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Clifton v Body Corporate for M32, Yule Strata Body Corporate Management

 

[2020] QCATA 44

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Clifton v Body Corporate for M32, Yule Strata Body Corporate Management & Ors [2020] QCATA 44

PARTIES:

MICHELE CLIFTON

 

(applicant\appellant)

 

v

 

THE BODY CORPORATE FOR M32, Yule Strata Body Corporate Management CTS 31350

 

(first respondent)

Paula Dickin

(second respondent)

Bronwyn Fadden

(third respondent)

APPLICATION NO:

APL059-19

MATTER TYPE:

Appeals

DELIVERED ON:

14 April 2020

HEARING DATE:

20 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Oliver

ORDERS:

  1. The Appeal is allowed in part.
  2. That motion 10 of the March 2018 meeting of the Body Corporate of M32 insofar as it relates to Lot 2 be taken as passed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHERE APPEAL LIES – ERROR OF LAW – where appeal from Adjudicator’s decision only on a question of law – where the respondent a small 4 Lot scheme – where Lots 3 and 4 had exclusive use to a car parking space where – applicant submitted a motion to the Body Corporate at an extraordinary general meeting to be granted exclusive use to a car park space adjacent to her Lot – where motion failed and referral for adjudication – where adjudication dismissed – whether the adjudicator erred in failing to have regard to s 94 of the Body Corporate and Community Titles Act – whether the Body Corporate acted reasonably in not passing the motion – whether just and equitable.

Body Corporate and Community Titles Act 1997 (Qld) ss 62, 94, 17; 167; 276; 290;

Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177;

Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294;

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 

APPEARANCES &

REPRESENTATION:

 

Applicant:

M Clifton

Respondent:

P Dicken

B Fadden

REASONS FOR DECISION

  1. [1]
    Ms Clifton is the owner of Lot 2 in Community Title Scheme 31350 (M32) which is located in South Brisbane. There are four separate lots in the scheme, Lot 1 being the original dwelling on the property and Lots 2, 3 and 4 is a unit complex constructed at the rear of Lot 1. Ms Clifton purchased her lot in the scheme in 2012. A dispute developed between Ms Clifton and the Body Corporate about the use of a visitor car park space immediately adjacent to her lot. As this is only a 4 lot scheme the dispute is also with the owners of Units 3 and 4, Paula Dickin and Bronwyn Fadden.
  2. [2]
    Ms Clifton referred a number of issues centred around the dispute to the Office of the Commissioner for Body Corporate and Community Management for a determination by an Adjudicator. The essence of the dispute is, she contends, that she ought to be granted exclusive use of the visitor car park adjacent to her Lot consistent with the exclusive use of visitor car parks granted to the owners of Units 3 and 4 in 2008. The reference to the Adjudicator sought the following orders:
  1. That the resolution at the EGM on 21 June 2018 to remove Unit B(2) from the Visitor Car Paragraph on the DA approved Plans of 20/11/2015 be rescinded.
  2. That the DA change approval of 2018 not be implemented by the Body Corporate.
  3. That the motion from 2018 for Exclusive Use of Lots 1 & 2 for the adjacent common property areas be granted, to provide equity and fairness to all Lot owners of access to common property.
  4. That the Community Management Statement (CMS) registered in 2008 be ruled invalid and rescinded and:
  1. The 2015 DA Conditions be updated to reflect the plans, that the Visitor Car Park Unit B (Lot 2) be for any bona fide visitors to Unit B (Lot 2); and
  2. A new CMS reflective of the DA plans of 2015, with Exclusive Use for All Lots of the adjacent common property areas use for visitor parking be registered;

OR, if the Council require a minimum of “visitor parks” for any bona fide visitors on site:

  1. The Exclusive Use condition of 2007 be rescinded; and
  2. The original approved 2004 DA plans and conditions be reinstated, all 3 common property visitor parks to be labelled as such (Visitor Park) and unrestricted.
  3. The CMS prior to the inclusion of any Exclusive use by-laws (replica of 2004 DA approvals) be registered, having regard to the interests of all owners and occupiers of lots included in the scheme and equal access of common property visitor parks of the scheme.
  1. That the costs incurred by Lot 2 by Special Levy for the 2nd DA change application 2015, including the application plans, development permits, without the required resolutions for Body Corporate spending, with no transparency of reducing the number of parking areas or valid Exclusive Use clauses be reimbursed by the lot owners who benefited solely from the DA change (Lots 3 & 4) ($3,067.93).
  1. [3]
    For the reasons set out in the Adjudicator’s decision, Ms Clifton’s referral was dismissed. The Adjudicator concluded as follows:

The owners of Lots 3 and 4 were given exclusive use of car spaces on the property in 2008. Consistent with the previous determination of an Adjudicator in 2015, I am not satisfied the applicant has substantiated that the 2008 CMS is not valid. In 2015 and 2018 the Body Corporate applied for and received approval for changes to the DA for the scheme, in part to reflect the grant of exclusive use. The applicant has not satisfied me that the Body Corporate breached the legislation in passing and implementing the resolutions to apply to change the DA. The applicant has also not satisfied me that the Body Corporate failed to comply with the law in deciding not to grant exclusive use to her. The applicant has not demonstrated that the costs incurred in relation to the 2015 DA change were not properly a Body Corporate expense. It follows that the application is dismissed in its entirety.

I note that despite her ongoing objections, the applicant is essentially in the same situation now with regard to parking as she was when she purchased her lot in 2012. The CMS has not changed, she has a garage within her lot, and her genuine visitors continue to have the right to use the car space on common property next to Lot 2. That is a right that is, and has always been, shared with all other visitors to the scheme. The applicant has not substantiated that she has lost any rights in the use of common property that she was entitled to, or that any other owner has at any time acquired any rights to the use of common property that they were not legally entitled to.

  1. [4]
    Having considered all of the material that has been filed, the above summary accurately sets out, in my view, the circumstances that prevailed at the time Ms Clifton applied for the adjudication. The question is whether the conclusion above came about was as a result of an error of law.

The Appeal

  1. [5]
    On 13 June 2019 Ms Clifton filed an application for leave to appeal or appeal the Adjudicator’s decision in the Tribunal. The appeal from an adjudication can only be on a question of law. Section 289 of the Body Corporate Community Management Act provides that:
  1. (2)
    The aggrieved person may appeal to the appeal tribunal, but only on a question of law.
  1. [6]
    Section 290 sets out the obligations of the Commissioner when an appeal is filed and that is providing information to the Tribunal.
  2. [7]
    Under s 146 of the Queensland Civil and Administrative Tribunal Act, where there is an appeal on a question of law only, the Tribunal can confirm or amend the decision, set aside the decision, substitute its own decision, or set aside a decision and return the matter to the Tribunal or other entity who made the decision for reconsideration.
  3. [8]
    In the application for leave to appeal or appeal, Ms Clifton has set out the following grounds of appeal. They are:
  1. The Adjudicator has not addressed the Body Corporate’s failure to adequately discharge its obligations under s 94(1)(a) of the Body Corporate and Community Management Act (Qld) (1997) (“BCCM”).
  2. The Adjudicator has failed to address the ramifications of the allocation of (1) a visitor car park for the scheme directly outside the main entrance to Unit 2 which has allowed a continued breach of s 167 of the BCCM.
  3. Finally, the Adjudicator has endorsed the Body Corporate passing motion 2 despite the motion having been obtained by dissent in breach of s 62(2) of the BCCM.
  4. The orders are not just and equitable and are in breach of s 276 of the BCCM.
  1. [9]
    Ms Clifton then applies for orders that the Adjudicator’s decision be set aside, that the resolution of the Body Corporate made at the Extraordinary General Meeting of 20 January 2018 be rescinded; that the Body Corporate reinstate this to car parking allocations in accordance with the CMS registered in 2004 and costs.
  2. [10]
    Ms Clifton relies on the submissions filed on 16 June 2019, and further evidence annexed to an application for miscellaneous matters filed on 8 August 2019. There is no objection from the respondents to Ms Clifton’s reliance on that further material. The respondents have filed submissions on 8 July 2019 and 4 July 2019.
  3. [11]
    I have set out the grounds of appeal above which on their face raise questions of law. Ground (a) makes a general assertion that the Adjudicator did not address the Body Corporate’s overall failure to ‘discharge its obligations under s 94(1) of the BCCM. If this is correct, then there is possibly an error of law to which s 289(2) of the BCCM would apply.
  4. [12]
    The next contention is that the Adjudicator did not take into account the ramifications of the nuisance or interference with Ms Clifton’s quiet enjoyment of her lot because of the visitor access to the car park adjacent to her lot contrary to s 167 of the BCCM. This would necessarily involve findings of fact to determine the extent of the nuisance or interference and whether that constituted a breach of the section.
  5. [13]
    Finally, there is the specific complaint about the passing of motion 2, the removal of the notation “Unit B(2)” from the amended development plan[1]. This motion was passed with dissent which breached s 62(2) of the BCCM. If this ground is made out then it would constitute question of law.

Background

  1. [14]
    To make sense of this dispute a brief history of this scheme is necessary. The scheme was first registered in 2003 and part of the development application (‘DA’) required there be three car parking spaces for visitors. It was originally intended that Lots 3 and 4 would have exclusive use of common property car park spaces however, despite that being included in the contract for sale they were not recorded on the CMS. To remedy this problem, in 2008 a new CMS was lodged noting that Lots 3 and 4 had exclusive use of two car parks immediately adjacent to, and effectively forming part of their respective lots.
  2. [15]
    This registered scheme and car park allocation continued in place until Ms Clifton purchased her lot in 2012. However during this period, there were some issues with compliance with the DA involving the Brisbane City Council. It was not satisfied that the DA had been complied with and issued a Notice to Show Cause to remedy the non-compliance which related to the car park spaces. This ultimately resulted in an enforcement notice being issued by the Council.
  3. [16]
    After Ms Clifton purchased her Lot she took up the issue of exclusive use of the car park adjacent to her Lot with the Body Corporate. As a compromise the Body Corporate was content for her to erect a sign on the car space next to Lot 2 that it was for the exclusive use of Lot 2 visitors. In August 2014, she sought to have this ratified by the Body Corporate but the motion failed to pass.
  4. [17]
    After this, the Council again investigated compliance with the DA and issued a further show cause and enforcement notice in May 2015. This notice raised the same issues about car parking spaces as the previous Notice to Show Cause for failure to comply with the DA.
  5. [18]
    To address this problem, the Body Corporate applied for a change in the DA which included car parking spaces on site for 7 cars, 6 resident car parks and 1 visitor car park. This motion was passed in the face of objection by Ms Clifton. the effect of which was that Ms Clifton no longer had the notional ‘exclusive’ use of the car park but Lots 3 and 4 retained exclusive use of the visitor car parks next to their lots. There was only one car park for visitors to the complex. Ms Clifton then sought an adjudication of this decision with the Commissioner’s office but that adjudication was dismissed.
  6. [19]
    Then in a further extraordinary general meeting held in March 2018, Ms Clifton submitted a motion that Lot 2 be given exclusive use of the visitor car parking space Unit B(2), as noted on the DA. This motion failed with the owners of Lots 3 and 4, who had exclusive use of their car parks, voting against the motion.
  7. [20]
    There was a further extraordinary general meeting on 28 June 2018, again this was in relation to parking. The motion put forward by the owner of Lot 4 at this meeting was to rectify the draft plan submitted to the Brisbane City Council in the November 2015 decision to remove reference to “Unit B(2)” marked on the visitor car space between Lots 1 and 2 on the approved plans. This was to ensure there was no confusion that visitors to the complex could utilise this car park. This motion was passed with Ms Clifton dissenting.
  8. [21]
    Ms Clifton moved that the plan be amended to show that the subject car park was for the exclusive use of visitors to Lot 2 and, predictably, this motion failed 3 to 1. Once again, Ms Clifton had no success with this motion. She then sought to have a motion passed that all units have equal exclusive use car parks or that the car parks for which Lots 3 and 4 have exclusive use be returned to their original state as part of the common property and all fixtures be removed. Once again and predictably, this motion failed.
  9. [22]
    It was from the decisions in that meeting that Ms Clifton made the referral to the Commissioner and sought the adjudication.
  10. [23]
    The essence of Ms Clifton’s position both within the Body Corporate and before the Commissioner by way of the adjudication was that there should be fairness between all unit owners as to exclusive use rights for the available car parks. Her lot should be on the same footing as Lots 3 and 4.
  11. [24]
    By reference to the grounds of appeal, Ms Clifton submits that the Adjudicator did not have regard to the obligations imposed by the BCCM Act as is apparent from the Adjudicator’s decision.

Was section 94(1) of the BCCM Act complied with?

  1. [25]
    Section 94(1) of the BCCM Act provides that:
  1. (1)
    The body corporate for a community titles scheme must -
  1. (a)
    administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and
  2. (b)
    enforce the community management statement (including enforcing any by-laws for the scheme in the way provided under this Act); and
  3. (c)
    carry out the other functions given to the body corporate under this Act and the community management statement.
  1. (2)
    The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.
  1. [26]
    Ms Clifton’s position is that because Lots 3 and 4 have exclusive use of a visitor car park, it would only be reasonable for her to have similar exclusive use to the car park adjacent to her unit (the subject car park). In not supporting her motion Ms Clifton says the Body Corporate did not act reasonably as it was required to under s 94(2). As this is a small scheme, the Body Corporate consisted of the owners of Lots 3 and 4 who were directly advantaged by the decisions of the Body Corporate.
  2. [27]
    In Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor[2], Member Roney QC discussed the question of reasonableness under s 94 of the BCCM Act:

In my view, it is critical to observe in deciding this appeal that the language in s 94 of the BCCM Act is of course directed to the Body Corporate as a corporate entity, and not to individuals who collectively constitute the Body Corporate in general meeting. The conundrum that this presents, is of course that the will of the Body Corporate as a corporate entity, can only reflect the collective decisions of individual lot owners who participate in voting upon motions at general meetings. Therefore, in broad terms, were one to be considering general motions at which a bare majority is sufficient to pass a motion, the will of the Body Corporate is to be determined by the position of the majority of voters who vote upon a motion. Conversely, where the motion in question is required to be one passed without dissent for it to be lawful, the will of the Body Corporate may well be effectively expressed by the dissent of a single lot owner who participates in the voting process. Thus, although a substantial majority of lot owners might approve of a certain course of action, the will of the Body Corporate will not be reflected in that majority expression of will.

  1. [28]
    It can also be observed that the language of s 94(2) is directed specifically to a duty upon the Body Corporate not the individual lot owners. It is not a duty to make reasonable decisions, it is a duty to “act reasonably” in anything it does under subsection (1), which is referenced to it carrying out the functions given to it under the Act. One of these functions, relevantly for present purposes, is of course to conduct general meetings and to record the vote upon motions put to that general meeting. Neither s 94 nor anything else in the Act provide guidance on how it is that one is to determine whether the Body Corporate has acted reasonably in any given situation. Theoretically, the lot owners have to put aside their own individual preferences and consider each motion objectively to ensure the Body Corporate acts reasonably consistent with the obligations under s 94. In other words the individual lot owners cannot or should not vote on motions only out of self-interest.
  2. [29]
    The effect of that here is that the Body Corporate, as constituted, consisted of four lot owners two of whom have exclusive use car parks and two of whom who do not. There is no evidence that the owner of lot 1 has a particularly interest in this matter. The balance single car park (the subject car park), adjacent to Unit 2 is available for all lot owners to the advantage of Units 3 & 4 who already have exclusive use car parks. Furthermore in her submissions to the Adjudicator, Ms Clifton contended that the owner of Lot 3 uses her car park for additional storage, meaning that visitors are confined to use the subject car park. Both the owners to Lots 3 and 4 have made improvements to their exclusive car parks for their own use, which is not contested.
  3. [30]
    The current parking now and at the time of the adjudication is, as the respondents submits[3] as follows:

Lot 1

One single garage, access to one shared visitor car park

Lot 2

One single garage, access to one shared visitor car park

Lot 3

One single garage, one exclusive use garage, access to one shared visitor car park

Lot 4

One single garage, one exclusive use garage, access to one shared visitor car park

  1. [31]
    The reference to the shared visitor car park is of course the subject car park. The respondents submit that in considering s 94 by reference to the requirement of reasonableness is that the scheme had never allocated an exclusive use car park to Lot 2, or Lot 1 for that matter, and that was transparent at the time of the applicant’s purchase.
  2. [32]
    The obvious difficulty with that submission is that division of exclusive use car parking is not equitable or fair amongst Lots 2, 3 and 4. By continual opposition to the allocation of exclusive use to Lot 2 for no apparent reason other than it was never allocated exclusive use when the scheme was registered is, on its face, unreasonable bearing in mind that the owners of Lots 3 and 4 who get the benefit of that, constitute 50% of the Body Corporate. This is particularly so when, the Body Corporate was content for Ms Clifton to have notional “exclusive use” after she purchased the unit by permitting her to erect a sign indicating that the car park was for visitors to Unit 2. What was reasonable then, according to the Body Corporate, is not reasonable now.
  3. [33]
    In considering whether the Body Corporate was justified in passing motion 2 of the June meeting, the Adjudicator gave consideration to the history of the lodgement of the DA plans dated 20 November 2015, which plan forms part of the miscellaneous application filed by Ms Clifton. That motion at the EGM of 28 June 2018 sought to correct the plan to delete Unit B(2) which was in fact done and lodged on 13 February 2018. The learned Adjudicator found that Motion 1, that is the correction to plan, had already been implemented and lodged and concluded that the applicant had not substantiated any legal basis for rescinding motion 1. It was also found that despite the history and the applicant’s motivation for wanting to change that motion (so she could get exclusive use of the car parking space) it was not established that it was unreasonable or otherwise contrary to law for the Body Corporate to resolve to apply to the Body Corporate to make that change.[4] This conclusion is on its face reasonable but it must also be considered in light of Motion 3 that is the owners of Lots 1 and 2 be granted exclusive use of adjacent common property areas which is, one assumes, includes a reference to the subject car park.
  4. [34]
    It is true that Ms Clifton or any previous owner of Lot 2, never had exclusive use of the subject car park and therefore the correction of the DA plans to reflect this fact was not unreasonable and in line with the 2015 development application. But, Ms Clifton sought the have the Body Corporate agree to her having exclusive use of the subject car park. If this motion was passed then Motion 1 would became redundant and would not have been implemented. So was it unreasonable for the Body Corporate, not to pass the motion to grant exclusive use of common property for car parking to Lots 1 and 2?
  5. [35]
    In her written submissions Ms Clifton relies on the decision in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 and the statement that:

reasonableness (is not something about which informed views are likely to or should differ. Reasonableness does not mean whatever the Adjudicator considers to be just and equitable and it does not involve the application of discretionary considerations…The standard of reasonableness is objective and it is to be applied….taking into account all relevant factors including factors which were extant but which the parties may not have identified or appreciated at the time.

  1. [36]
    When applying these considerations as to what is reasonable here, having regard to the history and what is occurring now with all visitor vehicles for Lots 3 and 4 using the subject car park in preference to the exclusive car parks of those Lots, it would seem that it is unreasonable for Unit 2 not to have exclusive use of the subject car park. The Adjudicator addressed this at [33] and noted that there is nothing in the legislative provisions which requires the allocation of exclusive use entitlement to be equitable. Furthermore in respect of the particular motion there was nothing from the owner of Lot 1 agreeing or consenting to the grant of exclusive use. However, in my view the absence of any input by the owner of Lot 1 is not relevant to the consideration of the motion. I proceed on the assumption that the owner of Lot 1 would have been on notice of what was on the agenda for the meeting and abstained.
  2. [37]
    Another complication considered by the Adjudicator was the need for a further DA to the Council to reflect the change in use of the common area. This could have been problematic because of the need for at least one visitor car park for the Scheme. If the motion was passed there would be no visitor car park at all and any visitors would be required to use the car park of the particular lot to which they were visiting which obviously could be confusing for some, e.g. delivery drivers etc. That may be correct but unless there is some evidence about this, it is speculative as to what the Council would require if the Body Corporate passed the motion. In any event the owners of the Lots could give directions about parking to visitors.
  3. [38]
    Another consideration in respect of reasonableness is that because of the improvements to the exclusive use car parks to Lots 3 and 4, some vehicles cannot comfortably park because of their size, and example is vans and trade vehicles. The owners of Lots 2 and 3 did not demure to the contention that their exclusive car parks were not used for visitor parking but for their own private use and not visitor parking.
  4. [39]
    Be that as it may, is it then reasonable for the applicant to bear the brunt of the impact of visitors to the complex to use the car park adjacent to her Lot in circumstances where the owner of Lots 2 and 3 can use the designated car park for their own personal use and not require visitors to their lots to park there. Put another way, when posed with the question would it be reasonable for the applicant to be granted exclusive use in the circumstances of this case as outlined above, the response must be that no Body Corporate acting reasonably would object to that course[5].
  5. [40]
    The only reference to the question of reasonableness, and inferentially the obligations under s 94, of the Adjudicator’s decision is in [23] that the applicant has not ‘established that it was unreasonable…’ for the Body Corporate to make the change on the plan. But this is in reference to Motion 1. There is no direct reference to the reasonableness in the s 94 sense in the consideration of applicant’s motion. There is a reference to fairness and equality between lot owners at [33] but no consideration of the obligation to act reasonably only the means by which the Body Corporate can decide to grant exclusive use for part of the common property to a lot owner.
  6. [41]
    The appeal on this point can only succeed if the appeal tribunal is satisfied that the Adjudicator fell into error of law in the consideration of whether the Body Corporate acted reasonably under s 94 in deciding the motions before it. That is, that no reasonable person acting reasonably could have made the decision it did. In my view the Adjudicator did not address this specific issue in a meaningful way and seemed to proceed on the basis that in any event there would be an impediment with the Council to prevent the grant of exclusive use. The comment was certainly qualified by reference to need for lot owners to seek their own advice. However, it seems to me whether the Council would or would not approve the DA is an irrelevant consideration in respect of the duty to act reasonably. I would therefore allow the appeal on this point.

Was there a failure to consider the ramifications of the interference with quiet enjoyment?

  1. [42]
    It is obviously an issue for Ms Clifton that the visitor car park is adjacent to her unit this causing a nuisance and disrupting her quiet enjoyment. Section 167 of the BCCM Act provides.

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or common property in a way that:

  1. (a)
    causes nuisance or hazard; or
  2. (b)
    interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
  3. (c)
    interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
  1. [43]
    The Adjudicator did not directly address this issue in the reasons. Ms Clifton, in her submission to the Commissioner said:

The layout/design of the Lots with the adjacent ‘intended common property visitor parks’ causes obstruction to access Lot 2, invasion of privacy, nuisance of noise with cars driving up to door, trades men accessing their tools, voices and slamming of doors day and night

  1. [44]
    There is no reason not accept that this is in fact the case and that the visitors car park does interfere with her quiet enjoyment. For the reasons stated above the burden of visitor parking falls to the subject car park which is unfair when the owners of Lots 3 and 4 do not make theirs available.
  2. [45]
    Unfortunately this section of the BCCM Act does not assist Ms Clifton. The obligation is imposed on the ‘occupier of a Lot’ and not the Body Corporate.

Was the passing of Motion 2 by dissent in breach of s 62 of the BCCM Act?

  1. [46]
    The issue for determination here as framed in the application with the Commissioner is “that the DA change approval of 2018 not be implemented by the Body Corporate.” The Adjudicator made the assumption in the reasons that this related to both Motions 2 and 3 of the EGM which was held on 28 June 2018. Whereas the ground of appeal and submissions filed by Ms Clifton make reference to only Motion 2. Motion 2 is the proposal to apply to the Brisbane City Council to amend the sketch drawing to remove the reference to Unit B(2).
  2. [47]
    Section 62(2) of the BCCM Act deals with the recording of a new ‘community management statement for the scheme in the place of the existing statement for the scheme”. The consent for this “must be in the form of a resolution without dissent”. Therefore, the question for determination here is whether Motion 2 as recorded above fell within s 62(2). If so, what is the effect of the Applicant’s dissenting vote?
  3. [48]
    It would appear from the Adjudicator’s reasons that the question of the motion being passed with dissent was not posed for consideration. On the face of the reasons there was no complaint that this motion with dissent was passed but rather that it not be implemented by correcting the DA plan. By the time the application for an adjudication had been lodged the motion had been implemented as found by the Adjudicator and there is no contention to the contrary by the applicant in this appeal. Furthermore, the lodgement of the amended DA was to correct an error so that the sketch drawing properly reflected the conditions outlined in the Decision Notice. No error of law is demonstrated here.

Was the Adjudicator’s decision ‘just and equitable’ in the sense referred to in 2 276 of the BBCM?

  1. [49]
    That section gives a discretion to Adjudicators to make orders that are just and equitable in the circumstances of the case to resolve a dispute. The Applicant contends that in respect of each ground of appeal, had the Adjudicator considered the Applicant’s complaints under the ‘just and equitable’ ground, orders would have been made in her favour.
  2. [50]
    This is really a reiteration of the various grounds of appeal but on a different basis. It does not change the conclusion with respect to the conclusions above.

Disposition

  1. [51]
    The central issue in the reference to the Commission and in this appeal is essentially whether the Body Corporate, acting reasonably, ought to have passed the motion 10 at the March EGM giving exclusive use of the subject car park to the applicant and a car parking space for Lot 1. The owner of Lot 1 has not agreed in writing to the allocation of exclusive use of any of the common property in his favour so any decision made in respect of this appeal and the motion can have no application to that owner[6]. However, by reason of the motion put by the Applicant and her vote in favour the motion s 171 is satisfied.
  2. [52]
    Therefore, on the basis that had the Body Corporate acted reasonably, it should have passed Motion 10 of the March EGM and granted exclusive use of the car park adjacent to the Lot 2 to the Applicant. I have found that the Adjudicator save for the s 94 point with which I have found in favour of the applicant.

Orders

  1. [53]
    The orders are as follows:
  1. The Appeal is allowed in part.
  2. That motion 10 of the March 2018 meeting of the Body Corporate of M32 insofar as it relates to Lot 2 be taken as passed.

Footnotes

[1]  Attached the application for miscellaneous matters filed 8 August 2019.

[2]  [2014] QCATA 294.

[3]  Respondents’ submissions, page 7.

[4]  Adjudicator’s reasons paragraph 23.

[5]Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948] 1 KB 223.

[6]BCCM Act s 171(2)(a).

Close

Editorial Notes

  • Published Case Name:

    Clifton v Body Corporate for M32, Yule Strata Body Corporate Management & Ors

  • Shortened Case Name:

    Clifton v Body Corporate for M32, Yule Strata Body Corporate Management

  • MNC:

    [2020] QCATA 44

  • Court:

    QCATA

  • Judge(s):

    Member Oliver

  • Date:

    14 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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