Ipanema [2009] QBCCMCmr 407 (20 October 2009)

Last Updated: 13 November 2009

REFERENCE: 0690-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32267
Name of Scheme:	Ipanema
Address of Scheme:	2865 Gold Coast Highway SURFERS PARADISE QLD 4217

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

Moonlight Group Pty Ltd, the Owner(s) of lot 2

I hereby order, by consent, that Motion 15 (Suspension of Exclusive Use Granted to Lot 2) purportedly passed at the Annual General Meeting of 27 April 2009 was at all times void.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0690-2009

“Ipanema” CTS 32267

“Ipanema” community titles scheme 32267 (Ipanema) consists of 82 lots and common property. The community management statement (CMS) states that the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as a building format plan of subdivision.

APPLICATION

This application was by Moonlight Group Pty Ltd, the owner of lot 2 (Applicant), against the
body corporate (Respondent), seeking a final order that the motion “Suspension of Exclusive
Use Granted to Lot 2” resolved at the Annual General Meeting (AGM) of the Respondent (the “Motion”) be declared void.

On 6 August 2009 I issued the following interim order in respect of this matter:

I hereby order that the Motion (Suspension Of Exclusive Use Granted To Lot 2) purportedly passed at the Annual General Meeting of 27 April 2009 must not be implemented.

This interim order has effect until six (6) months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is earlier).

Pursuant to the Body Corporate and Community Management Act 1997 (Act), a dispute resolution recommendation for departmental conciliation[1] was made by the Commissioner after the making of the above interim order on 6 August 2009.

PROCEDURAL MATTERS

The Commissioner’s Office conducted a conciliation session between the representatives of the Applicant and the Respondent to assist in the resolution of this dispute. The parties reached agreement in regard to the matters in dispute and have requested that the terms of their agreement be referred to an Adjudicator for a consent order to be made.

The conciliation agreement has been referred to me for consideration of a consent order.

Where a conciliation agreement is signed by a committee voting member authorised as agent for a body corporate under section 252G of the Act and the parties consent to the agreement being referred to an adjudicator for a consent order, certain requirements must be met. Section 252J of the Act requires that within 30 days after the agreement is made the body corporate must provide notice to the Conciliator that the committee has ratified the agreement, that it has given a copy of the agreement to each lot owner, and that it has not received a notice of opposition opposing the agreement which has been signed by or for the owners of at least half the lots in the scheme.

The Body Corporate has provided confirmation that these requirements have been met.

JURISDICTION

Section 276(5) of the Act provides that an adjudicator may make a consent order, but the order may include only matters that may be dealt with under the Act, and must not include matters that are inconsistent with the Act or another Act.

DETERMINATION

This dispute was successful conciliated by the parties.

The agreement stated that:

1. Each party to this application consents to this agreement being referred to an adjudicator for a consent order to be made.
2. Each party consents to a declaration that motion 15 purportedly passed at the annual general meeting on 27 April 2009 suspending the exclusive use granted to the owners of lot 2 was at all times invalid.
3. Within 30 days from the date of this agreement the body corporate will provide written notice to the conciliator, Jane Wilson, that the committee has:

a) Ratified this agreement; and

b) Has given a copy of the agreement to each lot owner; and

c) Has not received a notice of opposition to the agreement.

I am satisfied that the terms of the conciliation agreement are able to be dealt with under the Act and I have no evidence that the agreed terms are inconsistent with the Act or any other legislation.

For these reasons, I make the order above.

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[1] Section 248