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Perrin v The Body Corporate for Billington Court QCATA 36
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Perrin v The Body Corporate for Billington Court  QCATA 36
NIGEL ROBERTSON GUY PERRIN
THE BODY CORPORATE FOR BILLINGTON COURT CTS 20763
27 March 2019
On the papers
Member Roney QC
The appeal is dismissed.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where s 289(2) of the Body Corporate Community Management Act 1997 (Qld) allows a person aggrieved by an Adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal – what is error of law – whether there was an error of law
REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BYLAWS – whether Body Corporate in General meeting acted reasonably in failing to pass motions put forward by a lot owner.
Body Corporate Community Management Act 1997 (Qld), s 276, s 289, s 290
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146
Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167;  HCA 40
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- The Appellant is the owner of Lot 2, in Billington Court which was established in July 1989 under the Building Units and Group Titles Act 1980 with the registration of a group title plan. Group Title plans are now known as standard format plans. Billington Court comprises 10 lots, each containing a townhouse, in two sections, with six lots sharing a Billington Street frontage and four lots fronting Government Road.
- The appellant brought an application before the Office of the Commissioner for Body Corporate and Community Management alleging that the respondent body corporate had acted unreasonably in failing to pass various motions he submitted to the annual general meeting held on 8 December 2016 which were not carried. In the original application he sought eight orders that 18 various motions considered at the AGM of 8 December 2016 and not carried, be deemed to have been carried. The articulated basis for seeking these orders was that the body corporate’s decision not to pass each of the motions was unreasonable.
- The Adjudicator, in reasons delivered almost one and a half years ago concluded as follows;
- I am not persuaded that it was objectively unreasonable for the body corporate to decide not to pass any of the 18 motions Mr Perrin submitted to the 8 December 2016 AGM and which are the subject of this application. I have dismissed the application in its entirety. Most of the application was misconceived and without substance and appears to have been made in ignorance or misunderstanding of the legislation governing bodies corporate in Queensland.
- Whilst the applicant clearly disagrees with the decisions made pursuant to each of the 18 motions considered at the 2016 AGM and the subject of this application, a clear majority of owners voting and making submission in response to this application are in favour of the decisions not to pass the motions. I am not persuaded on the material before me that it was unreasonable for the body corporate not to have passed those 18 motions.
- The decision of the Adjudicator was given under s 276 of the Body Corporate Community Management Act 1997 (Qld) (‘the Act’). Section 276 provides as follows:
276 Orders of adjudicators
- An adjudicator to whom the application is referred 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 claimed or anticipated contravention of this Act or the community management statement; or
- the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
- a claimed or anticipated contractual matter about—
- the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
- 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.
- Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5.
- An order appointing an administrator—
- may be the only order the adjudicator makes for an application; or
- may be made to assist the enforcement of another order made for the application.
- If the adjudicator makes a consent order, the order—
- may include only matters that may be dealt with under this Act; and
- must not include matters that are inconsistent with this Act or another Act.
- The appeal to this Tribunal is governed by s 289 of the Act, which provides:
289 Right to appeal to appeal tribunal
- This section applies if—
- an application is made under this chapter; and
- an adjudicator makes an order for the application (other than a consent order); and
- a person (the aggrieved person) is aggrieved by the order; and
- the aggrieved person is—
- for an order that is a decision mentioned in section 288A, definition order—an applicant; or
- for another order—
- an applicant; or
- a respondent to the application; or
- the body corporate for the community titles scheme; or
- a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or
- an affected person for an application mentioned in section 243A; or
- a person not otherwise mentioned in this subparagraph against whom the order is made.
- The aggrieved person may appeal to the appeal tribunal, but only on a question of law.
- Section 290 of the Act provides:
- An appeal to the appeal tribunal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against.
- If requested by the principal registrar, the commissioner must send to the principal registrar copies of each of the following—
- the application for which the adjudicator's order was made;
- the adjudicator's order;
- the adjudicator's reasons;
- other materials in the adjudicator's possession relevant to the order.
- When the appeal is finished, the principal registrar must send to the commissioner a copy of any decision or order of the appeal tribunal.
- The commissioner must forward to the adjudicator all material the adjudicator needs to take any further action for the application, having regard to the decision or order of the appeal tribunal.
- Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides:
146 Deciding appeal on question of law only
In deciding an appeal against a decision on a question of law only, the appeal tribunal may—
- confirm or amend the decision; or
- set aside the decision and substitute its own decision; or
- set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
- with or without the hearing of additional evidence as directed by the appeal tribunal; and
- with the other directions the appeal tribunal considers appropriate; or
- make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
- Hence, pursuant to s 146, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter.
- Ground 1 of the appeal is that the Adjudicator erred in law in relation to what is said to be a ruling as to the applicable bylaws for Billington Court. It is contended in support of that ground that there ought be an order declaring that the applicable bylaws were those which were set out in the current Act.
- In relation to this issue the Adjudicator held as follows;
- Mr Perrin notes that the community management statement (CMS) for Billington Court records in part 5 “By-Laws” the following:
Taken to be those in effect as at 13 July 2000.
[Section 285(5)(a) Body Corporate and Community Management Act 1997]
- Mr Perrin states that he observes that section 285 of the Act is titled “Limitation of powers of adjudicator” and concludes that the entry under “By-Laws” in the CMS is an error and therefore a defect in the form and content of the document. He further states that a purchaser of a lot in Billington Court has no way of ascertaining what, if any, the applicable by-laws were at 13 July 2000. There is no printed document available for inspection, he states. He goes on to state that section 168(2) of the Act applies and the applicable by-laws are those found in Schedule 4 of the Act.
- The Body Corporate and Community Management Act 1997 (the Act) commenced on 13 July 1997. At that time, by virtue of section 285 of the Act (as it was then written) existing bodies corporate were provided with an interim CMS which continued in force until either a new CMS was recorded for the scheme, or, if a new CMS was not recorded, for three years thereafter. At the end of the three years (13 July 2000), if a new CMS had not been recorded for the scheme, the Registrar of Titles recorded a Standard CMS for the scheme.
- The CMS recorded for Billington Court is a standard CMS that was recorded by the Registrar of Titles on 13 July 2000.
- The Standard CMS states the name of the body corporate, the address for service of the body corporate, the name and address of the original owner, identifies the regulation module applying to the scheme, and includes contribution and interest lot entitlement schedules. The standard CMS also includes at Section 5, information about by laws. The section states:
By-laws – Taken to be those in effect as at 13 July 2000.
- In effect, this means that the by-laws applying in the Standard CMS will be those that were in force for the scheme immediately before the end of the three years, although they will not be stated on the CMS. It is not, as Mr Perrin contends, an error in the CMS.
- In order to determine what by-laws apply to the scheme, a search of the indefeasible title for the common property of the scheme must be conducted at the Titles Office Registry. Any by-laws that the body corporate had previously recorded will be shown as ‘dealings’ on the title. If the search indicates that no change of by-laws have been recorded it does not mean that the body corporate has no by-laws.
- Mr Perrin’s assertion that the applicable by-laws are those contained in Schedule 4 of the current Act is incorrect. In fact, the applicable by-laws for Billington Court are those contained in Schedule 3 of the BUGTA, which were the by-laws in effect at the time the standard CMS was recorded on 13 July 2000. There is no evidence to suggest that the body corporate has ever added to, amended or repealed these by-laws.
- It is not obvious that the Applicant in fact seeks to prosecute this ground of appeal amongst his amended grounds of appeal and associated submissions. There appears to be no direct submission which addresses this ground of appeal. It has not however been expressly stated to be abandoned as a ground. N neither party addresses the issue in their submissions. Out of an abundance of caution and for completeness I will deal with the issue. In my view that reasoning of the Adjudicator set out above discloses no apparent error of law.
- The second ground of appeal asserts that the Adjudicator made an error of law in the application of an interpretation of the decisions referenced in the Reasons in relation to whether the body corporate acted reasonably in not passing the relevant resolutions. The argument developed upon this point in this Appeal is really of broad scope which seeks, it would appear, to apply that contention to all of the resolutions which are affected by all of the grounds of appeal. In terms of addressing the question of how and in what particular way the Adjudicator erred in the interpretation and application of the requirement of bodies corporate to act reasonably as interpreted by the Court is not specifically addressed in the Appellant’s written argument.
- In relation to this issue the Adjudicator held that a Body Corporate must act reasonably in fulfilling its functions under section 94(1) of the Act. In that context the test postulated and applied by the Adjudicator in the reasons was as follows;
- The test for reasonableness was noted most recently in Body Corporate for Beaches Surfers Paradise v. Backshall. While noting the different context, Justice Carmody cited the explanation by Nettle J in Ainsworth v Albrecht on the test of body corporate reasonableness in the following manner:
“...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 of the kind that were essayed in Norbis v Norbis. The standard of reasonableness is objective and it is to be applied in this case at the time of rejection of (the defeated) motion taking into account all relevant factors including factors which were extant but which the parties may not have identified or appreciated at the time, as is implied by the words "in the circumstances..."” (citations omitted)
- Justice Carmody added that reasonableness involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue and requires that all relevant matters are taken into consideration. (footnotes omitted)
- The decision in Body Corporate For Beaches Surfers Paradise v Backshall  QCATA 177, to which the Adjudicator made reference does not in my view assist or add anything to what the High Court said in Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167. Indeed the decision in Body Corporate For Beaches Surfers Paradise v Backshall at - appears to involve an analysis and adoption of principles derived from administrative review of decisions and the legal standard of reasonableness for a statutory discretion in Australia. As the High Court made clear in Ainsworth & Ors v Albrecht at - set out below, those tests do not apply in this context. The reasons in Beaches Surfers Paradise do discuss other tests for reasonableness but in that case in the context of Committee decisions, not decisions of the Body Corporate in general meeting, which is what the High Court in Ainsworth & Ors v Albrecht was concerned with.
- In relation to the Adjudicator’s analysis, reference can be made to the judgement of the majority in the High Court in Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167, where what was said on this topic at - was as follows:
The reliance by the Court of Appeal and by the first respondent in this Court upon the judgments in Waters v Public Transport Corporation was misplaced. That case was concerned with the duty of a decision-making body to reach a reasonable decision taking into account competing considerations. A lot owner voting his or her opposition to a motion is not a decision-maker of this kind. The adjudicator's task under Item 10 of Sched 5 is not to determine whether the outcome of the vote of the general meeting of the Body Corporate was a reasonable balancing of competing considerations, but whether the opposition of lot owners to the proposal was unreasonable. Given that the adjudicator's concern with s 94(2) led her to address the wrong question, namely whether the Body Corporate's decision was reasonable, her ultimate conclusion was inevitably affected by an error of law. The same error infected the approach of the Court of Appeal. Once the Court of Appeal accepted, as it did, that the grounds of opposition to the proposal considered by the adjudicator raised questions in respect of which reasonable minds may differ as to the answer, it is impossible to see how opposition to the first respondent's proposal based on those grounds could be found to be unreasonable. (emphasis added)
- That conclusion by the High Court serves to emphasise that the test for unreasonableness is not whether someone objectively considered all relevant circumstances, except perhaps in the context of there being a duty on a decision-making body to reach a reasonable decision taking into account competing considerations. Moreover bodies corporate generally have their own interests to consider and that informs the way in which their decisions are to be viewed in terms of their reasonableness. It is timely to note that as the High Court has said, the question is whether conduct of a body corporate is objectively unreasonable, not whether an Adjudicator is satisfied it is reasonable.
- Hence as the majority the High Court said in Ainsworth at :
It is no light thing to conclude that opposition by a lot owner to a resolution is unreasonable where adoption of the resolution will have the effect of: appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners; altering the features of the common property which it exhibited at the time an objecting lot owner acquired his or her lot; and potentially creating a risk of interference with the tranquillity or privacy of an objecting lot owner. In the circumstances of the case, the Tribunal was correct to hold that the adjudicator erred in law in reaching that conclusion; and the Court of Appeal erred in concluding otherwise.
- The Appellant’s contention, made in numerous places throughout his submissions is to challenge the reasonableness of the Body Corporate doing or not doing certain things, as the case may be. As the High Court held, the Adjudicator's task was not to determine whether the outcome of the vote of the general meeting of the Body Corporate was a reasonable balancing of competing considerations, but whether the opposition of lot owners to the motions put by the appellant was unreasonable. The appellant poses the wrong question, namely whether the Body Corporate's decision was reasonable. The same error infected the approach of the Court of Appeal.
- Once the adjudicator accepted that the grounds of opposition to the motions considered by the adjudicator raised questions in respect of which reasonable minds may differ as to the answer, it is impossible to see how opposition to the appellant’s motions based on those grounds could be found to be unreasonable. In my view that reasoning discloses no apparent error of law.
- Ground 3 of the Appeal contends that the Adjudicator erred in law in deciding to declare that Lot 2 shared a common wall with Lot 3. In that context the Appellant seeks an order declaring that the building on Lot 2 does not share a common wall with a building located on any other land located within the scheme.
- The Adjudicator held that Mr Perrin has submitted the a motion to the AGM (recorded as Motion 15 on the agenda for the AGM): ‘That the Body Corporate of Billington Court C.T.S. 20763 hereby resolves to adopt the following policies and procedures for managing any voluntary insurance scheme established pursuant to s 185 of the BCCM Regulations 2008 ....’
- The Adjudicator noted that the motion continued for over a page of policy and procedure details. Motion 15 was not carried, with three votes in favour and five against.
- The Adjudicator held that:
- Section 185 of the Standard Module enables a body corporate to establish a voluntary insurance scheme if the scheme was created under a standard format plan of subdivision and on one or more of the lots, there is a stand-alone building having no common wall with a building on another lot. Taking part in any such insurance scheme is optional.
- In his grounds, Mr Perrin states that the scheme comprises ten lots with free standing individual buildings. He claims that whilst Lots 2 and 3 and 5 and 6 share a roof, they do not share a common wall. He states that the current insurance arrangements are based on the false assertion that there exists common walls shared by the buildings located between Lots 2 and 3 and between Lots 5 and 6. He asserts that the scheme’s layout dictates that the insurance policy for lot owner buildings would come under the category of a voluntary insurance scheme.
- Mr Perrin is mistaken on both counts, in my view. Firstly, as a matter of fact, Lots 2 and 3 and 5 and 6 appear to me to not be stand-alone. They share a common wall (even if it is only ‘hardiplank’ and not load bearing) and roof and guttering. Photographs submitted by owners clearly depict this. By virtue of section 180 of the Standard Module, the body corporate is obliged to insure each building on a lot that has a common wall with a building on an adjoining lot. Mr Perrin is unable to take out his own insurance as his townhouse is not a stand-alone building. Secondly, section 185 does not oblige the body corporate to offer a voluntary insurance scheme to owners of freestanding buildings – it allows it to. The body corporate is able to take out insurance for buildings with common walls and may also give effect, in whole or in part, to a voluntary insurance scheme. Mr Perrin has offered no grounds as to why he believes the body corporate decision made at the AGM on 8 December 2016 not to carry Motion 15 was an unreasonable decision in all of the circumstances, as opposed to him simply disagreeing with it.
- At my request, the body corporate manager supplied me with a copy of the insurance approved by the body corporate by Motion 7 of the AGM of 8 December 2017. It appeared to me to be generally compliant with the legislative requirements. In any event, I note that the period for which the insurance cover was obtained ended on 19 October 2017 and the body corporate will in the very near future, if it has not done so already, be arranging insurance for the current financial year.
- There is no basis in law for the order sought in this regard to be made and this aspect of the application is also dismissed.
- The submissions advanced in support of this ground in the Appeal adopt somewhat of a scattergun approach to the contention which is said to found Ground 3. It is not easy to tease out of the multiplicity of arguments which are advanced purportedly in support of this ground what precisely the argument is as to the way in which the Adjudicator erred in law. Many of the Appellant’s submissions seem to direct themselves to issues of fact, or seek to raise evidentiary issues themselves which were not open to be determined by the Adjudicator in the first place. The question of whether properties share a common wall is self evidently a question of fact.
- Doing the best one can with the scattergun arguments ,what is said in support of this ground is that the order sought is not a frivolous one, but founded on a fundamental right of a lot owner to choose that lot owner’s own insurer, with terms and conditions of insurance decided by that lot owner and not the Body Corporate. The Body Corporate is said to be the insured entity and that does not specify that the lot owner is an insured person. In that context it is argued that the assertion that there exists a common wall which is capable of being insured by the Body Corporate is a ‘deliberate misrepresentation designed to create a legal fiction that it can be used to obtain a blanket insurance for both common property and buildings’.
- In that context, the remedy sought by the Appellant, which was not a remedy sought before the Adjudicator, is for a declaration that the timber screens in the carport areas of Lots 2 and 3 do not constitute a common wall for the purpose of insurance under the Act.
- As the written submissions for the Body Corporate identify, this ground of appeal appears to proceed upon a misunderstanding as to the nature of an appeal, and seems to imply that this Tribunal can make orders which the Adjudicator did not have jurisdiction to make. As those submissions correctly point out, the Appellant’s submissions do not articulate how the orders which are sought relate to the relief originally sought from the Adjudicator, to the specific orders made by the Adjudicator, and the orders now sought were not orders sought by the Adjudicator.
- This ground of appeal relates to the original motion 15 which as has been noted, was not passed. As the Adjudicator properly held, there was nothing to demonstrate that the decision not to pass that motion was unreasonable. The question of the significance or otherwise of the Body Corporate’s capacity to insure an area which is a question of fact was determined to be an area involving a common wall, and whether it is or is not appropriate for individuals to be co-insured or take out their own insurance, does not raise a question of law, and does not demonstrate any error of law on the part of the Adjudicator. In my view there is no substance to this ground of appeal.
- Ground 4 of the Appeal contends that the Adjudicator erred in law with respect to findings about the obstruction of the Applicant’s alleged rightful access to all common property located on the scheme land.
- In support of that contention an order is sought that all fences erected by lot owners which prevent the Applicant’s access to common property be removed immediately and that the common property be restored to a usable state for removal of fences and trees and building components at the expense of the lot owners, specifically the owners of Lots 3 and 6, who it is contended have fenced off the common property for their own personal use to the exclusion of all other lot owners.
- The Appellant had submitted the following motion (Motion 14) at the AGM:
That the Body Corporate of Billington Court C.T.S. 20763 hereby resolves that the owners of Lots 3 and 6 be instructed to remove from Common Property the fences which are obstructing the lawful use of the one metre wide Common Property pathway between 26 Government Road and 48 Billington Street, such obstruction being in direct breach of By-Law 3 Obstruction of the Body Corporate and Community Management Act 1997 Division 4.
- The Motion 14 was not carried, with two votes in favour, six against and one abstention.
- The Adjudicator held that the motion involved reference to the incorrect by-law. In this instance, the differences between by-law 3 of Schedule 4 of the current Act and by-law 3 of Schedule 3 of the BUGTA are inconsequential. By-law 3 of the BUGTA provides that a proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.
- The Adjudicator held as follows at -:
- In his grounds, Mr Perrin states that Billington Court has an unusual layout. Lots 1, 2, 3, 4, 5 and 6 are located on a block of scheme land which fronts onto Billington Street, Labrador with a street number of 48. Lots 7, 8, 9 and 10 are located on a block of scheme land which fronts onto Government Road, Labrador with a street number of 26. Contiguity of common property between the two land areas at 48 Billington Street and 26 Government Road is achieved with a one metre wide strip of common property between the two land areas. All lot owners are joint owners of common property. Mr Perrin states that he has never had access to the one metre strip of common property between Lots 3 and 6. Mr Perrin further explained in his reply to the submissions that he would like to be able to walk from 48 Billington Street through the one metre wide common property strip to 26 Government Road, and then onto the shopping centre over the hill. At the moment, he has to take a five minute detour around the block.
- The occupier of Lot 6 submits that he and his wife have lived at Lot 6 for 15 years and they have never heard of a walkway in this location. The family that Lot 6 was bought off never advised of any walkway and the lawyer made no indication of any walkway on the title deeds.
- The owner of Lot 3 submits that to her knowledge, there has never been a pathway in place and this has been confirmed by two of the boundary neighbours on Nevenia Street who have lived at their residence for 65 years. The owner who has been in the complex the longest (owner of Lot 4 who has been there 16 years) confirms that it wasn’t there when she purchased. All current owners understand that although the block of six and the block of four are joined together for body corporate purposes, in all other respects they are separate. Many current owners on the Billington Street side purchased their townhouses not even being made aware that there were another four units included in the body corporate. To put in a pathway now would involve huge expense (to remove the existing trees, have the land resurveyed and new plans drawn plus new fences and a pathway) and distress as well as creating a security problem as the complex is not gated and it would enable the public to use the driveways as a pedestrian thoroughfare. The area in question has trees that are well established and at least 30 metres high. There has never been a need or desire for this pathway. It is just another attempt by the applicant to cause distress to the other lot owners. The owners of Lots 1, 4, 5 and 10 agree, submitting that there has never been access between the two complexes. It has been voted on many times over the years to take the fences down and the majority vote has always been no. These owners expressed concerns with security should the pathway be established. In addition, the owner of Lot 5 stated that the owners of Lots 3 and 6 did not place the fence in this position, it was erected by the developer of the scheme during initial construction.
- Mr Perrin replied to the submissions stating that the appeal to security concerns does not make sense. There is no front fence or gate at the entrance to 48 Billington Street which would indicate that the body corporate and lot owners are not concerned with even basic or common security measures. The owner of Lot 8, states Mr Perrin, indicated to him that the walkway and associated gateway were there when he purchased and took up residence, but that the GCCC had undertaken stormwater drainage work sometime in the past and that when that work was completed the “walkway had disappeared”. The owner of Lot 8 did not make a submission in response to the application.
- Owners making submissions have clearly articulated their reasons for voting against the motion. The material before me does not satisfy me that the body corporate decision not to pass Motion 14 was objectively unreasonable in all of the circumstances.
- In any event, this issue appears to me to raise a question about title to land, an issue I have no jurisdiction to resolve. Whilst the group title plan registered with the Titles Office in July 1989 does record the existence of a very small area of common property between Lots 3 and 6 and between Lot 6 and a neighbouring lot on Government Road, based on submissions received, it may be the case that the fencing erected by the developer and/or subsequently repaired or replaced by the GCCC after stormwater drainage work was undertaken, means it may never have existed in reality. It is clear that it has not been used as common property for many years.
- Once again the precise basis upon which it is sought to sustain this ground is not readily apparent from the Appellant’s written submissions, which run to two pages on this topic. They blend arguments about the issue of whether there is an applicable bylaw, with assertion as to what were or were not contested or uncontested facts. As well, there are arguments about it not being reasonable for a Body Corporate to refuse to enforce the bylaw, although the relevant motion set out above did not specifically deal with the issue in the way thus articulated.
- The Appellant’s arguments seek to challenge the conclusions of the Adjudicator by contending that the Adjudicator ignored certain facts, or what are contended to be facts. The ultimate contention appears to be that the Adjudicator’s decision is ‘tantamount to ratifying and condoning a tortious conversion of land for personal use’ and that this conclusion ignored the relevant bylaw that an occupier of a lot not obstruct lawful use of common property and has ignored the requirement for a boat without descent for an exclusive use right to be granted. Again, these arguments fail to grapple with the requirement of the Act to identify an error of law on the part of the Adjudicator as the basis for sustaining these arguments.
- As the Adjudicator’s reasosn show, part of the factual background to this issue concerns the factual issue of who erected certain obstructive fences between Lots 3 and 6 or whether the owners of Lots 3 or 6 requested to be granted exclusive use or otherwise of the one metre strip of common property in question. At a general level it may be said that it was factually unclear to the Adjudicator whether the fencing in question was erected by the original proprietor or developer, or was replaced by the local authority after stormwater damage and whether it was ever the case that the purported pathway ever existed in reality.
- In its submissions on this issue, the Body Corporate raises many factual issues which, it would appear from the material, were not either directly before the Adjudicator or taken into consideration in arriving at the conclusions which the Adjudicator reached.
- The Body Corporate submits, and I accept, that it has not been shown to be unreasonable for the Body Corporate not to have passed the Appellant’s Motion 14. Had it been passed, it would have obliged the owners of Lot 3 and 6 to bear the cost of removal of the fencing on what was Body Corporate property without them having made any additional provision for the obtaining of Local Authority consent to remove certain trees, of the cost of works associated with the removal of the trees, and the cost to reinstate the fences on the proper boundary lines.
- The Body Corporate accepts the conclusions of the Adjudicator that the Body Corporate did need to regularise the position in relation to this affected area, however none of that, in my view demonstrates that there is any error of law on the part of the Adjudicator in making the findings that were made on this ground.
- Ground 5 contends that the Adjudicator erred in law in the Adjudicator allegedly declaring that the Body Corporate refusal to establish exclusive use bylaws was reasonable. Apparently ancillary orders are sought in support of this ground directing the Adjudicator to in turn direct the body corporate to create a new community management statement which would include exclusive use bylaws in favour of all 10 lots located within the scheme.
- The Appellant had submitted 12 motions (Motions 16 to 27), each proposing that the body corporate grant a right of exclusive use to each of the ten lots included in the scheme. The areas these motions referenced to be allocated for exclusive use were described in the motion as: ‘common property areas between the building on Lot X and the driveway of 48 Billington Street’ for Lots 1, 2, 3, 4, 5 and 6 and ‘common property area located immediately adjacent and parallel to the south fence of Lot X’ for Lots 7, 8, 9 and 10. In addition, motions were proposed to grant the owners of Lots 3 and 6 exclusive use of the ‘common property pathway which connects the properties located at 48 Billington Street and 26 Government Road’.
- Before the Adjudicator the Appellant had submitted in relation to Lots 7, 8, 9 and 10 that there is a common property strip six metres wide located along the southern boundary fence and (in most cases) the southern wall of the building located on the adjoining lot.
- The Adjudicator held that this common property strip was created at the request of the Gold Coast City Council during the Development Application approval process, so that access to a stormwater drainage easement along the southern boundary line could be granted by the body corporate.
- The Adjudicator also held that:
None of these common property areas are accessible except with the express permission of the lot owner whose property adjoins the common property or neighbouring (non-scheme land) properties. These areas are fenced off and are therefore inaccessible. As each of the lot owners at 26 Government Road has exclusive use of the common property areas which have been subsumed by fencing to form one big area with the lot owner’s property, it would seem equitable that the Commissioner facilitate the granting of an exclusive use right to be registered on the CMS. The current situation is that one lot owner complained to the body corporate about the state of his neighbour’s back yard (grass overgrown and rats and vermin infesting the long grass and causing a potential danger for his young child) and demanded that the body corporate clean up the back yard. This was not easy to achieve as the offending lot owner does not communicate with other lot owners and is the owner of a rather large black dog. If each of the 26 Government Road lot owners was to be granted an exclusive use right over the common property strip, then the responsibility for looking after the land would be taken from the body corporate and placed with the respective lot owner/s. As it stands, the body corporate is responsible for maintaining common property (including the boundary fence along the common property) but only one of the ten lot owners can enjoy the benefits of that common property area.
- The Adjudicator held that:
- In relation to Lots 1, 2, 3, 4, 5, and 6, Mr Perrin submits that each of the owners have for at least the years 2006 to 2017, performed landscaping and maintenance of the common property areas immediately adjoining the buildings located on their lots and situated between the buildings and the driveway. Each owner has tacitly exercised a right of exclusive use over these common property areas. These ‘rights’ have remained unspoken and unwritten – there seems to be an understanding between lot owners. Some owners have constructed pergolas on the common property. All owners have exercised the right to remove and replace vegetation at their own discretion. Some lot owners have removed most of the shrub and tree vegetation and replaced it with gravel and cactus plants. None of these maintenance or construction activities have ever been conducted with approval from the body corporate. All lot owners just proceed to carry out their landscaping work as if the common property was part of their lot. There has been no established plan of development or landscape design whatsoever during the period 2006 to 2017. It seems equitable for the BCCM to facilitate the creation of exclusive use rights in favour of respective lot owners in a new CMS, states Mr Perrin.
- Owners making submissions commented that there is no need for exclusive use; that each owner cares for and looks after the small patch of ground local to their unit. The granting of exclusive use would require resurveying of the land and new plans, as well as a new CMS being recorded. One owner further commented that the issue raised by Mr Perrin, about a particular owner who has been battling cancer and has not been able to maintain his property, would still be an issue even if he were granted exclusive use rights. Nothing has changed with regards to the complex for the last 30 years. In 2014, when the Council required access to the easement to fix storm water drains, they contacted the body corporate and lot owners and the work was completed without issue, replacing all fencing that was damaged.
- I note that each of motions 16 to 27 listed in the agenda for the AGM was described as requiring a special resolution. This is incorrect. A grant of exclusive use can only be made by resolution without dissent. Each of motions 16 to 27 failed to pass by even ordinary resolution, with six votes against and only two votes in favour, with the exception of Motion 19 (proposing exclusive use of the common property pathway which connects the properties located at 48 Billington Street and 26 Government Road), with four votes in favour and five against. There are a number of other requirements for the recording of an exclusive use by-law. These include that the common property to which the by-law applies is specifically identified in the by-law and that the lot owner to whom exclusive use is to be granted agrees in writing before the passing of the resolution without dissent consenting to the recording of a new CMS, or votes personally in the resolution. Before the registrar records a CMS that includes an exclusive use by-law, the registrar may require the common property the subject of the by-law to be identified in a plan, or in another way the registrar directs, to avoid doubt about the extent of the common property the subject of the by-law http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2017/611.html - fn9.
- Clause 10 of Schedule 5 of the Act enables an Adjudicator, if satisfied a motion considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable, may make an order giving effect to the motion as proposed, or a variation of the motion as proposed.
- Owners making submissions have clearly articulated their reasons for voting against the motions proposing exclusive use. I do not consider their opposition unreasonable, in the circumstances. The material before me does not satisfy me that the body corporate decisions not to pass Motions 16 to 27 were objectively unreasonable in all of the circumstances.
- Once again, it is difficult to tease out of the submissions for the Appellant any substantive argument which challenges any finding which the Adjudicator made which involved an error of law.
- Although this is not clearly articulated, insofar as this ground of appeal relates to motions 16 to 27, in my view the decision by the Adjudicator that it was not shown to be unreasonable for the Body Corporate not to pass those motions has not been shown to be erroneous.
- As the Body Corporate properly submits, the Adjudicator found that there were technical problems with each of those motions which would have meant that it was inappropriate for the Body Corporate to have passed them in any event. It is scarcely therefore arguable that the Adjudicator made an error of law in not concluding that failing to pass them was unreasonable and demonstrably so.
- Again, the Body Corporate concedes that the general subject matter of this ground of appeal, namely to resolve the issue of the grant of exclusive use to certain parts of the common property, will mean that the Body Corporate will need to confront and deal with in a lawful fashion. That does not, however, lead to the conclusion that failing to pass Motions 16 to 27, with the possible exclusion of Motions 19 and 23, was unreasonable, or that the Adjudicator’s decision on this issue showed some error of law.
- The sixth and final ground of appeal contends that the Adjudicator erred in law in making a declaration that it was not possible to raise a levy against the owner of only one lot, or a few lots. In support of this ground, an order is sought declaring that the body corporate must issue a levy notice to each lot owner for whom fence repairs etc are carried out under s 311 of the Act, and as required by s 169(3) of the Regulations to the Act.
- The Appellant submitted to the AGM as Motion 28, the following:
That the Body Corporate of Billington Court C.T.S. 20763 hereby resolves to adopt the following policies and procedures for managing the repairs to and replacement of Lot owner fences located on the scheme boundary line which are covered by s 311 “Body corporate taken to be owner of parcel for certain Acts etc.” – Body Corporate and Community Management Act 1997
- If a Lot owner is approached by the neighbour sharing the s 311 fence then the Lot owner is to immediately advise the neighbour that any request made under the Neighbourhood Disputes (Dividing Fences) Act 2011 is to be directed to the Body Corporate Manager, and to give that neighbour the contact details (including postal address, email address and phone number) of the Body Corporate Manager.
- The Body Corporate is to manage all proceedings under the Neighbourhood Disputes (Dividing Fences) Act 2011. The Lot owner’s rights are limited by the obligations imposed on and rights bestowed on the Body Corporate by s 311 – eg the Body Corporate may determine the type, size, shape and other details of the fence to be constructed, as these matters are dictated by the Diving Fences legislation.
- If it is resolved pursuant to the Dividing Fences legislation that repairs to or replacement of the fence in question is to progress, the Body Corporate will pay for such repairs or replacement from the Sinking Fund.
- A levy to the exact value of the amount paid for the repairs or replacement of the fence in question is to be raised against the Lot (or Lots) that the fence in question is located.
- That levy so raised, if it remains unpaid, will be recoverable in the same manner as any other levy debt.
- Motion 28 was not passed, with three votes in favour and six against.
- The Adjudicator held as follows on this issue:
- Motion 28 is in my view, clearly inconsistent with the legislation and therefore invalid. Section 141(5) of the Standard Module provides that the contributions levied on the owner of each lot (other than contributions payable for insurance and any other matter for which, under the Act or regulation, the liability attaching to each lot is calculated other than on the basis of the lot’s contribution schedule lot entitlement) must be proportionate to the contribution schedule lot entitlement. It is not possible to raise a levy against the owner of only one lot, or a few lots. Mr Perrin’s desire to do so appears to me to be based on a misconception of the Dividing Fences legislation, which makes the two adjoining land owners jointly responsible for the repair and/or replacement of a ‘sufficient’ dividing fence. Section 311(1) of the Act makes the body corporate the owner of the land where a community titles scheme is an adjoining land owner. The body corporate is therefore jointly responsible, with the adjoining land owner, for maintaining and, if necessary replacing, boundary fences between a lot and an adjoining property because the fence is in essence, the boundary of the scheme.
- I have dismissed this aspect of the application as being misconceived and without substance.
- Again, precisely what the failure to pass what motion this ground relates to is not articulated in the appeal submissions although one can glean, as I have said already that they relate to Motion 28.
- The confused the confusing written submissions for the Appellant contain a hotchpotch of arguments which make reference to legislative provisions that concern dividing fences laws, which have no application, and contend that the liability for cost associated with fence repairs clearly lies with each individual lot owner.
- His argument , based upon the Neighbourhood Disputes (Dividing Fences) Act and the BCCM Act is that these laws do not relieve individual lot owners of the responsibility to reimburse the Body Corporate for repairs to their boundary fences, and that if this is the proper interpretation of those provisions, then it is unreasonable for the Body Corporate to fail to pass a motion which gives effect to that interpretation.
- In this context, there is also an argument which is frankly nonsensical, that applying the principles of natural justice, QCAT ought overturn the Body Corporate’s decision and the motion be declared as passed. It is unquestionably the case that the motion was not passed on the votes, and it would not on the facts either before the Adjudicator or here be possible to declare that motion passed.
- Once again, there is no demonstrated error of law on the part of the Adjudicator in relation to this issue and this ground must fail.
- It follows, that in my view, none of the grounds of appeal is made out. Accordingly, the appeal is dismissed.
- Published Case Name:
Nigel Robertson Guy Perrin v The Body Corporate for Billington Court CTS 20763
- Shortened Case Name:
Perrin v The Body Corporate for Billington Court
 QCATA 36
27 Mar 2019