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Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders |
Last Updated: 9 March 2009
REFERENCE: 0678-2008
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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25393
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Name of Scheme:
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The Wesley Medical Centre, Sandford Jackson Building
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Address of Scheme:
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Chasely Street AUCHENFLOWER QLD 4066
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TAKE NOTICE that pursuant to an application made under the abovementioned Act by
The Uniting Church in Australia Property Trust (Q), the Owner of Lots 1-3,
7-10, 15-18, 27-28, 35, 38-39 and 62
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I hereby declare that Motion 9 considered by
the Body Corporate for The Wesley Medical Centre, Sandford Jackson Building at
the Annual General Meeting
on 20 May 2008, regarding the partial surrender of
Easement E in Lot 15 SP 100299, was not passed because of opposition that was
unreasonable in the circumstances.
I further order that Motion 9 considered by the Body Corporate for
The Wesley Medical Centre, Sandford Jackson Building at the Annual General
Meeting
on 20 May 2008, regarding the partial surrender of Easement E in Lot 15
SP 100299, is deemed to be passed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0678-2008
“The Wesley Medical Centre, Sandford Jackson Building” CTS 25393
The Wesley Medical Centre, Sandford Jackson Building community titles scheme 25393 (Sandford Jackson Building) consists of 69 lots and common property. The community management statement (CMS) for Sandford Jackson Building indicates that the Body Corporate and Community Management (Commercial Module) Regulation 2008[1] (Commercial Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Survey Plan 105376.
APPLICATION
Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by The Uniting Church in Australia Property Trust (Q), also known as the Wesley Hospital, and the Owner of Lots 1-3, 7-10, 15-18, 27-28, 35, 38-39 and 62 (applicant) on 15 August 2008.
The applicant sought orders against the Body Corporate for Sandford Jackson Building (respondent) in the following terms:
(a) the Body Corporate Manager be entitled to amend the said Minutes and certify the resolution as passed without dissent for the purposes of regulation 92 (3) of the BCCM (Commercial Module) Regulation;
(b) further or alternatively, the requirements of section 155 of the BCCM Act and regulation 92 of the BCCM (Commercial Module) Regulation, the said resolution be deemed and recorded as passed "without dissent";
(c) further or alternatively, the respondent be directed to do all things reasonably required at the request of the applicant or the Body Corporate Manager to record a reversal of its vote upon the said resolution, and to otherwise not dissent upon any future vote upon the resolution upon the same grounds.
PROCEDURAL MATTERS
Under section 243 of the Act, a copy of the application was provided to the Body Corporate and Errogie Investments Pty Ltd (Errogie) who is the Owner of Lot 53 and named as an affected party. The Committee, Errogie and all owners were invited to respond to the matters raised by the application. Submissions were made by Errogie and two other owners. The applicant inspected the submissions received and made a written reply.[2]
A dispute resolution recommendation was made referring the dispute to departmental adjudication. I then investigated the dispute, pursuant to section 271 of the Act, which included reviewing the application and submissions, CMS and plans for the scheme, other relevant registered titles documents, and seeking further information as detailed below.
MATTERS IN DISPUTE
The application disputes the decision of the Body Corporate not to pass, by resolution without dissent, a motion considered at the Annual General Meeting (AGM) of the Body Corporate on 20 May 2008 regarding the partial surrender of an easement. The circumstances of the dispute, as outlined in the application, submissions and reply to submissions, can be summarised as follows.
The applicant has undertaken redevelopment and construction works to expand the Wesley Hospital. The application specifically relates to a new building (comprising medical services and car parking) which neighbours the Sandford Jackson Building. The applicant says the building was constructed in accordance with approved plans and existing laws.
The applicant says its construction strategy was, in part, based on the rights of an Access Easement (the Easement). The Easement is described on the titles record as Easement No 702539914, being Easement E on SP105380 and recorded on 4 March 1998. The registered easement document and the plan for SP105380 refer to Easement E in Lot 15 on SP 100299. The scheme is the dominant tenement benefiting from the Easement. The servient tenement is apparently owned by the applicant, and includes the new building. The applicant says the Easement was designed to benefit the Body Corporate by providing a driveway allowing vehicular access to the scheme. Item 6 of the Easement specifies that the applicant as grantor reserves the right to erect improvements above the servient tenement, subject to giving at least four metres clearance to maintain the right of access. It further provides that the grantee shall not object to any such improvement.
The applicant now seeks a surrender of part of the Easement. They say the partial surrender relates to part of the servient tenement commencing at a height of four metres above the grant. The Titles Office has advised them that the surrender is required to register a volumetric title over the new building. They say the surrender is consistent with the terms of the Easement and does not prejudice or detract from the Body Corporate’s use of the servient tenement or its legal rights in relation to the Easement. While one corner of the new building overhangs part of the Easement, the applicant says it was always entitled to build over this area above four metres.
Approval for the surrender required a resolution without dissent. Motion 9, seeking approval for the surrender, was put to the AGM by the Committee in May 2008. Of the 69 lots in the scheme, 25 voted in favour, one abstained and one voted against the motion. The opposing vote came from Errogie. The applicant says that since the AGM they have engaged in detailed discussions and correspondence with Errogie in an effort to resolve the matters, but that Errogie has declined to reverse its vote or put forward a ‘proper legal basis’ for its dissent.
The application includes a statement from a representative of the applicant (Ronald Symonds) regarding the events at the AGM. Symonds asserts that Errogie’s principal, Professor Paul Kerlin, said he was going to vote against the motion because he did not understand volumetric titling. Symonds apparently sought to explain the proposal and that the issue had not been raised previously because they had not been aware that the surrender would be required. The application also claims that Errogie’s reasons for opposing the motion include objections to the loss of the view from Errogie’s lot, but there has never been any legal right to a view. Moreover, they argue that even if there was a valid complaint regarding the loss of view (which they dispute), it is irrelevant to the surrender because the building already exists and the only issue is the volumetric titling. They also allege that Kerlin said he chose to dissent ‘because he can’, and that this is evidence that he is attempting to hijack the process without proper justification and for personal gain. They say that Errogie has asked for payment for reversing its vote, specifically a free or discounted carpark valued at some $30,000. As such, the applicant says Errogie is motivated by an ancillary person advantage rather than any concern for the Body Corporate. The applicant claims this personal benefit to Kerlin would open the flood gates to other similar personal claims and that there is no basis for any special treatment for Errogie over other owners.
No submission was received from the Body Corporate.
The submission from Errogie includes the following comments:
Errogie and others purchased suites on higher floors at a premium because they benefited from superior views. The expectation that these views would be preserved for prosperity was inferred from the higher price of those lots and a written guarantee.
The motion was not endorsed by the majority of members, as 43 lots did not vote in favour of it, and 15 of the 25 votes for the motion were cast by the applicant.
Two other owners have since expressed opposition to the motion (as per the submissions).
If Errogie’s voting is held to be motivated by an improper or ancillary purpose, the applicant was similarly motivated in voting for a motion to further its own commercial interests.
It is difficult to see how the motion could be in the best interests of the Body Corporate or its members, particularly when it involves a surrender of the Body Corporate’s legal rights and a liability on the Body Corporate to pay the applicant’s legal costs.
Errogie is quite prepared to participate in conciliation.
The applicant has treated its concerns with distain and threatened legal costs.
The new building has been planned since 2005 and the applicant has been aware of the need for the partial surrender since at least September 2007 but elected to withhold this information from the Body Corporate so no objection could be raised to the obstruction of views until the construction was completed.
By its own admission, the Easement was taken into account in the construction strategy so the applicant cannot claim to have overlooked the issue.
The applicant could have designed the new building so that the surrender was not required. Such a design would have preserved at least part of the views previously enjoyed.
The loss of the view resulting from the new building has been of concern to Errogie for some time, as evidenced by an appeal in the Planning and Environment Court lodged in 2000.
If the new building does not infringe on the Easement, why is the surrender required?
Regardless of how minimal the impact of the surrender is claimed to be, the Body Corporate is being asked to relinquish a legal right, bought and paid for, for no benefit in return.
There was an attempt to mislead owners by inferring that independent legal advice had been obtained that the Body Corporate should support the motion, and therefore that the motion was a fait accompli. The advice did not outline any possible benefit that would accrue to the Body Corporate (as opposed to the applicant) from the motion.
Constructing the building without regard to the views from Errogie’s lot caused Errogie to suffer a decline in the value of its asset, and it is not improper to seek compensation for that loss. Compensation was first raised by the applicant who suggested a charitable donation. Errogie would be satisfied by a contribution to the sinking fund of an amount equivalent to the cost of trimming the new building so that it did not necessitate the surrender.
The applicant did not act improperly by constructing the new building itself, but by obscuring guaranteed views, by delaying seeking consent until the building was complete, by attempting to mislead owners by intimating that independent legal advice supported the motion, and by asking the Body Corporate to act against its interests without compensation.
The two submissions from other owners oppose the application. It is not apparent that either lot owner voted in respect of the disputed motion.
One owner says they paid a premium for their suite in the Sandford Jackson Building based on its views, which they say were guaranteed by the Wesley Hospital in a letter to the Body Corporate dated 25 February 1993. They say that the applicant has built a car park disregarding owners who had these views and diminishing the value of their lots.
The second owner says they didn’t vote because a circular to owners dated 29 April 2008 implied that voting carried no weight and that the process could not be altered. They argue that approval for the surrender should have been sought before construction commenced three years ago, because some owners did not realise at the time how close the new building would come to the scheme or that the Easement would be encroached upon. They also say use of the Easement was severely encroached upon during construction, with pedestrian access unavailable and vehicular access difficult. This had a significant impact on their business. There is also a suggestion that submissions will be limited because many owners rely on the Wesley Hospital for their livelihoods.
In its reply to submissions the applicant provides the following:
The 1993 letter which allegedly guarantees views does not relate to the current Sandford Jackson Building, which was not constructed until some five years later. Rather it related to a pre-existing building and does not form any part of agreements relating to suites in the Sandford Jackson Building. There was no equivalent assurance for the current building.
The express reservation in the Easement allowed the applicant to construct the new building from and above four metres from the ground.
Errogie’s application to Planning and Environment Court is irrelevant. The applicant has obtained and complied with all approvals and statutory obligations for the new building.
Errogie is wrong in asserting that the Body Corporate’s rights are affected by the new building. The Easement, including the express reservation, always existed and no right of access is affected. The new building was designed to comply with the Easement and does not prejudice or detract from the Body Corporate’s rights or access up to four metres.
The Easement was never meant to protect a view for Errogie and so any suggestion that the new building should or should have been ‘trimmed’ to preserve its view is misconceived.
The applicant can sell lots in the new building whether volumetric titles are obtained or the current title remains. However volumetric titles would be administratively preferable for the applicant. Registering volumetric titles requires the partial surrender. The concept of volumetric titles is new and was not contemplated when the Easement was prepared.
Errogie has not suffered and will not suffer the loss of value to its lot from the new building or the partial surrender. The new building was constructed in accordance with the law and the Easement so there is no reason for it to be trimmed or otherwise altered. The applicant has properly exercised its legal right under the Easement. The partial surrender will have no legal or practical consequence for Errogie and so there is no basis for compensation.
The applicant disputes that there has been any loss in the value of any lot in the scheme.
The applicant strenuously denies that it endeavoured to mislead members of the Body Corporate. At all times it believed it was acting in accordance with the terms of the Easement. It took reasonable steps to inform the Body Corporate at all times.
The ongoing development of the Wesley Hospital, including the new building, has benefited all owners in the Sandford Jackson Building.
No prejudice has been shown to Errogie or any other owner from the partial surrender. The only complaints relate to the actual existence of the new building which is an ancillary issue.
Comments were made in submissions regarding the costs associated with the Easement. Item 7 of the Easement states that the Grantee (the Body Corporate) is responsible for all costs associated with the grant of easement and any subsequent grant, release or surrender of the grant or any substitute grant. It is unclear from the material provided whether the responsibility for the cost of the surrender of easement was raised or discussed in relation to Motion 9. At my request, a member of the Commissioner’s Office contacted the applicant to clarify who would be responsible for the costs arising from the implementation of Motion 9. The applicant confirmed in writing that it will pay for all costs associated with registering the partial surrender. It further noted that, if the application succeeded in the near future and without exposure to further significant legal costs, the applicant would not seek to recover costs from any other party.
JURISDICTION
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 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; or a
claimed or anticipated
contractual matter about the engagement of a person as a
body corporate manager or service contractor; or the authorisation of a
person
as a letting agent.
An order may require a person to act, or prohibit a
person from acting, in a way stated in the
order.[4]
An adjudicator's order may contain ancillary and consequential provisions
the adjudicator considers necessary or
appropriate.[5]
DETERMINATION
The issue in this matter is whether there is any justifiable basis to deem Motion 9, which failed to achieve a resolution without dissent at the AGM of 20 May 2008, to have been passed.
Section 276(1) of the Act requires an adjudicator to make an order that is just and equitable in the circumstances. Without limiting the orders that an adjudicator can make, Schedule 5 of the Act sets out a range of orders that an adjudicator may make. Item 10 specifically contemplates an adjudicator making an order to give effect to a motion, or a variation of a motion proposed, if a motion requiring a resolution without dissent was not passed because of “opposition that in the circumstances is unreasonable”. It is not disputed that Motion 9 required a resolution without dissent[6] and that the only vote cast against the motion was from Errogie. Accordingly, I will consider whether the opposition of Errogie to Motion 9 was unreasonable in the circumstances.
Mention has also been made of information circulated regarding Motion 9 and so, while little argument has been presented on the issue, I will also consider whether the conduct of the meeting and the consideration of the motion were valid in respect to the material presented to owners.
Test for unreasonable opposition
In a previous adjudication[7], Adjudicator P Dowling provided the following summary of decisions regarding the test of ‘reasonableness’ in regard to overturning resolutions without dissent:
“In Points North (paras 42 and 44) and Ocean Plaza Apartments[8] (paras 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.
In Zenith[9] (where the above test was applied), the adjudicator stated the courts have held that where a statute expressly provides that a decision is to be made ‘reasonably’ or upon ‘reasonable grounds’, the test is an objective one that requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.[10] In this decision and in the decisions made to resolve disputes in Q1[11] and Allen Court[12], adjudicators also stated:
In determining whether votes against a motion constitute opposition that in the circumstances is unreasonable it is necessary to consider all the material facts. What is material will vary from case to case but typically the requirement for an adjudicator to make a just and equitable decision involves some balancing of the interests of the majority and minority and raises questions of fairness.
In Sirocco Resort[13], reasonableness in the context of withholding approval was considered by the specialist adjudicator who stated:
I will have regard to these comments in considering the reasonable of Errogie’s opposition. Arguably, the opposition of owners who did not actually vote in respect of the motion is not relevant to this consideration, however I will also have regard to the reasons for their opposition.
Opposition to Motion 9
Loss of view
The primary concern for Errogie appears to be the loss of the view from Errogie’s lot caused by the construction of the new building. However, I agree that this is irrelevant to Motion 9. The sole purpose of Motion 9 was to approve the partial surrender of the Easement. This decision had no impact on the existence of the building or the impact on the view, and the failure of the motion will not address Errogie’s concerns about their view. In the absence of any evidence to the contrary, I accept the submissions from the applicant that the building was constructed in accordance with all relevant planning approvals and statutory requirements. Accordingly, I do not consider that it was reasonable to oppose Motion 9 based on unrelated concerns regarding the loss of a view.
It is beyond the scope of this application for me to comment on the impact of the construction of the new building on the views from or values of any of the lots in the Sandford Jackson Building, or whether any loss of view breached undertakings given by the applicant or any other party to Errogie or any other owner. Such matters would presumably relate to the original purchase contract and so would be beyond the jurisdiction of this Office. It would seem that the proper time for making objections to the construction of the new building arose during the approval process for that building. However, if any owner considers they are entitled to compensation arising from any undertaking given, they should consider seeking legal advice regarding the scope to pursue that claim in a court of competent jurisdiction.
Impact on the Body Corporate
I am satisfied, from the material before me, that there is no intention that the partial surrender of the Easement reduce or otherwise affect the access rights of the Body Corporate. Rather, the surrender relates to that part of the Easement area which is above four metres, in respect of which the applicant was always entitled to build pursuant to the express reservation in the Easement. As I understand it, while the new building can continue to exist as it currently does under the current Easement (without infringing on the Easement), the partial surrender is a purely administrative step required by the Titles Office to enable a different type of titling for the new building. Regardless of any impact of the new building, the partial surrender itself does not appear to affect the value or amenity of the Sandford Jackson Building or any lot in it.
I do not consider that there was any need for or obligation on the applicant to design the building to avoid the Easement area because the Easement specifically gave the applicant the right to build over the Easement area.
To my mind, the only potentially adverse impact on the Body Corporate from Motion 9 would be if the applicant sought to enforce Item 7 of the Easement and require the Body Corporate to pay for the cost of preparing and registering the partial surrender. Given that the applicant is the primary beneficiary of the surrender, it may well be reasonable for an owner to vote against the motion if the Body Corporate were to be responsible for the costs of implementing the motion. However, the applicant has confirmed in writing that they will pay the costs of the implementing the motion. Moreover, Errogie has not indicated that they voted against the motion because of a belief or the potential that the Body Corporate would be responsible for the implementation costs.
As I cannot find any adverse impact on the Body Corporate from the proposed partial surrender, there does not appear to be any reasonable basis for opposition to Motion 9 which seeks to authorise the partial surrender.
Conduct of the applicant
Errogie makes various comments regarding the motives and conduct of the applicant. In particular, Errogie disputes that the applicant was unaware of or overlooked the need for the partial surrender when planning and constructing the new building. Rather, they claim that the applicant deliberately withheld information from the Body Corporate until construction of the building was complete so that there could be no objection to the impact on the views. On the material before me, I accept that the applicant planned and constructed the building based on the existence of the current Easement, and that the requirement of the Titles Office for a partial surrender of the Easement was only discovered later when volumetric titling was pursued. Errogie has presented no evidence to support any assertions to the contrary.
Even if the applicant had been aware of the Easement issue earlier, I am not satisfied that there was any particular legal obligation to seek consent to the surrender at any earlier time. I have found above that the issue of the surrender is irrelevant to the construction of the building and the loss of view. Therefore, it seems that it would have been just as unreasonable to refuse the surrender based on the loss of view prior to construction as it is now after construction.
I have difficulty with the assertion that the applicant was trying to prevent objections to the new building. I fail to see how the absence of knowledge about the partial surrender prevented any owner from knowing about the impact of the new building or objecting to it. By Errogie’s own admission it knew of the impact of the new building on their view from at least 2000 when they lodged the Planning and Environment Court application. Presumably development application documents would have been publicly available from Council (if not from the applicant directly) to ascertain the specific location of the building. Any failure of owners to inform themselves about the design and impact of a building on a neighbouring property within sufficient time to make objections during the planning approval process is not the applicant’s responsibility.
It is clear that the applicant pursued the partial surrender with the Body Corporate, and voted in favour of Motion 9, in pursuit of its own commercial interests. I see nothing improper in this. Moreover, while there is nothing prima facie that prevents an owner voting in their own interests even if those interests are against the interests of the Body Corporate as a whole, I see no reason why the interests of the applicant are contrary to the interests of the Body Corporate in this case.
I do not intend to comment on the applicant’s conduct in regard to self resolution attempts or whether the parties should have participated in conciliation. It is the Commissioner to determine whether a dispute is appropriate for conciliation and whether to reject an adjudication application if appropriate internal dispute resolution and conciliation have not been conducted. Having accepted this application, the Commissioner has clearly accepted the applicant’s grounds for being excused from conciliation. It is beyond my jurisdiction to reconsider that decision.
Validity of Motion 9
Errogie claims there was an attempt to mislead owners by inferring that independent legal advice had been obtained that the Body Corporate should support the motion, and that the motion was presented as a fait accompli. One of the other submissions claims a circular to owners dated 29 April 2008 implied that voting carried no weight and the process could not be altered.
In the absence of any additional evidence or argument from these parties, it seems the concern has arisen from the explanatory note for the motion included in the notice of meeting for the AGM, dated 29 April 2008. The explanatory note describes the proposal and notes that “On the basis that the proposed lot adheres with the terms of the current easement and that the surrender legally gives affect to no more than a partial surrender of the easement to consent to the construction of the lot there is no detriment to the Body Corporate in approving the surrender. In addition under the terms of the current easement the Body Corporate must not object to any such structure.” In addition, the final paragraph says “The Committee have sought advice and on that advice unanimously support the proposed motion. In order to consent to the partial surrender of easement all body corporate members must vote in favour of the motion.”
In a recent case[14] the District Court considered the validity of a motion, in light of claims that committee material for the motion was misleading. His Honour Justice McGill (at para 50) said:
If there is a failure to give proper notice of the meeting, which may occur if the notice of the proposed resolution is misleading as to what is really proposed, or its effect and implications, then that may well impact on the validity of the resolution, because in such circumstances there was either no valid notice of the meeting or no valid notice of the proposed resolution.
Although it seems from some of the comments that Errogie may have misunderstood the purpose and effect of Motion 9, I find no evidence that the explanatory note itself was misleading or actually misled any owner. It is common for explanatory notes to include a recommendation or an expression of Committee support for the motion. This does not make the information misleading.
In the matter referred to above, DCJ McGill found that the committee circular was not misleading. After a discussion of case law relevant to the fiduciary duty of the committee to make full and fair disclosure, His Honour noted (at para 70):
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.
Having regard to His Honour’s reasoning, I similarly find nothing misleading in the explanatory note for Motion 9. Although the note obviously supports the motion, it appears to be factually accurate. I dispute that the reference to the Committee obtaining advice implies that independent legal advice had been obtaining in favour of the motion. I also reject the suggestion that the note implied that voting was not required or that the result was a fait accompli, as the note clearly states that there was a requirement for voters to vote in favour of the motion.
Other issues
Errogie comments on the level of support for Motion 9. Clearly a significant number of owners did not vote for the motion and the applicant cast a significant proportion of the votes in favour of the motion. However, the requirements for a resolution without dissent[15] do not require any proportion of owners to vote and all owners are entitled to cast votes (or not) according to their interest. As such, the actual voting proportions are immaterial to the resolution of this dispute. The key issue here is the vote cast in dissent and whether the dissent was reasonable in the circumstances.
Another issue raised in one of the submissions is that use of the Easement was encroached upon during the construction of the new building. If this was the case, it would seem that the appropriate course of action would have been for the Body Corporate to seek to enforce the rights granted under the Easement or to seek compensation for the loss of those rights. However I do not consider that the fact that the applicant may potentially have breached the terms of the Easement in the past is an adequate justification for refusing an unrelated and essentially inconsequential adjustment to the scope of the Easement.
As an aside, I also note a comment by Errogie that the Easement was a right bought and paid for by the Body Corporate. While it has no bearing on the value or effect of the Easement or the rights under the Easement, the Easement appears to have been registered before the Body Corporate was created. At the time it was a transaction between the applicant as owner of one lot to the applicant as the owner of another lot, and the consideration was the amount of $1.
Conclusion
On the material presented to me, I am satisfied that the proposed partial surrender of Easement E in Lot 15 SP100299 will have no adverse impact on the Body Corporate for the Sandford Jackson Building. I am further satisfied that the basis for the opposition to Motion 9 at the AGM of 20 May 2008 by Errogie were primarily based on concerns that were not relevant to the purpose of the motion, and were not reasonable considerations. For that reason, I find that Errogie’s opposition was unreasonable in the circumstances. I have made an order to that effect and declaring that Motion 9 be deemed passed.
[1] As of 30 August
2008 the new Commercial Module came into force, replacing the Body Corporate
and Community Management (Commercial Module) Regulation 1997 which applied
until that date.
[2]
See sections 246 and 244 of the Act
respectively
[3] See
sections 227, 228, 276 and Schedule 5 of the
Act
[4] Section
276(2) of the
Act
[5] Section
284(1) of the
Act
[6] This is
provided for in section 118 of the Commercial
Module
[7] One
Park Road [2008] QBCCMCmr 3 (7 January 2008)
[8] Points
North [2004] QBCCMCmr 423 (2 September 2004); Ocean Plaza Apartments
[2004] QBCCMCmr 452 (23 September
2004)
[9]
Zenith [2007] QBCCMCmr 115 (28 February
2007)
[10]
Secretary, Department of Foreign Affairs and Trade v Styles (1989)
88 ALR 621
[11]
Q1 [2007] QBCCMCmr 131 (8 March
2007).
[12]
Allen Court [2007] QBCCMCmr 297 (21 May 2007).
[13] Sirocco
Resort [2006] QBCCMCmr 426 (2 August 2006). This dispute did not give
consideration to Schedule 5(10). The decision related to the transfer of rights
provisions
in the Body Corporate and Community Management (Accommodation
Module) Regulation
1997.
[14]
Body Corporate for Palm Springs Residences CTS 29467 v J Patterson
Holdings Pty Ltd [2008] QDC
300
[15] Section
105 of the Act
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