Bayview Shores [2010] QBCCMCmr 14 (12 January 2010)

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

I hereby declare that Motion 28 on the agenda of the Annual General Meeting convened by the body corporate on 19th April 2009 was carried by special resolution the vote being 34 in favour and 12 against;

And I further order as follows –

that the body corporate must within 14 days of the date of this order amend the minutes of the Annual General Meeting of 19th April 2009 to reflect this result; and
that the body corporate must within 28 days of the date of this order lodge a request with the Land Titles Registry to record a new community management statement showing the amended by-law 2.17 as carried at Motion 28 of the Annual General Meeting of 19th April 2009; and
that the provisions of section 65(1) Body Corporate and Community Management Act 1997 shall not apply.

This is an application dated 29th June 2009 by Malcolm Huth and Janet Huth (the Applicants) co-owners of Lot 99 (unit 29C) against the body corporate for the scheme (the body corporate) for an order that the vote on Motion 28 of the annual general meeting held on 19th April 2009 is overturned; and a declaration that the proposed amendment to by-law 2.17 has been carried.

“Bayview Shores” CTS 4078 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are 101 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 Applicants say that a proposed amendment to By-law 2.17 which concerns balcony enclosures, and was put to the annual general meeting as Motion 28 on 19th April 2009 (the AGM) was defeated, the vote being 34 in favour and 12 against for a motion requiring a special resolution. There were 12 abstentions. The Applicants say that the result of the voting was unreasonable, and the existing by-law unfairly disadvantages the owners of “B“ and “C” units within the building.

Bayview Shores has 30 floors, and levels three to eighteen have four lots per level designated as “A”,”B”,”C” and “D” type units. The “A” and “D” units have the same floor plan and are mirror images of each other, and the “C” and “D” units also have the same floor plan and mirror each other. On levels 19 – 29, there are three units per floor being either one “F” or “G” type unit, and the remaining two being a “C” and “D” type.

On 15th December 2005 at an extraordinary general meeting, the committee proposed a motion (Motion 4) for a “form of enclosing the balconies.” The motion authorised “A” and “D” type units to enclose balconies by using seven panels of an approved type of window, but restricted “B” and “C” type units to a partial enclosure using four panels. The validity of this motion was the subject of two dispute resolutions in 2005 and 2006, both of which were dismissed.

At an extraordinary general meeting on 6th September 2006 the contents of Motion 4 were adopted as by-law 2.17. The only balconies enclose so far have been “A” or “D” type units. As yet, the committee has not received an application for approval for partial enclosure from a “B” or “C” type unit. By-law 2.17 has had various minor amendments since 2006 but the wording to “Extent of Enclosure” has not been changed.

Motion 28 put to the AGM was proposed by the Applicants who want to enclose some of their balcony but find by-law 2.17 impractical. The Applicants’ motion proposed to change the four panel partial enclosure to eight panels which would “approximate the amount of enclosure” that the “A” and “D” type units are able to have under the existing by-law. The motion required a special resolution and was narrowly defeated. They say -

“if the 12 owners who voted to abstain had chosen not to vote on the resolution rather than select “Abstain” the motion would have been carried.”

The Applicants argue that since by-law 2.17 treats owners of “A” and ”D” units differently from owners of “B” and “C” units, it is unfair. They say that the small area of balcony which the owners of “B” and “C” type units are allowed to enclose is restrictive and impractical. Their proposed amendment to by-law 2.17 would have no adverse affect on any owner.

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

There was support for the application from five owners, and two owners were opposed mainly on aesthetic grounds. However, Mr and Mrs Lane of Unit 15C, Mr Harper of Lot 15B and Ms Bermingham of Lot 70 also relevantly pointed out that the abstentions should not have been counted in the vote.

The Applicants exercised their right of reply, simply providing two photographs of the exterior of the building with close-up of Lot 29C.

On 10th December 2009, I again invited the body corporate to make a submission, on noting that it appeared that the vote on Motion 28 was wrongly counted in that the abstentions were counted as votes against the motion. The body corporate declined to make a submission.

In this application, the Applicants seek to overturn the recorded vote on Motion 28 of the 2009 AGM on the grounds that not to do so would be discriminatory and unfair.

However, without looking further at the arguments about the aesthetics of any enclosures, I am of the view that the vote as recorded is clearly wrong.

A motion to amend a by-law which is not an exclusive use by-law, requires, by virtue of section 62(3) Act, a special resolution. A special resolution is passed when two-thirds of those voting vote in favour of the motion and the number of votes counted against the motion are not more than 25% of the number of lots in the scheme. (Section 106 Act).

At the AGM there were 46 voters of whom 34 voted in favour, satisfying the “two-thirds” test. There are 101 lots in the scheme, so 12 votes against are not more than 25% of those lots. An abstention is not a vote, but a record that the person having the right to vote decided to abstain from voting. Abstentions are not counted in the vote, for or against the motion. Motion 28, for better or worse, was therefore passed and there was never any need for the Applicants to make this application.
It is most regrettable that they have been put to the time and worry of having to do so, and that owners have been put to expense and wasted their time during the process of this unnecessary application, arising from a most elementary error on the part of the body corporate.

I find that Motion 28 was passed at the AGM on 19th April 2009 and that the minutes must be altered accordingly. Further a new community management statement must now be recorded in the Land Titles Registry reflecting the change to by-law 2.17, despite the fact that more than three months has elapsed since the motion was in fact passed.

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

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Bayview Shores [2010] QBCCMCmr 14 (12 January 2010)