CMS recorded in 2001 as follows: Lot 57 Area “AO”.
   • (v) Further orders that the committee is authorised to execute the new CMS to give effect to these changes, and arrange for the new CMS to be lodged for recording in the Department of Natural Resources and Mines as soon as reasonably practicable.
10. Such further or other orders of declarations as to the Adjudicator seem appropriate.

Regulation module
The CMS for the scheme recorded by the registrar of titles on 1 August 2007 identifies the Accommodation Module as the applicable regulation module. At the time of the abovementioned meetings and the making of the application, the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Previous Regulation) applied. On 30 August 2008, the Body Corporate and Community Management (Accommodation Module) Regulation 2008 commenced and the Previous Regulation was repealed (s 2 and s 206, Accommodation Module). Anything done under the Previous Regulation is not affected by its repeal and the commencement of the Accommodation Module (s 208-214, Accommodation Module). The determination of this dispute is not affected by the new regulation (s 20, Acts Interpretation Act 1954).

Grounds
The Applicants say they purchased Lot 57 in 2002 and commenced using car spaces “AO”, “AN” and storage space “AP”. They submit that the family that sold the Lot had owned it since 1987 and had always used the two car spaces and the storage alcove. The Applicants state two directors of Dorotea Pty Ltd (the original owner) — Messrs Szmerling and Goodwach — have confirmed that it was intended that the Lot would be allocated two car spaces. They also refer to markings on the car spaces and say the storage space “AP” is part of car space “AO”, but it was incorrectly truncated by the CMS recorded in 2000.

The Applicants refer to three previous applications made under the dispute resolution provisions of the Act. The decision made on the first of these applications on 24 April 2007 has been appealed to the District Court by the Applicants (Ref. No. 0949-2006). It would seem the appeal has not yet been determined. The decision on the second application was made on 26 November 2007 (Ref. No. 0176-2007). Subsequent to an interim order being made on 22 February 2008, the third application was withdrawn before final determination (Ref. No. 0142-2008).

In referring to the decision made on 0949-2006, the Applicants state the committee circulated misleading, confusing and inflammatory material and made “no vote” recommendations in relation to motions proposed by the Applicants to redress the situation. The Applicants refer to the letter from Mr Szmerling which was considered in the 0949-2006 decision, and provide a copy of a letter from Mr Goodwach dated 7 December 2007 stating: he was a director of Dorotea Pty Ltd when the scheme was developed, he has read the Szmerling letter, and he advises “that the contents of the letter are consistent with my recollection that the two car park units which would otherwise have been allocated to the two apartments at the top of the building, would both be allocated to the one penthouse apartment at the top of the building. I confirm that there was never any intention to have unallocated car park units”.
The Applicants claim there is additional evidence not before the District Court which a committee acting honestly, fairly, reasonably and in the interests of all owners has an obligation to consider. The Applicants list the further evidence as:

1. A dispute between the builder of Boulevard North and the then chairperson who was the previous owner of Lot 57 stating it was highly unlikely the chairperson would have been assisted by the developers to correct the errors which possibly explain why nothing was done to correct the car parking allocations.
2. Mr Szmerling was the initial owner of Lot 57 and he would not have knowingly signed by-laws that took away a car park entitlement for Lot 57.
3. The committee have disregarded the Goodwach letter.
4. Evidence tabled at the 2008 EGM which was not attached to the minutes, circulated to owners, or properly considered by the committee. The Applicants refer to page 5 of the minutes of the meeting which would seem to include Motions 5 and 6, the preamble to these motions referring to a sketch plan of car park allocations, a letter from Teys Legal, and a letter circulated to owners with the notice of the meeting.
   

The Applicants refer to the adjudicator’s decision on 0176-2007 stating the findings and directions represent clear and unambiguous statements as to the rights and obligations of the Applicants and the committee in respect of the motions to be proposed at the 2008 AGM and the matters to be considered when the committee chose to circulate material relating to those motions. The Applicants claim the directions have not been appropriately appreciated or adhered to by certain committee members. The Applicants believe the committee and the chairperson have not acted consistently with obligations under the Act (including the code of conduct for committee voting members) or the regulation in performing their duties and in treating proposed motions at the 2007 AGM, the 2008 AGM and the 2008 EGM. They say committee members have opposed attempts to correct the car park errors, including by recommending that owners should oppose proposed motions because of the pending appeal on 0949-2006. The Applicants say the committee have a duty to consider the subsequent evidence and then to decide whether to recommend to unit owners how they should vote on a particular matter. The Applicants consider the committee misdirected themselves at the 2007 AGM, the 2008 AGM and the 2008 EGM by taking the view to recommend against the motions because, presumably, a resolution without dissent would not be obtained or the matters were subject to other proceedings. The Applicants state the misdirection’s and breaches of duty have denied them the ability to have a resolution passed.

They state the 2007 AGM misdirection was repeated at the 2008 AGM. The Applicants provided a copy of:

1. Explanatory material to Motions 11 to 13 sent as part of the notice of the 2007 AGM.
2. A circular titled ‘Response to supporting information for Motions 11, 12, 13, 14, 15’ they say was sent to all owners by letter dated 12 February 2008.
3. A circular titled ‘Boulevard North Apartments – To all unit owners’ they say was sent to owners on 11 March 2008 with the notice of the 2008 EGM.
4. A circular titled ‘Burrells instigated legal proceedings – not Boulevard North Body Corp’ authored by Laurie Birks and sent to owners on or about 20 March 2008.
5. A copy of emails dated 30 March 2008 and 3 April 2008.

The Applicants contend this material did not assist owners, contained inaccurate and misleading information, was contrary to the legislation, was contrary to the directions given in 0176-2007, and constituted a breach of duty by committee members.

The Applicants are concerned that the errors cannot be corrected by an informed vote as lot owners are confused and fed up with the time and money expended on rectifying the position. The Applicants state the committee has not provided any evidence supporting its propositions that: car space “AL” has always been unallocated common property and has been used for parking for the benefit of all owners, tradespeople and invitees; the owners of Lot 57 since 1982 have not enjoyed the exclusive use of the two car spaces and the storage space “AP”; and any lot owner (other than the owner of Lot 57) will suffer any inconvenience, loss or detriment if the orders sought are made.
They say that when considered against the loss and damage to the Applicants and the substantial diminution in value of their Lot in the event their rights to exclusive use of the second car space are taken away, the weight of evidence in support of the “just and equitable ground” is overwhelming.

Submissions to the Commissioner
The Commissioner provided a copy of the application to Body Corporate Services Pty Ltd (Body Corporate Manager) for distribution to the owner of each lot (excluding the Applicants) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act). Submissions were made by the committee and 8 lot owners. The Applicants made a written reply to submissions.

Submissions by owners
John Myers supported the application stating two car spaces should be allocated to Lot 57 as it is a double unit and that a majority of owners who attended the 2008 AGM supported the Applicants. Mr Myers does not support a grant of exclusive use of storage space “AP” saying it should be reserved for the use of the Body Corporate.

Graham Legge and Harold Bentley, Ruth Legge, Ken Brown, and Ray and Margaret Connellan supported the actions taken by the Body Corporate and the committee. Laurence Birks (chairperson) stated the surveyor — Carl Raynor in 2006 — was under the instructions of Mr Chris Burrell who paid for the new plan; some owners have challenged the Applicants on the ownership of two car spaces; in relation to the Goodwach letter, the committee needed either contact details or an affidavit; the committee has investigated all avenues to determine this matter and has relied on advice from the Body Corporate Manager and solicitors; the circulars were distributed in response to the copious amount of information distributed by the Applicants that was considered to be misleading or confusing; and the intention of the circulars was to keep owners reliably informed. Mr Birks requests that should the application be dismissed, the stay of order on 0949-2006 should be removed.

Committee submissions
The committee submits the Applicants have not suffered loss as they had no legal entitlement to the car parking space or the storage area and the Lot is exactly what they purchased. The committee says all other owners will be affected if exclusive use is granted as all owners are entitled to the use and enjoyment of unallocated common property, and the Body Corporate must control, manage and administer common property reasonably and for the benefit of all owners.

The committee contend the references to “error” by the Applicants are inconsistent with the order made for 0949-2006 and cannot be accepted without implicitly rejecting the findings made or at least reviewing the issues the subject of the application. The committee submit that the “new evidence” is a question for the appeal and the question to be determined in the present application is whether a motion requiring a resolution without dissent was not passed because of opposition that, in the circumstances, was unreasonable. The committee say the principal basis for alleging that the opposition was unreasonable is allegations relating to the conduct of committee members.

With respect to the 2006 AGM, the committee believes the question of time which has elapsed is a relevant consideration. The committee poses the question as to whether the Body Corporate should now have to explain or justify the opposition of owners at this meeting, including where the substance of the motion has been subsequently reconsidered. It states the explanatory note to the motion was incorrect and the Applicants have not specified the actions of the committee relating to this meeting.

The committee submit 0176-2007 dealt with the proceedings and alleged actions of the committee at the 2007 AGM, and any additional issues with the actions of the committee should have been raised in that dispute. The committee state it would be unjust and unfair to reconsider and review the actions of the committee.

In relation to the 2008 AGM and the 2008 EGM, the committee refer to the first and third outcomes sought questioning the relief being sought by the Applicants. With reference to the first and second outcomes, the committee state the grounds provide little substance and specific allegation which can be responded to or addressed. It is submitted reference is not made to legislative provisions and the Applicants have not substantiated the allegation the committee misdirected itself by recommending owners vote against their motions for the reasons alleged. The committee say the Applicants have not found any written statement by the committee that recommended a “no” vote. The committee submit: the explanatory material to Motions 11 to 13 sent as part of the notice of the 2007 AGM was the subject of 0176-2007; the circular titled ‘Response to supporting information for Motions 11, 12, 13, 14, 15’ is not inaccurate or misleading and provides a statement from the committee’s perspective; and the third, fourth and fifth documents referred to by the Applicants postdate the 2008 AGM and otherwise do not substantiate the allegations. The committee claim the Applicants have not produced any written statement by the committee that recommended owners vote against the Applicants motions at the 2008 AGM and the 2008 EGM, and that the committee complied with the order made on 0176-2007. In referring to 0176-2007, the committee state it is not contrary to the legislation for the committee to recommend owners vote against a motion.

The committee consider an assessment is required of the opposition to the motions, not the alleged actions of the committee, and that the onus is with the Applicants to show the opposition of individual owners was unreasonable. The committee believe the application does not commence such an enquiry. The committee submit that the application should be dismissed under section 270 of the Act on the basis that it is without substance, misleading, misconceived and vexatious.

Applicants reply to submissions
The Applicants provided a copy of letters from: Harry Szmerling dated 2 June 2006, 17 December 2007 and 18 March 2008; Phillip Goodwach dated 7 December 2007 and Ian Macleod dated 12 August 2008. The Applicants say this correspondence has been provided to the committee. They state in light of these statements from the directors of Dorotea Pty Ltd and in the absence of evidence to the contrary from the Body Corporate, the matter must be resolved in their favour as it was never intended to be any unallocated car parks.

The Applicants submit that neither the Body Corporate nor any lot owners can point to any prejudice that will be suffered if the two car spaces are allocated to Lot 57, no other lot owner is adversely affected and no other exclusive use rights are altered or taken away. They state that no factual material or submissions contradict the contention that car space “AO” was illegally truncated in 2000, and this issue was not properly considered and determined in the order made for 0949-2006.

The Applicants state the committee has not recognised or accepted any responsibility to: investigate the matter and establish the correct facts; put forward any evidence that the Applicants are incorrect and that car space “AM” has always been unallocated; demonstrate any prejudice to it or other lot owners; and to communicate the correct facts to owners. The Applicants say the new evidence, including the statements from the Dorotea Pty Ltd directors and the questions relating to the conduct of the committee subsequent to the order made on 0949-2006 are not before the District Court. The Applicants seek the committee act with diligence, responsibility, co-operation and in accordance with the duties under the Act to assist resolve the dispute for the benefit of owners.

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

Determination

Jurisdiction
Applicable law
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 CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS (s 276(1), Act). Without limiting subsection (1), an adjudicator may make an order mentioned in schedule 5 (s 276(3), Act).

If satisfied a motion requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable, an adjudicator may make an order giving effect to the motion as proposed or a variation of the motion as proposed (schedule 5(10), Act).

Appeal to the District Court against the order made on 0949-2006
As noted above, the decision made on 0949-2006 is subject to appeal. In making the appeal, the Applicants have challenged findings of the adjudicator. It would seem the appeal has not yet been determined. By letter dated 15 January 2008, Courtice Neilsen Lawyers (on behalf of the Applicants) advised that the appeal is listed for hearing in the Brisbane District Court on 30 January 2009.

The Body Corporate submits that until the District Court reaches a different conclusion, the findings of the adjudicator must be accepted as settled and not open to review by another adjudicator. The Body Corporate states the alleged new evidence goes to the question of whether the adjudicator is incorrect and this is a question for the appeal. In their reply to submissions, the Applicants state the new evidence — including the statements by the original directors of Dorotea Pty Ltd and relevant questions relating to the conduct of the committee subsequent to that decision — is not before the District Court.

Given the doctrine of functus officio, I consider an adjudicator cannot add to, amend or detract from what has been done, and has no authority to review or reconsider an issue that has been determined in a previous order, unless directed by a court of competent jurisdiction. To the extent that it could be argued the present application seeks a determination on an issue determined by Ms Rosemann, that question cannot be determined again at this time.

Even though the basis of this application is the car parking issue, it does raise new questions about the opposition to motions proposed in general meeting and about two general meetings held after the decision was made on 0949-2006. The Applicants claim a dispute has arisen with respect to these questions. In my view, the determination of these matters is not restricted by the decision on 0949-2006. It is clear from the decision made on 0176-2007 (and seemingly accepted by the parties) that the issue could be settled by Body Corporate decision. If the Applicants consider the way the Body Corporate further considered this issue was for example, contrary to law, the Applicants are entitled to make a dispute resolution application.

Outcome 7 – section 242
The Applicants seek leave under section 242(4) of the Act (if necessary) to make the application in relation to the 2006 AGM, the 2007 AGM and the 2008 AGM.

An application seeking to have a general meeting of the body corporate or a resolution of the body corporate declared void must be made within 3 months of the meeting or for a resolution — within 3 months of the meeting at which the resolution was passed or purported to be passed (s 242(1) and (2), Act). An adjudicator may, for good reason, waive the time limit (s 242(4), Act).

The application was made more than three months after each of the abovementioned meetings. It is apparent the Applicants do not propose that the meetings be declared void. In fact, I could not find any outcome to which section 242 would apply to the 2006 AGM or the 2007 AGM, or to a resolution passed at either meeting. Further, while the minutes of the 2006 AGM suggest Motion 10A was passed by ordinary resolution, the order made on 0949-2006 stated (in part): “that Motion 10A ‘... was defeated”. The minutes of the 2007 AGM indicate that Motion 11 was defeated by resolution without dissent. In Outcome 3, the Applicants argue the 2008 AGM is void limited to the motions mentioned in Outcome 1. The minutes of the 2008 AGM indicate that Motion 11 was defeated by resolution without dissent and that Motions 12 and 13 were not voted on.

The committee submit that the leave sought by the Applicants under this section is not necessary given the application of the section and the outcomes sought. I agree. The Applicants have not sought to void a meeting in its entirety. The outcomes sought relate to specific motions which were not passed. Section 242 does not have relevance to the outcomes being sought.

Investigation
An adjudicator must investigate the application to decide whether it would be appropriate to make an order on the application (s 269(1), Act). An adjudicator’s investigative powers are stated in section 271 of the Act.

In K.G. Tully & Anor v The Proprietors The Nelson Body Corporate [2000] QDC 031, District Court Justice Robin [at 11] stated: “it is for the adjudicator to determine what ought to be done by way of investigations and there is no error of law by an adjudicator who determines that the evidence available is insufficient to justify a necessary conclusion and does not actively seek further evidence to support the application”. In Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336 [19], the Supreme Court found that an adjudicator is not required to undertake investigations beyond consideration of the written submissions made by the parties.

After consideration of the submissions made by the Applicants in making the application, the submissions made in response to the Commissioner’s invitation and the Applicants reply to submissions, I have decided investigation is not necessary.

Outcomes – 1, 2 and 3

2008 AGM
The notice of the 2008 AGM dated 1 February 2008 contained Motions 11 to 13 proposed by the Applicants.

Motion 11 sought by resolution without dissent: “That the Committee be authorised and directed to consent to the making of orders in the District Court Appeal as follows: (a) that the Burrells (as owners of Lot 57) have the exclusive use of car spaces “AO” and “AM” and that the Body Corporate be directed to amend the by-laws as necessary and lodge an amended Community Management Statement to reflect that exclusive use; and (b) that the truncation of car space “AO” by the Body Corporate was invalid and that the Body Corporate be directed to amend the by-laws as necessary and lodge and amended Community Management Statement to correct the truncation”. Motion 12 proposed by ordinary resolution to give effect to the resolution on Motion 11 by the Body Corporate consenting to the recording of a new CMS to reallocate car spaces to Lots 57 and 58. Motion 13 proposed by ordinary resolution to give effect to the resolution on Motion 11 by the Body Corporate consenting to the recording of a new CMS to correct the improper truncation of car space “AO”.

The explanatory schedule included a note from the submitter of the Motions referring to “significant recent decisions and developments of which all Lot Owners should be made aware and which impact the resolution of the dispute”. The note refers to: the order made on 0949-2006; the appeal; a licence granted to the owner of Lot 58; information from two directors of Dorotea Pty Ltd (Szmerling and Goodwach) that the 1982 exclusive use allocation was incorrect as two car spaces were not allocated to Lot 57 which came about from the amalgamation of two original lots, the plan showed 59 car spaces, and the plan did not match the identification of car spaces in the basement stating “there is a clear error that was not corrected in 2000 and which now needs to be corrected”; and the order made on 0176-2007. The note concludes an error occurred in 1982 that was not corrected in 2000 and there is ample evidence that the errors should be corrected, and the motions propose to put into effect the actual car parking and storage arrangements that have been in place since 1982.

By letter dated 12 February 2008, the Body Corporate Manager distributed a committee explanatory note responding to supporting information for Motions 11 to 15. The response states: the facts are two committees have received advice the claims being made by the owners of Lot 57 are incorrect and invalid, and the commissioner has declared the claims are invalid. The response refers to the appeal stating solicitor’s advise a very strong case exists and should result in a decision in favour of the committee, and the committee considers the most appropriate course is for the relevant authorities to determine the outcome. The response asks owners to consider the matter carefully before voting.

2008 EGM
The notice of the 2008 EGM dated 11 March 2008 included Motions 5 to 7 submitted by the Applicants. Motion 5 proposed by ordinary resolution an offer of settlement that Lot 57 have exclusive use of car parks “AO” and “AM”; that the truncation of car park “AO” be connected to restore the length equal to adjacent car parks; and that Lot 57 withdraw the claim for area “AP”. Motion 6 proposed by resolution without dissent: “That Unit 57 have the exclusive use of car parks AO and AM”. Motion 7 proposed by ordinary resolution: “That the truncation of car park AO/57 in the 2000 CMS be corrected to restore the length equal to adjacent car parks”.

The notice included a circular titled ‘Boulevard North Apartments – To all unit owners’ and a questionnaire.

The stated purpose of the circular was to “try to explain the current situation regarding the claim the owners of unit 57 are making to have a second car park allocated for their exclusive use”. There is a background referring to: the defeat of related motions at the 2006 AGM and the 2007 AGM; 0949-2006; and the appeal against the decision made on 0949-2006. It is stated the committee cannot give the second car park to the owner of Lot 57, that “it is important you let your committee know you opinion... (and asks) Can you complete the enclosed questionnaire”. The questionnaire asked owners to indicate whether they want the committee “to take all appropriate action to resolve this matter” or whether they want the committee “to cease all action in relation to this matter”.

Applicable law
A decision of the committee is a decision of the body corporate (s 100(1), Act). The committee must act reasonably in making a decision (s 100(5), Act). Section 101B of the Act makes provision for a code of conduct for committee voting members. The code is stated in schedule 1A. Clause 2(1) of the code provides that a “...committee voting member must act honestly and fairly in performing the member’s duties as a committee voting member”. Clause 3 provides that a “...member must act in the best interests of the body corporate in performing the member’s duties...” Clause 4 provides that a “...member must take reasonable steps to ensure the member complies with this Act...” Section 101B(3) provides that if a member breaches the code, the member may be removed from office in the way prescribed under a regulation. On 1 July 2007, sections 23AA and 23AB of the Previous Regulation commenced providing an internal process for a body corporate to proceed towards removing a committee member if it believes the member has breached the code of conduct.

A body corporate must conduct meetings in the way prescribed by the regulation module (s 104, Act). The notice of a proposed general meeting must be accompanied by a number of things, including explanatory material required under section 40C of the Previous Regulation. A voting paper for a general meeting must be accompanied by an explanatory schedule that includes a proper explanatory note given to the secretary by the submitter of a motion (s 40C(1)(a) and (2)). The explanatory schedule must not contain explanatory material, other than the material required by the regulation, written by a person other than the submitter of a motion (s 40C(6)). Explanatory material given by the committee may be contained in a schedule separate from the explanatory schedule (s 40C(7)). Explanatory material may accompany a voting paper or a notice of a proposed general meeting only if required or permitted under the regulation (s 40C(8)).

In Batwing Resorts Pty Ltd v Body Corporate for Liberty CTS 27241 [2008] CCT KA004-08, Dorney QC stated:

• “Given the width of “explanatory material”, provided it is otherwise “permitted” under section 40C(8), it is able to be of unlimited width and unconfined as to the information it contains, using “information” in a broad sense, although constrained as to being “explanatory” [45].
• “...provided what was found to be objectionable...is not contained within the prohibition of what constitutes an “explanatory note” and is not within what constitutes an “explanatory schedule”, then it does not matter...what was its content (since it purports to be “explanatory”)” [46].
• “...there is no express or implied statutory obligation to present “both sides of the argument” (whatever that means in practical terms) in the “explanatory material” [56].
• “...it is not sufficient merely to find that the “misleading” information, in the absence of any other contradictory material (when in fact, as analysed, there was), was persuasive in favour of an affirmative vote. What needs to be considered is whether there was some breach of the relevant provisions such that, for instance, the Adjudicator was empowered to make an order under section 276, including one mentioned in Schedule 5...“ [66].
  

In Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300, Mc Gill DCJ stated:

• “...I cannot understand why the notice (of a general meeting) should be required to be balanced ...I cannot see anything in the regulation which requires the submitter of the motion to include in the explanatory note arguments against the motion as well as arguments in favour of it, so as to be balanced, and such a proposition strikes me as not supported by anything in the legislation or the general law” [31].
• “...lot owners...are expected to make up their own mind as to whether they will support the motion or not, and ordinarily those opposed to the motion, like those supporting it, have the opportunity to persuade, and the task of persuading, those lot owners to vote in favour the position they advocate. The mere fact that the committee was on one side can hardly be a basis of rendering that process unbalanced and unfair, and therefore incapable of producing a valid result...” [40].
• “The fiduciary duty (of a committee) is a duty to provide such material information as will fully and fairly inform members of what is considered at the meeting...The information is to be such as will enable members to judge for themselves whether to attend the meeting and vote...” Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at p 466 [61].
• The court added at p 468: “The need to make full and fair disclosure must be tempered by the need to present a document that is intelligible...likely to assist rather than to confuse...The need for the applicants to establish the materiality of errors and omissions is an important step in the proof of their claims” [62]
• “An expression of an honest opinion upon...matter does not amount to misrepresentation or even inaccuracy if the opinion, even if wrong, is accurately stated as an opinion”: Peters’ American Delicacy Co Ltd v Heath [1939] HCA 2; (1939) 61 CLR 457 [66].
• A distinction should be made “between disclosing material disadvantages known to the committee which would not have been obvious to the lot owners if they supported the proposal (which was required) and setting out arguments against the proposal (which was not required). There is nothing in the cases which suggest any obligation to be “balanced” about an issue put forward; if the committee is proposing a course of action, it is entitled to support it vigorously, so long as the fiduciary obligation is not breached”. [73]

Decision
The Applicants have not made allegations about the procedures for calling or conducting each of the disputed meetings. Relevantly, the Applicants arguments relate to the material distributed and the actions of the committee with respect to motions they proposed. The Applicants have not claimed their explanatory material for the disputed motions was not included in the notices of the meetings in the form given. Neither have the Applicants claimed explanatory material was included in the notices contrary to the abovementioned provisions of the regulation.

It is clear that the Motions related to allocations of exclusive use of common property on that part of scheme land shown on Level A of Building Units Plan 5364. The registrar of titles registered the Plan under the then applicable Building Units and Group Titles Act 1980 (BUGT Act) on 19 November 1982. The Plan identifies Dorotea Pty Ltd as the original proprietor.

The Body Corporate was created on the date the Plan was registered (s 27, BUGT Act). To establish the administrative arrangements of the Body Corporate, the original proprietor was required to hold the first annual general meeting within three months of the registration of the Plan (s 29, BUGT Act). The Applicants state the inaugural general meeting was held on 25 November 1982 (it is not known whether this meeting was the first annual general meeting).

This meeting is noted on the ‘Notification of Change of By-Laws’ recorded by the registrar on 16 December 1982. Dealing 601168914 states (in part): “The Proprietors “Boulevard North” ... in pursuance of Section 30 of The Building Units and Group Titles Act 1980, by resolution without dissent passed on the twenty-fifth day of November, 1982 were amended, added to ... 44. The proprietor for the time being of each unit in the building shall be entitled to the exclusive use for himself and his licensees of the car space or spaces as are identified on the plan attached hereto and being numbered the same number as his unit”. The Body Corporate seal was affixed to the Notification by authority of the council (now committee) in the presence of Dorotea Pty Ltd as the sole member of the council. The seal of Dorotea Pty Ltd was given under the authority of a resolution by the board of directors under the hands of Harry Szmerling, a director and Ian Roderick MacLead, a director. The Plan attached to By-Law 44 identified 59 car spaces, including one space numbered 57.

Although an earlier extraordinary general meeting could have been held, the agenda of the first annual general meeting had to include an item to decide whether the by-laws should be amended, added to or repealed (s 29(2)(f), BUGT Act). It is not claimed that the abovementioned By-Law was amended, added to or repealed if in fact the 25 November 1982 meeting was not the first annual general meeting. It is apparent that the by-laws were not added to until 1995 when By-Law 45 was added; this By-Law is not of any consequence to the determination of this dispute. In 2000, a new CMS was recorded (Dealing 703813390). It would appear the 1982 parking allocations were reflected in By-Law 22 of this CMS even though a new plan was attached, and that these allocations continue in By-Law 22 of the current CMS (Dealing 710854572).

In the absence of an exclusive use by-law or other proper authorisation (such as a lease), an owner or occupier can only park a vehicle on common property in accordance with the relevant parking by-law. Prior to 2000, By-Law 11 required Body Corporate consent before a proprietor or occupier could park or stand a vehicle on common property. By-Law 3 of the CMS 703813390 similarly required committee consent. The current By-Law contains similar provisions. The by-laws have always bound the Body Corporate and lot owners (s 30(5), BUGT Act and s 59, Act).

The notice of the 2008 AGM included motions and an explanatory note submitted by the Applicants (it would seem in accordance with the order made on 0176-2007). Subsequent to the notice being given to owners, the committee distributed a committee explanatory note responding to supporting information for Motions 11 to 15. The notice of the 2008 EGM included a circular titled ‘Boulevard North Apartments – To all unit owners’ and a questionnaire.

The Applicants have disputed the material circulated by the committee claiming this material did not comply with the legislation, was inaccurate and misleading and that the committee misdirected itself. The Applicants consider the committee have not provided any evidence to support the proposition that car space “AL” has always been unallocated common property and that the committee have opposed attempts to correct the car park errors. The Applicants rely on the statements made by the directors of Dorotea Pty Ltd stating there is not contrary evidence that there was never intended to be any unallocated car parks.

Significantly, the Applicants have not referred to specific content in the material distributed by the committee which they consider is inaccurate or misleading. Neither have the Applicants referenced statements made in the disputed documents to illustrate the arguments being made. Other than broadly referring to the schedule 1A code of conduct for committee voting members, the Applicants have not stated specific legislative provisions on which they rely. As argued by the committee, the onus rested with the Applicants to substantiate the claims being made. Simply making a statement does not constitute a basis for finding in their favour.

As discussed in Batwing Resorts and Palm Springs Residences, a committee is able to express an opinion to owners and is not prohibited from recommending owners vote in a particular way on a motion to be considered in general meeting. The committee must not however, breach its fiduciary duty to owners.

It is apparent that the committee presented owners a background on this issue including referencing previous Body Corporate considerations, the decision made on 0949-2006 and the pending District Court appeal. Given the submissions and the abovementioned authorities, I do not consider the committee has breached its duty to owners by relying on the by-laws recorded by the registrar since the creation of the Body Corporate (by-laws which bind the Body Corporate) or by mentioning the appeal at which the Body Corporate is the respondent. The Applicants proposed motions related to the issue on appeal for consideration at the 2008 AGM and the 2008 EGM. Given its history, the committee informed owners about the status of this issue and provided its opinion to owners with respect to the motions. In my view, it would be prudent for the committee to do so, especially where the appeal was pending and there is no evidence that, at that time, owners held a contrary view. I do not consider the committee is not acting unfairly by presenting arguments to owners consistent with the information recorded by the registrar of titles. As stated by McGill DCJ, there is no obligation on the committee to present balanced arguments. The Applicants, as the submitter of the motions, are entitled to seek to persuade owners to their point of view. The committee is not prevented from recommending against a motion, and the fact that the committee has a different point of view to the Applicants does not warrant a finding that material from committee was inaccurate or misleading or that the committee misdirected itself.

The Applicants say the committee have disregarded material which it has an obligation to consider. The Applicants hold a view that certain evidence is significant in support of the outcomes they are seeking. The Applicants rely on letters from directors of the original owner. I am not satisfied from submissions that the committee has not given regard to the material referred to by the Applicants or that the committee has a legislative obligation to do what the Applicants seek.

Further, I am not aware of a legislative provision that requires the committee to convince owners that they must vote in favour of a particular owner’s proposal. It is apparent from Ms Rosemann’s decision that a resolution without dissent is necessary to progress the matter in the way sought by the Applicants. In this circumstance, the committee could not determine the matter (s 100(2), Act and s 24(1)(d), Previous Regulation). This type of resolution can only be voted on in general meeting and a motion requiring such a resolution is not passed if one vote exercised for a lot is recorded against the motion (s 105, Act). It is a matter for an owner to determine whether to participate in the vote on a motion and how a vote will be made. I do not consider owners were coerced or improperly influenced to vote in a certain way on the proposed motions by the material identified as being distributed by the committee. It is also submitted owners are confused and fed up. There has not been any substantiation of this statement, either from the Applicants or from owners. It would seem from the votes on the Motions that owners had taken a position with respect to the Applicants proposals. Further, there is nothing to suggest a different outcome became evident from replies to the questionnaire.

The Applicants state the misdirections and breaches of duty have denied them the ability to have a resolution passed. As I have indicated, I am not satisfied there was a misdirection or a breach of duty. The Applicants have not demonstrated that even if was, owners were unduly influenced and as a direct consequence voted against their motions.

The Applicants have also referred to the code of conduct for voting members of the committee. In responding to the application, the committee state a member may be removed from office for a breach of the code. The committee submit the Applicants inappropriately seek remedies for alleged breaches of the code, and that the Applicants should have complied with the regulated procedure. The Applicants did not respond to this argument in the reply to submissions. I agree with the committee’s submissions. If the Applicants believed a voting member had breached the code, they should have approached the Body Corporate. If the Body Corporate determined not to take action under the regulation against a particular member for contravention of the code, the Applicants could have proceeded to making an appropriate dispute resolution application against the Body Corporate. In this case, the Applicants have not provided any material to suggest the Body Corporate has opposed a motion to enforce the regulated provisions. In this circumstance and to the extent Outcome 2 relates to the code of conduct, there is a question as to whether there is a dispute with the Body Corporate (K.G. Tully & Anor. v The Proprietors The Nelson Body Corporate [2000] QDC 031). It should also be noted that a lot owner cannot make an application against the committee or a particular committee member (s 227 and s 238, Act).

Lastly, I do not consider any there is basis for making a finding in this dispute with respect to the material stated to be distributed by Mr Birks as a lot owner and with respect to the emails. There is nothing to prevent an owner from sending material to owners about a motion or motions to be considered in general meeting. The Body Corporate cannot be held liable for the actions of an owner who sends material to owners.

In my view, no material has been presented (including the claimed new evidence) to support a finding being contended by the Applicants with respect to Outcomes 1 to 3. For these reasons, the outcomes are dismissed.

Outcomes - 4, 5, 6 and 8
Reasonableness
Each of these outcomes seek orders declaring that particular motions voted on at the 2006 AGM, the 2007 AGM, the 2008 AGM and the 2008 EGM were not passed by resolution without dissent because of opposition that in the circumstances was unreasonable. In arguing that the opposition to the abovementioned Motions is unreasonable, the Applicants have not made specific submissions about the opposition to each Motion.

Where a body corporate has opposed a motion requiring a resolution without dissent, an adjudicator may give effect to the motion if satisfied the motion was not passed because of opposition that in the circumstances is unreasonable (schedule 5(10), Act). The circumstances being argued by the Applicants originate from the development of the scheme and include new evidence which postdates some of the meetings being referred to.

In my view, the appropriate test of “reasonableness” is to objectively consider the basis for the decision in all the circumstances. In Points North [2004] QBCCMCmr 423 (2 September 2004) [at 42 and 44] and Ocean Plaza Apartments [2004] QBCCMCmr 452 (23 September 2004) [at 23 and 26], the specialist adjudicator stated: “In determining whether such opposition was in the circumstances unreasonable, I do not consider that the “subjective intention” of each of the lot owners who voted in opposition is the appropriate test for the above criteria in Schedule 5 Order 10. Whether the opposition is in the circumstances unreasonable has to be considered “objectively” taking into account all relevant circumstances ... the appropriate test ... is whether opposition to a motion is unreasonable/reasonable when considered in an objective and fair manner in all of the circumstances. A test relying on a subjective intention to oppose a motion would make Schedule 5 Order 10 meaningless and inoperative”.

2006 AGM
The Applicants submitted Motion 10A to the 2006 AGM proposing that the Body Corporate consent to recording a new CMS to amend schedule E to allocate car space “AM” and storage space “AP” to Lot 57 and to allocate car space “AL” to Lot 58. The notice of the meeting included an explanatory note: stating the lot has had exclusive use of two car parks marked 57 for over 20 years; referring to lot entitlements; stating the 2000 CMS incorrectly recorded the car spaces for Lots 57 and 58, the developer originally proposed building 59 lots but decided to amalgamate two top floor lots (proposed lots 57 and 58 became lot 57 and proposed lot 59 became lot 58), the 2000 CMS included an updated exclusive use plan using alphabetical numbering and the two car spaces numbered 57 was not picked up and the additional car park for original lot 58 was left unallocated. The Motion was listed as requiring an ordinary resolution. The voting on the Motion was 24 yes and 13 no. The order made on 0949-2006 stated that Motion 10A was defeated as the motion required a resolution without dissent.

The arguments presented by the Applicants to the 2006 EGM have largely been reargued at the subsequent meetings where similar motions have been submitted for Body Corporate consideration. While the Applicants have stated that new evidence has arisen since the 2006 EGM, the Applicants have not made submissions which demonstrate that the circumstances that existed at the time of the 2006 EGM are distinguishable to an extent to warrant a finding that the opposition to Motion 10A was unreasonable. To the extent that the Applicants may be arguing the circumstances of the individual no votes recorded, I agree with the committee that given the time which has passed since this meeting, it is difficult (if not impossible) to make submissions about the opposition to Motion 10A. On the basis of the material presented, I do not consider there is a justifiable basis for finding that the opposition to Motion 10A was in the circumstances unreasonable. For these reasons, I do not consider an order of the nature sought by the Applicants is warranted.

2007 AGM
Motion 11 at the 2007 AGM was proposed by the Applicants with the consent of the owner of Lot 58 and sought Body Corporate consent to a new CMS to amend schedule E to allocate car space “AL” to Lot 58. Motion 12 proposed allocating car space “AM” to Lot 57. Motion 13 proposed allocating storage space ‘‘AP” to Lot 57. The notice of the meeting included an explanatory note for Motions 11 to 13 submitted by T and C Burrell stating: the 2000 CMS incorrectly recorded the car spaces for Lots 57 and 58, the developer originally proposed building 59 lots but decided to amalgamate two top floor lots (proposed lots 57 and 58 became lot 57 and proposed lot 59 became lot 58), the original exclusive use plan showed 59 car spaces, the plan does not match the car space numbering identified in the basement car park, the 2000 CMS included an updated exclusive use plan using alphabetical numbering and the two car spaces numbered 57 was not picked up and the additional car park for original lot 58 was left unallocated, and the plan also truncated part of the original exclusive use 57 as it split the area into “AO” and “AP”. Motion 11 required a resolution without dissent and was defeated with 19 no votes. Motion 12 was not put to the vote. Motion 13 was defeated by ordinary resolution with 6 yes votes and 20 no votes.

Motion 11 related to Lot 58 being allocated exclusive use of part of the common property. The certificate of title for Lot 58 indicates that the Lot has been owned by Marian Micalizzi since 2002. While the Applicants may have been involved in the submission of the Motion and may have submitted motions consequential to the passing of the Motion 11, it is not evident that the Motion dealt directly with the Applicants Lot. The Motion was defeated and there is no evidence that the owner of Lot 58 sought to dispute the resolution. Further, it is not now apparent that the owner wants the Applicants to pursue the resolution now on her behalf. The Applicants did not provide any such material in the application and the owner did not respond to the Commissioner’s invitation to make submissions. The committee states the Body Corporate has allowed the owner of Lot 58 to use space “AL” instead of space “AM” as this space is wanted to provide the means of access to and from the car park. In these circumstances, I am not satisfied the Applicants have the necessary authority to act for the owner of Lot 58 or that the owner now consents to the allocation proposed in the Motion. For these reasons, I do not consider there is any basis for giving consideration to the alleged unreasonable opposition to Motion 11. The outcome sought is dismissed.

2008 AGM
I provided background to Motions 11 to 13 at the 2008 AGM on pages 7 and 8 of these reasons. The minutes of the meeting indicate: Motion 11 was lost with 18 no votes; and that Motions 12 and 13 were not voted on.

Significantly, Motion 11 did not propose Body Corporate consent to a new CMS to record a change in an exclusive use allocation. Rather, the Motion proposed authorising the committee to consent to particular orders being made in the District Court on the appeal on 0949-2006. Given it was clear at the time (given the decision made on 0176-2007) that the Body Corporate could resolve the matters in dispute despite the District Court appeal, the reason for submitting the Motion in this form is uncertain.

In any event, the onus rests with the Applicants to demonstrate that opposition to the Motion as proposed was unreasonable. The Applicants have not provided specific reasons for the opposition to this Motion. I do not consider the general material provided by the Applicants demonstrates circumstances exist to warrant a finding of unreasonable opposition. Owners are entitled to be of the view that a matter of this nature be argued in the Court, a process initiated by the Applicants as a consequence of the decision made on 0949-2006. The Body Corporate made the initial dispute resolution application and should be entitled to defend its position in the Court. There is no indication that owners generally do not support this view. For these reasons, I have dismissed the outcome sought.

2008 EGM
I provided background to Motion 6 at the 2008 EGM on pages 8 and 9 of these reasons. The minutes of the meeting indicate that Motion 6 was lost with 31 no votes. In proposing this Motion, it would seem the Applicants did not seem to present any additional explanatory material to be included in the notice of the meeting for the consideration of owners. It is apparent a significant number of owners opposed the Motion.

I do not consider that the arguments presented by the Applicants unsuccessfully at a number of general meetings constitute an objective basis for making the declaration being sought. Further, I do not consider the Applicants have demonstrated that any new material submitted for the consideration of owners at this meeting warrants a finding in their favour.

The committee and owners have provided reasons for opposing this and earlier motions. The Applicants have not provided any justifiable basis for finding objectively that in the circumstances the opposition was unreasonable. The committee and owners have the benefit of documents recorded with the registrar and the findings made by the adjudicator on 0969-2006. Many of the arguments presented by the Applicants to owners were considered by Ms Rosemann. The Applicants have appealed these findings. The committee has informed owners of legal advice about the issue. In the absence of further advice or an authoritative decision, owners are entitled to reject the proposals presented to them by the Applicants. In the absence of evidence, it would seem that there is nothing in the outcome of the questionnaire which would suggest there is a contrary view to that expressed at the meeting.

The Applicants submit that: neither the Body Corporate nor any lot owners can point to any detriment, inconvenience, loss or prejudice that will be suffered if the two car spaces are allocated to Lot 57; that no other lot owner would be adversely affected; and that no other exclusive use rights are altered or taken away. I do not consider that in the circumstances, these arguments constitute a basis for making an order in the terms being sought.

In the reply to submissions, the Applicants provided a letter from Ian McLeod dated 12 August 2008. Given its date, this letter could not have been considered by owners at any of the abovementioned meetings and is not of any relevance in the determination of the application.

For these reasons, the outcome sought is dismissed.

Outcomes 9 and 10
For the reason I have dismissed Outcomes 4, 5 and 6, these Outcomes are dismissed.

Section 270 dismissal
The committee sought an order that the application be dismissed under section 270(1)(c) of the Act and that costs be ordered against the Applicants. As I have not dismissed the application on the basis sought by the committee, no further consideration of this request is warranted.

Stay of order
In his submission, Mr Birks requested that the stay of order on 0949-2006 should be removed. There is no basis for me to make such an order.