Petrie Mansions [2010] QBCCMCmr 299 (6 July 2010)

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

I hereby order that the application for

“ 1. an order that Motion 15 considered at the annual general meeting of the body corporate for Petrie Mansions Community Titles Scheme 25935 on 23rd October 2009, that the name of the scheme be changed to “Petrie Community Titles Scheme 25935” and “that the body corporate consent to the recording of the new community management statement which incorporates that name change AND that the chairperson and the treasurer be and are hereby authorised to execute that community management statement under the seal of and on behalf of the body corporate”, was not passed because of opposition that was unreasonable in the circumstances;

2. an order that Motion 15, considered at the annual general meeting of the body corporate for Petrie Mansions Community Titles Scheme 25935 held on 23rd October 2009 “that the name of the scheme be changed to “Petrie Community Titles Scheme 25936” and that the body corporate consent to the recording of the new community management statement which incorporates that name change AND that the chairperson and the treasurer be and are hereby authorised to execute that community management statement under the seal of and on behalf of the body corporate” be deemed to have been passed;

3. an order that the body corporate for Petrie Mansions Community Title Scheme 25935 shall, within three months of the date of this order and at the expense of the body corporate, prepare and lodge with the Registrar of Titles a request to record a new community management statement which reflects the change of name of the scheme;

4. an order that the body corporate for Petrie Mansions pay the costs of this application; and

5. such further or other orders as the adjudicator may deem appropriate.”

is dismissed.

This is an application dated 22nd January 2010 by William Purcell (the Applicant) co-owner of Lot 7 in the scheme against the body corporate for Petrie Mansions CTS 25935 (the body corporate) for orders as follows –

“Petrie Mansions” CTS 25935 is a community title 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 25 lots in the scheme created under a Building Format 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 an the annual general meeting held on 23rd October 2009, Motion 15 was as follows –

That the name of the scheme be changed to Petrie Community Titles Scheme 25935 and that the body corporate consents to the recording of a new community management statement which incorporates that name change AND that the chairperson and the treasurer be and are hereby authorised to execute that community management statement under the seal of and on behalf of the body corporate.”

The vote on the motion was 17 – 2, (2 abstentions) so it was not carried. The motion was proposed by the committee. This same motion had been put to a previous annual general meeting in 2008, and there was then one vote against it so again it did not carry. The vote on Motion 5 as it then was, was16 – 1 ( 4 abstentions).

The majority of owners feel that the word “Mansions” is inappropriate, and that a single name style would be in more in keeping with other developments. They feel that “Mansions” is “archaic and pretentious.” Neighbouring schemes are called “Elandra”, “Riverlight”, “Emerald” and ”Iluka” and these names carry the reputation of a sought-after private development company. The Applicant says that the committee feels that the name is “silly and pretentious” in comparison with the multi-million dollar developments next door, when Petrie Mansions itself is 12 years old and “showing its age.”

The signs saying “Petrie Mansions” were removed for painting prior to the 2009 AGM and are in poor condition, and it is an appropriate time to order new signs, preferably with the new name. The new name would not inconvenience any businesses as all lots are residential, and there is no holiday letting, and no letting agent, so there would be no loss of any kind if the name was changed. The opposition does not in the circumstances seem reasonable.

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

Helmut Eichberger, (Mr Eichberger) nominee of Maceruby Pty Ltd, owner of Lot 15 says that he is the treasurer of the scheme, and that he supports the application having always disliked the name of the scheme. He refers to Noosa scheme “Maison La Plage” being changed to “Maison Noosa” in circumstances “somewhat similar” and for “similar reasons.”

Caroline Giles, owner of Lot 17 supports the motion as do Alastair and Diane Kerrison, owners of Lot 5 but do not give reasons in their respective submissions.

Ron Murtagh (Dr Murtagh), owner, says that there are important and valid reasons for retaining the name, and that the Applicant, who is secretary, has made three attempts to change the name. The first was in 2006 at the annual general meeting, when he advocated “Petrie at Settlers Cove” which was defeated. There has never been a balanced argument presented “for and against”, and if there had been he would “have had less of an argument.” This was a flaw in the meeting process so that undecided owners present could give due consideration to contra-arguments. This flaw “affected lot owners.” The Applicant presumes that there are no logical reasons for objection to his “whim.” He has tried to “railroad through” his ideas without attempting to let owners consider reasonable contra-arguments.

He says that as long as there were one or two voters against, there was no point in any other owner ‘risking the wrath’ of the Applicant by voicing contra-arguments. He abstained from voting in 2008 as he was already in the Applicant’s “bad books.”

“Petrie Mansions” scheme was built in 1998 for long-term residential use and has a concierge, pool, sauna and gym, and security gates. It fulfilled the expectation of the word “mansion” as a “large and stately residence” or “a separate dwelling place, lodging or apartment in a large house or enclosure.” Petrie Mansions now has modern foyers and is well maintained, clean and attractive and has excellent views. It is still a “set of mansions.” The recent neighbouring properties seem like palaces but do not require that Petrie Mansions “downgrades” itself. He is not at all embarrassed about the name and proud to live there. It is a fitting name for high-class, long-term residential apartments and is unequalled around Noosa Heads.

Further, he says there many “two-named” and “three named” schemes close by, such as “Macquarie Lodge”, “Ocean Breeze”, “Ivory Palms Resort” and several others. He sees the dropping of the word “Mansions” as an implication that owners believe that their “standards and credentials” have dropped significantly, and that this will affect the value of properties in the scheme in the marketplace.

He finds that “Petrie” is simply a common Queensland surname and has no cachet at all. It signifies nothing and carries “no inherent attractiveness”. For example, it is the name of a suburb of Brisbane which is always passed by on the highway. He would like a discussion about another name if a new name is the wish of owners, although he is aware that finding a name to which all will agree will be very difficult. In conclusion he finds the name “Petrie Mansions” has some style about it, whilst the alternative proposed is meaningless, and may be damaging to the value of units in the scheme.

A further late submission was received from Mr Eichberger. He advises that there is no longer a concierge at the scheme but there is a caretaker who is responsible for maintenance and that there is no goodwill attached to the name “Petrie Mansions.” He believes Richard Terrey of Lot 6 was the other dissenting voter on Motion 15.

The body corporate made a late submission at my invitation since it had not made a submission within the submissions period. The committee says that “it has long been the expression of a majority of lot owners that the word “Mansions” is dated and not representative of the complex.” The word “mansions” means “opulent, luxurious and expensive.” The apartments are not so, in comparison with the newer apartments next door. Recently new development has meant that all neighbouring schemes have one word names and the areas is now known as ”Settler’s Cove.” One word like “Petrie” would be in keeping with the Settler’s Cove theme. The majority of the committee of seven members prefers the name “Petrie”.

I also sought a submission out of time as further information pursuant to section 271 Act from the other dissenting voter Richard Terrey, (Mr Terrey) owner of Lot 6. He says that he is of the view that when something is built and named it should stay that way unless there are exceptional circumstances. He does not think that that is the case. The name is known in the area and to change it might cause confusion “and gives the impression of being fake.” If Petrie Mansions has an unfavourable reputation he says that it would be foolish to think that can be remedied by a change of name. He says that the onus is on the Applicant to show that the change would be beneficial. He can see no good reason for the change of name, which is “pretty fundamental” and not something that could be again changed later “without looking absolutely ridiculous.”

In this matter, the Applicant, seeks to overturn the dissenting votes on Motion 15 of the annual general meeting held on 23rd October 2009. The motion is said to be proposed by the committee although the minutes do not give the provenance of the motion. There were two votes against the motion, one by submitter Dr.Murtagh, and the other by Mr Terrey. There were 17 votes for the motion. A motion to change the name of a scheme which necessitates the lodging of a new community management statement in the Land Titles Registry, requires a resolution without dissent. (Section 62(2) Act). The scheme was registered as “Petrie Mansions” on 19th August 1998 and has therefore been known by that name for almost 12 years.

Item 10 of Schedule 5 Act envisages that an adjudicator may give effect to a motion requiring a resolution without dissent, as proposed, or a variation of it, if the opposition to it “in the circumstances is unreasonable.”

This type of application therefore requires an analysis of the reasons for objection to the motion to asses their “reasonableness.” The test of “whether the opposition is in the circumstances unreasonable has to be considered “objectively” taking into account all relevant circumstances.”[1]
However, the “objective test” has an element of subjectivity in it since the “reasonably objective person” is put in the shoes of the dissenting voter by the circumstances prevailing at the time.

In Zenith,[2] where the test was applied, the adjudicator found that 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’.[3] In the decisions made to resolve disputes in Q1[4] and Allen Court[5], respective 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[6], in considering the balancing operation, the specialist adjudicator said -

“In determining whether the conduct was reasonable, it is not necessary to determine that it was either right or justifiable, if the conclusions which led to refusal of consent might have been reached by a reasonable person in the circumstance. [para 66]

“ ... although the essence of a reasonable decision is that there are reasons for it which can be justified at some level (even if only by showing the reasons are genuine and not wholly fanciful), what is not required is for those reasons to be justified by reference to some objective standard of correctness.” [para 67]

“ the subjectivity arises because it is sufficient if a reasonable person in the Respondent’s position might have regarded the [motion] as objectionable, even though some persons might take a different view, it being enough that such a person has genuine concerns on matters relevant to the value of the interest the person has, even if the prospect of those concerns being realised is small...” [para 68]

“ in the end, it is necessary to work out "what was the real and true reason for the refusal of consent" “ [para 72] [7]

The onus rests with the Applicant, as is usual, to demonstrate that opposition to the motion as proposed was unreasonable.

There were two submissions against the motion, and 17 votes for it. In the normal way, such a majority would carry the day, but the legislation in this regard is particular that a resolution without dissent is required. That is, the lodging of a new community management statement incorporating the change of name of the scheme is considered by the legislation to be such a significant event, that all those voting must be in favour of the change.

It is not a question of any financial burden. For example, the granting of exclusive use areas of common property generally causes no financial burden on the body corporate, and may ameliorate, or remove, any obligation to maintain, but requires a resolution without dissent because owners are giving up the right to use part of the common property in which they have an interest as tenants in common (Section 35 Act.)

In the same way, a change of a name affects common property owned by all lot owners. The significance of a name is understood by the legislation even though the name of a scheme is something given to it by the original developer. To change it requires no opposition. Whilst seeking to analyse the reasonableness of any opposition, and looking for “objectivity” on the part of the “opposers” the motion for a change of name is of its nature likely to be subjective and likely to be met by subjective opposition. The choosing of a name is one of the most subjective decisions which can be envisaged. Names carry with them a bundle of emotions which are going to differ from owner to owner in accordance with his or her age and experience, likes, dislikes, and memories.

Whilst entirely objectively, a lot owner might oppose, for example, an abhorrent name, a name with renowned upsetting or unpleasant connotations, or a totally unsuitable name, I find that the reasons in this matter for proposing the change, and for opposing the change are predominantly subjective. To change “Petrie Mansions” to “Petrie” means that lot-owners have a particular view about, or association with, the word “Mansions.”

The Applicant and submitters for change say the word “Mansions” applied to the scheme is “pretentious”, “silly”, and “archaic”. The committee says that the name is dated and that “Mansions” means “opulent, luxurious and expensive”. Mr Eichberger has always “disliked the name.” Other submitters in support do not give reasons at all.

In addition, the Applicant and the committee say that the “two-word”, old-fashioned, grandiose name does not now fit in with the names of newer neighbouring schemes.

I cannot find that the word “Mansions” means “opulent, luxurious and expensive” even if some owners think that it does as explained by the Applicant, and I accept his explanation. The term was extensively used in the 20th century for purpose-built flats, large houses converted into apartments and mews houses. The word used in the plural, does not have the same meaning as “a mansion”, which is a large detached house with several rooms. There are also many community titles schemes in Queensland called “ Xxxx Mansions”.[8]

Nor do I find that there is any benefit in having a “one-word” name, which Mr Eichberger describes as the current “trend”, as opposed to a “two-word” or “three word” name. It is a curious argument that the Applicant wishes to rename the scheme to reflect its more humble status beside its new and palatial neighbours. He says that the “mansions” tag is not suitable in the circumstances where the top value of a unit in Petrie Mansions is about $700,000 - $900,000 whilst new schemes in Settlers’ Cove (also spelled “Settler’s Cove” by chairperson Jan Vesey-Brown and Mr Eichberger) command prices upwards of $2 million. The Applicant provides no evidence of the benefit of a “one-word” name, nor of the benefit of an advertisement for humility.

The two dissenting voters say that they can see no point in the change. It seems to me that the “real and true reason for the refusal of consent” is that there is no necessity demonstrated by the Applicant for the change of name, and that the one choice offered has no particular significance nor proposes any benefit to the scheme. In the circumstances, I find that their refusal to consent is reasonable.

In the case of Maison La Plage becoming Maison Noosa [9], to which I was referred, the adjudicator performed the balancing operation and concluded that she was not satisfied that the one opposing lot owner had any genuine basis on which to oppose the motion to change the name of the scheme. She said –

“Further, I do not have a sufficient belief that the interests of the majority of owners would be met by dismissing the orders sought. I find that the owners of lot 1 are not seeking to have a ‘right’ balanced against the responsibility for self management, but rather seek to impose their own opinions on fellow lot owners.”

The circumstances here are not similar. There is no confusion of duplicate names in use such as there was at Maison La Plage; there has been no major renovation of the scheme contrary to the situation at Mason La Plage, which the proposed “Noosa brand “ name hoped to reflect; there is no evidence that the name now carried by the scheme has a tarnished reputation, such as was evidenced at Maison La Plage.

The Applicant has not discharged the onus of establishing that the withholding of the body corporate’s approval was unreasonable, given the actual circumstances that exist, and I dismiss this application.

[5] Allen Court [2007] QBCCMCmr 297 (21 May 2007).
[6] Sirocco Resort [2006] QBCCMCmr 426.
[7] Sirocco Resort [2006] as above, paras 66 , 67, 68 and 72 quoting Young CJ in Eq in Tamsco Ltd –v- Franklin [2001] NSWSC 1205 at 54.

[8] Shafston University Mansions; Bayview Mansions; Pacific Mansions; Clifton Mansions; and Dandy Mansions- to name a few.

Number of Scheme:	25935
Name of Scheme:	Petrie Mansions
Address of Scheme:	4 Serenity Close NOOSA HEADS QLD 4567

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Petrie Mansions [2010] QBCCMCmr 299 (6 July 2010)