Golden Sands Highrise [2009] QBCCMCmr 318 (26 August 2009)

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

I hereby order that the application for an order

“that bikes be removed from front [sic] of my existing carpark so that I will have a tandem carpark as that is what the solicitors’ searches of government records showed at the time of purchase. Even though this is not the same carpark I am happy to keep it if it is extended “legally” to a tandem carpark”.

is dismissed.

I declare as a consequential provision pursuant to section 284 Act, that By-Law 36 of the scheme by-laws, Schedule E to the currently recorded Community Management Statement and a plan of exclusive uses for carparks and storage drawn by Ross Franklin and Associates and dated 28th November 2003, also part of the currently recorded Community Management Statement, are all invalid and of no effect as particularised in the reasons for decision attached hereto.

And I further order that the body corporate must convene a general meeting in order to obtain the consent of the body corporate to proposed by-laws, including exclusive use by-laws, and shall within three months of the date of this order lodge a request in the Land Titles Registry that a new community management statement be recorded.

This is an application dated 18th November 2008 and amended on 1st December 2008 and 2nd December 2008, by Brendan Edwards (the Applicant) owner of Lot 2, against the body corporate for Gold Sands Highrise (the body corporate) for an order as follows –

“that bikes be removed from front [sic] of my existing carpark so that I will have a tandem carpark as that is what the solicitors searches of government records showed at the time of purchase. Even though this is not the same carpark I am happy to keep it if it is extended “legally” to a tandem carpark”.

“Golden Sands Highrise” CTS 10906 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management(Accommodation Module) Regulation 2008 (Accommodation Module). There are 66 lots in the scheme created under a Building Unit Plan of subdivision.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The Applicant says that he contracted to buy Lot 2 on 8th May 2004 with a settlement date of 3rd June 2004 and that his solicitor Mark Mortimore of Mortimore and Associates conducted searches at the Land Title Registry which “clearly showed that Apartment G2 had a tandem car park” being “Carpark 2.” The searches were conducted after he had signed an unconditional contract.

A notice of an annual general meeting to be held on 5th July 2003 (AGM 2003) was sent to all owners on 12th June 2003. Motion 16 proposed the lodgement of a new community management statement changing the by-laws (but not the exclusive use by-laws) and Motion 17 proposed a change to, or confirmation of, exclusive use carparks. The notice “contained a rough hand drawn plan without measurements” (the Hand-Drawn Plan) of proposed car-parking allocations of exclusive use. The proposed Schedule E to the new community management statement showed that Lot 2 was to be allocated Car Park G2.

The minutes of the AGM 2003 show that Motion 16 was passed 29 - 6 and that Motion 17, which required a resolution without dissent, was defeated.

The Applicant says that the “hand drawn CMS was never registered” but what was registered in the Land Titles Registry was a “professional CMS prepared by Ross Franklin and Associates and signed on 28th November 2003”, (the Franklin Plan) four and a half months after the AGM 2003. This plan bears “no resemblance” to the Hand-Drawn Plan.

The Applicant argues that the registered plan, against which his solicitor made searches at the time he bought, is the plan which should be applicable to the scheme, but the body corporate is using the “hand drawn plan” in practice. At that time in May/June 2004, Schedule E of the community management statement described Lot 2 as being allocated Car Park 2 on Annexure “A”, which was a tandem space of 11m. “Annexure A” as registered was the Franklin Plan. The car park space in practice allocated to Lot 2 on the Franklin Plan is Car Park 10, which is only 7.36m in length. This deprives the Applicant of the tandem parking which he thought he was getting and which he was told he was getting. The Applicant says that Car Park 10 used to be a tandem length space until “the bikes were placed in front of Lots (sic) 9 and 10”.

He says “ the area where the bikes are was never common property”. These car parks 8, 9, 10 and 1, are respectively shown on the hand-drawn plan as 703, 803, G2 and 102.

The mistake was pointed out to the body corporate by the Applicant’s solicitor who had searched body corporate records and found that in practice Lot 2 was allocated Car Space 10. The solicitors wrote to the body corporate on 25th May 2004 to clarify the position, and the body corporate replied that it was “the incorrect Schedule E/plan had been attached to the CMS lodged by them on 7th October 2003 in accordance with the resolution passed at the AGM in 2003”, and that they would correct it. “[T]he plan was subsequently re-drawn and re-registered on 4th July (sic) 2004”, but the Applicant says it is still wrong, and also registered out of time. The mistake is affecting his ability to sell his unit.

Body Corporate and Community Administration Services (BCCAS), the then body corporate manager, rectified the incorrect record after the Applicant had purchased Lot 2, but did not address the Applicant’s issue about the car park space. Since the contract was unconditional and he had paid a deposit, he was bound to continue with the purchase. He says that he would be happy with Car Park 10 instead if it was a tandem space, and all that needs to happen is the removal of a few rusty old bikes.

The Applicant took the matter up with his solicitors again in June 2008. Solicitors advise that the Applicant had inspected Car Space 10 before settlement, that that he was aware of the mistake at the time, and that the seller did not represent to the Applicant that car space 2 was attached to Lot 2. Lawyers acting for the body corporate in 2008 said that the car space allocated to Lot 2 “has always been car space 10,” and that the introduction of the bike racks may have over time reduced the use of the car space from a tandem to a single. However, the Applicant says that he was entitled to rely on the registered plan.

The Applicant and his wife had owned Lot 2 seventeen years previously and during that ownership had been allocated Car Park 2. In 2004, they bought at auction and assumed they had the same car park space, especially since the registered plan confirmed this to be the case. The Applicant repeats that he just requires a tandem space and does not want a particular Car Park, or compensation.

In accordance with section 243(2)(b) Act submissions were invited from all lot owners.

The only submission was from the body corporate, made through solicitors Teys Legal on 19th January 2009. The committee says that the scheme was established on 24th July 1981. It says that the car space allocated to lot 2, Car Park 10, has never been a tandem car space, although it is larger than a single car space, “as evidenced by the plan of exclusive uses.”

On 17th August 1981, the Land Titles Registry recorded for the scheme, inter alia, an additional by-law, by-law 67, which granted to the owner of each lot exclusive use of “car spaces or .. storage space or spaces the identifying number or numbers of which shall be notified in writing by A.H.R.Constructions Pty Ltd to the Council of the body corporate within twelve (12) months after the date of registration of the Building Units Plan provided that in respect of those car spaces or storage spaces allocated... the council is hereby authorised to vary the allocations so made and to transpose car spaces or storage spaces from one unit to another unit at any time and from time to time on the written request of the proprietors of the units involved. A sketch plan is set out hereunder for the purpose of clearly identifying the said car spaces or storage spaces. The identifying number as set out in such sketch plan shall be used by A.H.R. Constructions Pty Ltd for the purpose of its notification to the said Council of the Body Corporate.”

The sketch plan (Sketch Plan) for Level A referred to was attached. The Sketch Plan was not to scale, and shows inconsequential numbering representing lots 1 – 66.

A.H.R. Constructions Pty Ltd was the original owner, but no notice of allocation can now be found. No notice of allocation was lodged in the Land Titles Registry and there was no legislative requirement in 1981 to do so. However, it was “common knowledge” and not disputed that the car spaces numbered in the car park plan of Level A were “ the same as each lot.” Lots 13 and 37 subsequently tried to lodge an allocation that they had swapped car parking spaces “13” and “37” but this was rejected by the Land Titles Registry as no allocation had been lodged, and this was “finally corrected” when the latest community management statement was lodged (dealing 708197623.)

The body corporate says “it is clear that car spaces 39, 43, 64, 51, 55, 59 and 63 are tandem car spaces”, whilst the car spaces to the south of the tandem car spaces, being car spaces 30, 34, 2 and 5 are slightly larger than other car spaces.

There is an area of “common property” to the north of spaces 5, 2, 34 and 30 which form a block. This is where the bike rack was situated and has been there for “some 10 – 15 years.” It was installed “some time after the Applicant sold Lot 2... and before he re-purchased Lot 2 in 2004.” The bike rack is not situated on the exclusive use area granted to Lot 2.

When the Applicant signed a contract to purchase Lot 2 (for the second time) on 8th May 2004, the community management statement recorded in the Land Titles Registry was incorrect (dealing 70761232) because a new car park plan “Sketch “A” (the Franklin Plan) had been lodged with sequential numbering instead of the ad hoc numbering of the Sketch Plan. The Applicant was aware that the new plan was incorrect because he had previously owned Lot 2. The error was also confirmed to him by his lawyer.

A new community management statement to correct the error was registered on 4th June 2004 (dealing 707779525). The same plan was attached but the Schedule E description was altered to give exclusive use of Car Park 10 to Lot 2 as shown on that plan.

The body corporate says that Car Parks 8, 9, 10 and 11 have never been tandem spaces since they are only 22m² which is insufficient for two average sized cars. The tandem spaces range between 29m² to 39m² and the single spaces are between 13m² and 19m². Any use made by the Applicant of Car Park 10 as a tandem space would have been encroaching on an area of common property.

He repeats that the car park space used by him when he purchased Lot 2 for the first time, was number 2 which is a tandem car space as shown on the “new” Sketch “A” plan (the Franklin Plan). He says that the “original sketch plan” (the Sketch Plan) is not clear evidence that it was the car space allocation adopted by the developer, and no allocation by the developer was ever produced. The CMS lodged on 7th October 2003 shows Lot 2 as having car space 2, and “this should be reinstated.” The body corporate is also not empowered to amend a CMS as it did by re-lodging Schedule E on 9th November 2004. In addition, Motion 17 of the 2003 AGM required a resolution without dissent to be passed, so the new car park plan was registered without the appropriate authority.

I sought further information from the body corporate on 26th June 2009. I asked for a copy of the draft CMS in the form in which it was sent to owners with the agenda for the meeting of AGM 2003. The draft CMS had 38 by-laws. By-law 36 entitled lot owners to exclusive use of car spaces or storage spaces, and referred to a “sketch plan” identifying car paces and storage spaces. The sketch plan attached was the Hand-Drawn Plan.

I also asked about the date of the installation of the bike rack. The body corporate provided a copy of minutes of a committee meeting from 30th May 1998, and said that it understand that the bike rack “was installed shortly after this meeting.” The minutes state that the bike racks were to be located opposite the switch room in the garage.

I also asked how the latest plan (the Franklin Plan) came to be commissioned after the CMS was lodged on 7th October 2003. The body corporate says that there was a committee meeting on 18th August 2003 when the CMS was executed “as per the general meeting held on 5th July 2003” and a committee member was to attend to registration. The body corporate says that there must have been requisitions from the Land Titles Registry about the exclusive use plan, and that this appears from subsequent minutes of committee meetings held on 27th September 2003 and 15th November 2003, when the committee noted that the CMS was registered “ and was requisitioned due to the car park plan.” Committee member Don Bilston “had drawn up a new car park plan at no cost to the body corporate and produced draft copies” to the meeting. The minutes note that the CMS would be registered by Christmas. It was finally registered on 8th December 2003.

I also obtained a copy of the resolution of the committee on 31st May 2004 at which it resolved to amend the CMS. The explanatory note for that decision stated that Hickey Lawyers had attended to the lodgement of the CMS and a requisition had been issued by the Department of Natural Resources and Mines “requiring a new plan of the exclusive use areas showing sequential numbering of car park space.” A surveyor had prepared a new plan and a revised Schedule E, “showing car park spaces as originally allocated.” The lawyers had then lodged the “original Schedule E” in error. The CMS was amended to “ensure that the substance of the CMS originally approved by the body corporate at the 2003 AGM is registered.”

The committee noted that “under section 62 of the BCCM, a Committee of the Body Corporate may consent to a new CMS if it is reproducing a CMS without any change of substance.”

The body corporate recorded a further new CMS on 9th November 2004 following the annual general meeting on 31st July 2004, wherein the body corporate resolved without dissent to record a new CMS to amend Schedule E so that car spaces 22 (unit 302, Lot 13) and 62 (unit 902, lot 37) were swapped. There was no draft CMS attached to the motion, but there was an explanatory note that “all other items of the community management statement are to remain identical and there will be no costs to the body corporate.”

In this matter, the Applicant seeks a two-car sized ‘tandem’ car parking space from the body corporate. In order to achieve this, he requires that the bike rack positioned in front of his current space, being Car Park 10, be removed. He argues that he is owed a tandem exclusive use car space by the body corporate since that is what he purchased in May 2004, when “government records” at the time showed a space of 29m² (Car Park 2) allocated to Lot 2, even though body corporate records showed a space of 22m² (Car Park 10) in use by Lot 2.

Prior to 8th December 2003
The Applicant and his wife were owners of Lot 2 “seventeen years previously” , and the Applicant says that at that time he (and his wife) parked in a tandem space, being the current Car Park 2. Between 17th August 1981 and 8th December 2003, during which period, the Applicant and his wife at some point owned Lot 2, the plan showing the car park exclusive use areas and lodged in the Land Titles Registry was the Sketch Plan. The Sketch Plan shows the number “2” in the position of Car Park “10” on the Franklin Plan, the car space currently used by and allocated to the exclusive use of Lot 2.

The body corporate says it was “common knowledge” and “undisputed” that the numbers on the Sketch Plan referred to lot numbers. The Applicant, if parking in the space now allocated the number “2” on the Franklin Plan, would, prior to 8th December 2003, have been parking in a tandem space numbered “43” on the Sketch Plan.

I do not find it “clear” from the Sketch Plan, as the body corporate suggests, that some spaces were intended to be tandem spaces whilst others were not, because the Sketch Plan is neither to scale nor has any measurements. However, I am satisfied through considerations more particularly detailed below, that the Sketch Plan lodged in 1981 intended by its numbering 1 – 66 to allocate car parking spaces to the correspondingly numbered lots.[1] However, since the original owner, lot owners and the committee were able to vary and transpose spaces, it is not a reliable indication that lot-owners had any rights or obligations to park in the correspondingly numbered spaces. I find that prior to 8th December 2003 there were no exclusive uses granted in respect of car-parking and storage, since there is no evidence of any allocation made by the original developer AHR Constructions Pty Ltd and notified to the committee in the time period specified in former by-law 67, ie. within 12 months of the registration of the scheme ( 17th August 1982) , albeit that such an allocation did not have to be recorded in the Titles Office at that time.

There is no evidence put forward by the Applicant that he had an agreement with the owner of Lot 43 or the committee, that he could park in the space numbered “43” which is the space numbered “2” on the Franklin Plan. I do not dispute that he did do so, since at the time when he owned Lot 2 for the first time, there was no obligation on lot owners to park in any particular place, whatever they may have thought. Level 2 was in effect common property car-parking.

After 8th December 2003 and the First Community Management Statement.
At the 2003 AGM, the body corporate was intent on registering a first community management statement.

Motion 16 of the 2003 AGM, proposed a new set of by-laws for the first CMS. The exclusive use by-law in relation to car parks was not to be changed by this motion, since a change to an exclusive use by-law requires a resolution without dissent. However, in the draft CMS circulated with the meeting material, there was a new by-law 36 which read as follows –

The owner 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 spaces or the storage spaces the identifying

number or numbers of which have been notified to the Body Corporate hereof and in respect of those car spaces or storage spaces allocated pursuant to this by-law the Committee is hereby authorised to vary the allocations so made and to transpose car spaces or storage spaces from one unit to another unit at any time and from time to time on the written request of the Owners of the units involved. A sketch plan is set out hereunder for the purpose of clearly identifying the said car spaces or storage spaces.”

It is noted that this by-law did not allocate exclusive uses to owners but merely identified a sketch plan showing where car parking and storage spaces were. It is not clear who was to notify the body corporate of the allocations, when or how.

The wording of Motion 17, noted to require a resolution without dissent since it changed the wording of the exclusive use by-law in relation to carparks, was as follows-

“That the by-laws of the body corporate in the CMS and schedule E of the CMS be amended by replacing the current exclusive use by-law with the following:

The Owner for the time being of each lot in the building shall be entitled to the exclusive use for himself and his licensees of the car spaces or the storage space or spaces the identifying number or numbers of which are identified in Schedule E hereof and in respect of those car spaces or storage spaces. (sic) A sketch plan is set out hereunder for the purpose of clearly identifying the said car spaces or storage spaces. The car spaces and storage spaces may be transposed between owners according to the Body Corporate and Community Management Act.

The explanatory note for Motion 17 of the 2003 AGM was headed “Exclusive use by-law for Car Parks” and mentioned that it was important to have an up-to-date CMS “that correctly records the areas of common property over which owners have been granted exclusive use.” It attached a proposed Schedule (Schedule E) describing Lot 2’s exclusive use area as “G2”, and the sketch plan referred to is the Hand-Drawn Plan showing “G2” in the position of Car Park “10” on the Franklin Plan.[2] It noted that a final version of the plan would be drawn up by a surveyor.

Motion 16 was passed as a special resolution, but Motion 17 failed because there were five dissenting votes.

Despite the voting on Motion 16 and Motion 17, what was recorded on 8th December 2003, with a surveyor’s plan “Annexure “A”” (the Franklin Plan) was this:

The Owner 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 spaces or the storage space or spaces the identifying number or numbers of which have been notified to the Body Corporate and shown in Schedule E hereof and in respect of those car paces or storage spaces allocated pursuant to this by-law, the Committee is hereby authorised to vary the allocations so made and to transpose car spaces or storage spaces from one unit to another unit at any time and from time to time on the written request of the Owners of the units involved. A sketch plan marked “A” is set out hereunder for the purpose of clearly identifying the said car spaces or storage spaces.”

Schedule E stated that Lot 2 was allocated Car Park 2 on Annexure “A” (the Franklin Plan); and Car Park 2 on that plan is situated as the second carpark from the northern end, a space of 29m² numbered “ 43” on the previously registered Sketch Plan.

From the material provided in this application, it does not seem that this by-law received the consent of the body corporate. There is no evidence that the by-law which became the registered By-law 36 was ever put to the body corporate, or that the sketch plan marked “A” and referred to in the registered By-law 36 (Franklin Plan) was ever circulated to lot owners. It also does not appear that the by-law as drafted for Motion 17, that is, Schedule E and the Hand-Drawn Plan put to the AGM for 2003, received the required consent of the body corporate.

In short, nothing shown to me enables the registration of By-law 36, Schedule E, and the currently registered plan (Franklin Plan).

I understand that the First CMS as lodged brought a requisition notice from the Titles Office, and that the body corporate now surmises that the Land Titles Registry’s requirement, as stated in an explanatory note for a motion at a subsequent committee meeting, was for “a new plan of exclusive use areas (in the basement car park) showing sequential numbering of car par spaces,” [3] but the body corporate has no records of the requisition notice(s). However, the fact that a different sort of plan was required by the Land Titles Registry cannot itself provide consent if there was no consent from the body corporate for this by-law to be registered as part of the First CMS.

The First CMS was amended by a new CMS recorded on 7th June 2004 following observations by the Applicant’s solicitor that Schedule E did not accord with body corporate records of the allocation of “exclusive uses.” The written descriptions in Schedule E were amended and the plan stayed the same. The amendment was made following a decision of the committee made outside a committee meeting (“a flying minute”) on 31st May 2004. If the First CMS was unauthorised, then the amendment to Schedule E cannot retrospectively authorise Schedule E which, certainly in the form put to the AGM of 2003, was not passed at that time.

I am also concerned about this amendment being made at committee level since it clearly did change the substance of the CMS, and was not simply “reproducing the CMS” in that it changed allocations of exclusive use areas. Although this was done to put right a perceived error, in fact it simply added to an existing error.

A further new CMS was recorded on 10th November 2004, following the annual general meeting of 31st July 2004 wherein at Motion 13, the body corporate resolved without dissent to amend (the unauthorised) Schedule E to correct a “long standing oversight” to swap car park spaces 13 and 37. A copy of the new CMS was not put to this general meeting and the body corporate did not vote on whether to ratify Schedule E, the plan and By-law 36. Whilst the explanatory note for this motion said that “all other items of the community management statement are to remain identical...”, this further amendment to the unauthorised Schedule E, cannot retrospectively authorise By-law 36, Schedule E or the Franklin Plan, if they were never authorised by the body corporate.

What then is the position of a prospective purchaser who looks at a registered plan and schedule of “exclusive uses” when that plan and schedule are incorrect, and/or have not been properly authorised by the body corporate? On this point the Act is clear. Section 64 Act states that the new community management statement must be consistent with the body corporate’s consent. If a new community management statement when recorded is inconsistent with the new statement for which the body corporate gave its consent, the statement is void to the extent of the inconsistency.

If there was no consent to By-law 36 as recorded, nor to the Franklin Plan, nor to Schedule E, then it is my view that the inconsistency, in respect of car parking and storage spaces, would make void the recorded statement to the extent of the inconstancy, that is, that there would be no exclusive uses allocated in this scheme, and that in respect of carparking and storage, the body corporate is in the position it was in prior to December 2003.

Prior to December 2003, I am of the view that there were no allocations of exclusive use areas for car parking or storage, although there was customary use of spaces largely in accordance with the Sketch Plan, and, at some time after 1987, with the Hand-Drawn Plan. There were five dissenting votes to the Hand-Drawn Plan in July 2003, so at least five lot owners did not concur that the Hand-Drawn Plan “correctly records the areas of common property over which owners have been granted exclusive use”, or, if the Hand-Drawn Plan represented a change to those areas, they did not accept such change.

However, this may not greatly assist the Applicant. If no exclusive uses are allocated, he has no right to Car Space 2 on the Franklin Plan (or any other particularised space).

On 30th July 2009 I sought submissions from the body corporate concerning particularly my observation that the CMS recorded on 8th December 2003 did not have the consent of the body corporate, and that the exclusive uses were invalid.

The body corporate manager submitted on 13th August 2009 that the question of consent was not raised by the Applicant in the application but in the Reply, and that is why it was not specifically addressed in submissions. However, I note from attachments 27 and 28, part of the application, that Motion 17 was set out as requiring a resolution without dissent, and that the voting tally recorded five votes against it.

The body corporate submits that a finding that the CMS is invalid or partially invalid will not assist the Applicant. Further it says that such a finding exceeds the authority of an adjudicator under section 284 Act since it would not be an order which was “necessary or appropriate” to the order being sought by the Applicant, that is, that the bikes are removed from the Applicant’s existing car parking space.

In addition the body corporate argues that the changes proposed by Motion 17 were of a minor and technical nature and did not affect the intention of the by-law, that is to grant exclusive use of car spaces to each owner. It referred me to Chateau Royal Beach Resort [2000] QBCCMCmr 535. It also says that if I am right in my view that the CMS was never validly consented to, then the original by-law 67 arises (with which I agree and have referred to above); that the application was not a dispute about car parking spaces; and finally that it would not be just and equitable to declare the CMS or any part of it invalid.

I agree that the application in respect of the outcome sought is inelegantly worded, but it is clear that this is a dispute about allocation of car parking spaces. In his grounds the Applicant states that his claim is that he has always been allocated the wrong parking space from the start, but that he is willing to compromise if he is in fact allocated, or allowed to use, any tandem space.

I distinguish Chateau Royal Beach Resort since in that matter the adjudicator was assessing the reasonableness of the objection by the dissenting voter to minor changes in the wording of an exclusive use by-law. I do not accept that body corporate is now of the view that the vote of five dissenting voters in 2003 was unreasonable because the changes were “minor and technical.” The body corporate took no action to overturn the votes on the grounds of their unreasonableness. The body corporate at the time took legal advice that Motion 17 required a resolution without dissent, and I am of the view that such advice was correct. In fact, the changes were not merely “minor and technical” because Motion 17 had the effect for the first time of granting exclusive uses and allocating particular car parking and storage spaces to owners, by reference to a schedule and a plan.

Nor do I accept that it would not be just and equitable to invalidate the CMS or any part of it, since time has passed. I accept that it might be “an inconvenient truth”, but I can find no authority for the proposition that because the inconsistent community management statement has been recorded unchallenged, as to the fact of its authorisation since December 2003, that it should be allowed to stand. The language and intention of the legislation is that the consent is mandatory, and that a failure to obtain that consent makes void those parts of the statement which have not been authorised as required by the body corporate.[4]

Section 284 Act is headed “Ancillary provisions” and provides that an adjudicator may make an order which contains “ancillary and consequential provisions” as considered necessary or appropriate. I am of the view that the revelation that the CMS now registered was not consented to, is a consequence of an examination of body corporate documents which was required in assessing the merits of this application. The Applicant simply wants the bikes removed from his “existing car park” (space no.10) so that he can enjoy a tandem car park, but if there are no exclusive uses allocated because of the invalidity of By-law 36, Schedule E, and the Franklin Plan, then in theory he may, with all other owners, park where he pleases.

I am not of the view that leaving this unfortunate error unchecked will ultimately assist the body corporate. I therefore make a declaratory order that By-Law 36, Schedule E and the Franklin Plan are invalid parts of the CMS. The body corporate will have to remedy the position about car-parking and storage. It may be that the Applicant can have input into any debate if allocation is to be re-organised or a new exclusive use by-law, schedule or plan is put to a general meeting. There were no submissions from any of the other 65 lot owners so it appears that all other owners are satisfied with the car parking arrangements. However, that is a matter for the body corporate.

The body corporate must convene a general meeting for the consent of the body corporate to proposed by-laws, including exclusive use by-laws, and register a new community management statement within three months of the date of this order. Meanwhile, the body corporate is on notice that its exclusive uses as lodged are unauthorised, and therefore unenforceable, and that this should be disclosed to prospective purchasers and noted in body corporate records.

The application is for bikes to be removed from in front of space 10, but I have seen almost no evidence about the bike rack. The body corporate decided at a committee meeting on 30th May 1998 to install a bike rack. It was to be located “opposite the switch room in the garage” which is ambiguous since its present placing is diagonally opposite the switch room, according to the Franklin Plan, and there appears to be a vacant space “opposite” the switch room. There is no evidence, however, that the bike rack has ever been situated anywhere else, or that it is not authorised by the body corporate.

The Applicant has provided no grounds for the removal of the bike rack other than that “any tandem car space will do”, so that if the body corporate needs to create one, it will have to move the bikes.

As stated above, unfortunately in this matter I am of the view that a purchaser (such as the Applicant was in 2004) cannot rely on a community management statement which records information which has not been consented to by the body corporate, and the Applicant’s solicitor was indeed wise to search body corporate records as well as the ‘government records’. Whilst the numbering of the car park spaces was immediately obvious, a search of minutes of general meetings would also have revealed dissenting votes to proposed grants of exclusive uses, and changed wording of by-law 36 to that consented by the body corporate.

It follows that the body corporate has no duty to find the Applicant a tandem car park space, and this application is dismissed.

[1] There was no Lot 67 in 1981. Lots 64 and 65 were amalgamated into Lot 67 on 20th July 1987. It is evidence that the Sketch Plan was intending to match car spaces with lot numbers, that spaces carrying the number “64” and “65” ( three in all) on the Sketch Plan, are since the amalgamation, shown allocated to Lot 66 (P1) on the Hand-Drawn Plan; and that spaces carrying the number “66” on the Sketch Plan are shown allocated to Lot 67 (P2) on the Hand-Drawn Plan. There appear to be two spaces numbered “21” on the Sketch Plan and no number “27” although this may be a result of the poor quality of the copy.
[2] The Hand-Drawn Plan refers to unit numbers and not lot numbers, whereas the Sketch Plan’s numbers appear to refer to lot numbers, running from 1 - 66. There are certain other differences between the numbering of the Sketch Plan and the Hand Drawn Plan. Space P1 at the northern end of the car park on the Hand-Drawn Plan was numbered 64 on the Sketch Plan, but unit P1 is Lot 66; P1 (Lot 66) also has two other spaces previously numbered respectively “65”, and “64”; P2 (Lot 67) has two spaces, previously both numbered on the Sketch Plan “66”; Unit 302 (Lot 13) was numbered “37” on the Sketch Plan; Unit G3 (Lot 3) was numbered “29” on the Sketch Plan; Unit 902 (Lot 37) was numbered “13” on the Sketch Plan; Unit 702 (Lot 29) was numbered “3” on the Sketch Plan; and Unit 604 (Lot 27) was numbered “21” on the Sketch Plan. There is evidence that Lot 13 and Lot 37 wished to swap car park spaces in 1996 but the notification to the Land Titles Registry was rejected because it described itself as an “allocation” when the Registry thought it was a “transposition” and in any event it was in the wrong format. The Registry had no notification of allocation of spaces at all. The lodged Sketch Plan was a diagram of numbered spaces, not allocated to any lot owner. Lot 3 and Lot 29 also appear to have done a direct swap, but there is no recorded evidence of this.

[3] Motion decided outside a committee meeting (“flying minute”) on 31st May 2004.
[4] Paras 55,56 Silva Care Australia Pty Ltd & Ors –v- Body Corporate for Indigo Blue Beachside Residences [2009] CCT KC003-07 in consideration of Tasker –v- Fullwood [1978] 1 NSWLR 20

Number of Scheme:	10906
Name of Scheme:	Golden Sands Highrise
Address of Scheme:	3577 Main Beach Parade MAIN BEACH QLD 4217

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Golden Sands Highrise [2009] QBCCMCmr 318 (26 August 2009)