Bayview Shores [2009] QBCCMCmr 393 (13 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0370-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4078
Name of Scheme:	Bayview Shores
Address of Scheme:	5 Bayview Street RUNAWAY BAY QLD 4216

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

A Lane, an Owner(s) of lot 53

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0370-2009

“Bayview Shores” CTS 4078

Application

Bayview Shores Community Titles Scheme (Bayview Shores) is a 101 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application by Allan Lane, an owner of lot 53 (applicant) against the body corporate for Bayview Shores (respondent).

Decision

Background

By-law 13.3 provides:

The Building Manager may, with the consent of the Committee of the Body Corporate, display signs or notices adjacent to the main entrance gate for the purposes of offering for sale or for lease an Apartment in the building which the owner of the Apartment has authorised the Building Manager to sell or lease. The style of the signs and notices must be appropriate to the image and decor of Bayview Shores and be approved by the Committee. The Building Manager may also display signs in the Foyer, with the approval of the Committee, advertising services that he may offer to Apartment occupants. All such signs and notices may only be displayed in the locations and for the periods approved by the Committee.

Submissions

The main allegation by the applicant was that by-law 13.3 that allows the caretaker to erect signs and notices with the consent of the committee is contrary to section 136 of the Standard Module that regulates the occupation of common property by a service contractor or letting agent. The applicant also refers to a motion that he had submitted for a meeting related to this issue. He submits that the committee improperly interfered with the form of the motion he submitted.

The body corporate was given an opportunity to provide written submissions. The main submissions by the chairperson on behalf of the body corporate were to the effect that the committee considers by-law 13.3 is fully compliant with the regulations. This is on the basis that the temporary placement of signs on common property is not an occupation of common property. It was also submitted that the motion submitted by the applicant was not in a valid form and would have had to be ruled out of order in any event because it conflicted with the caretaking and letting agreements and by-law 13.3. It was also submitted that the application was frivolous, vexatious and lacking in substance. An order for the body corporate’s costs of $994.37 was therefore sought.

All owners were given an opportunity to provide written submissions. All submissions are available for inspection by interested persons and it is unnecessary to summarise the submissions here.

Issues for determination

Applicable law

Legislation relevant to the present dispute has provisions to the effect that:

• A service contractor or letting agent may acquire rights to occupy part of the common property for the purpose of the service contractors engagement or letting agent’s authorisation only under section 136 of the Standard Module (Standard Module, 136(7));
• The secretary must prepare a voting paper for the general meeting (Standard Module, 71). If two or more motions propose alternative ways of dealing with the same issue the voting paper must list each alternative under the one motion and the alternative with the most votes is the body corporate’s decision (Standard Module, 72).

A motion other than a motion with alternatives must be listed in the form in which it was submitted without amendment (Standard Module, 71(5)).

Summary of issues

The main issues for determination can be summarised as follows:

1. Is by-law 13.3 contrary to section 136 of the Standard Module?
2. Did the committee improperly interfere with the motions submitted by the applicant about this issue?
3. Should costs be ordered?

1. Occupation authorities

Photographs provided by the applicant satisfy me that the caretaker has erected temporary signage in the foyer. Some preliminary questions may arise regarding whether the committee initially properly authorised this signage but I am satisfied from submissions that the committee has now formally authorised the caretaker to erect temporary signage under by-law 13.3. Importantly, while the signage does have visual impact, it does not appear to limit other people in the way in which they might normally use the areas in question. In particular, the signage does not interfere unreasonably with the use or enjoyment of common property by other persons.

The real question for determination is whether, as a matter of law, this temporary signage needs to be approved according to the terms of section 136 of the Standard Module. It is not always easy to draw a distinction between "mere use" of the common property and a "disposition or licensing" of common property. Permission to extend bulkhead signage for an unlimited period of time has been found to go beyond mere use of land and require the grant of a lease or exclusive licence for the area in question.[1] However, the legislation does not require an occupier to obtain permission of the body corporate for mere use of the common property as tenants in common.[2] The majority of judges of the Court of Appeal in Platt v Ciriello[3] preferred the view that tables, chairs and signs could be erected on common property without a grant of exclusive use or some other disposition of the area.

By-law 13.3 specifically allows for temporary usage of certain areas of the common property for the erection of signs, specifically limited to be in the locations and for the periods approved by the committee. This by-law is likely to remain consistent with the legislation provided that the committee authorises a temporary usage that does not interfere unreasonably with the use or enjoyment of the common property by other owners. If usage is authorised that amounts to granting the caretaker an exclusive occupation of significant areas of common property to the exclusion of others then that "occupation" would need to be authorised pursuant to section 136 of the Standard Module. However, I am not satisfied that the caretaker could properly be described as occupying the foyer area by placement of a movable sign that does not unduly restrict the use of the area by other occupiers. There is no legal basis to overturn by-law 13.3 or interfere with any of the present use of common property by the caretaker.

2. Interference with motion submitted by applicant

The applicant has established that his motion was not included I note that the motion submitted by the applicant was not formatted correctly on the voting paper. Most likely this was simply as a result of an error. In such situation it may be appropriate to make an order requiring the body corporate to hold another general meeting to consider the motion in its proper form.

However, I am satisfied that the motion should have been ruled out of order anyway as being unlawful or unenforceable due to the existing obligations in the caretaking and letting agreements and due to being dependant upon a change to by-law 13.3 that was not adopted.

I therefore will not make any order in respect of the motion submitted by the applicant.

3. No order for costs

While parts of the application indicate an excessive response to relatively minor issues, I do not consider the application has a whole to have been frivolous, vexatious, misconceived or without substance. In particular, there is a relatively fine line between what will or will not constitute use of common property by a caretaker that requires an occupation authority for the area. Some of the decisions referred to above indicate the complexity of these legal issues. Further, even if only as the result of a minor error, the applicant did establish that his motion was improperly formatted when included on the voting paper for the annual general meeting.

I will therefore not make any order of costs against the applicant.

Order

For these reasons, the application is dismissed.

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[1] Katsikalis v Body Corporate for The Centre [2009] QCA 77.
[2] Stephen Holmes Enterprises Pty Ltd v The Body Corporate for MacTaggarts Place, unreported, District Court (Brisbane) 667/07.
[3] [1997] QCA 033.